New York State Court of Claims

New York State Court of Claims
BUSH v. STATE OF NEW YORK, # 2018-053-521, Claim No. 125154, Motion No. M-91718

Synopsis

Pro se inmate's motion to compel the State to conduct and pay for an independent medical examination to determine any damage to his eye arising from an alleged assault is denied.  22 NYCRR 206.14 of the Uniform Rules for the Court of Claims does not require that the State provide claimant with and pay for a physician to conduct an independent medical evaluation, nor does it require the State to conduct an independent medical examination.

Case information

UID: 2018-053-521
Claimant(s): TIMOTHY BUSH
Claimant short name: BUSH
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125154
Motion number(s): M-91718
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: TIMOTHY BUSH, Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 27, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Timothy Bush, an inmate proceeding pro se, alleges in claim no. 125154 that he was assaulted by his cell mate, K. Melendez, on August 23, 2013 while he was incarcerated at Lakeview Correctional Facility (Lakeview) due to the negligence of the Department of Corrections and Community Supervision (DOCCS). Claimant moves to compel an independent medical examination to be paid for by the defendant. Defendant opposes the motion.

By his motion, claimant seeks the assignment of an optometrist to examine him to determine the damage done to his right eye from the alleged assault. In addition, claimant requests that the cost of this expert's evaluation and any costs associated with this expert's trial testimony be assigned to the defendant. In support, claimant relies on 22 NYCRR 206.14 of the Uniform Rules for the Court of Claims, which provides for the exchange of medical reports in personal injury and wrongful death actions. If defendant decided to conduct an independent medical examination (IME), then defendant would be required to provide claimant with a copy of its expert's report. Nothing in section 206.14 of the Uniform Rules for the Court of Claims, however, requires that defendant conduct an IME.

The Third Department in Gittens v State of New York, 175 AD2d 530, 530-531 [3d Dept 1991] stated that:

" There is no general provision which requires the State to pay

the litigation expenses in claims brought against it. Court of Claims

Act 27 specifically provides that, except in instances not here

present, 'costs, witnesses' fees and disbursements shall not be

taxed ... by the court to any party.' Moreover, claimant is an

inmate in a State correctional facility subject to a sentence of

imprisonment. Civil Rights Law 79 (3) and 79-a (3)

specifically provide that the State shall not be liable for any

expense of, or related to, inmate litigation and shall not be required

to perform any services related thereto, particularly where, as here,

poor person status has not been granted (Citation omitted)."

Further, claims for personal injuries are typically handled by private attorneys who advance litigation expenses, such as the cost of expert witnesses. Accordingly, claimant's motion to compel the assignment of an optometrist to conduct an IME and to compel defendant to pay the cost of the expert examination and any costs associated with this expert's trial testimony is denied (Martinez v State of New York, 111 AD3d 1445 [4th Dept 2013]; Towner v State of New York, UID No. 2015-053-504 [Ct Cl, Sampson, Aug. 12, 2015]).

Based on the foregoing, claimant's motion no. M-91718 is denied.

April 27, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affidavit of Timothy Bush sworn to January 19, 2018; and

2. Opposing affirmation of Assistant Attorney General Wendy E. Morcio dated March 2, 2018.