Pro se Claimant's Motion to compel discovery responses denied.
|Claimant short name:||SHATTUCK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Frank Shattuck, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: William E. Arnold, IV, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||April 17, 2019|
|See also (multicaptioned case)|
For the reasons set forth below, pro se Claimant's Motion to compel discovery responses pursuant to CPLR 3124 is denied.
The Claim, which was filed in the Office of the Clerk of the Court on September 26, 2018, alleges that, in February 2018, Claimant was engaged in a verbal altercation with another patient in the day room at Central New York Psychiatric Center (hereinafter, "CNYPC"). Claimant asserts that, when he stood up to confront the other patient, and prior to any physical contact being made, he was assaulted by two named and four unnamed staff members of CNYPC, resulting in Claimant sustaining multiple injuries (Claim, ¶ 3).
Claimant served upon Defendant a discovery demand, dated November 19, 2018, which was received November 29, 2018 (Ex. A attached to Defendant's Affirmation in Opposition). The State served a Response to Claimant's Demand on December 13, 2018(1) (Ex. B attached to Claimant's Affidavit and Ex. B attached to Defendant's Affirmation in Opposition [hereinafter, "Ex. B"]). Claimant's demand contained four paragraphs. Defendant responded to each of the four demands, and provided 12 pages of documents (id.). Claimant objects to the fact that Defendant has not provided him with a copy of his medical records and contends that "incident reports" were generated by CNYPC staff despite the fact that, in response to Claimant's Discovery request, Defendant asserted that "no 'incident reports' were generated" (id., ¶ 1).
CPLR § 3101(a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof."
The Court will first address Claimant's request for incident reports regarding the incident. "It is well settled that a trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Lamagna v New York State Assn. for Help for Retarded Children, 222 AD2d 559, 559-560 [2d Dept 1995]; Cruzatti v St. Mary's Hosp., 193 AD2d 579, 580 [2d Dept 1993]). It is axiomatic that "a party cannot be compelled to produce documents that do not exist" (Castillo v Henry Schein, Inc., id.). In such cases, however, the Court concludes that Claimant "is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents" (Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]; Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]). Here, in opposition to the Motion, Defendant has submitted, as Exhibit C attached to the Affirmation in Opposition, the Affidavit of Jill Grant, who is the Director of Risk Management at CNYPC, and has been since February 16, 2017 (hereinafter, "Grant Affidavit").
Ms. Grant avers that her duties require that she have access to, and maintain, patient records kept at CNYPC, which includes any incident reports involving CNYPC staff and/or patients (Grant Affidavit, ¶ 1). She further states that, at the request of the Attorney General's Office, she conducted a search of CNYPC's records in an effort to locate any incident report relating to an incident in February 2018 at CNYPC involving Claimant and CNYPC staff members. She did not find any incident reports that were generated as a result of the events described by Claimant in his Claim and/or Motion to Compel (id., ¶ 2).
Ms. Grant further avers that all documents in the possession of CNYPC that reference the incident were disclosed previously and provided to Claimant in response to his "Demand for Production of Documents," and are attached as Exhibit B to Defense counsel's Affirmation (Grant Affidavit, ¶ 3).
Thus, the Court concludes that Defendant has provided Claimant a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents, i.e., any incident reports regarding the February 2018 incident involving Claimant and CNYPC staff members, and the status is that no such documents exist. The Court finds Defendant's response to this request to be reasonable and proper.
The Court now turns to Claimant's request for a copy of all his medical records. Defendant objected to his request on the basis that Defendant is not required to incur Claimant's litigation expenses (Ex. B, ¶ 4). It is well settled that Defendant has the right to require a claimant to pay reasonable photocopying costs of documents demanded through the discovery process (Gittens v State of New York, 175 AD2d 530, 530-531 [3d Dept 1991]; see Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004]; Shell v State of New York, 307 AD2d 761, 762 [4th Dept 2003], lv denied 1 NY3d 505 ; Gamble v State of New York, UID No. 2017-040-137 [Ct Cl, McCarthy, J., Oct. 31, 2017]; Bourazanis v State of New York, UID No. 2017-054-008 [Ct Cl, Rivera, J., Oct. 18, 2017]).
In his Reply Affidavit, Claimant asserts that he has made several attempts to obtain his medical records by writing to "Medical Records Coordinator, Al Turner[,] who does not respond to Claimant's correspondence" (Claimant's Affidavit in Response to Defendant's Opposition, ¶ 2). Claimant attached to his affidavit, copies of four letters he wrote seeking copies of medical records. One is addressed to Mr. Lamitie on August 22, 2018. The other three are addressed to Mr. Turner, and dated August 30, 2018, December 21, 2018, and February 4, 2019, respectively. Claimant does not advise the Court where either of these gentlemen works. In addition, in his correspondence, Claimant does not inquire as to the cost of producing the copies. However, he does state in the December 21, 2018 letter to Mr. Turner that he knows he "[has] to pay for them."
The Court notes that Claimant may inspect his own medical records at the facility where he is currently housed by contacting the Nurse Administrator. The records can be reviewed at the medical unit if Claimant schedules an appointment to do so with the Nurse Administrator. If Claimant would like copies of any documents, he may notify Defendant's counsel, and, upon payment of photocopying costs, will be provided with the requested documents. The Court finds this response to be reasonable and proper (see Gamble v State of New York, supra; Amaker v State of New York, UID No. 2017-040-092 [Ct Cl, McCarthy, J., Aug. 8, 2017]).
Based upon the foregoing, the Court finds that the Defendant's responses to Claimant's discovery demand, dated November 19, 2018, to be reasonable and proper. Thus, Claimant's Motion to compel production of documents pursuant to CPLR 3124 is denied.
April 17, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion to compel:
Notice of Motion, Affidavit, and
Exhibits attached 1
Affidavit in Opposition and Exhibits attached 2
Claimant's Reply Affidavit and Exhibits attached 3
Filed Papers: Claim, Answer
1. The Response is dated December 11, 2018.