Claimant's motion to compel responses to discovery demands denied as premature.
|Claimant short name:||BOWMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||EDWARD BOWMAN, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that defendant's agents committed medical malpractice at Green Haven Correctional Facility (CF) beginning on March 9, 2017. Claimant now moves to compel defendant to respond to certain discovery demands. Defendant opposes the motion.
The claim alleges that following a March 9, 2017 MRI of claimant's left shoulder, which revealed a partially torn rotator cuff, members of the Green Haven CF medical staff, including Dr. Robert Bentivegna, Dr. Albert Acrish, and an unnamed physical therapist, committed medical malpractice by causing claimant to undergo a course of physical therapy between April 18, 2017 and September 18, 2018, which exacerbated his injury and led to the need for surgical intervention (see Claim No. 134541, ¶¶ 2-28). The claim alleges that due to the failure of defendants' employees to properly diagnose and treat his injury, he sustained a complete tear to his left rotator cuff, experienced persistent pain, numbness, and loss of strength in his left arm, and mental anguish (see id. at ¶¶ 29-34 [a-b]). The claim also alleges a violation of claimant's "New York State Constitutional and Federal Protections against [sic] adequate medical care" and seeks $1 million in damages (id. at ¶ 34 [c]).
Claimant now moves for an order compelling defendant to respond to a notice of discovery and inspection seeking "disclosure of the contents of all primary and excess insurance contracts all Medical Malpractice Insurance Coverage by the State of New York" with respect to the three providers named in the claim, and a sworn statement detailing the number of medical malpractice suits brought against the three providers and the amount of money paid out with respect to those matters (see Notice of Motion for Discovery/Inspection of Insurance Agreement CPLR 3101 [f], ¶¶ 1-2). Claimant also seeks an order compelling defendant to respond to a notice to produce the names, addresses, qualifications, and the anticipated testimony of all expert witnesses defendant intends to produce at trial (see Notice to Produce Names and Address of All Witness and Expert Witness, ¶¶ 1-3). Defendant opposes the motion on the ground that a review of defendant's files related to this claim reflects that "defendant received no discovery requests prior to the filing of the instant motion," which must therefore be denied as premature (Gavin Affirmation, ¶ 2).
The CPLR authorizes a motion to compel disclosure only "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or [discovery] order" (CPLR 3124), and here, claimant's submissions and defendant's opposition papers indicate that the two discovery demands, which are both dated April 20, 2020, were served on defendant for the first time on April 21, 2020 in connection with the instant motion (see Notice of Motion for Discovery/Inspection of Insurance Agreement CPLR 3101 [f], dated Apr. 20, 2020; Bowman Affidavit of Service [Notice of Motion for Discovery/Inspection of Insurance Agreement], sworn to Apr. 21, 2020; Notice to Produce Names and Address of All Witness and Expert Witness, dated Apr. 20, 2020; Bowman Affidavit of Service [Notice to Produce Names and Address of All Witness and Expert Witnesses], sworn to Apr. 21, 2020]). Claimant thus has failed to demonstrate that the instant motion was preceded by service of the subject discovery demands and that defendant failed to adequately comply with the requests, and the motion to compel must be denied as premature (see Keitt v State of New York, UID No. 2018-038-532 [Ct Cl, DeBow, J., Apr. 6, 2018]; Dorvincil v State of New York, UID No. 2018-038-564 [Ct Cl, DeBow, J., June 27, 2018]; Perez v State of New York, UID No. 2016-018-729 [Ct Cl, Fitzpatrick, J., July 20, 2016]).
However, defendant has included with its opposition papers responses to the two discovery demands that are the subject of this motion (see Gavin Affirmation, Exhibit 2). Thus, even if claimant had served the demands prior to bringing the instant motion, defendant's responses, coupled with the lack of any reply to the responses by claimant arguing that the responses were deficient or inadequate, would render claimant's motion moot (see Stallone v State of New York, UID No. 2019-040-058 [Ct Cl, McCarthy, J., July 15, 2019]; Jones v State of New York, UID No. 2019-038-548 [Ct Cl, DeBow, J., June 19, 2019]).
Accordingly, it is
ORDERED, that claimant's motion number M-95609 is DENIED.
October 8, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 134541, filed February 27, 2020;
2. Verified Answer, filed July 14, 2020;
3. Notice of Motion for Discovery/Inspection of Insurance Agreement CPLR 3101 (f), dated April 20, 2020;
4. Affidavit of Service of Edward Bowman (Notice of Motion for Discovery/Inspection of Insurance Agreement), sworn to April 21, 2020;
5. Notice to Produce Names and Address of All Witness and Expert Witness, dated April 20, 2020;
6. Affidavit of Service of Edward Bowman (Notice to Produce Names and Address of All Witness and Expert Witnesses), sworn to April 21, 2020;
7. Affirmation in Opposition of Elizabeth A. Gavin, AAG, dated August 19, 2020, with Exhibits 1-2;
8. Affidavit of Service of Francine Broughton, sworn to August 20, 2020.