New York State Court of Claims

New York State Court of Claims
PETT v. STATE OF NEW YORK, # 2020-058-002, Claim No. 123650


Claim for personal injuries and intentional infliction of emotional distress for Defendant's failure to provide Claimant with copies and/or inspection of his medical records dismissed after trial.

Case information

UID: 2020-058-002
Claimant(s): GARY J. PETT
Claimant short name: PETT
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123650
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Gary J. Pett, Pro Se
Defendant's attorney: Hon. Letitia James, Attorney General
By: Thomas Trace, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 6, 2020
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for personal injuries and intentional infliction of emotional distress purportedly sustained due to the failure of Defendant to provide Claimant with copies and/or inspection of his medical records while incarcerated at Mid-State Correctional Facility. The trial of this Claim was conducted by videoconference on December 5, 2019, with the parties appearing at Marcy Correctional Facility and the Court presiding in Albany, New York. Claimant testified on his own behalf. Claimant offered no other witnesses or exhibits. Defendant offered two exhibits which were received into evidence by stipulation. Defendant did not present any witnesses. At the conclusion of Claimant's case and trial, Defendant moved to dismiss the Claim as the court lacked jurisdiction. After considering all testimony and evidence received at trial, reviewing the applicable law, and arguments made by the parties, the Court dismisses the Claim.

Claimant testified that he requested his medical records on two separate occasions. His first request was made in writing on September 19, 2013 (Ex A5). Shortly after making this request, Claimant was placed in the Special Housing Unit at Mid-State Correctional Facility (the "Facility"). The Facility instructed Claimant to request his documents again once released from the Special Housing Unit. As instructed, Claimant testified that he made a second, written request. The Facility responded by memorandum dated October 22, 2013 setting a date and time of December 6, 2013 at 8:00 a.m. for Claimant to inspect his medical records and determine, with specificity, what records Claimant wanted copied, if any (Ex A3). The Facility also advised Claimant of the $.25 per-page fee for copying records (id.). Claimant testified the Facility never took him from his cell to the medical unit on December 6, 2013 to review his medical records.(1) Claimant testified that he did not pursue any alternative relief for the purposes of obtaining his medical records. Claimant testified he was able to inspect all medical records approximately eight months after his initial request, although he is unclear as to the exact date of said inspection. Claimant further testified he is seeking damages for personal injury sustained in not having his medical records and knowing his diagnosis so that he could advise his doctor of his diagnosis as well as for stress he suffered for the eight months he was denied the ability to inspect and/or obtain his medical records.(2)

Following the presentation of Claimant's case, Defendant moved for judgment as a matter of law dismissing the Claim. Claimant opposed Defendant's motion. Defendant reiterated its application at the close of trial, and the Court reserved decision on all applications during trial.

As to Claimant's allegation that he sustained injury as a result of not receiving his medical records, knowing his diagnosis, and/or his ability to advise his doctor of same, said allegation is without merit. Claimant did not provide any evidence at trial, other than making a conclusory statement, that his inability to receive his records caused any injury relative to diagnosis and/or treatment.

According to DOCCS Health Services Policy Manual Item 4.04 and Section 18 of New York State Public Health Law, an inmate may request copies of his medical records. According to DOCCS policy, records are subject to a photocopying fee (Ex B2). Public Health Law sections 18 (2)(a), (d) and (e) provide that a subject is entitled to their records and the provider may assess a reasonable fee for copying same; however, said records are to be provided regardless of the subject's inability to pay for such records (see Matter of Pratt v Goord, 20 AD3d 827, 827-828 [3d Dept 2005]; Brabham v State of New York, UID No. 2006-041-004 [Ct Cl, Milano, J., Sept. 22, 2006]). Alternative remedies, including filing an inmate grievance and bringing a proceeding pursuant to CPLR Article 78 in New York Supreme Court, are available if said records are not provided (see Scott v State of New York, UID No. 2018-041-034 [Ct Cl, Milano, J., May 2, 2018]). Indeed, for this Court to award Claimant the money damages that he seeks, it would necessarily have to review the propriety of DOCCS' administrative determination denying Claimant prompt review of his records, which it cannot do (see id.). Claimant could have raised the allegations underlying his Claim in the context of an Article 78 proceeding (see e.g. Matter of Johnson v Annucci, 153 AD3d 1059 [3d Dept 2017], lv denied 30 NY3d 904 [2017]; Matter of McKethan v Stallone, 134 AD3d 1561 [4th Dept 2015]; Pratt, 20 AD3d at 827; Scott, UID No. 2018-041-034). However, Claimant concedes he did not pursue any alternative remedy to obtain his records during this eight-month denial period. Accordingly, the Court concludes that this Claim fails to state a cause of action against the State of New York.

The Claim also purports to state a cause of action for intentional infliction of emotional distress. The Claim fails to state a cause of action in this regard because the law is clear that where, as here, "the act complained of constituted official conduct, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress" (Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997] [internal quotation marks and citation omitted], lv denied 91 NY2d 814 [1998]; Scott, UID No. 2018-041-034). Defendant's act of providing medical records constitutes an official conduct; and therefore, Claimant cannot maintain a suit for intentional infliction of emotional distress for this permissible conduct. Even if such a claim exists here, Claimant has not established that the State's conduct was "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency'" (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] of Torts 46, comment d; see Howell v New York Post Co., 81 NY2d 115, 122 [1993]; Augat, 244 AD2d at 837). In addition, Claimant has failed to set forth any medical evidence of mental anguish (see Augat, 244 AD2d at 837; Glendora v Walsh, 227 AD2d 377, 377-378 [2d Dept 1996], lv denied 88 NY2d 812 [1996], cert denied 519 US 1122 [1997]).

Accordingly, Defendant's motion to dismiss, made at the conclusion of the trial, is now GRANTED. The Chief Clerk is directed to enter judgment in favor of Defendant dismissing Claim No. 123650. Additionally, all motions not previously ruled upon are denied.


January 6, 2020

Albany, New York


Judge of the Court of Claims


1 Claimant testified that he also requested his mental health records in and/or around the time he requested his medical records. Claimant received his mental health records and any issues relating to those records are not part of the instant Claim



2 During the trial Claimant testified he did not receive certain records due to his inability to pay for copying fees. The Court determines those records Claimant requested were mental health records and not medical records, and therefore, are not germane to the instant C

laim (see Ex A6, A7, A8 and A9).