Opinion
# 2016-009-024 Claim No. 115499 Motion No. M-86475
07-25-2016
PATRICIA A. McAVANEY v. THE STATE OF NEW YORK
SUGERMAN LAW FIRM, LLP BY: Robert P. Dwyer, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Patricia M. Bordonaro, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion for an order compelling claimant to provide certain mental health records was granted, despite claimant's objections that they were sensitive, private, and irrelevant to her claim for damages.
Case information
| UID: | 2016-009-024 |
| Claimant(s): | PATRICIA A. McAVANEY |
| Claimant short name: | McAVANEY |
| Footnote (claimant name) : | Claimant's attorney, in his response papers, has stipulated to a discontinuance of the derivative claim of Kevin McAvaney (see Paragraph 3 to Item 3), and the caption has therefore been amended to reflect this change. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 115499 |
| Motion number(s): | M-86475 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | SUGERMAN LAW FIRM, LLP BY: Robert P. Dwyer, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Patricia M. Bordonaro, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | July 25, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order compelling the claimant to provide authorizations and documents in response to previously served discovery demands.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Attorney's Affirmation, with Exhibits 1, 2
Affidavit in Opposition, with Exhibits; Affidavit of Patricia A. McAvaney 3, 4
Attorney's Reply Affirmation, with Exhibits 5
Documents and Records (submitted in camera) 6
At Paragraph 5 of her Affirmation in support of this motion (Item 2), defendant's attorney has set forth, in detail, certain documents and authorizations which she believes the defendant is entitled, and which have not been provided by claimant.
In Paragraph 5 (a), defendant requested signed medical authorizations. In response, claimant's counsel indicates that these additional medical authorizations have been provided to defendant's attorney. Defendant's attorney has responded, however, that the authorization for East Hill Family Medical, Inc. (East Hill) was incomplete and insufficient, and she has provided a new authorization for that medical provider. The Court assumes that claimant has since provided this additional authorization, but if not, the Court directs that claimant sign and provide it to defendant's attorney.
In Paragraph 5 (b), defendant's attorney has requested signed authorizations for counseling and/or mental health records from certain providers, including East Hill. The new authorization referenced in the above paragraph should be sufficient for the State to obtain the mental health records, if any, from East Hill.
In Paragraph 5 (c), defendant has requested authorizations to obtain social security and social security disability records, and other related documents. Although claimant has provided such an authorization, defendant's attorney (in her Reply Affirmation) has again indicated that this authorization is incomplete and insufficient. She has provided a new document and a new authorization which the Court assumes claimant has already signed and provided to the defendant. If not, the Court hereby directs that claimant sign and provide to defendant the proper authorizations as outlined in Paragraph 5 (b) the Reply Affirmation (Item 5), and Exhibit B attached thereto.
In Paragraph 5 (d), defendant has requested copies of divorce pleadings and other related records. In his response to this motion, claimant's attorney has provided whatever records that claimant has available, and has advised the defendant that claimant will voluntarily sign an authorization to release any additional records. Defendant's attorney has provided such authorizations (Exhibit C to Item 5), which the Court assumes that claimant has signed and provided to the defendant. If not, the Court hereby directs that claimant sign and provide to defendant such authorizations.
In Paragraph 5 (e), defendant has requested documents confirming the settlement of a related Supreme Court action against Barrett Paving. Claimant's attorney has provided defendant with sufficient documents and information to confirm that settlement, rendering this demand moot.
The essence of this discovery dispute, however, centers around claimant's reluctance to provide defendant with certain mental health records, specifically psychiatric records from Auburn Memorial Hospital, medical records from the Cayuga County Mental Health Center, and records from the Cayuga/Seneca Community Action Agency, Inc. Claimant considers these records sensitive and private, and further states that such records have no relevance to her claim for damages made in this particular claim. In fact, claimant's attorney has stipulated (Item 3) that any claim for psychiatric and/or mental health injuries previously asserted in this claim are hereby withdrawn, limiting the damages sought to physical injuries only.
Additionally, claimant has submitted to the Court, for in camera review, copies of the pertinent records from Auburn Memorial Hospital, Cayuga County Mental Health Center, and Cayuga/Seneca Community Action Agency, Inc. As a courtesy to the claimant, the Court has reviewed these records, over the objection of defendant's attorney (who contends that these records are not privileged and therefore do not need to be reviewed by the Court in camera).
It is abundantly clear that the rules governing disclosure are very broad, and "[i]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material . . . in the prosecution or defense" of a claim (Matter of Comstock, 21 AD2d 843, 844 [4th Dept 1964]) (quoting 3 Weinstein-Korn-Milles, N.Y. Civ. Prac., ¶ 3101.07).
Additionally, the terms "material and necessary" contained in CPLR § 3101 (a) must be interpreted liberally to provide for the disclosure of any information which may assist a party in the preparation for trial (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).
Even though this Court conducted an in camera review, as indicated above, the Court must agree with the defendant that these records are not subject to any privilege and must be disclosed (even though claimant has withdrawn any claim for psychological injuries). Based upon its review of the documents submitted in camera, the Court finds it unlikely that defendant will uncover any relevant evidence, or that the documents will lead to any relevant evidence. However, since claimant has placed her physical condition at issue, and since the records are not otherwise privileged, this determination is best left to defendant's counsel. While the Court is sensitive to the concerns raised by claimant, and has taken into consideration her affidavit that she never sought or received any medical treatment as a result of any assault by her two former husbands, it is the determination of this Court that the submitted mental health records must be disclosed to the defendant.
Finally, the Court makes reference to claimant's Note of Issue which was filed on April 22, 2015. Since the Court has determined herein that the State is entitled to further discovery, claimant's attorney has previously stipulated that the Note of Issue may be stricken (see Item 3).
Based on the foregoing, therefore, it is
ORDERED, that claimant shall provide to the defendant the medical records previously submitted to this Court for in camera inspection, specifically the psychiatric records from Auburn Memorial Hospital, Cayuga County Mental Health Center records, and records from the Cayuga/Seneca Community Action Agency, Inc., within 30 days from the filing date of this Decision and Order; and it is further
ORDERED, that all further disclosure, if any, necessitated by the production of these records be completed by November 1, 2016; and it is further
ORDERED, that the Note of Issue previously filed on April 22, 2015 is hereby STRICKEN; and it is further
ORDERED, that a new Note of Issue shall be served and filed on or before December 1, 2016; and it is further
ORDERED, that the derivative claim of KEVIN McAVANEY is withdrawn, based upon the stipulation from claimant's attorney.
July 25, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims