Thompson v. Ish, 99 Mo. 160, 12 S.W. 510, 514 (1889); See also, Spurr v. Spurr, 285 Mo. 163, 226 S.W. 35, 40 (1920). In Barry v. State, 44 Misc.2d 568, 254 N.Y.S.2d 306 (1964), a hospital patient assaulted another patient. The alleged victim sought medical records concerning propensities of the alleged assailant and all hospital records relating to his history and treatment.
In Boykin v. State (N Y Ct.Cl. 1958) 13 Misc.2d 1037 [179 N.Y.S.2d 197], the court expressly sanctioned a discovery order requesting the names of patients who may have witnessed the incident and hospital records relating to the staff's observations (as distinct from their professional diagnoses and prognoses) of the alleged assailant, whose identity was known, as well as the examination of a hospital director as to the number of employees on duty at the time of the incident. ( Id., at p. 200; accord Torres v. State (1958) [ 14 Misc.2d 246] [179 N.Y.S.2d 201, 202] [assault by one institutionalized patient on another]; see Barry v. State (1964) [ 44 Misc.2d 568] [254 N.Y.S.2d 306]; Wilson v. State (1971) 36 A.D.2d 559 [317 N.Y.S.2d 546, 549] [prisoners].) The Tarasoff court respected the fact that the Legislature had weighed the pros and cons of disclosure and had specifically carved out an exception for disclosures needed to avert known danger to others.
In Boykin v. State (N.Y.Ct.Cl.1958) 13 Misc.2d 1037, 179 N.Y.S.2d 197, 200, the court expressly sanctioned a discovery order requesting the names of patients who may have witnessed the incident and hospital records relating to the staff's observations (as distinct from the professional diagnosis and prognosis) of the alleged assailant whose identity was known, as well as the examination of the hospital director as to the number of employees on duty at the time of the incident. (Accord Torres v. State (1958) 14 Misc.2d 246, 179 N.Y.S.2d 201, 202 [another alleged assault by one institutionalized patient on another]; see Barry v. State (1964) 44 Misc.2d 568, 254 N.Y.S.2d 306; Wilson v. State (1971) 36 A.D.2d 559, 317 N.Y.S.2d 546, 549 [prisoners].) The federal courts agree that while confined under state authority, a patient (or prisoner) retains a liberty interest in personal security and therefore is entitled to protection from harm by other dangerous patients (or prisoners).
The notices include the Commissioner of DEC and the Chairperson of the APA. With regard to the individuals listed in plaintiff's notices to take depositions, it is well settled that governmental defendants (and employers, generally) have the right to produce an officer or employee of their choice (albeit someone having knowledge of the facts) in response to a notice for a pre-trial deposition (see CPLR 3106 [d]; Hurrell-Harring v State of New York, 112 AD3d 1217, 1219-1220 [3d Dept. 2013]; Schiavone v Kevsoan Energy Delivery NYC, 89 AD3d 916,917 [2d Dept., 2011]; Carlucci v Citv of New York, 89 AD3d 489, 490 [1st Dept., 2011]; Ewadi v Citv of New York, 66 AD3d 583, 583-584 [1st Dept., 2009]; Barry v State, 44 Misc2d 568 [Ct. of Claims, 1965]). The Court will direct the parties to re-notice their pre-trial depositions.