Opinion
# 2017-053-558 Claim No. 125154 Motion No. M-90051
09-27-2017
TIMOTHY BUSH v. THE STATE OF NEW YORK
TIMOTHY BUSH, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Pro se claimant moves to compel production of mental health records of former cellmate who allegedly assaulted him. Motion denied as privacy interests in preventing disclosure of mental health records outweigh claimant's need for disclosure.
Case information
| UID: | 2017-053-558 |
| Claimant(s): | TIMOTHY BUSH |
| Claimant short name: | BUSH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125154 |
| Motion number(s): | M-90051 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | TIMOTHY BUSH, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 27, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Timothy Bush, an inmate proceeding pro se, alleges in claim no. 125154 that he was assaulted by his cell mate on August 24, 2013, while incarcerated at Lakeview Correctional Facility (Lakeview) due to the alleged negligence of the Department of Correction and Community Supervision (DOCCS) in improperly classifying his assailant as suitable for double bunking, failing to protect him from his cell mate who had a history of assaultive behavior and for failing to respond in an appropriate amount of time. Claimant moves to compel discovery. Defendant opposes the motion.
By this motion, claimant seeks to compel defendant to produce a copy of the mental health records of the former cell mate who allegedly assaulted him, or in the alternative, compel defendant to obtain the current address of his former cell mate so claimant can serve him with this motion, or order the defendant to stipulate that his former cell mate was classified at an OMH level which precluded him from being double-bunked. As a final alternative, claimant requests that the Court review the assailant's records in camera. Pursuant to Public Officers Law § 96 (2), nothing in section 96 regarding the disclosure of records shall require the disclosure of personal information, patient records concerning mental disability or personal information pertaining to the incarceration of an inmate which is evaluative in nature (see Public Officers Law §§ 96 [2] [a] [b] and [c]). In addition, claimant's former cell mate has a privacy interest protected by the physician-patient privilege (see CPLR 4504) and by 9 NYCRR 7651.26.
While the Court recognizes that the rules governing disclosure are broad and that the terms "material and necessary" as contained in CPLR 3101 must be interpreted liberally (Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]), the former cell mate's privacy interests in preventing the disclosure of his mental health records, together with the public interest privilege against disclosure, clearly outweigh claimant's need for disclosure of mental health records. Moreover, by this Court's prior decision (Bush v The State of New York, [Ct Cl, Sampson, J., August 12, 2016]), an in camera review of the former cell mate's disciplinary record was performed and certain documents were produced to the claimant. Thus, claimant has been provided with certain documents relating to the assailant which are possibly relevant to his claim.
Based on the foregoing, claimant's motion no. M-90051 to compel discovery is denied in its entirety.
September 27, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered: 1. Notice of motion and affidavit of Timothy Bush sworn to March 3, 2017, with attached Exhibit; 2. Opposing affirmation of Assistant Attorney General Wendy E. Morcio.