Opinion
# 2016-018-712 Claim No. 126444 Motion No. M-87910
03-24-2016
SEAN FINCHER v. STATE OF NEW YORK
SEAN FINCHER Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Claimant's motion to compel is denied.
Case information
| UID: | 2016-018-712 |
| Claimant(s): | SEAN FINCHER |
| Claimant short name: | FINCHER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126444 |
| Motion number(s): | M-87910 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SEAN FINCHER Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 24, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion for an Order directing Defendant to respond to certain interrogatories in accordance with CPLR 3124. Defendant opposes the motion.
The claim arose at Ogdensburg Correctional Facility, over a period of time, commencing on March 26, 2015, and seeks damages for what seems to be an underlying failure to properly diagnose and/or treat an injury to Claimant's knee. Claimant has specifically alleged "disability-based discrimination under both federal (42 U.S.C. § 12132) and New York state [sic] (N.Y. Const., Art. I, §11) law;" violation of prison medical protocols; violation of the "Equal Protection Clause of both the United States and New York State Constitutions;" and deliberate indifference to Claimant's medical condition. The claim was served on August 12, 2015. Defendant interposed a verified answer with four affirmative defenses and filed it on September 16, 2015.
Claim paragraphs 40, 41, 46, and 48.
Claimant alleges that on September 18, 2015, he served interrogatories and demand for production of documents from Barbara Hundley. Defendant provided responses to the interrogatories on October 11, 2015. Claimant served a second set of interrogatories and demand for production of documents on October 18, 2015. Defendant served a response to this set of interrogatories on November 4, 2015.
By this motion, Claimant asserts that Defendant should be compelled to provide responses to the following items in the first interrogatories: 6(e), 7(e), 12, 15, and 16. Claimant also indicates that he seeks compliance with interrogatory 17 as part of the first set of interrogatories. Interrogatory 17, however, was part of the second set of interrogatories and it does request the information Claimant describes in his motion. Defendant has also provided a complete response to interrogatory 17. In the second set, Claimant seeks compliance with interrogatory 18(f), 20, 21(b), and 21(c). Claimant also requests an Order directing Defendant to provide a redacted copy of the May 21, 2015 Ogdensburg Correctional Facility "Master Sick-Call" list.
Claimant did not provide a copy of this first set of interrogatories, although he attached two copies of his second set of interrogatories to his motion documents and, in addition, sent a third copy of the same interrogatories to the Clerk's office on December 23, 2015. Defendant, however, did attach a copy of the first interrogatories to its motion response so the Court has relied upon that copy (see Defendant's Exhibit A).
Defendant, in opposition to the motion, contends that it has provided appropriate responses to the interrogatories. Defendant argues that the interrogatories to which it did not respond seek opinions, or the questions are vague, over-broad or seek irrelevant information.
The guiding principle for all discovery is set forth in CPLR 3101 (a) which states: "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof." The statutory direction is viewed broadly and the inadmissibility at trial of the information sought is not a limiting factor (see DeDivitis v International Bus. Machs. Corp., 228 AD2d 963, 964 [3d Dept 1996]). What is material and necessary is dependent upon Claimant's causes of action and the general principles of law governing those causes of action (Town of Nassau v Phoenix Assur. Co., 57 AD2d 992 [3d Dept 1977]).
In interrogatory 6(e), Claimant seeks what "diagnosis" Nurse Hundley made on May 8, 2015, regarding his right knee. In 7(e), he seeks the diagnosis she made on May 21, 2015. Defendant responded that these interrogatories were improper because both sought opinion evidence. Defendant further responds, by this motion, that Nurse Hundley's role is not to diagnose but to make a referral to the doctor. Defendant also indicates there is no Ambulatory Health Record Progress Note from May 21, 2015, which would indicate to Defendant that Claimant was not seen in the infirmary that day. This adequately answers these interrogatories, and no further response will be directed.
Interrogatory 12 seeks opinion evidence as to whether a swollen joint should be treated with ice. Interrogatories that seek opinions rather than relevant facts are not appropriate (Deer Park Assoc. v Town of Babylon, 121 AD3d 738, 740 [2d Dept 2014]).
Interrogatory 15 inquires whether Nurse Hundley has been the subject of any inmate grievances at Ogdensburg relating to inadequate medical treatment, and interrogatory 16 inquires whether she has been the subject of any malpractice lawsuits. Defendant objected on the grounds that the request was over-broad and not relevant. The Court agrees and will not direct Defendant to provide any further response.
The second set of interrogatories seeks information from the Department of Corrections and Community Supervision (DOCCS) Chief Medical Officer, Carl Koenigsmann. Interrogatory 18(f) inquires whether each correctional facility's infirmary is required to have protocols for the treatment of swollen joints. Defendant objected to this question on the ground that it was vague, over-broad, and sought a medical opinion. Although the Court agrees it is over-broad as set forth, if Claimant limits his request to protocols for treatment of swollen joints at Ogdensburg Correctional Facility for the period of time a year or two before and up to Claimant's alleged improper treatment, this is not an improper request. It does not seek opinion evidence. However, as it is currently stated, the Court will not direct Defendant to provide a further response.
Interrogatory 20 seeks information about whether Dr. Koenigsmann has ever testified as an expert witness for the State in any State or Federal proceeding. The Court agrees with Defendant's position that this is over-broad and of questionable relevance.
Interrogatory 21(b) inquires that if Dr. Koenigsmann is familiar with knee injuries that he indicate how soon after a complaint is made that a knee is "giving out," swollen or clicking ("patallafemoral [sic] clicking of the joint") a patient should be referred to a doctor. Defendant objected on the ground that the question was over-broad, vague, and sought opinion evidence. The Court agrees.
Interrogatory 21(c) also asks that if Dr. Koenigsmann is familiar with knee injuries, he indicate what is a "reasonable window of time" that a patient complaining of a swollen knee or one that is giving out, clicking or ("patallafemoral [sic] clicking of the joint") should be seen by an orthopedic specialist. Defendant, again, objected on the ground that it was vague, over-broad, and sought a medical opinion. Again, the Court agrees.
Finally, Defendant objects to Claimant's request that the Court direct it to produce a redacted copy of the May 21, 2015 Ogdensburg Correctional Facility "Master Sick-Call" list because Claimant has never made a formal demand for this information. Claimant must first demand the information sought before the Court should compel Defendant under CPLR 3124 to provide a response.
Accordingly based upon the foregoing, if Claimant modifies interrogatory 18(f) as suggested above, Defendant should provide a response. After reviewing the motion documents, the interrogatories, and responses served to date, Claimant's motion is DENIED.
March 24, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Affidavit of Sean Fincher, sworn to November 19, 2015, in support, with exhibits attached thereto. 2) Affirmation of Thomas Trace, Esquire, in opposition, with exhibits attached thereto. 3) Memorandum of Law from Claimant received by the Clerk of the Court on December 23, 2015.