Opinion
# 2021-032-030 Claim No. 134374 Motion No. M-96239
04-13-2021
SAMUEL S. KOHN v. STATE OF NEW YORK
Krause & Associates PC By: Leonid Krimsky, Esq Hon. Letitia James, Attorney General By: Cheryl Rameau, AAG
Synopsis
Claimant's motion for psychiatric records of alleged assailant granted to the extent that the Court shall perform an in camera review of the records and direct the disclosure of information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant.
Case information
| UID: | 2021-032-030 |
| Claimant(s): | SAMUEL S. KOHN |
| Claimant short name: | KOHN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134374 |
| Motion number(s): | M-96239 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Krause & Associates PC By: Leonid Krimsky, Esq |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Cheryl Rameau, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on January 28, 2020 seeking damages for injuries sustained as the result of an assault perpetrated by N.R., a former patient of a mental health clinic operated by the New York State Office of Mental Health ("OMH"). N.R. was released from the OMH clinic on January 24, 2018. On February 1, 2018, N.R. attacked claimant without provocation while claimant was walking near the intersection of Madison Avenue and 48th Street in the borough of Manhattan, New York. Claimant now moves pursuant to Mental Hygiene Law § 33.13 (c) to compel the production of N.R.'s treatment records that are in the possession of OMH.
The identities of Office of Mental Health (OMH) patients are confidential under Mental Hygiene Law § 33.13 (c). Therefore, the Court will refer to the alleged assailant using his initials, N.R.
The Court may not order the disclosure of N.R.'s medical records concerning diagnosis and treatment absent a finding "that the interests of justice significantly outweigh the need for confidentiality" (Mental Hygiene Law § 33.13 [c] [1]). However, where there exists a claim of an assault perpetrated by a patient at a facility licensed and operated by the New York State Office of Mental Health, the Court may "conduct an in camera review of the assailant's records, and determine if they contain information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant that should be disclosed" (Sohan v Long Is. Coll. Hosp., 282 AD2d 597, 598 [2d Dept. 2001]; see also Mayer v Albany Med. Ctr. Hosp., 37 AD2d 1011, 1011 [3d Dept. 1971]).
Here, the Court finds that the interests of justice do not significantly outweigh the need for confidentiality of N.R.'s medical records concerning diagnosis and treatment (Bellamy v State of New York, 136 AD3d 1247 [3d Dept. 2016] [claimant not entitled to records concerning diagnosis and treatment of alleged assailant in claim involving patient-on-patient assault at a State psychiatric facility]). However, claimant is entitled to information of a nonmedical nature contained in N.R.'s OMH medical records, including
all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and . . . the number of times the patient was confined to defendant's institution and the length of each stay thereat (Brier v State of New York, 95 AD2d 788 [2d Dept. 1983]).
To the extent that claimant seeks the names and credentials of the doctors who treated N.R. and information regarding whether they conducted any interviews with N.R., the instant motion to compel is an improper vehicle to obtain such information. As stated above, claimant is entitled to all reports and references of a nonmedical nature concerning N.R.'s prior violent or assaultive behavior as well as the number of times that N.R. was confined to defendant's facility, and the length of time for each stay. Claimant may request the names of N.R.'s treating physicians and their credentials through a formal discovery demand, subject to any objections asserted by defendant. Claimant may also seek to depose the treating physicians, subject to any objections asserted by defendant (see CPLR 3124; Jayne v Smith, 184 AD3d 557, 559 [3d Dept. 2020] [plaintiff entitled to question assailant's treating physicians on information of a nonmedical nature]).
Based upon the foregoing, it is hereby
ORDERED that claimant's motion to compel discovery is GRANTED. Defendant is directed to provide to the Court N.R.'s OMH medical records under its control for the time period of February 1, 2017 through February 1, 2018 within 45 days of the date of filing of this Decision and Order. The Court shall conduct an in camera review of the records and order the release of information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant and the number of times that N.R. was confined to defendant's facility, including the length of time for each stay.
April 13, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated December 4, 2020; and Affirmation in Support, affirmed by Leonid Krimsky, Esq. on December 4, 2020, with Exhibits A through F annexed thereto. 2. Affirmation in Opposition, affirmed by Cheryl Rameau, AAG on January 5, 2021. 3. Reply Affirmation, affirmed by Leonid Krimsky, Esq. on January 19, 2021.