Opinion
# 2020-058-018 Claim No. 133388 Motion No. M-95148
02-24-2020
ROBERT S. REMONDA v. STATE OF NEW YORK
Robert S. Remonda, Pro Se Hon. Letitia James, Attorney General Christopher J. Kalil, Esq., Assistant Attorney General
Synopsis
Motion to compel discovery denied.
Case information
| UID: | 2020-058-018 |
| Claimant(s): | ROBERT S. REMONDA |
| Claimant short name: | REMONDA |
| Footnote (claimant name) : | The caption is amended to reflect Claimant's name only. |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to reflect the State of New York as the only proper Defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133388 |
| Motion number(s): | M-95148 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Robert S. Remonda, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General Christopher J. Kalil, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant Robert S. Remonda, an inmate, filed this Claim on July 22, 2019 seeking damages for personal injuries allegedly sustained after he slipped and fell on a wet floor near a slop sink in a hallway between the laundry room and the bathroom at Mid-State Correctional Facility. Claimant also seeks damages for medical malpractice/medical negligence for the failure of the Department of Corrections and Community Supervision's (DOCCS) medical staff to provide appropriate care to treat his injuries following the incident.
Claimant now moves to compel disclosure of numerous documents, including his medical records. Defendant opposes the motion on the ground that Claimant failed to serve a notice for disclosure prior to moving to compel.
As relevant here, CPLR 3102 (b) provides that "disclosure shall be obtained by stipulation or on notice without leave of the court." CPLR 3120 (1) provides, in pertinent part, that, after commencement of an action, a party may serve upon another party a notice to produce designated documents or any other things in the possession or control of the party being served. Pursuant to CPLR 3124, "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response." Thus,"a necessary prerequisite to a motion to compel disclosure is the service of a notice for disclosure or other disclosure device" (Canales v State of New York, 51 Misc 3d 648, 652 [Ct Cl 2015]; see Brown v State of New York, UID No. 2018-054-094 [Ct Cl, Rivera, J., Sept. 26, 2018]). Where the proponent of a motion to compel fails to demonstrate that the motion has been preceded by service of a discovery demand and the party served has failed to comply with such demand, the motion to compel will be denied as premature (see Benson v State of New York, UID No. 2018-015-183 [Ct Cl, Collins, J., Dec. 21, 2018]; Keitt v State of New York, UID No. 2018-038-532 [Ct Cl, DeBow, J., Apr. 6, 2018]; Perez v State of New York, UID No. 2016-018-729 [Ct Cl, Fitzpatrick, J., July 20, 2016]).
As Defendant argues, Claimant was required to serve a demand upon Defendant to produce the requested documents and information and provide Defendant with an opportunity to respond before bringing the instant motion to compel. Claimant has submitted no proof that he served a notice for discovery and production of the requested documents and information on Defendant's attorney prior to making his motion.
Moreover, Movant's unsworn statement that he was denied the right to review his medical records through an administrative grievance, which he believes serves as the basis for this motion to compel, is misguided. Upon review of the Claim and exhibits attached thereto, it appears that Claimant sought his medical records through a Freedom of Information Law (FOIL) request. By letter dated December 31, 2018, Claimant was informed by DOCCS that "requests for Personal Health Information, i.e. medical records, are processed in accordance with Public Health Law § 18 and the Department's Health Services Policy Manual § 4.04 and are not processed under FOIL" (Claim, Ex 12). Claimant's submission does not demonstrate that he made an administrative request to review his medical records in accordance with Public Health Law § 18 and the Department's Health Services Policy Manual § 4.04, or that any such request was denied (see Johnson v State of New York, UID No 2014-038-562 [Ct Cl, DeBow, J., Dec. 19, 2014] ["where documents are available for inspection and copying upon request of a person incarcerated in a correctional facility, the defendant need not be compelled to take further steps to produce them"]). Consequently, the motion to compel must be denied.
Accordingly, it is hereby
ORDERED that Claimant's Motion M-95148 is denied.
February 24, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding this motion: (1) Motion for Discovery and Inspection, filed December 11, 2019. (2) Claimant's Letter, dated January 31, 2020. (3) Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, in Opposition to Motion for Disclosure, dated February 14, 2020. (4) Claim No. 133388, filed July 22, 2019, with exhibits.