Opinion
# 2014-048-135 Claim No. 121490 Motion No. M-84394
04-04-2014
CARL SCHWENDENMANN v. THE STATE OF NEW YORK
CARL SCHWENDENMANN, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq. Assistant Attorney General
Synopsis
Court granted Claimant's motion seeking the issuance of a judicial subpoena.
Case information
| UID: | 2014-048-135 |
| Claimant(s): | CARL SCHWENDENMANN |
| Claimant short name: | SCHWENDENMANN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121490 |
| Motion number(s): | M-84394 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | CARL SCHWENDENMANN, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 4, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Carl Schwendenmann commenced this action seeking damages he sustained based on the negligent disclosure of his privileged medical information while he was a patient at the Central New York Psychiatric Center (Center) located in Marcy, New York. Specifically, Claimant alleges that, in February 2012, while being held at Rikers Island, he and another detainee - Colvin McCutchen - both requested copies of their respective medical records. Before receiving his records, Claimant was transferred to the Center. Mr. McCutchen was thereafter also transferred to the Center. On or about April 12, 2012, Claimant became aware that his medical records were erroneously in the possession of Mr. McCutchen and that, in its subsequent attempt to retrieve those records for return to Claimant, Defendant negligently lost the records, which resulted in the disclosure of those documents to other residents at the Center. The trial of this action is scheduled to commence May 6, 2014. Claimant has moved seeking an order compelling Colvin McCutchen to appear as a witness at the trial of this action. Defendant opposes Claimant's motion arguing, among other things, that Claimant has failed to establish that the anticipated testimony is material and necessary to the prosecution of his Claim. Specifically, Defendant's counsel asserts that Mr. McCutchen will be unable to testify that the protected material he received at Rikers Island, which has since been destroyed, was re-disseminated or, if it was, who was responsible.
As Defendant has not articulated any prejudice by the filing of Claimant's motion and, in fact, was able to submit its opposition after the motion's return date, the Court will disregard any technical defects with respect to motion (see CPLR 2001).
In a reply, Claimant asserts the documents are classified as either lost or destroyed, and that there is no evidence that protected health information was actually destroyed.
A pro se litigant, such as Claimant, is not authorized to issue his own subpoena compelling the attendance of a witness to testify at trial without a Court order (see CPLR 2302 [a]). Yet, in all matters, regardless of whether a litigant is pro se or represented, where a subpoena seeks to compel the attendance of "a person confined in a penitentiary or jail" to testify at trial, the subpoena must be issued by the Court (see CPLR 2302 [b]). Similarly, leave of court is required to take a pre-trial deposition of a person "confined under legal process" (CPLR 3106 [c]). The stated rational for the distinction between persons confined and other nonparty witnesses is "to prevent the disruption of prison routine and to provide a mechanism of court oversight before a correctional facility may be compelled to open its doors for the deposition of one of its prisoners" (Nalbach v McDonald, 244 AD2d 536, 536 [2d Dept 1997]). In this matter, Claimant is seeking a trial subpoena to compel the testimony of a nonparty witness who is confined by the State of New York, thus posing a similar potential for facility disruption. Accordingly, the Court concludes that Claimant must establish, initially, that the testimony sought is material and necessary to the prosecution of his Claim.
The recent Court of Appeals decision in Kapon v Koch, - NY3d -, 2014 NY Slip Op 02327 (2014) holds that a party seeking to compel discovery from a nonparty pursuant to CPLR 3101 (a) (4) is not subject to a threshold requirement of establishing that the disclosure sought is material and necessary. Rather, the subpoenaing party need only state the "circumstances or reasons such disclosure is sought or required." Then, only upon receipt of an objection demonstrating that the discovery sought is "utterly irrelevant" to the action, must the subpoenaing party establish that the discovery sought is material and necessary (id.). However, the Legislature has chosen to treat the depositions of persons confined differently than discovery sought from other nonparty witnesses, regardless of whether the subpoenaing party is pro se or represented (see CPLR 3106 [c]; CPLR 2302 [b]). Claimant in this matter, unlike the facts in Kapon v Koch, is seeking to compel the trial testimony of a person confined.
In support of his motion, Claimant asserts that Mr. McCutchen received Claimant's confidential medical records while at Rikers Island and that, after their transfer to the Center, Mr. McCutchen, in response to Claimant's request, gave the medical records to a nurse who, in turn, was obligated to secure the papers or return them to Claimant. Claimant asserts that Mr. McCutchen will testify, among other things, that he gave Claimant's protected medical information to a ward nurse, that he was interviewed regarding the lost medical records, and that he is witness to discriminatory remarks made by other residents at the Center regarding Claimant's medical condition. Claimant asserts that other residents were made aware of his medical condition as a result of Defendant's wrongful dissemination of the protected information. Consequently, the Court finds that Claimant has sufficiently demonstrated that the testimony of Colvin McCutchen is material and necessary to the prosecution of his Claim. Accordingly, the Court determines that Claimant is entitled to the issuance of a subpoena to compel the trial testimony of Colvin McCutchen.
While Defendant argues that Mr. McCutchen's testimony is not material because he is unable to testify that protected health information was re-disseminated, Defendant neither disputes that Mr. McCutchen will testify that he gave Claimant's protected health information to a nurse at the Center, nor submits an affidavit of Center staff that would render Mr. McCutchen's testimony unnecessary.
In light of the foregoing, it is hereby
ORDERED that Claimant's Motion No. M-84394 is granted; and it is further
ORDERED that, upon the filing of this Decision and Order, the Court will forward to Claimant a "so ordered" Subpoena to Produce, directing the Executive Director of the Central New York Psychiatric Center to produce Colvin McCutchen for the trial of this Claim which is currently scheduled for May 6, 2014. Upon receipt, Claimant shall serve the "so ordered" Subpoena to Produce by mailing it to Attorney General's Office consistent with CPLR 2303-a and 2103 (b).
April 4, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed July 2, 2012;
Motion, filed November 25, 2013, with Affidavit of Service;
Defendant's Reply to Motion for Issuance of Judicial Subpoena, filed March 3, 2014;
Claimant's Reply to Defendant's Opposition for Issuance of Judicial Subpoena, sworn to on March 12, 2014.