Opinion
# 2016-053-513 Claim No. 114284 Motion No. M-87952
03-21-2016
KATHLEEN SMASZCZv. THE STATE OF NEW YORK
LIPSITZ GREEN SCIME CAMBRIA, LLP Richard P. Weisbeck, Esq. GOLDBERG SEGALLA, LLP Michael E. Appelbaum, Esq.
Synopsis
A motion to compel further production of documents, including psychiatric patient records, is denied as the "law of the case" doctrine applies and requires this Court not to modify a prior order.
Case information
| UID: | 2016-053-513 |
| Claimant(s): | KATHLEEN SMASZCZ |
| Claimant short name: | SMASZCZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114284 |
| Motion number(s): | M-87952 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA, LLP Richard P. Weisbeck, Esq. |
| Defendant's attorney: | GOLDBERG SEGALLA, LLP Michael E. Appelbaum, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | March 21, 2016 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On August 6, 2007, the Claimant, a dental hygienist, was assaulted by a resident of the West Seneca Developmental Center (WSDC). This claim for personal injuries alleges that the assault was due to the negligence of the Defendant. Claimant brings this motion, M-87952, seeking to compel Defendant to produce documents regarding the assailant/resident which Defendant alleges are confidential and privileged. The Notice for Discovery and Inspection dated July 9, 2014 is the third notice for discovery and inspection in this claim and was served upon Defendant following the deposition of a psychologist, Dr. Cynthia Henderson, from the WSDC and sought the following:
1. The quarterly review for the assailant/resident from May 15, 2007 through August 15, 2007;
2. Any changes to, updates or further behavior management plans following May 21, 2007; and
3. All prior "behavior management plans" for the assailant/resident.
The Claimant had previously served two Notices for Discovery and Inspection dated November 6, 2007 and July 10, 2008, which were served after issue was joined and prior to depositions being conducted. The first Notice for Discovery and Inspection dated November 6, 2007 sought the following:
1. All documents in support of defendant's allegation that claimant was employed by the State of New York;
2. All documents showing the name of the individual in the State's custody who assaulted claimant, Kathleen Smaszcz;
3. All documents concerning the assailant/resident and his propensity for violence;
4. All incident reports concerning any prior act of violence committed by the assailant/resident.
The second Notice for Discovery and Inspection dated July 10, 2008 sought the following:
1. Documentation showing the name of each employee of the defendant who had regular contact with the assailant/resident for the five years preceding the incident involving Kathleen Smaszcz;
2. The names of any employees who reviewed the assailant/resident's medical and/or psychiatric chart in the five years preceding the incident involving Kathleen Smaszcz.
These two Notices for Discovery and Inspection were the subject of two prior motions, M-75531 and M-76030, respectively, in which Claimant sought to compel Defendant to produce these documents. On September 11, 2013, the Hon. Jeremiah J. Moriarty III executed a Decision and Order after an in camera review of almost 3,000 documents in which he granted motion no. M-75531 relating to the first of two Notices for Discovery and Inspection, to the extent that certain identified documents were disclosed regarding prior assaults or similar violent behavior. The remaining documents sought by Claimant were denied on the basis that they were irrelevant to the prosecution of the claim or otherwise dealt with the prognosis, diagnosis and medical treatment of the assailant/resident and were thereby exempt from disclosure under case law excepting a psychiatric patient's medical information.
As to the second motion, motion no. M-76030, regarding the second Notice for Discovery and Inspection, Judge Moriarty denied both demands. The first demand was determined to be overly broad, unduly burdensome, insufficiently limited in scope and time, and not calculated to lead to the discovery of admissible evidence. The second demand was denied in that it would require the Defendant to create a document which did not exist, i.e., a list of employees who had contact with the assailant/resident's file for whatever reason. As to both motions before Judge Moriarty, the Decision and Order specifically states that the Court considered the production of these documents in light of the privilege that exists under Education Law § 6527 (3) and Mental Hygiene Law § 29.29.
With respect to the third Notice for Discovery and Inspection dated July 9, 2014, that is the subject of the present motion, Defendant stated that it is not in possession of the first demand, a "Quarterly review from May 15, 2007 through August 15, 2007." Further, it is Defendant's contention that any records sought by the other two demands were already produced for in camera review and are subject to Judge Moriarty's September 11, 2013 Decision and Order. Further, that those records deemed to be discoverable by the Court have already been produced. In response, Claimant contends that what she now seeks is different in that Claimant is attempting to determine what actions, if any, the WSDC undertook to control assailant/resident's assaults of others in the preceding two to three months prior to the assault of Claimant. It is Claimant's position that since the Court previously disclosed certain quarterly reviews for the assailant/resident, that the present demand seeking to review the time period immediately preceding the subject assault and any updates to behavior management plans should also be discoverable.
The issue before this Court is whether or not the documents sought by Claimant in the third Notice for Discovery and Inspection were included within those documents previously viewed in camera by Judge Moriarty and thereby included in his prior Decision and Order. It is well established that if the documents were included in Judge Moriarty's in camera review that "law of the case" would apply and require this Court as a court of coordinate jurisdiction not to modify this prior order (Martin v. City of Cohoes, 37 NY2d 162 [1975]). As detailed in Defendant's Opposing Affidavit to this motion, all of the documents sought by Claimant were already disclosed and included within those documents reviewed by the Court in camera. Defendant has averred that with respect to demand "1", no quarterly review for assailant/resident exists for the time period of May 15, 2007 through August 15, 2007. As to demands "2" and "3", the behavior management plans now sought were already included within those records reviewed by Judge Moriarty and deal with "prognosis, diagnosis and treatment", information which Judge Moriarty already determined to be privileged. Regardless of the merit of Claimant's contention that deposition testimony now makes these documents relevant to the issue of what actions, if any, did WSDC undertake to control assailant/resident following assaults of others that preceded the assault involving the Claimant, as a court of coordinate jurisdiction, this Court is constrained to follow the prior decision of Judge Moriarty.
The case law submitted by Claimant that is alleged to permit this Court to modify Judge Moriarty's prior order is inapplicable to these facts. The cases submitted stand for the proposition that the law of the case doctrine is not implicated where the same judge would be reconsidering his/her own prior order. Claimant's contention is that since this claim was reassigned to me following my appointment to fill the vacancy created in the Court of Claims by Judge Moriarty's appointment to Supreme Court, I would effectively be modifying a prior order of "my court". However, the case law cited by Claimant does not support this position.
Based on the foregoing, Claimant's motion no. M- 87952 is denied in its entirety.
March 21, 2016
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 Richard P. Weisbeck, Jr., Esq., dated January 22, 2016 with annexed Exhibits; 2. Respondent's opposition to claimant's motion to compel dated February 2, 2016 submitted by Michael E. Appelbaum, Esq.; 3. Letter dated February 26, 2016 submitted by Richard P. Weisbeck, Jr., Esq. with attached documents; 4. Letter dated March 4, 2016 submitted by Richard P. Weisbeck, Jr., Esq.; 5. Letter dated March 11, 2016 submitted by Michael E. Appelbaum, Esq.