Opinion
# 2016-040-009 Claim No. 125415 Motion No. M-87411 Cross-Motion No. CM-87593
02-04-2016
CARL SCHWENDENMANN v. STATE OF NEW YORK
Carl Schwendenmann, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
Claimant's motion to compel discovery adjourned to allow Court to conduct in camera inspection. State's cross-motion to serve and file an amended Answer granted.
Case information
| UID: | 2016-040-009 |
| Claimant(s): | CARL SCHWENDENMANN |
| Claimant short name: | SCHWENDENMANN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125415 |
| Motion number(s): | M-87411 |
| Cross-motion number(s): | CM-87593 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Carl Schwendenmann, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | February 4, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, pro se Claimant's Motion to compel discovery is adjourned to allow Defendant time to provide the Court with the requested documents, Bates-stamped for ease of reference, for an in camera inspection, along with a privilege log specifying by date the nature of the contents of the documents, who prepared the records, and the basis for the claimed privilege. The information is to be provided to the Court and the log to Claimant within forty-five (45) days of the date of the filing of this Decision and Order. Defendant's Cross-Motion to serve and file an Amended Answer asserting a setoff is granted.
The Claim, which was filed with the Clerk of the Court on December 18, 2014 and served upon Defendant on December 4, 2014 (Affirmation of Thomas Trace, Esq. [hereinafter, "Trace Affirmation"], ¶ 2 and Ex. A attached thereto), alleges that, on October 29, 2013 at approximately 4:30 p.m. in the gymnasium of the Central New York Psychiatric Center (hereinafter, "CNYPC"), Claimant was playing basketball with five other residents when another player, Anthony Leno, punched Claimant in the face; that Leno was then escorted out of the gymnasium, and Claimant resumed playing basketball; and that Leno returned to the gym and assaulted Claimant. The Claim also asserts that Claimant was assaulted by another resident named Tyrone Davis. Claimant asserts that the assaults occurred as a result of improper supervision.
Claimant's Demand for Discovery was received by the Attorney General on January 23, 2015 (Trace Affirmation, ¶ 2). The Demand contained 13 numbered paragraphs (see Ex. C attached to Trace Affirmation). Defendant's Response to Notice to Produce was served upon Claimant on February 13, 2015 (Trace Affirmation, ¶ 2 and Ex. D attached thereto). Defendant objected and did not provide any information in response to Claimant's demands on the basis that the information is privileged under various provisions of the Mental Hygiene Law, Public Officers Law § 87(2)(f) and Article 6-A "Personal Privacy Protection Law," Education Law § 6527(3) (Quality Assurance Privilege) and the Health Insurance Portability Act of 1996 (hereinafter, "HIPA").
Claimant now moves pursuant to CPLR 3124 for an order compelling responses to his request to produce: (1) witness/participant resident statements regarding the incident; (2) Progress Notes of Secure Care Treatment Aides Brandon Liggins, Kyle Wiggins, Michael Henderson, Hank Jackson, and Josh Dymon written about Resident Anthony Leno; and (3) Closed Circuit Television and/or video recordings showing the gym and outer corridors (see ¶¶ 6(a), 6(b) and 7 of Claimant's Affidavit in Support of his Motion to Compel).
The State raises the same objections as it did in its Response to Notice to Produce (Trace Affirmation, ¶¶ 7, 11, 14-16). Defendant asserts that documents relevant to Claimant's demands are "contained in the Risk Management file" (id., ¶ 8).
Defendant is statutorily required to report to the Department of Health certain "adverse events," including, as is relevant here, "patients' deaths or impairments of bodily functions in circumstances other than those related to the natural course of illness, disease or proper treatment" (Public Health Law § 2805-l[2][a]). However, Education Law § 6527 (3) contains a "quality assurance privilege … [that] shields from disclosure certain records and reports generated by a hospital in performing either a medical malpractice or quality assurance review" (Bluth v Albany Med. Ctr., 132 AD3d 1131, 1131 [3d Dept 2015]; see Daly v Brunswick Nursing Home, Inc., 95 AD3d 1262, 1263 [2d Dept 2012]) [internal quotation marks omitted]). The statute confers broad confidentiality upon records relating to "quality assurance" and the "prevention of medical, dental and podiatric malpractice" (Public Health Law § 2805-j [1]) and investigations undertaken "[p]rior to granting or renewing professional privileges" (Public Health Law § 2805-k [1]), as well as those relating to "adverse events" as required by Public Health Law § 2805-l (see Education Law § 6527[3]); Public Health Law § 2805-m [1]). "Notably, such records are expressly exempt from disclosure under CPLR article 31" (Bluth v Albany Med. Ctr., supra at 1132; see Education Law § 6527 [3]; Public Health Law § 2805-m [1]; Katherine F. v State of New York, 94 NY2d 200, 204 [1999]; Logue v Velez, 92 NY2d 13, 17 [1988]).
As the party seeking to invoke the privilege, Defendant bears the burden of establishing that a review procedure was in place and that the requested documents were prepared in accordance with the relevant statutes (see Bluth v Albany Med. Ctr., supra at 1132; Kneisel v QPH, Inc., 124 AD3d 729, 730 [2d Dept 2015]).
Here, Defendant has submitted only the affirmation of its counsel, who has submitted only conclusory statements that the documents requested were prepared in connection with a risk management review and are within the scope of the asserted privilege. The Court finds that Defendant failed to set forth sufficient details to enable the Court to conclude that the documents are privileged.
To resist the production of documents claimed to be privileged, the procedure recommended by the Court of Appeals is that the party asserting a claimed privilege should compile and produce a privilege log in order to assist the court in assessing any such claim of privilege (see Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434, 442 [2003]). The log should specify the date of each document, the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege (see Stephen v State of New York, 117 AD3d 820, 821 [2d Dept 2014]; Algu v Rasiawan, 48 Misc 3d 1216 [A] [Sup Ct Queens County 2015]).
Therefore, based upon the above, the Court will conduct an in camera inspection of the documents, and Defendant is hereby directed to prepare and produce a privilege log that identifies by date the documents claimed to be privileged, specifies the nature of the contents of the documents sought to be protected and who prepared the records, together with two complete sets of documents appropriately Bates-stamped for easy identification. One copy shall be unredacted and the other shall be marked with any redactions Defendant may wish to propose in the event the Court determines that no blanket privilege applies with respect to any document(s), together with any supporting memorandum of law.
Such information is to be provided to the Court on or before 45 days from the date of filing of this Decision and Order with the Clerk of the Court.
Claimant also seeks the names of any witnesses Defendant intends to call at trial and the scope of their testimony (Claimant's Affidavit in Support, ¶ 8). Defendant objected to this demand, which was contained in paragraph 13 of Claimant's Demand for Discovery (Trace Affirmation, ¶¶ 17, 18).
Defendant asserts that, at this point, the only witnesses to the incident of which it is aware are those mentioned in the Claim; that the witnesses' titles are listed in the Claim and their business addresses are their place of business, i.e. CNYPC (Trace Affirmation, ¶ 18). Defendant objects to the request for education level of these witnesses, and for the relevancy of their testimony to be provided, since these requests are outside the scope of such a demand for names and addresses of witnesses and this information is not relevant to issues to be decided in this Claim. Defendant also objects to the request for the work and disciplinary history of these witnesses since this information is not relevant to the determination of issues in this case and is privileged personal information. The request for the disciplinary history of these witnesses is also objected to upon the assertion that it is related to quality assurance and exempt from disclosure, and privileged pursuant to Education Law § 6527(3) since there is no indication that any such incidents concerning discipline involved Claimant. This section encompasses reports of abuse involving non-medical incidents implicating a hospital's security function (see Katherine F. v State of New York, supra at 204-205). It is further submitted that witnesses have the right to be put on notice regarding these requests with Claimant sending them a copy of any motion to compel disclosure of this privileged and protected personal information (see Defendant's Motion, Ex. D [Defendant's Response to Notice to Produce], ¶¶ 13 and 14).
The Court finds that Defendant has raised legitimate objections regarding Claimant's demand for witnesses. The Court finds and concludes that Claimant is only entitled to the name and business address of each witness.
The Court now turns to Defendant's Cross-Motion to Amend its Answer to include a counterclaim, equal to the amount to any award Claimant may receive regarding this Claim, as a setoff, reimbursing Defendant for inpatient charges up to the amount owed (Trace Affirmation, ¶¶ 20-25, and Defendant's Motion, Ex. E [Proposed Amended Verified Answer]).
As stated above, the Claim was filed with the Clerk of the Court on December 18, 2014 and was served upon Defendant on December 4, 2014. Defendant's Verified Answer was served upon Claimant and filed with the Clerk of the Court on January 9, 2015 (Trace Affirmation, ¶ 2). Discovery is ongoing.
CPLR 3025(b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." The statute further provides that leave to amend "shall be freely given upon such terms as may be just." Leave to amend a Claim should be freely granted, provided the proposed amendment does not prejudice or surprise defendant, is not "patently devoid of merit," and is not "palpably insufficient" (Shabazz v Verizon N.Y., Inc., 83 AD3d 815, 815 [2d Dept 2011]; Dmytryszyn v Herschman, 78 AD3d 1108, 1109 [2d Dept 2010]). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5; Arcuri v Ramos, 7 AD3d 741, 741-742 [2d Dept 2004]).
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]). The Affirmation in Opposition to this motion submitted by Claimant has not alleged or proved that Claimant would suffer prejudice as a result of the proposed amendment.
The State here has pleaded a facially-valid counterclaim, authorized by Court of Claims §§ 9(3) and (4) and Article 43 of the Mental Hygiene Law. It has capped that claim at the amount of whatever recovery Claimant achieves, and, thus, there is no prospect that the counterclaim may punitively impose costs beyond what is sought in this lawsuit. Thus, the only "chill" that would result from the counterclaim arises out of the threat that it may defeat Claimant's recovery in this action (see Davison v State of New York, UID No. 2015-049-002 [Ct Cl, Weinstein, J., Jan. 5, 2015]).
It is clear from the plain language of Article 43 of the Mental Hygiene Law that a patient remains liable to the State for the fees for services rendered in the State's mental health facilities (Mental Hygiene Law § 43.03[a]) and that the State may commence an action to recover those costs (Mental Hygiene Law § 43.07; see State of New York v Patricia II, 6 NY3d 160, 163 [2006]). Further, it is well established that "[p]ersonal injury awards are subject to the State's right to recover for services rendered at its mental health facilities" (Matter of Carlon v Regan, 98 AD2d 544, 547 [3d Dept 1984], affd as modified 63 NY2d 1011 [1984]).
In opposition to Defendant's motion to amend the Answer, Claimant asserts that he is a hostage and is being held against his will at CNYPC. "Court of Claims Act §§ 9(3) and (4) grant jurisdiction to the Court of Claims to 'hear and determine any claim in favor of the state against the claimant,' and to render judgment thereon" (Davison v State of New York, supra). "As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], citing to Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]; Psaty v Duryea, 306 NY 413, 416 [1954]). Consequently, this Court does not have the jurisdiction to address Claimant's contention that he is being held hostage, and, if Claimant wishes to pursue that assertion, his forum lies elsewhere.
Based upon the foregoing, Defendant's motion to amend its answer to assert a counterclaim equal to the amount of any award Claimant may receive regarding the Claim, as a setoff reimbursing Defendant for inpatient charges up to the amount owed, is granted. Defendant shall serve and file the Amended Answer within twenty (20) days of the date of filing of this Decision and Order.
February 4, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion to compel and Defendant's Cross-Motion to serve and file an Amended Answer: Papers Numbered Motion, Affidavit in Support 1 Notice of Cross-Motion, Affirmation in Opposition to Claimant's Motion & in Support of Defendant's Cross-Motion & Exhibits attached 2 Opposition to Defendant's Cross-Motion 3 Filed Papers: Claim, Answer