City of New York v. State

• Decision Date: 03 February 1988
• Parties: The CITY OF NEW YORK and the New York City Department of Social Services, Claimants, v. The STATE of New York and the New York State Office of Mental Retardation and Developmental Disabilities, Defendants. (Claim No .73071.) New York Court of Claims
• Court: New York Court of Claims

Page 554

525 N.Y.S.2d 554

138 Misc.2d 768

The CITY OF NEW YORK and the New York City Department of

Social Services, Claimants, v. The STATE of New York and the New York State Office of

Mental Retardation and Developmental Disabilities,

Defendants.

(Claim No .73071.)

New York Court of Claims.

Feb. 3, 1988.

Peter L. Zimroth, Corporation Counsel by Rachel Pollock, New York City, of counsel, for claimants.

Robert Abrams, Atty. Gen. by Robert S. Hammer, Asst. Atty. Gen., New York City, of counsel, for defendants.

GERARD M. WEISBERG, Judge.

The City of New York (City) moves for an order pursuant to CPLR 3124 compelling defendants, State of New York and Office of Mental Retardation and Developmental Disabilities (OMRDD) ¹ to produce numerous documents for inspection and copying. The motion followed service of a notice for discovery and inspection, dated August 5, 1987, which contains eight numbered requests. All except paragraphs "five" and "six" have been resolved.

This claim is for the recovery of $57,007.08, which represents payment allegedly made by the City for the treatment and care of a mentally retarded child, Andre Wilson. The City's position is that it was forced to place Andre in Gracie Square Hospital, incurring the foregoing expense, because defendants did not comply with their statutory obligations to provide an alternative placement for him.

In its notice, the City seeks, among other things, lists of mentally disabled individuals who were awaiting admission, and lists of those actually admitted, to developmental centers or intermediate care facilities owned, operated or licensed by OMRDD within the City from March, 1983 through April, 1984, together with the date and name of the person or agency referring such individual. These are the disputed requests.

While defendants agree to produce the information with respect to facilities owned or operated by the State, with respect to licensed facilities, they will produce only those documents actually received from these third parties. The City finds this insufficient.

Article 31 of the Mental Hygiene Law prohibits any provider of services from engaging in the operation of a residential facility for the care, custody and treatment of the mentally disabled without an operating certificate issued by the Commissioner of OMRDD. It also authorizes the promulgation of regulations governing the issuance of such licenses and the record-keeping and reporting required of such facility. (See, also, Mental Hygiene Law, art 33.)

Specifically, while the facilities are under the day-to-day control of their own administrators appointed by their own governing bodies (14 NYCRR 681.4), they are required to admit patients in accordance with criteria set forth in the OMRDD manual (14 NYCRR 681.5), and to maintain comprehensive records for each patient. Each individual's file must contain, among other things, identification information, reports of his or her illness, treatment and progress. (14 NYCRR 681.11.) The facilities must make these records available to OMRDD on demand. (Mental Hygiene Law § 31.11[4]; 14 NYCRR 681.11; 681.12.)

Relying on this authority, the City argues that the documents it seeks are in defendant's control and, therefore, must be collected and produced by them.

CPLR 3120(a) requires the production by a party of specifically designated documents in its possession, custody or control. (See generally, 3A Weinstein-Korn-Miller, NY Civ Prac p 3120.16; cf., Rules of Bankruptcy Ct., S.D.N.Y., rule 14.2[f][3].)

A party cannot be compelled to create new documents, however, just to satisfy its adversary's disclosure requests. ( Corriel v. Volkswagen of Am., 127 A.D.2d 729, 512 N.Y.S.2d 126; Durham Med. Search v. Physicians Intl. Search, 122 A.D.2d 529, 504 N.Y.S.2d 910; Jonassen v. A.M.F., Inc., 104 A.D.2d 484, 479 N.Y.S.2d 81; Welsh v. New York City Tr. Auth., 78 A.D.2d 550, 432 N.Y.S.2d 27; First United Fund v. American Banker, 127 Misc.2d 247, 485 N.Y.S.2d 489.) To be entitled to production, the moving party must make at least a preliminary showing that the items sought exist, are relevant and are, or at least should be, in the possession, custody or control of the party served. ( Pickens v. Hercules, 134 A.D.2d 222, 521 N.Y.S.2d 16; Linton v. Lehigh Valley R.R. Co., 25 A.D.2d 334, 269 N.Y.S.2d 490; accord, Norman v. Young, 422 F.2d 470; cf., Fugazy v. Time, Inc., 24 A.D.2d 443, 260 N.Y.S.2d 853.) In addition, when deciding whether to compel or excuse compliance with the demand, the Court must weigh the relevancy of the matter sought and its availability from other sources against the burden production will visit on the producing party. ( Gilbert-Frank Corp. v. Guardsman Life Ins. Co., 78 A.D.2d 798, 433 N.Y.S.2d 124; Ball v. State of New York, 101 Misc.2d 554, 421 N.Y.S.2d 328; see also, Cynthia B. v. New Rochelle Hosp. Med. Center, 60 N.Y.2d 452, 470 N.Y.S.2d 122, 458 N.E.2d 363.) By this means, a balance is maintained with each side bearing its own share of the cost of discovery. ( Rosado v. Mercedes-Benz of North Am., 103 A.D.2d 395, 480 N.Y.S.2d 124.)

Applying the foregoing, first, the City has made no showing that the third-party facilities are themselves in possession of the information sought. While...