145 Misc. 2d 140 | N.Y. Sup. Ct. | 1989
OPINION OF THE COURT
In this action for false arrest, assault and battery, and
Plaintiff’s attorney personally visited Kings County Hospital in order to obtain plaintiffs hospital records and was advised that the records were "in the administrator’s office”. He later by mail sought to obtain the hospital records and was advised that they were in the possession of the Corporation Counsel and that any requests for review of the records must be made to the Corporation Counsel. Indeed, after payment of over $700 in photocopying fees, plaintiffs lawyer obtained the records, not from Kings County Hospital, but from the litigation unit of the Corporation Counsel’s office. Notwithstanding the fact that New York City Health and Hospitals Corporation (NYCHHC) is not a defendant here, it apparently complied with a directive of the Corporation Counsel not to disclose the plaintiffs medical records to his own attorney.
The Assistant Corporation Counsel does not know the whereabouts of the X rays, nor were they ever furnished to him, and he resists the missing document charge on the grounds that the NYCHHC, under whose auspices Kings
It has been my observation that it is the rule rather than the exception that NYCHHC hospital records are delivered directly to the Corporation Counsel’s office in all matters wherein the City of New York is a defendant. The requested "missing document” charge (PJI 1:77) speaks to documents in the possession of a party. The Assistant Corporation Counsel claims that since it never possessed the missing X rays the missing document charge would be unwarranted.
Accordingly, plaintiffs request to charge the jury on the failure to produce the X rays is granted under the facts present here.
. The city was afforded the opportunity during trial to present a witness or witnesses outside the presence of the jury to refute the inference that NYCHHC delivered the hospital records to the Corporation Counsel to the exclusion of all interested parties pursuant to direction of the Corporation Counsel. The Assistant Corporation Counsel declined the court’s invitation.
. This court acknowledges the good-faith representation of the Assistant Corporation Counsel that the X rays were never delivered to him.