
    In the Matter of the Application of Elsie Jones, Individually, and as Guardian ad Litem of Cordell Jones, an Infant.
    (Motion No. M-4366.)
    Court of Claims,
    July 31, 1957.
    
      Ivan A. Michael for movant.
    
      Louis J. Lefkowits, Attorney-General (Robert Schwarts of counsel), for State of New York, opposed.
   Alexander Del Giorno, J.

This is a motion in the nature of discovery and inspection for an order compelling the New York Training School for Boys, Warwick, New York, to produce all medical records concerning treatment rendered to the infant herein.

The claimant does not say that she is without knowledge as to whether she has a cause of action against the State. In that event the motion would be denied, because under section 295 of the Civil Practice Act parties may not be examined before the commencement of an action to determine if facts exist to create a cause of action (Lindquist v. Spencer & Son Corp., 65 N. Y. S. 2d 482). She seeks to establish the quantum of her claim by the alleged medical testimony available at the New York Training School for Boys, Warwick, New York. In the light of this interpretation, the application would fall under section 324 of the Civil Practice Act.

Subdivision 2 of section 17 of the Court of Claims Act, however, does not authorize discovery under section 324 of the Civil Practice Act (Dunbar & Sullivan Dredging Co. v. State of New York, 174 Misc. 743). The motion therefore is denied.

The claimant, if she be so advised, may file her notice of intention to file a claim, whereupon she will have the right to an examination before trial and in addition an inspection of records pursuant to subpoena. If such examination indicates that the claim should be amended, she may then move for such an amendment to make her claim commensurate with the facts.  