New York State Court of Claims

New York State Court of Claims

MAC v. THE STATE OF NEW YORK, #2000-015-042, Claim No. 100970, Motion No. M-61136


The disciplinary records of an inmate that assaulted a claimant inmate are discoverable as are those portions of the psychiatric records of the assaulter not related to prognosis, diagnosis or treatment.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Andrew F. Plasse, P.C.By: Andrew F. Plasse, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireStaff Attorney
Third-party defendant's attorney:

Signature date:
May 31, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the claimant for an order directing disclosure of psychiatric and disciplinary records relating to inmate Phillip Torres is granted to the extent that the Clerk of the Court is directed to serve copies of the disciplinary summary and redacted psychiatric records of Phillip Torres upon the parties together with a copy of this decision and order. The filing of the complete and redacted copies of Mr. Torres' psychiatric records is dispensed with and the Clerk is directed to return the complete set of Mr. Torres' psychiatric records to the Central New York Psychiatric Center forty days following the filing of this decision and order if no appeal has been taken. This is a claim to recover for personal injuries allegedly sustained by the claimant as the result of an attack upon him by fellow inmate Phillip Torres at approximately 1:45 p.m. on August 28, 1997 in the north yard of the Greene Correctional Facility. The claimant alleges that the defendant was negligent in that, inter alia, it failed to take appropriate steps to segregate inmate Torres from the claimant and other members of the general population in view of its knowledge of inmate Torres vicious propensities. By this motion, claimant sought an in camera inspection of Phillip Torres' psychiatric and disciplinary records. The attorney defending the claim submitted a summary of inmate Torres' disciplinary history as well as his out-patient psychiatric records for an in camera inspection. Defense counsel insists that the disciplinary summary does not show any evidence of a vicious propensity and that the psychiatric records of Phillip Torres are privileged.

Mr. Torres' psychiatric records are privileged (Mental Hygiene Law § 33.13; CPLR § § 4504, 4507; Public Health Law § § 17, 2803-c, 2805-g; Villano v State of New York, 127 Misc 2d 761). Unless Mr. Torres has expressly waived that privilege, which he has not, the defendant may not divulge those records absent a court order (Moore v St. John's Episcopal Hosp., 89 AD2d 618). On the other hand, "[e]vidence of the attacker's prior behavior and a diagnosis of his mental condition would be material and necessary to the prosecution of this claim", alleging that the State was negligent in failing to segregate an attacker with a known dangerous propensity (Wilson v State of New York, 36 AD2d 559). The rule has evolved that in cases where the claimant is seeking to obtain the medical records of his alleged assailant from the State, he or she is entitled to receive records relating to the assailant's criminal record and behavior in confinement prior to the assault but is not entitled to records relating to the inmate's prognosis and diagnosis. The procedure is that the Court conduct an in camera inspection of the records. In Brier v State of New York, 95 AD2d 788, the Appellate Division provided the following guidance in determining which matters are to be disclosed:
In the process of redacting the hospital record the court shall exclude therefrom (1) all reports and references concerning physical and psychological examinations, the results thereof, prognosis, diagnosis and treatment, (2) any entry where a doctor, nurse or other medical personnel refers to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient and (3) any entry by medical personnel concerning treatment of the patient for the specific incident which was the basis of his referral to them. The court shall include in the redacted copy of the hospital record to be furnished to the claimants (1) all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and (2) the number of times the patient was confined to defendant's institution and the length of each stay thereat.
On April 13, 2000, the Court received Mr. Torres' psychiatric records consisting of twenty-three numbered pages of materials. Following the guidelines set forth in Brier, the Court has completed an in camera inspection and prepared a redacted version thereof for delivery to claimant. In conducting the in camera inspection of the psychiatric records the Court is disclosing only those entries which may indicate prior assaultive conduct on the part of inmate Torres, or information which arguably could have put the State on notice of his alleged vicious propensities.

With respect to Phillip Torres' institutional disciplinary record, such a document is highly relevant upon the issue of whether Torres had a vicious propensity of which the State should have had notice and the Court is not aware of any privilege which would prohibit the disclosure of inmate disciplinary records (see, Leibach v State of New York, 215 AD2d 978; Hann v State of New York, 137 Misc 2d 605). Therefore, the claimant will be provided with the summary of inmate Torres' disciplinary record.

May 31, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 18, 2000;
  2. Affirmation of Andrew F. Plasse dated January 18, 2000, with exhibits;
  3. Affirmation in opposition of Glenn C. King dated February 1, 2000, with exhibit;
  4. Central New York Psychiatric Center psychiatric records of Inmate Phillip Torres.