New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2000-015-095, Claim No. 99951, Motion No. M-61962


Court denies claimant access to law enforcement referral regarding 13 year old alleged abuser from State Central Registry finding it to be an unfounded report sealed under Social Services Law § 422.

Case Information

QUAYLAND THOMAS, QUINYAN THOMAS, and RAHLA THOMAS, Infants, by their Parent and Natural Guardian, GEORGIANNA THOMAS, and GEORGIANNA THOMAS, Individually
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:
O'Connell and Aronowitz, P.C.By: Thomas E. Dolin, Jr., Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireStaff Attorney
Third-party defendant's attorney:

Signature date:
October 30, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants' motion for an order seeking an in camera inspection by the Court with regard to three documents identified but alleged to be privileged in defendant's response No. 27 to claimant's discovery demand is granted. Upon examination the Court deems the subject documents to be privileged and not subject to disclosure. The claim seeks monetary damages for sexual abuse and maltreatment of three infant claimants allegedly perpetrated by the adolescent son of a state certified child care provider and contains a derivative claim by the infants' parent and natural guardian, Georgianna Thomas. Claimants allege that the defendant had prior knowledge and/or notice of the perpetrator's conduct "by virtue of prior complaints and/or incidents." It is alleged that the sexual abuse and maltreatment upon which this claim is based occurred between late June 1997 and August 6, 1997. Claimants herein seek an in camera inspection and a determination by the Court as to whether the documents are confidential and, therefore, not subject to disclosure.

Item No. 27 of the defendant's response to claimants' discovery demands related the following:
27. The defendant has not made available for inspection certain documents which it deems to be privileged and thus not discoverable. These documents are identified as follows:

a) a document entitled Law Enforcement Referral from the New York State Department of Social Services Child Abuse Hotline, dated September 3, 1996;

b) a seven-page Office of Children and Family Services Child Protective Services Intake Report, dated January 10, 1997;

c) a four-page Office of Children and Family Services Child Protective Services Intake Report, dated April 7, 2000;

The defendant did not oppose the in camera inspection of the documents by the Court and the Court by letter dated August 15, 2000 directed the defendant to submit the three disputed documents to chambers for inspection along with an affirmation of David N. Green, Bureau of House Counsel to the Office of Children and Family Services, identifying the documents. An affidavit of Charles Carson was substituted for the Court-directed affirmation of Mr. Green who was unavailable during the time set by the Court for the response. The subject documents were timely submitted for the Court's inspection.

As a general proposition, CPLR § 3101 (a) requires that there be "full disclosure of all matter material and necessary in the prosecution or defense of an action." Courts have interpreted the parameters of discovery broadly (Deas v Carson Prods.Co., 172 AD2d 795) to require "disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). The scope of discoverable materials is, however, restricted by the proscription contained in CPLR 3101 (b) that, upon proper objection, "privileged matter shall not be obtainable." That which constitutes "privileged matter" is not defined but would certainly include matter required to be held confidential pursuant to statute (Williams v Roosevelt Hosp., 108 AD2d 9).

The primary issue posed by this motion is whether an allegation of abuse which results in a law enforcement referral pursuant to Social Services Law § 422 (2)(c) is a report subject to the confidentiality provisions of section 422 (4) (A) or (5).

In general, Social Services Law Title 6 provides for the reporting and investigation of suspected instances of child abuse or maltreatment. In particular, section 422 of Title 6 establishes a statewide central register of child abuse and maltreatment reports to provide a mechanism for the receipt and investigation of allegations of abuse or maltreatment. Reports and other attendant information are specifically deemed confidential and, dependent upon the character of the report, are subject to varying degrees of availability to specified individuals and agencies. Social Services Law § 422 (4) (A) provides:
4. (A) Reports made pursuant to this title as well as any other information obtained, reports written or photographs taken concerning such reports in the possession of the department, local departments, or the commission on quality of care for the mentally disabled, shall be confidential and shall only be made available to . . .
That subdivision then lists parties permitted access to the reports in order to assist in carrying out their particular official functions. Among the parties so specified is "a court, upon a finding that the information in the record is necessary for the determination of an issue before the court" (Social Services Law § 422 (4) (A) (e)).

A different disclosure scheme is established in section 422 (5) relative to unfounded reports. An unfounded report is defined in section 412 (11) to mean "any report made pursuant to this title unless an investigation determines that some credible evidence of the alleged abuse or maltreatment exists." Identifying information contained in an unfounded report is to be legally sealed. Unfounded reports may be unsealed and made available in only very restricted circumstances and are not admissible in judicial proceedings or actions except in two narrowly defined cases delineated in the statute and not present here (Mary L., Matter of, v State of New York Dept. of Social Servs., 244 AD2d 133).

As relevant to the disposition of this motion with respect to discovery response No. 27 (a), it is clear that the document submitted is a law enforcement referral from the child abuse hotline regarding an allegation of abuse by a thirteen year old male subject received on September 3, 1996. The law enforcement referral was made, presumably, pursuant to the direction contained in section 422 (2)(c) requiring such a referral "[w]henever a telephone call to the statewide central register described in this section is received by the department, and the department finds that the person allegedly responsible for abuse or maltreatment of a child cannot be a subject of a report."

Section 412(4) defines a subject of a report and excludes from the definition persons under the age of eighteen. Stated more precisely, a "subject of the report," as relevant here, is defined in terms of persons eighteen years or older legally responsible for a child reported to the central register. Since the subject of the allegation which resulted in the law enforcement referral at issue was less than eighteen years of age he could not be the subject of a report as that term is defined in the statute.

This Court must decide whether the allegation of abuse which gave rise to the law enforcement referral constitutes a report for purposes of Social Services Law Title 6 and, if so, the character of the report. Section 422 itself provides no assistance in the resolution of this question. Section 422 (2)(b) specifically states that certain allegations of abuse or maltreatment received by persons required to report pursuant to Social Services Law § 413 "shall constitute a report" and be immediately referred for investigation. Conversely, section 422 (2) (d) provides that certain calls received by the register alleging institutional neglect of a child in residential care "shall not constitute a report." Subdivision (c) of section 422(2) provides no such explicit guidance with regard to allegations of persons who "cannot be a subject of a report as defined in subdivision four of section four hundred twelve of this chapter."

Social Services Law § 412 does not define the term report. Definitions are, however, provided for both an "indicated report" and an "unfounded report." As related previously, an unfounded report is defined in section 412 (11) as "any report" unless after investigation it is determined that credible evidence of alleged abuse or maltreatment exists. An indicated report is defined in section 412 (12) to mean "a report made pursuant to this title if an investigation determines that some credible evidence of the alleged abuse or maltreatment exists."

Apparent from the definition of these terms is that all reports received are unfounded reports unless borne out as credible after investigation. In the circumstances presented herein, the allegation of abuse received by the central register was certainly a report as that term is used in the statute (see, Social Services Law § 411, purpose of statute is to encourage more complete reporting of suspected abuse or maltreatment; section 413, mandatory reporting of suspected abuse or maltreatment; section 414, permissive reporting of suspected abuse or maltreatment). This finding is made clear by both the reporting procedures delineated in section 415 and the direction contained in section 422 (2)(a) that the central register "shall be capable of receiving telephone calls alleging child abuse or maltreatment and of immediately identifying prior reports of child abuse or maltreatment." The report or allegation of abuse made on September 3, 1996 was referred to law enforcement as provided in section 422(2)(c) and no proof has been proffered to establish that the report was determined to be credible following investigation. As a result, the report must be classified as an unfounded report which under the statute is sealed and not admissible in evidence (Social Services Law § 422(5); Matter of Damien H., 268 AD2d 475).

Items 27 (b) and (c), clearly identified as reports determined to be unfounded following departmental investigations, are likewise sealed and inadmissible pursuant to subdivision 5 of section 422. Accordingly, items 27(b) and (c) are not subject to disclosure.

Claimants' motion is, therefore, denied.

October 30, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 30, 2000;
  2. Affirmation of Thomas E. Dolin, Jr. dated June 30, 2000 with exhibits;
  3. Affirmation of Glenn C. King in opposition dated July 26, 2000 with exhibit;
  4. Affidavit of David N. Green sworn to July 19, 2000 with exhibit;
  5. Affidavit of Charles Carson sworn to August 29, 2000 with exhibits.