The following papers were read and considered on claimant's motion to compel
discovery: Notice of Motion, dated August 6 and filed September 5, 2001;
Affidavit in Support of William J. White, Esq., sworn to July 25 and filed
September 5, 2001, with annexed Exhibits A-G; Memorandum of Law, dated August 6
and received September 5, 2001; Affirmation in Opposition of Belinda A. Wagner,
Esq., AAG, dated October 3 and filed October 9, 2001, with annexed Exhibits A-B;
Reply Affidavit of William J. White, Esq., sworn to October 5 and filed October
9, 2001; the claim, sworn to September 28 and filed September 29, 2000; Response
to Claimant's Demand for Discovery and Inspection, dated April 20 and filed
April 24, 2001, with annexed Exhibits A-B.
After a number of conferences (22 NYCRR 206-8 [b]), claimant Clarence Baldwin
("claimant") filed this discovery motion, which primarily calls for the Court to
address the applicability of the confidentiality provision of section 33.13 of
the Mental Hygiene Law.
The underlying claim was filed by claimant as legal guardian of John Doe, an
infant ("the infant"), on September 29, 2000; and alleges that on July 4, 2000
the infant was "raped and sexually assaulted" by William Ramsey ("Ramsey"), a
person with mental retardation who had "been a patient of and/or under the
care, supervision and treatment" of defendant State of New York (defendant" or
"the State") (claim, sworn to September 28 and filed September 29, 2000
["claim"], pp. 2-4).
The claim faults the
State for "failing to take reasonable and necessary actions to review the
release, discharge or status of [Ramsey] to the general community" (claim, p.
3); for failing to confine Ramsey; and for failing to supervise him properly and
to take precautions to prevent him from perpetrating such an assault (claim, pp.
2-4). Claimant alleges that Ramsey was "known to be dangerous, disruptive,
disorderly and assaultive" (claim, p. 4) and, thus, the attack upon the infant
was reasonably foreseeable (claim, p. 4).
The State's general position, as disclosed by its response to discovery demands
and at conferences and as reemphasized in its response to this motion, is that
it did not have "custody" or "control" over Ramsey during the relevant time
period. Rather, as a person with mental retardation, he was merely receiving
assistance and supervision in his daily living activities (Response to
Claimant's Demand for Discovery and Inspection, dated April 20 and filed April
24, 2001, with annexed Exhibits A-B ["Response"], ¶ 4; Wagner Aff., ¶
6). These "residential habilitation services" were provided through an
agreement between the State and a non-profit organization, Alternatives in
Mankind Inc. ("AIM") (Wagner Aff., ¶¶ 3-6, Exh.
Claimant's discovery demands can be broadly grouped into two categories. The
first group of demands seeks documents which would tend to answer the question
of what relationship, if any, existed between the assailant, Ramsey, and the
State on the date of the assault and for a period of time prior to it; i.e., the
demands appear targeted at shedding light on the issue of whether and/or to what
extent the State had any supervisory role over Ramsey. These demands
collectively seek information regarding any contracts or agreements between
defendant and third parties "relating to the custody, care, control and
supervision of [Ramsey]" (Affidavit in Support of William J. White, Esq., sworn
to July 25 and filed September 5, 2001, with annexed Exhibits A-G ["White
Aff."], Exh. C [Demand for Discovery and Inspection, ¶ 3) and information
pertaining to what extent the State provided for, or arranged for others to
provide, Ramsey with housing and services (see, White Aff., ¶¶
6, 8, 9, Exh. C, ¶¶ 1, 2, 3, 7, 8, 9, 14).
The second broad grouping of demands can be categorized as seeking documents
that might establish what, if any, notice the State may have had that Ramsey was
dangerous such that it could have taken steps to alleviate any risk that he
presented to others. A representative example of these demands seeks "copies of
all written reports, notes, correspondence and records of investigations,
incident reports, inquiries or assessments which relate to [Ramsey's] activities
for the period in which the State of New York or any third parties under
contract with the State of New York, supervised and controlled [Ramsey]" (White
Aff., ¶ 6, 8, 9, Exh. C, ¶ 6). Claimant also seeks incident reports
in conjunction with the incident giving rise to this claim (White Aff., Exh. C,
¶ 11). In order to establish notice (White Aff., ¶¶ 13),
claimant further seeks to discover copies of any reports, records or notes of
those who treated Ramsey prior to July 4, 2000, including any period of time the
State supervised or controlled Ramsey (White Aff., Exh. C, ¶ 4); copies of
all reports, records, evaluations or medical opinions regarding Ramsey's care,
treatment, supervision or control (White Aff., Exh. C, ¶ 5); and copies of
any medical, physical, psychological or psychiatric reports/records relating to
the care and treatment of Ramsey (White Aff., Exh. C, ¶ 10).
Defendant has resisted providing claimant with much of the sought after
material, primarily upon the ground that disclosure is precluded by application
of the confidentiality provisions of Mental Hygiene Law § 33.13 and CPLR
4504 (Wagner Aff., ¶¶ 4-6, 11). In addition, the State also appears
to argue that documentation regarding custody or control of Ramsey does not
exist because the State did not play such a role with respect to him (Wagner
Aff., ¶¶ 6, 18).
As a starting point, the Court is guided by the broad principle that "[t]here
shall be full disclosure of all matter material and necessary in the prosecution
or defense of an action" (CPLR 3101 [a]) and that "open and far-reaching
pretrial discovery" is generally favored (DiMichel v South Buffalo Ry.
Co., 80 NY2d 184, 193, rearg. denied sub nom. Poole v Consolidated
Rail Corp., 81 NY2d 835, cert. denied 510 US 816). The public policy
concern regarding a patient's or consumer's privacy interests counterbalances
and limits this broad-sweeping rule of liberal disclosure in this claim,
however. Specifically, Mental Hygiene Law § 33.13, which limits a
litigant's ability to discover information contained in records maintained by
facilities licensed or operated by the Offices of Mental Health and Mental
Retardation and Developmental Disabilities, is such a limiting statute. Its
recognized purpose is to insulate mental health service consumers from the
humiliation, embarrassment and potential stigma that might otherwise be
occasioned by unfettered disclosure (see generally, Duzon by Duzon v
State of New York, 155 Misc 2d 86, 88; Palmer v Durso, 90 Misc 2d
110, 112; Munzer v Blaisdell, 183 Misc 773, affd 269 AD 970). The
statute makes confidential, among other things, "clinical records or clinical
information tending to identify patients or clients" (see, Mental Hygiene
Law § 33.13 [c]).
The confidentiality created by this provision, however, is not absolute and may
yield upon a finding by this Court, in an exercise of its discretion, "that the
interests of justice significantly outweigh the need for confidentiality"
(Mental Hygiene Law § 33.13 [c] ; see, Matter of Warrington v State
of New York, 303 NY 129, 139-140; Matter of State of New York Office of
Mental Retardation and Dev. Disabilities v Mastracci, 77 AD2d 473, 477).
Here, the Court exercises its discretion in favor of finding that the
circumstances present in this case satisfy this threshold and justify a degree
of limited disclosure.
The limitations imposed are two-fold. The first is guided by the statute
itself, which provides that any "disclosure made pursuant to this section shall
be limited to that information necessary in light of the reason for disclosure"
(Mental Hygiene Law § 33.13 [f]).
second limitation, related to the first by the common thread of relevancy,
requires the Court to review the material, in camera, and redact certain
information that is confidential in nature, such as medical information
"regarding diagnosis, prognosis, propensities, and treatment" (Lee v New York
City Tr. Auth
., 257 AD2d 611; see
, Brier v State of New York
95 AD2d 788; Villano v State of New York,
127 Misc 2d 761).
"Claimants who allege that they were violently injured by a mental patient [or,
as here, a person with mental retardation allegedly under some degree of State
control] are particularly entitled to reports of similar violent behavior"
(Burch v State of New York
, Ct Cl, Lane, J., UID # 2000-012-512, May 8,
2000, citing Villano v State of New York
For purposes of this action,
the Court considers any prior instance(s) of assaultive behavior on the part of
Ramsey relevant and subject to disclosure whether sexual in nature or not. The
Court is of the view that the assault on the infant, while sexual in nature, was
equally, if not more so, an act of violence (see
, Doe v State of New
, 267 AD2d 913, 918-919, lv denied
95 NY2d 759, Mikoll, J.,
dissenting ["notwithstanding its ‘sexual nature', rape is preeminently a
crime of violence"]; see also
, Oberman, Regulating Consensual Sex with
Minors; Defining a Role for Statutory Rape
, 48 Buff. L. Rev. 703, 711 
[noting that the term "rape" has been replaced with "criminal sexual assault" in
many states reflecting that it is a predominantly violent act]).
Accordingly, the State is ordered to produce for in camera inspection to be
conducted in compliance with Brier v State of New York
"all reports and references made, regardless of
concerning any assaultive or violent
behavior between [Ramsey] and another, including the time and place and
surrounding circumstances, the date the information came within the knowledge of
defendant, and any subsequent action . . . taken by [State] personnel, the
police department, the courts, etc., where such action was predicated upon the
aforesaid behavior" (Brier v State of New York
, at 788)
occurring prior to, and including, the assault which is the subject of this
Those records, including the items
contemplated in claimant's 4th, 5th, 6th, 7th and 11th demands (White Aff., Exh.
C, ¶¶ 4-7, 11), shall be redacted by the Court so that claimant can
discover any non-medical data that may exist pertaining to reports of similar
violent behavior on the part of Ramsey and bearing upon claimant's allegation
that the State had prior notice of Ramsey's assaultive behavior contained in
Ramsey's records (see
, Lee v New York City Tr. Auth.
; Exelbert v State of New York
, 140 AD2d 665; Katz v State
of New York
, 41 AD2d 879; Boykin v State of New York
, 7 AD2d 819;
Villano v State of New York
Another crucial aspect of this claim is whether and to what extent the State
was responsible for--or had any degree of control or any supervisory role over
Ramsey during the relevant time period. Put differently, the question is
whether the State had a legal duty here and, if so, what this duty entailed. As
already observed, the State's position is essentially that Ramsey was not the
legal "responsibility of the State" (Wagner Aff., ¶ 18) and that it had no
"custody" or "control" over him (Wagner Aff., ¶ 6).
Notwithstanding this contention, Article 13 of the Mental Health Law suggests
that the State has deemed the proper care, treatment and provision of services
to those with mental retardation as its, or more specifically the Office of
Mental Retardation and Developmental Disabilities' responsibility (see,
e.g., Mental Hygiene Law §§ 13.01; 13.07 [c]; see also, Kasunic
v Webb, ___ F Supp ___, 1990 WL 104005, citing Flowers v Webb,
575 F Supp 1450 [ultimate responsibility for the care of and treatment of the
mentally retarded is that of the State notwithstanding utilization of community
based voluntary organizations]). Indeed, the fact that non-profit providers of
home based habilitation services, such as AIM, are required to comply with the
State reporting requirements (see, 14 NYCRR 624.1 [d], 635-10.1 [c]) so
as to "enable a governing body (see, 14 NYCRR 624.20 [k]), executives,
administrators and supervisors to become aware of problems, to take corrective
measures, and to minimize the potential for reoccurrence of the same or similar
events or situations" (14 NYCRR 624.2 [b]) buttresses this view. Although
Article 13 of the Mental Hygiene Law and the reporting requirements are
primarily written from the perspective of protecting the person with mental
retardation rather than protecting the public, possible criminal acts or
"actions by persons receiving services which are or appear to be a crime"
(14 NYCRR 624.4  [emphasis supplied]) are required to be reported.
Claimant's demand for any agreements between the State and any third party
providers (AIM) for the five-year period preceding the assault on the infant
relating to the care, custody, control or supervision of Ramsey (White Aff.,
¶ 6, Exh. C, ¶ 3) does not appear overly broad. If specific
agreements exist, they are arguably relevant to whether and to what extent the
State maintained a degree of supervision or oversight over Ramsey and must be
disclosed. To the extent such information implicates consumer confidentiality
concerns as set forth in Mental Hygiene Law § 33.13 or CPLR 4504 (Wagner
Aff., ¶¶ 5-6), the Court will review any documents produced in camera
before disclosing them to claimant. The Court notes, however, that to the
extent such documents contain information regarding the amount of residential
habilitation services Ramsey was receiving during this time period, as opposed
to strictly medical information, the necessity of establishing whether or to
what extent the State oversaw the proper treatment of Ramsey or, possibly, how
the State may have responded to any incidents reported to it in compliance with
14 NYCRR 624 necessitates a finding that the interests of justice outweigh the
privacy concerns of Ramsey as protected by Mental Hygiene Law §
Based on the foregoing, the State is ordered to produce any responsive
documents as described in this order for the Court's in camera inspection within
forty-five (45) days of the filing date of this order.