New York State Court of Claims

New York State Court of Claims

KINGE v. THE STATE OF NEW YORK, #2002-009-24, Claim No. 88273, Motion Nos. M-64365, CM-64434


On claimant's motion to compel discovery, the Court made an Interim Order directing records and documents from a State Police "internal investigation" to be released to claimant, following an in camera inspection pursuant to Civil Rights Law, § 50-a.

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:
BY: Russell E. Maines, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Belinda A. Wagner, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This claim involves allegations of negligent supervision, unjust conviction, and malicious prosecution, following claimant's conviction on numerous crimes, including burglary, arson, and forgery, in November, 1990. On August 25, 1992, claimant's judgment of conviction was vacated after it was discovered that some of the evidence used to convict her had been fabricated by members of the New York State Police. The indictment against her was dismissed on November 9, 1992. A special investigator, Nelson E. Roth, was appointed by the governor, and his investigation and report into the issues of evidence tampering by members of the New York State Police in this and other criminal matters was made to the governor on January 20, 1997.

The investigation conducted by Nelson E. Roth produced voluminous items, materials and documents, which are the subject of claimant's long-standing motion to compel, presently pending before the Court. In the alternative, in her motion claimant seeks an order striking defendant's pleadings, and also requests the imposition of sanctions against defendant's attorney. Defendant has responded with a cross-motion seeking a protective order.[1]

The motion and cross-motion have been the subject of numerous conferences with the Court and counsel for both parties, and the Court is aware that counsel for both parties have also expended a great deal of time and effort in an attempt to resolve these disputes over discovery and the production of certain documents. Counsel have now submitted a stipulation to the Court which provides for the disclosure of records of the New York State Police and records of Special Prosecutor Roth, under certain conditions. A copy of this stipulation, and a list of the information or documents to be released pursuant to the stipulation ("Schedule A"), is attached hereto.

As noted in the stipulation, all items or documents listed in Schedule A are to be immediately disclosed to claimant, with the exception of Items numbered 18, 45, 46 and 63, to which defendant has asserted a privilege.

This order addresses the disclosure of items designated by defendant as part of an "internal investigation", in response to Demand Number 12 of claimant's demands for discovery and inspection dated May 2, 2001, and the supplemental demand dated May 30, 2001. Items 45, 46 and 63 of "Schedule A", according to defendant, are part of this "internal investigation" to which it has asserted a privilege.

Defendant asserts that Items 45, 46 and 63 of "Schedule A" are not "Roth" documents (and therefore are not included in the items and materials to be disclosed pursuant to the stipulation), but instead should be considered part of the "internal investigation" conducted by the New York State Police, and as such are privileged and exempt from disclosure pursuant to Civil Rights Law, § 50-a. Defendant contends that these items are "personnel records, used to evaluate performance toward continued employment or promotion" (Civil Rights Law, § 50-a[1]) and are therefore confidential. Pursuant to § 50-a, these documents designated by defendant as the "internal investigation" have been submitted to the Court for an in camera inspection. Upon such inspection, the Court finds that such records are indeed subject to the protections of § 50-a. However, the Court further finds that claimant has made a sufficient factual predicate showing the materiality and relevancy of the requested documents as it relates to this claim, and that such documents should therefore be released.

Accordingly, this Court orders that the materials and documents designated by the State as its "internal investigation" and specifically including Items 45, 46 and 63 set forth in "Schedule A" attached hereto, be immediately disclosed to claimant.

The Court will separately consider and determine all remaining items of contention set forth in this motion and cross-motion and will incorporate its findings in a decision and order to be subsequently filed.

Therefore, it is

ORDERED, that defendant, pursuant to Civil Rights Law, § 50-a, within 10 days from the date of filing of this order, shall provide to claimant those items and documents demanded by claimant and designated by defendant as the "internal investigation", including Items 45, 46 and 63 of "Schedule A" attached hereto.

May 30, 2002
Syracuse, New York

Judge of the Court of Claims

[1] This Decision and Order is an interim order, disposing of some, but not all, of the requests for judicial relief.