New York State Court of Claims

New York State Court of Claims

G.W. v. STATE OF NEW YORK, #2002-018-120, Claim No. 100809, Motion No. M-64010


Court granted in camera review of defendant's investigative file to determine whether or not any communications and/or documents contained therein are exempt from the prohibition on disclosure in Education Law §6527(3).

Case Information

G.W., Individually and as natural parent and guardian of K.I., an infant
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:
Defendant's attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel brings this motion pursuant to CPLR 3124 seeking an order compelling the State of New York to disclose all investigation reports into the incident that occurred on November 16, 1998.

The claim alleges that the infant, a resident of the State's Mohawk Valley Psychiatric Center, was sexually abused by other residents and forced to observe other residents engaging in sexual activities. The claim also asserts that the infant was verbally and emotionally abused by staff, employees, counselors, personnel and other patients.

Claimant's counsel served a Demand for Discovery dated September 28, 2000, upon the assistant attorney general in which it was requested the Defendant produce "...copies of all written reports regarding the incident at issue in the Complaint [sic] which were prepared in the regular course of business, operations or practices of any person, firm, corporation, association or other public or private entity, unless the same is otherwise exempted under said Section of the law." (Exhibit A attached to Palmer Affidavit) A Notice to Produce dated September 28, 2000 was also served in which claimant sought in paragraph 8, "Copies of any and all documents, investigation reports or communications arising from and/or related to the incident of abuse involving Kenneth Irizarry." (Exhibit B attached to Palmer Affidavit) In defendant's response to the Demand for Discovery it states that "Without waiving any objections, and reserving the right to amend the response, as to a written report regarding the incident at issue in the Complaint [sic] other than what is contained in the medical records and charts either does not exist or is otherwise privileged (containing information regarding other patients for which no release has been provided which would permit defendant to release such information) or is protected work product created in anticipation of litigation and therefore not subject to disclosure." (Exhibit C, Response to Demand For Discovery page 2, attached to Palmer Affidavit) Defendant provided almost the identical response to claimant's Notice to Produce, paragraph 8. (Exhibit C, Response to Demand For Discovery page 3, attached to Palmer Affidavit)

Claimant's counsel argues in support of the motion that disclosure of the reports from all investigations is necessary to properly prosecute the action because the reports may contain admissions and/or information to which the witnesses deposed were unwilling to testify. She states that in almost all depositions taken of the State's witnesses, it was clear that they were involved in the investigation of the subject incident and did not want to talk about the incident or the investigation that was conducted.

Defendant's position is that these reports are privileged documents not subject to disclosure pursuant to Education Law §6527(3) and under the precedent of Katherine F. ex rel. Perez v State of New York, 94 NY2d 200. Defendant further asserts that there is no dispute as to the applicable case law and statutes; a point which claimant does not deny.

Education Law §6527(3) provides in part that, "...Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-l of the public health law described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law." (Emphasis added) Mental Hygiene Law §29.29 defines incident reports as "reports of accidents and injuries affecting patient health and welfare." To be included in such investigative reporting are any allegations of "violent behavior exhibited by either patients or employees." (Mental Hygiene Law §29.29(1) (ii) Allegations of sexual abuse, the Court of Appeals found, fell within this category. (Katherine F. ex rel. Perez v State of New York, supra at 204) As a result, Education Law §6527(3) read in conjunction with Mental Hygiene Law §29.29, exempts from disclosure incident reports involving allegations of sexual abuse. (Katherine F. ex rel. Perez v State of New York, supra at 203) The Court of Appeals found that by referring to section 29.29 of the Mental Hygiene Law in Education Law §6527(3) "the Legislature concluded that quality of care concerns include investigations of patient abuse." (Katherine F. ex rel. Perez v State of New York, supra at 205)

The investigative reports sought by claimant herein are not discoverable under Education Law §6527(3). The Court will direct, however, that the investigative file be produced to the Court for an in-camera inspection to determine whether there are any documents or communications in the file which are not subject to the protection of Education Law §6527(3).

Claimant also seeks copies of any statements made by the infant or herself as part of the investigation, which defendant has also refused to provide. Section 6527(3) of the Education Law provides that no person will be required to testify regarding what transpired during the attendance at any meeting involving a quality assurance review or incident reporting function, including the investigation of an incident reported pursuant to section 29.29 of the Mental Hygiene Law. However, this prohibition on disclosure does not extend to statements made by a party in attendance at such a meeting where the subject allegations were reviewed. (Education Law §6527[3]) The reason for the reports being protected from the disclosure requirements of Article 31 of the CPLR, namely to "promote the quality of care through self-review without fear of legal reprisal," does not extend to claimants' own statements. (Katherine F. ex rel. Perez v State of New York, supra at 205; compare, Romero v Cohen, 178 Misc 2d 292; Pindar v Parke-Davis & Co., 71 Misc 2d 923)

Accordingly, defendant is directed to produce the investigative file for in-camera inspection to determine whether any documents or communications contained therein are exempt from the prohibition on disclosure in Education Law §6527(3). The investigative reports are not discoverable.

Based upon the foregoing claimant's motion is DENIED IN PART and GRANTED IN PART, but only to the extent that the Court will grant an in-camera review to determine whether any of the documents or communications can be disclosed.

January 28, 2002
Syracuse, New York

Judge of the Court of Claims

Notice of Motion........................................................................................................1

Affidavit in support of Stephanie A. Palmer, Esquire,

with all exhibits attached thereto................................................................................2

Affirmation in opposition of G. Lawrence Dillon, Assistant Attorney General........3