New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2003-013-029, Claim No. 102013, Motion Nos. M-66661, — 67180, M-67538


Claimant's motion for in camera review of personnel records of correction officers is granted.

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):
M-66661, M- 67180, M-67538
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 19, 2003, the following papers were read on Claimant's motions to compel the production of certain documents:

1. Notices of Motion and Supporting Affidavits of William G. Ramos

2. Affidavit in Opposition of Wendy E. Morcio, Esq., Assistant Attorney General (M-66661)

3. Affidavits in Opposition of Wendy E. Morcio, Esq., Assistant Attorney General, James Gruber and Eugene Kinsley (M-66661 and M-67180)

4. Affidavit in Opposition of Michael Brooks (M-66661 and M-67180)

5. Response Letter of William G. Ramos, dated June 12, 2003

6. Filed Papers: Claim; Answer

This is an action for personal injuries allegedly suffered by Claimant on October 28, 1999, when he was assaulted by three correction officers at Wende Correctional Facility. At the time of the assault, according to Claimant, the officers were escorting him to the prison's Mental Health Unit. All three motions before me have been made returnable on November 19, 2003.

In Motion No. M-66661, Claimant seeks disclosure from the personnel files of the three named correction officers who allegedly assaulted him, particularly any disciplinary records dealing with alleged physical abuse, excessive force, misconduct and the like. Claimant filed a second motion, No. M-67180, seeking identical relief to that sought in Motion No. M-66661. The Defendant's opposition to both motions, while noting that this matter had been scheduled for trial before this request was made, argues that Claimant must demonstrate in good faith some factual predicate so as to warrant an in camera inspection of personnel files. Defendant also argues that Civil Rights Law §50-a requires that an interested party be given an opportunity to be heard.

Defendant argues that the claim alleges an assault by three correction officers and suggests that absent an allegation of negligent hiring or supervision, there is no need or basis for reviewing their personnel records. To the extent that the application before me would consider whether any or all of the three officers have a disciplinary history that might prove relevant to the underlying claim, I do not believe that this is a fishing expedition or that it presents an unwarranted intrusion into their files. The case cited in support of the proposition that there must be allegations of negligent hiring or supervision, Estate of McConlogue v County of Nassau (208 AD2d 888), is inapposite and has not been cited since 1994 in any other published case. I note the identical verbatim affidavits by each of the three correction officers wherein, inter alia, each officer attests to his review of his own personnel file and that it "does not contain any references to any prior substantial excessive force/assault complaints or disciplinary actions in this regard." At the very least, these individual affidavits demonstrate that each of the three correction officers was provided with an opportunity to be heard (Civil Rights Law §50-a[2]).

More recently, in Motion No. M-67538, in addition to seeking responses and the same relief as the above-noted motions, Claimant requests the assignment of counsel. Requests of this type generally accompany motions for poor person relief pursuant to CPLR article 11, but poor person relief itself has not been sought in this motion. Regardless, the appointment of counsel seeks relief that is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273), and there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, supra). Therefore, the motion for appointment of counsel is denied.

I conclude that Claimant has made a showing of facts sufficient to warrant my review of the personnel records of the three named correction officers' personnel records (see, Civil Rights Law §50-a[2]; see also, People v Gissendanner, 48 NY2d 543, 551). I am persuaded that the records could be relevant to an issue in the pending claim.

Accordingly, the motions for an in camera inspection are granted to the following extent: within 45 days of the date of this decision and order, the Defendant shall provide to the Court two complete certified copies of the disciplinary histories of each of the three named correction officers from each officer's initial date of employment with the Department of Correctional Services to the date of the incident in question, October 28, 1999.

November 19, 2003
Rochester, New York

Judge of the Court of Claims