New York State Court of Claims

New York State Court of Claims

RANDALL v. STATE OF NEW YORK, #2003-018-239, Claim No. 100522, Motion No. M-66072


Synopsis


Claimants' motion for the production of various discovery items and the personnel files of two DEC officers for an in camera review is granted in part pursuant to Civil Rights Law § 50-(a).


Case Information

UID:
2003-018-239
Claimant(s):
RONALD K. RANDALL and BRENDA J. RANDALL
Claimant short name:
RANDALL
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100522
Motion number(s):
M-66072
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LOCKWOOD & GOLDEN
By: B. Brooks Benson, Esquire of counsel
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 15, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimanttttt[t] brings this motion seeking an order compelling the State of New York to produce various discovery items, and to produce for in camera review the personnel files of two Department of Environmental Conservation (hereinafter DEC) officers.ttttt[t] Defendant vigorously opposes the motion.

The claim seeks damages for malicious prosecution, assault and battery, and the use of excessive and unreasonable forceeeee[e] against claimant by two DEC officers on October 24, 1998 at approximately 1:00 p.m., on claimant's property located at 109 Mexico Road, Little Falls, in the County of Herkimer. The claim also includes causes of action for failure to properly train, supervise, and discipline the two DEC officers, and for loss of consortium. Claimant asserts that on October 24, 1998, he was advised by his wife that two DEC officers, without notice, warrant or permission, drove at a high rate of speed onto his property to the rear yard where claimant's son and a friend were playing. Claimant went to that location and told the officers to leave his property whereupon the DEC officers charged claimant, sprayed him with pepper spray, knocked him down and beat him about the face, head, neck and back. Claimant was then handcuffed and charged with Assault in the Second Degree (Penal Law §120.05), Obstructing Governmental Administration in the Second Degree (Penal Law §195.05) and Resisting Arrest (Penal Law §205.30).

By this motion claimant seeks compliance with previously served discovery demands and release for in camera review the personnel files of the two DEC officers. Specifically claimant seeks the following documents/information from defendant:
1. Copies of all civilian complaints made or filed against DEC Officers Clarke and VanSlyke specifically relating to any incidents or episodes of excessive/unreasonable force from the beginning of their employment with the State until October 24, 1998;

2. Copies of all notices of claim filed [sic] or served upon the State of New York or the Attorney General's office naming or identifying either of these DEC officers in connection with allegations of excessive/unreasonable force from the beginning of their employment with the State until October 24, 1998;
3. Copies of all legal complaints commencing lawsuits against either of these DEC officers alleging excessive/unreasonable force from the beginning of their employment with the State until October 24, 1998;

4. Copies of the personnel folders of both officers pertaining to or relating to incidents/episodes of excessive/unreasonable force;


5. Performance evaluations of DEC Officer VanSlyke;

6. Copies of psychological tests, screening, interviews or other evaluations of both officers as pertain to any aforementioned prior incidents or episodes of excessive/unreasonable force;

7. Records or reports relating to civilians injured during the course of any arrests by these officers from the beginning of their employment with the State until October 24, 1998;

8. All documents relating to any administrative complaints or actions taken against either officer relating to the use of excessive/unreasonable force from the beginning of their employment with the State until October 24, 1998;

9. All medical records relating to the human bite DEC Officer Clarke testified to during his deposition that he suffered by claimant.


In addition to these items, claimant requested various items during depositions which were made part of this motion. However, defendant has no objection to these demands and has provided the documentation requested (Marmelstein affirmation Exhibit 1). Defendant has also agreed to provide Officer VanSlyke's performance evaluations for in camera review.

Defendant, however, opposes the balance of claimant's demands. Defendant's main contention is that each of the remaining requests seek documents/information which fall within the realm of protection of Civil Rights Law §50-(a), and claimant has failed to meet the initial burden of showing facts which warrant an in camera review of the records to determine relevance.

Not all of the items requested fall under the protection of Civil Rights Law §50-a, such as claimant's request for all legal complaints commencing lawsuits against either DEC officer and all notices of claim filed or served upon the State of New York or the Attorney General's Office. These documents are filed in the respective county clerk's office, or in the case of the Court of Claims, in the chief clerk's office and were never confidential. They should be produced.

Civil Rights Law §50-a provides in relevant part:
1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any...department of the state...shall be considered confidential and not subject to inspection or review without the express written consent of such....officer except as may be mandated by lawful court order.

2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request the records for review.

3. If after such hearing, the judge concludes that there is sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.


Thus, the release of personnel records requires a two-step inquiry: first, there must be a clear showing of facts sufficient to warrant the in camera review, then, the Court must determine whether the records are relevant and material to the pending action (Civil Rights Law §50-a(2)(3); Cox v New York City Housing Authority, 105 AD2d 663). The initial inquiry must be viewed liberally since the party seeking the information will not typically have the precise information regarding what is contained in the personnel file (Cox v New York City Housing Authority, 105 AD2d at 664). In this case, claimant argues that he is entitled to the information sought because if the officers were involved in prior similar incidents the State would have had notice of the need to more closely supervise, train or retrain, or discipline these officers. Claimant has specifically limited each request to the time frame prior to the subject incident and specifically involving instances of excessive or unreasonable force.

Claimant sets forth by his sworn testimony that Officers Clarke and VanSlyke sprayed him with pepper spray after he swore at the officers and told them to get off his property. Claimant then described being tripped and falling to the ground, the officers forcing his injured arm behind his back, and Officer Clarke being on top of claimant's head and neck pushing them down to the ground. Claimant testified that he requested that his hands be handcuffed in front, because of his injured arm, but the officers did not respond. These factual assertions coupled with the cause of action for negligent training, supervision or discipline support claimant's position for the requested information, which bears on the issue of the State's notice. The Court finds that claimant has made a sufficient factual predicate for an in camera review of the following documents and information:
1. Copies of all civilian complaints regarding these two DEC officers for use of excessive or unreasonable force during their period of employment until October 24, 1998;

2. Copies of the personnel files of these officers pertaining to incidents or

episodes of excessive or unreasonable force during their period of employment until

October 24, 1998;


3. Psychological tests, screening, interviews or other evaluations of these officers

pertaining to prior incidents or episodes of the use of excessive or unreasonable force

during their period of employment until October 24, 1998;
4. Records or reports of civilian injuries as a result of either of these officers using excessive or unreasonable force during their period of employment until October 24, 1998;
5. Administrative complaints or actions taken against either officer relating to the use of excessive or unreasonable force during their period of employment until October 24, 1998.


Claimant also requests all medical records of Officer Clarke relating to the human bite he suffered by claimant to which he testified during his deposition. Defendant opposes the request asserting the physician-patient privilege. The Court does not find claimant has made a sufficient showing for the Court to direct defendant to produce those documents. The burden is on the party seeking the records to show that the other party's eeeee[e] medical condition is "in controversy" (Koump v Smith, 25 NY2d 287, 294; Dillenbeck v Hess, 73 NY2d 278, 287; Schenk v Devall, 205 AD2d 900, 901). "A litigant will be deemed to have waived the privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue" (Dillenbeck v Hess, 73 NY2d at 287; Koump v Smith, 25 NY2d at 294). This requires the party to do more than deny the allegations, it requires affirmatively asserting the condition "either by way of counterclaim or to excuse the conduct complained of by the plaintiff..." (Dillenbeck v Hess, 73 NY2d at 288; Schenk v Devall, 205 AD2d at 901).

In this case, claimant has not shown that Officer Clarke's medical condition is in controversy. Claimants assert that they need these records for purposes of cross-examination of Officer Clarke on credibility. Officer Clarke did not affirmatively place the injury to his hand in issue, it arose in response to questions during his deposition. Accordingly, based upon the information before the Court at this time, claimant is not entitled to Officer Clarke's hospital records for treatment of a bite injury. Defendant will be, of course, precluded at trial from using these records to which the physician-patient privilege has been applied (see, Bolos v Staten Island Hosp. 217 AD2d 643, 645).

Accordingly, claimant's motion is GRANTED IN PART as set forth above. The records to be produced in camera in accordance with this decision shall be sealed and forwarded directly to the undersigned at the Court of Claims, 205 South Salina Street, Second Floor, Syracuse, New York 13202, for the Court to review pursuant to Civil Rights Law §50-a.


July 15, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


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


Affidavit of B. Brooks Benson, Esquire, in support with exhibits attached

thereto.........................................................................................................2


Memorandum of Law in support............................................................................3



Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in opposition, with exhibits attached thereto..............................................4

Filed Documents:


Claim........................................................................................................................5


Answer......................................................................................................................6

[t]tttt

Claimant will refer to Ronald K. Randall, unless otherwise specified, since the claim of Brenda J. Randall is derivative in nature.

[t]ttttt

This motion was adjourned to give the DEC officers an opportunity to be heard after service of a copy of the motion. Neither officer responded to the motion.

[e]eeeePursuant to claimant's counsel's letter to the Court dated January 8, 2003, the second cause of action in the claim for false arrest and imprisonment has been withdrawn. Defendant contends that the third cause of action for malicious prosecution has also been withdrawn; however, the letter from claimant does not include that statement. The Court will proceed with the understanding that claimant still intends to pursue his third cause of action.

[e]eeeeeOfficer Clarke is a "party" in that he is an employee whose acts or omissions may be imputed to the defendant for purposes of its liability (see for example, Niesig v Team I, 76 NY2d 363, 374).