New York State Court of Claims

New York State Court of Claims

LAMM v. THE STATE OF NEW YORK, #2003-032-069, Claim No. 99321, Motion No. M-66343


Motion to compel disclosure of an inmate assailant's disciplinary and other records is granted in part.

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:
Barton, Barton & Plotkin, LLPBy: Peter W. Yoars, Jr., Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Timothy P. Mulvey, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 26, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose in Adirondack Correctional Facility on April 2, 1998. Claimant alleges that he was attacked by another inmate, Nelson Rainey, and that the attack continued after a correction officer arrived on the scene, as the officer did nothing to stop the assault. It is also alleged that the assailant later revealed that he had been solicited and/or pressured by the correction officer to carry out the assault. There are references to three other inmates who overheard conversations between Rainey and the officer, in which the latter encouraged Rainey to carry out the assault. According to claimant, he had had no prior arguments or disagreements with Rainey but when Rainey was assigned to his room, claimant had requested that he be moved because of his (Rainey's) history of violence and assault (claim, ¶ 13).[1]

Prosecution of this action has not been smooth, and the parties sought prior judicial resolution of a discovery dispute. (Motion No. M-62596, June 11, 2001, Fitzpatrick, J.). The background for the instant motion, according to claimant's counsel, lies in a series of notices to produce by which claimant sought information available in the prison records of Nelson Rainey (see, Yoars affirmation, Exhibit B, demands ## 5, 7, 20, 21, 29; Exhibit C, demands ## 2, 3; Exhibit D, demand 1). Defendant provided very little of the requested information, contending that for the most part any information relating to Rainey, who is not a party to this action, is privileged (id., Exhibit B, response #20, 21,29; Exhibit D, response #1). In connection with subsequent informal attempts to resolve the dispute, counsel for defendant conferred with the Department of Correctional Services (DOCS) to verify their position. He then reported that the agency "will not modify its position * * * that the personal and classification information of inmate Nelson Rainey is confidential, and therefore not subject to disclosure" (id, Exhibit E). The instant motion resulted.

Counsel for defendant objects to disclosure of any information relating to the assailant, Nelson Rainey, on the following grounds: (1) any mental hygiene records are made confidential by Mental Hygiene Law §33.13; (2) disclosure of an inmate's mental health and disciplinary records is precluded by Public Officers Law §96(2)(b), (c); (3) medical records are also privileged pursuant to CPLR 4504; and (4) the information sought is irrelevant because claimant's theory of liability is based on the actions of the correction officer, not the inmate assailant's potential for violence. The last objection can be easily answered. As noted above, the claim alleges that Rainey had a violent record and that claimant had requested he be moved to another location because of that record. In his amended bill of particulars (Yoars affirmation, Exhibit A), claimant describes one of the alleged acts of negligence as "failing to separate those inmates with known violent propensities from those who were non-violent." Consequently, records relating to Rainey's previous behavior within the prison system are relevant to this claim.

With respect to the question of confidentiality of the records, the pertinent law in this area has been summarized by Judge Francis T. Collins in Williams v State of New York (UID #2001-015-164, Claim No. 100059, Motion No. M-63350, July 10, 2001, Collins, J.):
The law is settled that records concerning an inmate's behavior during confinement may be disclosed as necessary and material to the prosecution of a claim alleging the State was negligent in failing to segregate an attacker with a known dangerous propensity (Wilson v State of New York, 36 AD2d 559). After Wilson the rule evolved that in cases where a claimant seeks medical records of an alleged assailant from the State, he or she is entitled to receive records relating to the assailant's criminal record and behavior in confinement prior to the assault but is not entitled to records pertaining to the inmate's prognosis and diagnosis (see, Homere v State of New York, 41 AD2d 797). Stated differently, claimant is entitled to discover non-medical information, including institutional disciplinary records, contained in the alleged assailant's institutional file which "relates to any prior assaults or similar violent behavior, to aid plaintiff in establishing knowledge on the part of the defendants" (Moore v St. John's Episcopal Hosp., 89 AD2d 618, 619).
In these institutional assault claims, following in camera inspection, a court will generally release (1) all reports and references concerning any assaultive or violent behavior, including time and place and surrounding circumstances, (2) the date when information about such behavior came within the knowledge of defendant, (3) any subsequent action, such as a transfer within the institution taken by institution personnel or others as a result of the behavior, and (4) the number of times the assailant was confined to defendant's institution and the length of each stay (id, citing to Brier v State of New York, 95 AD2d 788). Protected from disclosure in most instances are (1) records of medical and psychological examinations and the patient's diagnosis, prognosis and treatment, (2) entries by doctors, nurses or other medical personnel referring to a prior assault or act of violence, or (3) entries by medical personnel in which prior assaultive behavior provide the basis for their interviewing or treatment of the patient (id).

Correctly anticipating that in the instant motion, the Court will direct release of some of Rainey's records, counsel for defendant has provided, for the Court only, Rainey's disciplinary record and his non-medical records, such as program assignments, transfer records and the like. The Court has selected those portions of the records that are considered relevant and material to this claim. Defendant will be directed to provide copies of these records or portions of records to claimant's counsel. Defense counsel will not be directed to produce for in camera inspection any mental health or medical records relating to Rainey, for there has been no showing that such records would have relevance to this claim.

Claimant's motion is granted to the extent set forth above and otherwise denied.

June 26, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order of preclusion or, in the alternative, an order to compel certain disclosure:
1. Notice of Motion and Supporting Affirmation of Peter W. Yoars, Jr., Esq., with annexed Exhibits

2. Affirmation in Opposition of Timothy P. Mulvey, Esq., AAG

3. Materials submitted for possible in-camera review by Timothy P. Mulvey, Esq., AAG

Filed papers: Claim; Answer

[1] The claim also alleged, without detail, that some of claimant's permanent injuries could have been avoided if he had received treatment from a specialist in a timely manner. To the extent that this stated a cause of action for medical malpractice, it was withdrawn in claimant's amended bill of particulars (Yoars affirmation, Exhibit A [amended bill of particulars]).