New York State Court of Claims

New York State Court of Claims

VERGES v. THE STATE OF NEW YORK, #2004-009-59, Claim No. 107755, Motion No. M-68185


Claimant's motion seeking an order compelling the State to respond to discovery demands was granted, in part, and a hearing will be held regarding the production of personnel records of a correction officer for in camera review.

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: Katherine Rosenfeld, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order compelling the State to respond to his discovery demands.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Motion to Compel Disclosure, with Exhibits 1,2

Affirmation in Opposition, with Exhibits 3

Claimant's Reply Affirmation 4

In this claim, claimant, an inmate at Cape Vincent Correctional Facility, alleges that the State failed to adequately supervise his housing dormitory on August 10, 2001, and that the State failed to take reasonable steps to protect him from a foreseeable risk of attack which occurred that day. He alleges that a single correction officer was assigned to his housing area, and that this officer had left this area unsupervised when the attack occurred.

As set forth in the motion papers, claimant served defendant with his "First Combined Demand for Discovery" on or about August 25, 2003. Defendant previously provided responses to certain of these demands, and the Court previously "so ordered" a stipulation providing for the disclosure of certain investigative materials from the Department of Correctional Services (see Exhibit C to Items 1,2).

There remains certain documents, however, that defendant has refused to disclose, even pursuant to a stipulation of confidentiality. The Court will address each of these items, and for the sake of clarity will utilize the paragraph numbers set forth in claimant's "First Combined Demand for Discovery".

In its consideration, the Court is aware of the unique issues presented within the context of the correctional facility setting. The Court must balance concerns for the safety of inmates and employees at the facility, as well as concerns affecting the efficient administration of the facility, with claimant's rights to full disclosure under CPLR 3101.


Claimant seeks access to documents pertaining to the internal investigation of the August 10, 2001 incident in which claimant was injured. Pursuant to the stipulation of confidentiality, defendant has previously provided to claimant all internal investigative documents regarding this incident except for the report of the investigation conducted by the Inspector General. Defendant objects to the disclosure of this document, asserting the public interest privilege.

In her response to this motion, defendant's attorney has submitted the investigative notes made by the Inspector General in the investigation, which apparently is the only document that has not been produced pursuant to this particular demand. The Court has reviewed this document, which consists of the investigator's notes pertaining to two separate and apparently unrelated incidents which occurred on different dates at Cape Vincent Correctional Facility.

Disclosure of an Inspector General's investigation file is generally subject to the public interest privilege which balances whether "the State's interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file" (Lowrance v State of New York, 185 AD2d 268, 269). The privilege, however, does not apply in situations where there is no confidential informant, or if the information is already known to the parties, or whether legitimate security concerns will not be implicated if disclosure is ordered.

The Court notes that this investigation of the incident in question has been completed. Additionally, and as pointed out by claimant's counsel, the State has already obtained a criminal conviction against claimant's assailant. Accordingly, there does not appear to be any overriding public interest in continuing the confidentiality of this investigation. Additionally, after reviewing the document which has been submitted in camera, the Court finds no public interest in maintaining the confidentiality of the investigation and that security concerns will not be implicated should this document be disclosed, especially if made pursuant to a stipulation of confidentiality.

Accordingly, the Court hereby directs that the Inspector General's investigative notes be disclosed to claimant, with such disclosure to be made under the same terms and conditions of the prior stipulation of confidentiality previously agreed to by the parties. Furthermore, such disclosure shall be limited to the Inspector General's notes pertaining to the incident of August 10, 2001, and any such notes pertaining to the unrelated incident of August 8, 2001 shall be redacted prior to such disclosure.


Claimant seeks an order compelling the State to produce its policies and/or procedures regarding the supervision of inmates on housing blocks at Cape Vincent Correctional Facility. Defendant has opposed this demand, on the basis that such documents are irrelevant to the claim at hand, and that dissemination of this information implicates fundamental security issues at the correctional facility.

In this matter, however, claimant maintains that his dorm area was left unsupervised, providing his assailant with the opportunity to attack him. Since the basis of this claim relates to the supervision, or alleged lack of supervision, of his housing dorm, the directives pertaining to housing policies at the facility are particularly relevant, and should be disclosed. In order to minimize the risk to inmates and staff at the facility, such disclosure shall also be subject to the same terms and conditions as contained in the prior stipulation between the parties regarding discovery.


In this demand, claimant seeks any and all documents maintained by the Department of Correctional Services regarding Nelson Brana, the inmate who was convicted of the assault upon claimant.

In this motion, claimant has withdrawn his request for Mr. Brana's medical file and mental health file (see claimant's Motion to Compel Disclosure [Item 2], pg. 11. fn.6), thereby limiting this request to the disciplinary records of Mr. Brana. Defendant has submitted for an in camera review a computer generated listing of Mr. Brana's disciplinary history, which contains information such as incident dates, hearing dates, references to the facility regulation allegedly violated, disposition, and penalty imposed, if any.

It is well settled that evidence of an attacker's prior behavior may often be material, relevant, and necessary in the prosecution of a claim based upon an inmate-on-inmate assault (Wilson v State of New York, 36 AD2d 559). The propensity of an inmate to commit a violent act, if established by said disciplinary history, may be relevant to the issue of whether the State had notice of such propensity. Based on its review of the "Inmate Disciplinary History" provided in camera, the Court finds that two prior incidents may be relevant and material to this claim. Defendant is therefore directed to provide copies of records pertaining to incidents which occurred on August 7, 2000 and March 13, 2001 to claimant's counsel. Again, it is directed that such disclosure be made subject to the same terms and conditions set forth in the prior stipulation of confidentiality between the parties.


In paragraph 14 of his demand, claimant seeks the personnel file of each employee who was assigned responsibility for the safety of inmates on claimant's dormitory unit on the date of the incident, and in paragraph 15 claimant seeks training records, evaluations, disciplinary records, recommendations, and reports and records of counseling sessions for each such employee.

As set forth in the motion papers, Correction Officer Terry J. Davis was the only correction officer on duty in this dorm when the incident occurred, and these demands pertain solely to him.

In his claim, claimant alleges that Correction Officer Davis was not at his post at claimant's dormitory, and that the dormitory unit was left unsupervised for a period of time, thereby providing his assailant with the opportunity to attack claimant. Claimant has also alleged a cause of action in his claim for negligent supervision (see Verified Claim, ¶ 19).

Defendant has opposed this request, contending that such disclosure is protected by Civil Rights Law § 50-a. This statute protects all personnel records of correction officers that are used to evaluate "performance towards continued employment or promotion" (Matter of Prisoners' Legal Services v New York State Dept. of Correctional Services, 73 NY2d 26, 31). Records protected by § 50-a may only be produced if the officer provides an express written consent, or a lawful order is issued by a court mandating such disclosure. Such an order, however, may only be issued after all interested parties have been provided an opportunity to be heard.

The legislative purpose behind § 50-a was "to prevent abusive exploitation of personally damaging information contained in officers' personnel records" by prohibiting disclosure "except when a legitimate need for them has been demonstrated" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154-155).

Based upon the allegations set forth in this claim, an in camera review of Officer Davis' personnel file may be warranted. Before ordering such review, however, the Court must provide Correction Officer Davis, as well as the defendant, an opportunity to appear for a hearing before any such request for in camera review is decided. Accordingly, Correction Officer Davis and the defendant are provided 45 days from the date of filing of this order to notify the Court whether they wish to appear for such a hearing. Defendant is also directed to provide Correction Officer Davis with a copy of this order within 10 days after the date of filing, to ensure that he has notice of these proceedings.

Accordingly, based on the foregoing, it is

ORDERED, that Motion No. M-68185 is hereby GRANTED, to the extent provided herein, and it is further

ORDERED, that any disclosures directed herein shall be produced to Chambers within 60 days from the filing date of this decision and order with the Clerk of the Court of Claims, and it is further

ORDERED, that any aspect of this motion pertaining to the disclosure of personnel records protected by Civil Rights Law § 50-a is, by necessity, adjourned without date.

September 27, 2004
Syracuse, New York

Judge of the Court of Claims