New York State Court of Claims

New York State Court of Claims

WASHBY v. THE STATE OF NEW YORK, #2004-009-75, Claim No. 107184, Motion No. M-68761


The Court ordered an in camera inspection of certain documents and records requested in claimant's "Notice to Produce".

Case Information

THERESA WASHBY, as Mother and Natural Guardian of LAWRENCE BUGGS, an Infant under the age of 15 years, and THERESA WASHBY, Individually
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: Irving Pheterson, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order compelling the defendant to respond to claimant's previously served "Notice to Produce". Claimant has also requested an extension of the dates for the completion of discovery and the service and filing of a note of issue established in a prior scheduling order of this Court.

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

Answering Affirmation, with Exhibits 3

Theresa Washby, both individually and as the mother and natural guardian of Lawrence Buggs, an infant, has brought this claim alleging that on July 31, 2002, her son, while a resident at MacCormick Secure Center in Tompkins County, suffered injuries when he was shoved against a wall by one Anthony Bower, an employee of the facility. Claimant alleges that Lawrence Buggs suffered both physical injuries and emotional trauma caused by this allegedly inappropriate and excessive physical force. In claimant's "Notice to Produce" claimant has requested various documents and records related to this incident. Defendant contends that such records and documents are immune from disclosure, citing Executive Law § 501-c, Social Services Law § 422, and Public Officers Law § 96.

Nevertheless, in his affirmation submitted in opposition to this motion, defendant's attorney acknowledges that he has been provided with the records and documents responsive to claimant's requests by the New York State Office of Children & Family Services, and that defendant has no objection to an in camera inspection of these records by the Court. Defendant's attorney has requested, however, that should this Court ultimately determine that such records and documents, or any part of them, must be disclosed, that such disclosure be limited by a Stipulation of Confidentiality (see proposed "Stipulated Confidentiality Order", set forth as Exhibit 1 to Item 3). Claimant's attorney has advised the Court that he will consent to such a confidentiality order should this Court ultimately determine that disclosure of these records is warranted.

From the descriptions provided in the motion papers, it appears that the records and documents sought by claimant may be "material and necessary" to the prosecution of this claim (CPLR § 3101[a]). Therefore, the scope of disclosure must be determined by balancing the broad disclosure dictates of § 3101 with the statutory privileges cited by defendant. An in camera inspection of these records and documents is therefore appropriate.

Before ordering the production of all such records for an in camera inspection, however, the Court notes that claimant has included within the "Notice to Produce" a demand for production of the personnel file of Anthony Bower, the employee involved in this incident with the infant Lawrence Buggs. (See Exhibit E to Items 1,2, "Rider to Notice to Produce", par. 9).

Disclosure of an employee's personnel file, however, is restricted by the provisions of Public Officers Law § 96, contained within the article known as this State's "Personal Privacy Protection Law". Pursuant to § 96, no government agency shall release records containing personal information, without the request or consent of the person involved, except under certain circumstances. The purpose of this law is to "prevent the disclosure of documents constituting an unwarranted invasion of privacy" (Feliciano v State of New York, 175 Misc 2d 671, 672). The statute, however, does permit the release of personal information "pursuant to a court ordered subpoena or other compulsory legal process." (Public Officers Law § 96[1][k]). There must, however, be a rational basis for such an order, in order to protect employees from harassment, reprisals, and mere fishing expeditions.

In this motion, claimant has not demonstrated any reason, much less a compelling reason, to justify an intrusion into this employee's personnel file. In reaching this decision, however, the Court is aware that during the course of discovery facts may come to light which may establish a material and compelling need for such disclosure. If claimant eventually believes that the disclosure of Mr. Bower's personnel file is warranted, and that such need can be demonstrated, claimant's attorney is directed to advise these Chambers and request a conference on this issue as required by § 206.8(b) of the Uniform Rules for the Court of Claims.

Accordingly, at this time defendant is not required to provide the Court with the personnel file for Anthony Bower.

Pursuant to the foregoing, it is therefore

ORDERED, that Motion No. M-68761 is hereby, GRANTED, to the extent that defendant shall submit to the Court, for an in camera inspection, the documents and records responsive to claimant's "Notice to Produce" (except for the personnel file of Anthony Bower), within 30 days of the date of filing of this decision and order; and it is further

ORDERED, that the aspect of claimant's motion seeking the production of the personnel file for Anthony Bower is hereby DENIED, without prejudice; and it is further

ORDERED, that once the Court has completed its in camera inspection of such records and documents, and after it has made its determination as to whether such records and documents, or any part of them, must be disclosed, the Court will establish new dates for the completion of all discovery, as well as the service and filing of a note of issue and certificate of readiness.

November 22, 2004
Syracuse, New York

Judge of the Court of Claims