New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2004-019-514, Claim No. 106855, Motion No. M-67931


Synopsis


Case Information

UID:
2004-019-514
Claimant(s):
KATHERINE V. ORTIZ Individually, as Guardian of Nateonna Juanita Roland, and as Administratrix of the Estate of Nathaniel S. Roland, Deceased
Claimant short name:
ORTIZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106855
Motion number(s):
M-67931
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ALTREUTER HABERMEHL, ESQS.BY: Mary Penn, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 5, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an order compelling a response to a Notice for Discovery and Inspection dated October 21, 2003 pursuant to CPLR 3124. The State of New York (hereinafter "State") opposes the motion.

This claim alleges that on March 7, 2002, Nathaniel S. Roland was an inmate at Elmira Correctional Facility (hereinafter "Elmira") and was fatally attacked by another inmate, Luis Santiago. The claim asserts, among other things, that the State was negligent in failing to protect the decedent and knew or should have known that decedent was at risk and that the assailant had violent propensities. (Claim, ¶ 3).


By way of this motion, claimant seeks to compel a response to her Notice for Discovery and Inspection dated October 21, 2003. More specifically, in said discovery demand, claimant sought, among other things, the following information:

  1. Luis Santiago's NYS DOCS administration file in regards to Inmate # 93-A-4555 including but not limited to disciplinary records.
  2. NYS DOCS records regarding any similar such incidents of inmate violence at the Elmira Correctional Facility resulting in death for the period of three years prior to the happening of the subject incident to date.
  3. Copy of correspondence referred to in your Omnibus Discovery Response regarding a memo from Sgt. Perry to Capt. Colvin responding to said correspondence from Commissioner Wilhelm stating his concerns regarding procedures and practices at the time of the subject incident.

(Claimant's Exhibit D).


The State declines to produce Mr. Santiago's records (demand #2) citing "[c]oncerns of privacy, confidentiality, and relevance." (Claimant's Exhibit E). Further, the State indicates a concern about jeopardizing pending investigations by both the State Police and Chemung County District Attorney's Office regarding possible homicide charges, as well as grand jury action. (Affirmation of Joseph F. Romani, AAG, ¶ 8). Claimant argues that Mr. Santiago's records are necessary to ascertain any "documented evidence of danger" he posed to the decedent or others. (Affirmation of Mary Penn, Esq., ¶ 8).


It is well settled that in order to establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that decedent was at risk of being assaulted and yet failed to provide reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act. (Sanchez v State of New York, 99 NY2d 247). As such, inmate Santiago's propensity to commit violent acts prior to this attack on decedent is relevant on the issue of notice to the State of Mr. Santiago's violent propensities and risk to the decedent. For this reason, the State is directed to produce two copies of Mr. Santiago's disciplinary history to the court for in camera review. One copy is to be unredacted and the second copy is to be redacted in a manner which the State believes presents information relevant to this claim (i.e., Mr. Santiago's assaultive behavior) while removing privileged or irrelevant information. These records are to be provided to the court within sixty (60) days of the filing date of this Decision and Order. After reviewing these documents, the court will issue a further decision regarding whether and how any portion of these documents are to be provided to claimant.


The State also declines to produce the internal DOCS correspondence (demand #4) based upon "concerns of relevance, and institutional safety and security." (Claimant's Exhibit E). Claimant argues the correspondence is relevant since there is a question as to whether the State followed proper procedure on the day of this incident. (Affirmation of Mary Penn, Esq., ¶ 13). In inmate-on-inmate assault cases "[t]he State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable [citation omitted]." (Wilson v State of New York, 303 AD2d 678, lv denied 100 NY2d 507). As such, the court finds that internal DOCS correspondence regarding procedures and practices at the time of the subject incident is relevant on the issue of whether the State exercised adequate care to prevent that which was reasonably foreseeable. However, due to the State's security concerns the court will direct the State to produce two copies of the internal DOCS correspondence to the court for in camera review. One copy is to be unredacted and the second copy is to be redacted in a manner which the State believes presents information relevant to this claim while removing security sensitive, privileged, or irrelevant information. These records are to be provided to the court within sixty (60) days from the filing date of this Decision and Order. After reviewing these documents, the court will issue a further decision regarding whether and how any portion of these documents are to be provided to claimant.


Finally, with respect to demand #3 regarding similar violent incidents at Elmira, the State requested additional information in order to frame a response. Claimant clarifies in her moving papers that the request is limited to inmate-on-inmate assaults resulting in death. (Affirmation of Mary Penn, Esq., ¶ 10). The State now avers that it "has been led to believe" that there are no other inmate deaths due to violence nor records or data in the format requested regarding inmate deaths. (Affirmation of Joseph F. Romani, AAG, ¶ 7). Quite frankly, the court is concerned by the manner in which the State's response is qualified by the phrase "has been led to believe". Claimant is entitled to a definitive statement from the State as to whether or not similar incidents occurred or such records exist. The State is directed to provide a supplemental response to this demand either without such ambiguous qualifications or, in the alternative, an explanation as to the need for such a qualification and whether a search for information is continuing by the State.


Consequently, in view of the foregoing, it is ORDERED that claimant's motion, No. M-67931, is GRANTED in accordance with the terms of this Decision and Order. The State is directed to submit the foregoing documents to the court for an in camera review within sixty (60) days from the filing date of this Decision and Order. Upon reviewing said documents, the court will issue a further decision regarding claimant's motion to compel pursuant to CPLR 3124.


February 5, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 31, 2002.
  2. Notice of Motion No. M-67931, dated January 20, 2004, and filed January 22, 2004.
  3. Affirmation of Mary Penn, in support of motion, dated January 20, 2004, with attached exhibits.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated January 23, 2004, and filed January 26, 2004.