New York State Court of Claims

New York State Court of Claims

CARINI v. THE STATE OF NEW YORK, #2004-030-560, Claim No. 108739, Motion No. M-68491


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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
August 6, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read on Claimant's motion for an order

allowing an in camera inspection of Claimant's alleged assailant's disciplinary records, prior

misbehavior reports and psychiatric records:

1,2 Notice of Motion, Affirmation by Andrew F. Plasse, Esq., Counsel for Claimant, and attachments

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, and attached exhibit
  1. Reply Affirmation by Andrew F. Plasse, Esq.
5,6 Filed Papers: Claim, Answer After carefully reviewing the papers submitted and the applicable law, the motion is disposed of as follows:

Claimant seeks to recover damages in the amount of Twenty Million Dollars ($20,000,000.00), on his first and second causes of action, stemming from injuries allegedly sustained when he was assaulted by a fellow inmate while incarcerated at Green Haven Correctional Facility (hereafter Green Haven). The claim alleges that on August 1, 2003 at approximately 8:05 a.m. claimant was assaulted by Inmate Dagnone [89 A 9751] in the west yard of the special housing unit (hereafter SHU). Claimant alleges that the Defendant's agents' negligent failure to supervise inmates generally, and Inmate Dagnone particularly - who was a known danger to Claimant and others - resulted in Dagnone's attack on Claimant, and Claimant's injuries.

The Assistant Attorney General notes that the misbehavior report issued to Claimant referring to the underlying assault describes Claimant as the aggressor in an altercation during the recreation period, and that "Mr. Plasse has provided no information to the court as to why he believes that inmate Dagone (sic) has anymore of a propensity towards violence than does his own client." [Affirmation in Opposition, ¶¶6-8]. She argues that without more supporting the request, ". . . the defendant would be in a position of having to produce disciplinary tickets and potential psychiatric records on every assault within the Department of Corrections . . . It is likely that Mr. Plasse does not even know whether inmate Dagone (sic) has a psychiatric history but is in fact just guessing." [Ibid, ¶¶11 and 12].
Records concerning an inmate's behavior during his incarceration may be disclosed if material and necessary to the prosecution of a claim alleging the State's negligent failure to segregate an assailant with known dangerous propensities. Wilson v State of New York, 36 AD2d 559 (3d Dept 1971). Absent an express waiver by Mr. Dagnone, his medical records are privileged and confidential. See § 33.13 of the Mental Hygiene Law; §§ 4504, 4507 of the Civil Practice Law and Rules; Moore v St. John's Episcopal Hospital, 89 AD2d 618, 619 (2d Dept 1982). Where medical records are sought, a Claimant may receive his assailant's records as they concern his criminal record and behavior in confinement prior to the assault at issue, but is not entitled to records pertaining to the assailant's prognosis and diagnosis. Id; Mayer v Albany Med. Center Hosp., 37 AD2d 1011 (3d Dept 1971 ); See also § 33.13 (c)(1) of the Mental Hygiene Law.

Procedurally, the Court determines, after an in camera inspection of the records, exactly what information will be disclosed. Brier v State of New York, 95 AD2d 788 (2d Dept 1983); Villano v State of New York, 127 Misc 2d 761 (Ct Cl 1985); See also Sohan v Long Island College Hospital, 282 AD2d 597, 598 (2d Dept 2001). The guidelines set forth by the Appellate Division in Brier v State of New York, supra, for examining hospital records are:
In the process of redacting the hospital record the court shall exclude therefrom (1) all reports and references concerning physical and psychological examinations, the results thereof, prognosis, diagnosis and treatment, (2) any entry where a doctor, nurse or other medical personnel refers to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient and (3) any entry by medical personnel concerning treatment of the patient for the specific incident which was the basis of his referral to them. The court shall include in the redacted copy of the hospital record to be furnished to the claimants (1) all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and (2) the number of times the patient was confined to defendant's institution and the length of each stay thereat . . .
With respect to Mr. Dagnone's institutional disciplinary record, such information is clearly relevant, and material and necessary to the prosecution of the claim herein. Defendant's arguments, in light of the broad discovery provisions concerning the prosecution and defense of civil actions [See generally Civil Practice Law and Rules §3101], and the suggestion that such a request is a "fishing expedition" are unconvincing.[1] Whether Claimant is also violent, or whether Counsel for Claimant is "guessing" regarding any psychiatric history of Claimant's assailant, are simply not the issue, when a Claimant is entitled to discovery of all matter that may be material and relevant to the prosecution of his claim.

For all the above reasons Defendant is directed to provide the Court with the alleged assailant's complete disciplinary and psychiatric history up to and including August 1, 2003, within forty-five (45) days of the date of service of a file stamped copy of this decision and order by the Clerk. After in camera review, the Court will determine what portions, if any, are subject to disclosure and direct the Defendant accordingly.

August 6, 2004
White Plains, New York
Judge of the Court of Claims

[1] For example, although it is not a decision involving disclosure per se, in Hann v State of New York, 137 Misc 2d 605, 608 (Ct Cl 1987), the Court of Claims refers to an assailant's disciplinary record covering a ten (10) year period which, by context, appears to have been the assailant's entire period of incarceration prior to the assault at issue.