Reply Affirmation 4
In his claim, claimant seeks damages for personal injuries suffered by him on
October 11, 2002, during an incident with another inmate, when both claimant and
this inmate were incarcerated at Auburn Correctional Facility. On that date,
claimant was working as an inmate porter, serving lunches to other inmates, when
inmate Daniel Thomas allegedly threw a hot, burning liquid at claimant, causing
him to suffer burns to his left arm and face.
During the course of discovery, claimant's attorney inspected Watch Commander's
Log Books, and based upon this inspection, identified 13 "unusual incident"
reports which he demanded to be produced. These reports purportedly provide
details of prior incidents involving inmates throwing burning oil or other
substances from hot pots at Auburn Correctional Facility.
Defendant has resisted disclosure of these reports, contending that such
reports are irrelevant, and that production could potentially result in medical
or private information of other inmates being disclosed without their
authorization. Defendant further contends that due to the confidential nature
of these reports, concerns bearing on the security of the facility are involved.
It appears that these prior incidents, if sufficiently similar in nature, could
potentially provide relevant and admissible evidence with regard to the issue of
prior notice. Furthermore, this demand, seeking the disclosure of 13
specifically enumerated and identified "unusual incident" reports, is clearly
not overly broad, nor does it place an unreasonable burden upon the defendant to
produce these reports.
Accordingly, these incident reports should therefore be produced by the
defendant. However, since defendant has raised personal privacy issues, as well
as potential implications pertaining to security concerns if it were compelled
to disclose this information, the Court hereby determines that an
in camera inspection of these "unusual incident" reports is
appropriate to determine what material, if any, contained therein should not be
disclosed. In order to facilitate the Court's review of these documents,
defendant is directed to submit two copies of each report, a redacted copy
indicating the information it seeks to protect from disclosure (and the legal
basis upon which it relies) together with an unredacted copy. These submissions
shall be made within 45 days of the date of the filing of this decision and
order. Upon completing its review of these documents, the Court will then issue
further directions to the parties indicating what portion of the documents in
question should be disclosed.
Claimant also seeks production of all Mental Health Unit referrals regarding
inmate Daniel Thomas, the alleged perpetrator. Defendant has opposed this
disclosure primarily on the grounds that mental health records are confidential
and are only discoverable upon court order (Mental Hygiene Law § 33.13).
The law is now settled that records concerning an inmate's behavior while
confined may be disclosed as necessary and material to the prosecution of a
claim which alleges that the State was negligent in failing to segregate an
assailant with a known dangerous propensity (Wilson v State of New York,
36 AD2d 559). In claims where a claimant seeks the medical records of an
alleged assailant, claimant is entitled to discover non-medical information
contained in the alleged assailant's file relating to prior assaults or similar
violent behavior (Moore v St. John's Episcopal Hosp., 89 AD2d 618). Any
reports and references concerning physical and psychological examinations, or
the results thereof, including prognosis, diagnosis and treatment, shall be
excluded from any records provided (Brier v State of New York, 95 AD2d
788). Entries by medical personnel referring to a prior act of violence as a
starting point for treatment, and any entry concerning treatment of the patient
for the specific incident, shall also be excluded (Brier v State of New
In this matter, claimant's attorney acknowledges the protections afforded by
Mental Hygiene Law § 33.13, but has limited his request to any factual or
observational notes or records made by non-professional laypersons which may be
contained within Thomas' clinical records.
Since the mental health file for inmate Thomas may contain non-medical
information which is subject to disclosure, defendant is hereby directed to
provide the mental health file for inmate Thomas to the Court within 45 days of
the filing date of this decision and order for an in camera review. As
similarly outlined above, to facilitate the Court's review defendant is also
directed to submit a redacted copy as well, indicating the information it seeks
to protect from disclosure. Upon completing its review of this file, the Court
will then determine what portion, if any, is subject to disclosure and will
issue further directions to the parties accordingly.
Therefore, it is
ORDERED, that Motion No. M-70380 is hereby GRANTED, to the extent that an
in camera review of the documents sought by claimant will be conducted,
as provided for herein; and it is further
ORDERED, that new dates for the completion of all discovery, and the service
and filing of the note of issue and certificate of readiness, will be
established by the Court upon completion of its in camera review.