New York State Court of Claims

New York State Court of Claims

PERRY-SCHEFFEL v. THE STATE OF NEW YORK, #2005-015-046, Claim No. 108115, Motion No. M-70684


Court denied motion seeking in camera inspection and subsequent release of personnel file of correction officer who purportedly used excessive force against claimant in parking lot outside Family Court building. Proof of prior use of excessive force would not be admissible to show propensity to use such force and Civil Right's Law § 50-d proscribes use of Court officer's personnel file for impeachment purposes.

Case Information

URSULA PERRY-SCHEFFEL This caption was previously amended by Order dated October 23, 2003 to delete all named defendants except the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
This caption was previously amended by Order dated October 23, 2003 to delete all named defendants except the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Melvin T. Higgins, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 14, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an in camera inspection and subsequent disclosure of the personnel records of Court Officer James Kennedy is denied. The claim seeks to recover $1,000,000 for the negligent infliction of personal injuries and $1,000,000 for an alleged assault and battery of claimant Ursula Perry-Scheffel by James Kennedy[1]. Although the claim itself contains no such allegations, claimant's attorney asserts on the instant motion that Officer Kennedy used excessive, unreasonable, unwarranted and unnecessary force in effecting an arrest of the claimant Ursula Perry-Scheffel and without warning placed his hands on her shoulder and yanked her away from Court Officer Morrisey in a manner that constituted the use of excessive force (see Higgin's affidavit para 4, 11-14). Counsel further contends on the motion that it is highly probable that Court Officer Kennedy's personnel records contain past complaints of similar activities citing Lawrence v City of New York, 118 AD2d 758. He alleges that if Court Officer Kennedy's personnel file contains complaints of improper use of physical force "it is vital to the claimant and claimant's prosecution of the instant matter that these reports and their conclusions be considered by this Court and available to claimant's counsel in weighing and assessing the creditability [sic] of the witness to this proceeding" (Higgins affidavit para 17).

Although defense counsel based his opposition to the motion on the confidentiality of personnel records of certain law enforcement officials established by Civil Rights Law § 50-a that section is not applicable to personnel records of a court officer in the State Unified Court System. Access to personnel records of court officers is governed by section 50-d of the Civil Rights Law. Subdivision 2 of that section provides as follows:
2. Personnel records of court officers shall be disclosed in a court action pursuant to the relevant provisions of the criminal procedure law, the civil practice law and rules, or any other provision of law governing such disclosure only after the court has notified the subject of such record that such record may be disclosed in a court action and the court has given the subject of such record an opportunity to be heard on the question of whether the records sought are relevant and material in the action before the court. If, after such hearing, the court determines that only a portion of such records are relevant and material in the action before it, it shall make those parts of the record found to be relevant and material available to the persons so requesting.

There has been only one reported case which interpreted Civil Rights Law section 50-d. In People v Magliore, 178 Misc 2d 489, Judge Charles Heffernan, Jr. of the Criminal Court of the City of New York, Kings County denied a criminal defendant's request for copies of personnel records of four uniformed court officers where the request for subpoenae duces tecum was based on the defendant's "speculative anticipation that those records would provide information which he could use at trial to impeach testimony of the officers in question" (id., p 495).

As noted above claimant's counsel characterized the instant request as one which would enable an assessment of Officer Kennedy's credibility at trial. Although section 50-a and 50-d are not identical it is worth noting that numerous cases seeking personnel records pursuant to Civil Rights Law § 50-a have found that the intended use of personnel records for impeachment purposes is proscribed (see Dunnigan v Waverly Police Dept., 279 AD2d 833; Zarn v City of New York, 198 AD2d 220; People v Valentine, 160 AD2d 325, lv denied 76 NY2d 797; Flores v City of New York, 207 AD2d 302).

Additionally, claimant's counsel expressed his intention to use information regarding Officer Kennedy's prior use of excessive force, which he speculates may be contained in the officer's personnel file, to establish his proclivity or propensity to engage in such conduct. "A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion (Matter of Brandon's Estate, 55 NY2d 206, 210-211; Prince-Richardson, Evidence [11th ed.] § 4-517)"(Parker v State of New York, Ct Cl, August 20, 2003 [Claim No. 105753, Motion Nos. M-66789, CM-66854, UID # 2003-032-081] Hard, J., unreported[2]). In fact, it has specifically been held that "records of other uses of excessive force or misconduct involving Defendant's officers cannot be introduced at trial to show their violent propensities or to support the contention that the officers used excessive force on this occasion (see People v Hudy, 73 NY23 40, 54-55; Kourtalis v City of New York, 191 AD2d 480; People v Francis, 149 Misc 2d 693)" (Tyree v State of New York, Ct Cl, April 30, 2000 [Claim No. 101474, Motion No. M-61097, UID # 2000-013-003] Patti, J., unreported).

Judge Patti observed in Tyree (supra) that that case was a "straightforward excessive force case where the critical issues are what force defendant used and whether it was reasonable under the circumstances." The same can be said of the instant matter. Accordingly, claimant's motion for an order directing an in camera inspection and subsequent disclosure of Officer Kennedy's personnel file is denied without a hearing since the purported use of the requested material is not one authorized under the law (see Tyree v State of New York, supra; People v Henry, 242 AD2d 879, lv denied 91 NY2d 834; see also People v Gissendanner, 48 NY2d 543; Medina v State of New York, Ct Cl, June 14, 2004 [Claim No. 106664, Motion No. M-68123, UID # 2004-032-045] Hard, J., unreported).

Claimant's motion is denied.

October 14, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 12, 2005;
  2. Affidavit of Melvin T. Higgins sworn to September 12, 2005 with exhibits;
  3. Affirmation of Kevan J. Acton dated September 23, 2005.

[1]Additional causes of action for false arrest and malicious prosecution were dismissed in a decision and order dated March 3, 2004.
[2]Unreported decisions from the Court of Claims are available via the internet at