New York State Court of Claims

New York State Court of Claims

SMALLS v. THE STATE OF NEW YORK, #2005-015-083, Claim No. 110178, Motion No. M-71117


Court found the speculation, conjecture and opinion of claimant's attorney insufficient to establish factual predicate to overcome statutorily conferred confidentiality of personnel records of correction officer pursuant to Civil Rights Law § 50-a.

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:
Andrew F. Plasse, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 14, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an in camera inspection of the personnel records of Correction Officer Lucy L. Godfrey is denied. By decision and order dated October 28, 2004 the Court granted a motion for late claim relief permitting the service and filing of a claim setting forth a cause of action for negligent hiring and/or retention of Correction Officer Godfrey. The claim filed December 6, 2004 alleges, in relevant part, that New York State had actual or constructive notice that the aforementioned correction officer had sexual contact with prisoners prior to her liaisons with claimant and was nonetheless continued in the State's employ through the defendant's negligent supervision, training, retention and hiring policies. The claim further alleges that C.O. Godfrey solicited, accepted and agreed to accept money in exchange for sexual favors benefitting claimant who was incapable of consent due to his status as a convicted felon in the care and custody of the Department of Correctional Services (DOCS).

Claimant's motion for an order directing an in camera inspection of C.O. Godfrey's personnel file pursuant to Civil Rights Law 50-a is supported by the affirmation of his attorney, a copy of the claim and a copy of a superior court information charging Lucy L. Godfrey with rape in the third degree (Penal Law § 130.25[1]); bribe receiving in the third degree (Penal Law § 200.10); promoting prison contraband in the first degree (Penal Law § 205.25 [1]) and receiving reward for official misconduct in the second degree (Penal Law § 200.25). Defendant opposed the motion solely by letter of the Assistant Attorney General assigned to the case. The Assistant Attorney General, who was absent from the office on military leave during the period prior to and including the return date of the motion, contends that the movant failed to show a factual predicate sufficient to warrant an in camera review of C.O. Godfrey's personnel records.

Civil Rights Law § 50-a, in pertinent part, provides:
§ 50-a. Personnel records of police officers, firefighters and correction officers.

1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighters/paramedics and such personnel records under the control of the division of parole for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole except as may be mandated by lawful court order.

2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.

Defendant has not raised the issue of lack of notice of this motion to former Correction Officer Godfrey or DOCS nor named any additional interested party ( cf. Dunnigan v Waverly Police Dept., 279 AD2d 833, lv denied 96 NY2d 710). Accordingly the sole issue for this Court is whether claimant has made the required showing of sufficient facts to warrant the Court's in camera examination and possible disclosure of Godfrey's personnel record. There is little case law to guide the Court in its determination. In People v Parnell (6 Misc 3d 576) the Supreme Court, Kings County found in a "dropsy" case that reference to seven similar cases by names and docket numbers was sufficient to warrant an in camera inspection of a police officer's personnel file. In Dunnigan v Waverly Police Dept., (supra) the Appellate Division, Third Department stated:
"The legislative purpose [behind the statute] was to prevent disclosure of officers' personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155). Thus, the initial burden is on the party seeking the subject records to demonstrate "in good faith, 'some factual predicate' warranting the intrusion into the personnel records" (Taran v State of New York, 140 AD2d 429, 432, quoting People v Gissendanner, 48 NY2d 543, 550; see People v Henry, 242 AD2d 877, lv denied 91 NY2d 834; Flores v City of New York, 207 AD2d 302, 303).

Here claimant's counsel offered only the following conclusory assertions in support of the application:
12. While your deponent obviously does not know the content of these records to make a specific request, since the underlying allegations are for alleged sexual misconduct, your deponent requests that all of these records be submitted to the Court for an in camera inspection for the Court to determine whether any prior misconduct between Correction Officer Godfrey and inmates placed the State of New York on notice, actual or constructive, prior to this alleged incident. This request includes not only personnel records to evaluate performance, but also any complaints filed against her by inmates for misconduct, whether sexual in nature or not.

13. Moreover, based on allegations in the Claim herein, it is in my opinion, more than likely that this was not the first time Officer Godfrey committed such an act.

Counsel's speculation, conjecture and opinion are not sufficient to meet his burden of establishing the necessary factual predicate required to overcome the confidentiality afforded personnel records of correction officers by Civil Rights Law § 50-a (see People v Gissendanner, 48 NY2d 543; People v Hall, 243 AD2d 651). Hence claimant's motion is denied.

April 14, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 30, 2005;
  2. Affirmation of Andrew F. Plasse dated December 30, 2005 with exhibits;
  3. Letter dated March 14, 2006 from Stephen J. Maher.