New York State Court of Claims

New York State Court of Claims

COMBES v. THE STATE OF NEW YORK, #2005-019-557, Claim No. 109385, Motion No. M-69902


Claimant's motion for an order compelling disclosure, after an in camera inspection of submitted documents, is granted in part and denied in part.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 3, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant previously moved for an order compelling a response to discovery demands dated June 21, 2004 and February 8, 2005. By way of Decision and Order, this court directed the defendant State of New York (hereinafter "State") to submit to the court the documents at issue for an in camera inspection. (Combes v State of New York, Ct Cl, April 19, 2005, Lebous, J., Claim No. 109385, Motion No. M-69902 [UID No. 2005-019-529]).[1] In accordance with said Decision and Order, the State has now supplied the discovery documents for the court's in camera inspection in the manner directed, namely one copy in unredacted form and the second copy redacted in a manner which the State believes presents information relevant to this claim while removing privileged or irrelevant information.

As a brief review, this claim arose when claimant, who was being held in voluntary protective custody, was physically assaulted by another inmate, Victor Silvester, who was being held in involuntary protective custody, in the Elmira Correctional Facility (hereinafter "Elmira") on March 2, 2004. The theory of liability asserted in this claim is one of negligent supervision.

The court has completed an in camera review of the following documents provided by the State pursuant to the prior Decision and Order: (1) inmate Silvester's Inmate Disciplinary History, together with the corresponding Inmate Misbehavior Reports relating to the violent incidents listed therein; and (2) inmate Silvester's transfer order for March 2, 2004 and finds as follows:

  1. Inmate Disciplinary History
The State has submitted a computer generated listing entitled "Inmate Disciplinary History" for inmate Silvester which is six pages long and contains 41 entries (including this incident) both violent and non-violent in nature. Out of these 41 entries, 29 entries pre-date the March 2, 2004 assault at issue here. The State has also submitted the underlying Inmate Misbehavior Reports for each of the so-called violent entries (noted as "violent conduct", "fighting", or "assault") listed on Silvester's Inmate Disciplinary History.

The State has proposed redactions to all the so-called non-violent disciplinary entries which consist of, among others things, out of place movement violations; refusing direct orders; smoking; interference; harassment; disorderly conduct; as well as two involuntary protection placements. The State contends that these non-violent entries are not material and relevant on the issue of whether the State knew or had reason to know of any vicious propensities on the part of inmate Silvester. This court disagrees. A review of Silvester's Inmate Disciplinary History indicates that inmate Silvester has been a lightening rod for trouble and has amassed an intertwined history of violent and non-violent disciplinary problems. Based on these documents, inmate Silvester's behavior can safely be described at this stage as an overall course of conduct of non-conformity and disrespect for authority and institutional rules. The court finds that to redact the 17 non-violent entries pre-dating this incident would be to exclude the possibility of a finding that inmate Silvester's behavior, both violent and non-violent, was of an escalating pattern. That having been said, however, the court notes that the disclosure of this inmate's disciplinary history is not to say that this entire history will be admissible at trial, only that at this stage this court cannot exclude any of these prior non-violent incidents as irrelevant. (Silva v State of New York, Ct Cl., May 30, 2003, Midey, Jr., J., Claim No. 103100, Motion No. M-65539 [UID No. 2003-009-18]). Stated another way, the court finds the State's proposed redactions of these non-violent incidents are better suited to arguments at trial on the ultimate weight to be accorded to these non-violent incidents, rather than their relevancy or admissibility in the first instance.

Next, the court will address the violent entries on Silvester's Inmate Disciplinary History, as well as the corresponding Inmate Misbehavior Reports submitted to provide additional details regarding those violent entries. The State has submitted 14 Inmate Misbehavior Reports detailing the violent incidents involving inmate Silvester.[2] The State objects to the production of 5 of the Inmate Misbehavior Reports for the following reasons: the July 13, 1999 incident was self-defense in nature; the December 23, 2000 incident involved only a verbal threat towards a correction officer; inmate Silvester was the victim in a March 29, 2001 incident; the September 26, 2002 involved threatening writings, but no physical contact; and inmate Silvester was again the victim in the November 28, 2003 incident. The State's arguments that the July 13, 1999, March 29, 2001, and November 28, 2003 incidents in which inmate Silvester was purportedly the victim or acting in self-defense are arguments better suited to arguments at trial on the ultimate weight to be accorded to these incidents, rather than their relevancy or admissibility in the first instance. The State's objections to the production of the reports on the December 23, 2000 and September 26, 2002 incidents involving verbal threats and/or writings made by inmate Silvester are also arguments better suited to the weight to be accorded these incidents at trial, rather than their relevancy or admissibility in the first instance.

Obviously, the 30th entry on Silvester's Inmate Disciplinary History which lists the March 2, 2004 assault at issue here is material and relevant and should be disclosed.

The remaining 11 entries on Silvester's Inmate Disciplinary History report are incidents that occurred after the March 2, 2004 assault at issue here and, as such, may be redacted in their entirety inasmuch as they occurred after the subject incident.

In sum, the court finds that all the non-violent and violent entries (the first 30 entries) on Silvester's Inmate Disciplinary History pre-dating and including this assault should be disclosed to claimant without redactions. Additionally, the court finds that all the Inmate Misbehavior Reports, including the five reports sought to be redacted by the State, should be disclosed as well. However, the court finds that the Inmate Misbehavior Reports may be redacted so as to delete the names and identification numbers of other inmates which the court finds are not material and relevant herein.

  1. Inmate Silvester's transfer order
Claimant also requested the production of inmate Silvester's transfer order for March 2, 2004, presumably with the expectation that said transfer was related to his own attack on that same date. The court directed the production of the same for an in camera review with the same expectation. Such expectations turned out to be false. The court has reviewed the transfer order and has determined that the transfer order of inmate Silvester dated March 2, 2004 is unrelated to the attack on claimant. Said transfer was actually related to inmate Silvester's prior attack on another inmate and the transfer order to separate those two inmates just happened to occur on March 2, 2004. That having been said, the court finds that the transfer order dated March 2, 2004, although unrelated to claimant's attack, is material and relevant on the issue of the State's notice of inmate Silvester's violent propensities. As such, the court finds that the transfer order should be produced to claimant. The court further rejects the full redactions proposed by the State and directs that the transfer order be redacted on lines T2 and T4 as proposed by the State, but that the redactions in T5 may excise the name of the other inmate only, not the reasons for the transfer.

The Chief Clerk of the Court is directed to seal and preserve both sets of documents (redacted and unredacted) provided to the court for this in camera inspection in the event of possible appellate review.

Accordingly, in view of the foregoing, it is ORDERED that claimant's motion, No. M-69902, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. The State is directed to provide the aforementioned discovery documents to claimant within 45 days of the date of filing of this Decision & Order.

August 3, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. "Motion Compelling Disclosure/Discovery" Motion No. M-69902, dated March 16, 2005, and filed March 21, 2005.
  2. Affidavit of George Combes, in support of motion, sworn to March 16, 2005, with attachments.
  3. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated April 11, 2005, and filed April 13, 2005, with attached exhibits.
  4. DECISION AND ORDER, Lebous, J., Claim No. 109385, Motion No. M-69902, filed May 2, 2005.
  5. Letter from Carol A. Cocchiola, AAG, to the Court, dated and received July 1, 2005, enclosing redacted and unredacted documents for in camera review.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at
[2]The dates of these 14 violent incidents are as follows: January 9, 1999; February 18, 1999; July 13, 1999; December 22, 1999; January 31, 2000; August 28, 2000; October 15, 2000; November 14, 2000; December 23, 2000; January 28, 2001; March 29, 2001; September 26, 2002; November 28, 2003; and February 3, 2004.