New York State Court of Claims

New York State Court of Claims

BISHOP v. THE STATE OF NEW YORK, #2005-030-918, Claim No. 107484, Motion No. M-69873


Synopsis



Case Information

UID:
2005-030-918
Claimant(s):
MICHAEL BISHOP, by his Administrator LORETTA BISHOP, and LORETTA BISHOP, Individually The court has amended the caption to eliminate the extraneous and improper references to the Division of Parole (a state agency) and Jane and John Doe (the court has no jurisdiction over individuals).
Claimant short name:
BISHOP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has amended the caption to eliminate the extraneous and improper references to the Division of Parole (a state agency) and Jane and John Doe (the court has no jurisdiction over individuals).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107484
Motion number(s):
M-69873
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Rene Myatt, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Leslie A. Stroth, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The court read and considered the following papers on claimant's motion for an order compelling disclosure: Notice of Motion and Affirmation, Affirmation in Opposition and Exhibits.

This claim arises from a fatal assault on claimant's decedent on August 19, 2001 by one Alexander Pasley, whom the claim alleges was under the supervision of the Division of Parole at the time. According to the claim, the assault was the result of the defendant's "failing to supervise, monitor or train their employees" (Claim, par 9). The claim also alleges that the defendant was negligent in (1) hiring, training, supervising and advising its employees, (2) failing to prevent violent persons from being released on parole, (3) failing to warn the public about the release of violent persons on parole, (4) failing to monitor parolees, and (5) failing to "remedy the negligent release of violent and dangerous parolees" (Claim, par 10).

The motion currently before the court involves defendant's response to a disclosure notice served by claimant. Specifically, claimant seeks disclosure of the parole records of Alexander Pasley.[1] Defendant has responded to this motion in the same manner as it did to the notice, alleging that the requested records are exempt from disclosure pursuant to Executive Law §259-k and the regulations promulgated thereunder (9 NYCRR 8000.5). Defendant also alleges that disclosure of the records would endanger the life or safety of a person, further militating against the claimant's request (citing Carty v New York State Division of Parole, 277 AD2d 633); Matter of Collins v New York State Division of Parole, 251 AD2d 738; and Public Officers Law §87[2][f]) . Finally, defendant alleges that pursuant to Tarter v State of New York (68 NY2d 511), the state has absolute immunity against any claim alleging that it was negligent in the release or supervision of a parolee, absent the assertion of a special duty to the claimant, and that claimant's "only arguably sustainable cause of action at this point is that of negligent hiring and supervision [i.e., of the parole officer], to which Alexander Pasley's parole records are neither material nor relevant." (Affirmation in Opposition, par 11).

Tarter (id.) involved two claims against the State of New York brought by claimants who both had been shot by individuals who had been released on parole. Both parolees had been released after serving the minimum terms of their felony sentences and both shootings occurred two months after the respective parolees' releases. Although the claimants in those two claims conceded that the decision whether to release a convict on parole is a discretionary function which cannot form the basis of liability, they argued that the Board of Parole, in each instance, failed to consider the mandatory guidelines (see 9 NYCRR 8002.1, 8002.3) and that their claims arose from such alleged failure, which the claimants' characterized as a ministerial function, not immune from liability. The court rejected this argument, comparing the function of the Board of Parole to that of the judge who originally sentences a convict:
It is the peculiar nature of the duties of the Board of Parole with respect to the weighing of evidence, deciding the relative importance of the determining factors and the ultimate discretionary disposition which render [the decision whether to release on parole a judicial function conferring absolute immunity] (Tarter, id. at 519).
Addressing the claimants' alternate contention that negligent supervision of the parolees could give rise to liability, the court noted:
Finally, any claim based upon the negligent supervision of the parolees must fail because of the complete lack of allegations of both a special duty to protect the claimants as identified individuals and the reliance on the part of the claimants on specific assurances of protection (Helman v County of Warren, 67 NY2d 799, 801; De Long v County of Erie, 60 NY2d 296)" (id.)
Tarter is dispositive of this motion. As defendant submits, the parole records at issue herein are not relevant to any cognizable cause of action, and the requested disclosure must be denied for that reason alone. Executive Law §259-k and its implementing regulations, which provide for the confidentiality of parole records, support this conclusion, as does defendant's contention, supported by specific evidence that Pasley and a member of claimant's decedent's family have made threats against each other, that the release of information concerning Pasley to members of Bishop's family could result in harm to an individual. Under these circumstances, there is absolutely no reason for an in camera inspection of the requested documents, as suggested by claimant.

Accordingly, the motion is denied. The parties shall attend at a conference to be held on June 24, 2005 at 11:30 a.m. at the Court of Claims, 26 Broadway in Manhattan. Any further disclosure requests shall be served at least three days prior to said conference or they will be deemed waived. Claimant's deadline to file a note of issue is extended to August 15, 2005.



June 1, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Claimant's notice also sought other documents. The only other item where claimant objected to defendant's response was the demand for the name of Pasley's parole officer. Defendant had responded by noting that the demand was not specific as to what time period was involved and, after claimant specified the time period in the instant motion papers, defendant noted that " the name of the parole officer during this time period will be provided forthwith" (Affirmation in Opposition, par 5). The court thus assumes that such has been done.