New York State Court of Claims

New York State Court of Claims

VERGES v. THE STATE OF NEW YORK, #2006-009-034, Claim No. 107755, Motion No. M-71027


Claimant’s motion to compel disclosure of the criminal history of his assailant was denied, following an in camera review.

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:
BY: Keith M. Donoghue, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 31, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order compelling disclosure pursuant to CPLR § 3124.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

“Sealed Document” submitted directly to Chambers from Claimant’s Attorney 3

Affirmation in Opposition, with Exhibits 4

In this claim, claimant seeks damages for personal injuries suffered by him when he was assaulted by another prisoner when both he and his assailant were incarcerated at Cape Vincent Correctional Facility. Specifically, claimant suffered burns requiring a lengthy hospitalization stay after boiling oil was thrown on his face and body in the early morning of August 10, 2001. Following an investigation, his assailant was identified as inmate Nelson Brana. This claim is based upon allegations of negligence, negligent supervision, and deliberate indifference, through allegations that the State failed to take reasonable precautions to protect claimant from a foreseeable risk of attack.

Claimant had previously brought a motion to compel the State to respond to various discovery demands. In a decision and order dated September 27, 2004, this Court, inter alia, directed that internal investigative documents pertaining to this assault be disclosed to claimant, pursuant to a Stipulation of Confidentiality. Specifically, this Court directed that notes made by the Inspector General in the investigation of this assault be disclosed to claimant. Additionally, the Court directed that a portion of the disciplinary records (“Inmate Disciplinary History”) of claimant’s assailant, Nelson Brana, also be disclosed, pursuant to the same Stipulation of Confidentiality.[1]

Subsequently, and as part of the ongoing discovery process, defendant served upon claimant’s attorney certain documents contained within the case file maintained by the Inspector General regarding its investigation of this assault. Certain pages of this file, designated as “Division of Criminal Justice Documentation” in the Inspector General’s file index, were withheld from disclosure. In this motion, claimant now seeks an order compelling disclosure of this documentation.

Correctly anticipating that this Court would require that these materials be submitted for an in camera review, defendant’s attorney submitted such documentation with her response to this motion (Exhibit B to Item 4).

Upon a review of these pages, and as confirmed by the affirmation submitted by defendant’s attorney, this documentation consists of Mr. Brana’s criminal record maintained by the Division of Criminal Justice Services. According to defendant’s attorney, this criminal record was provided to the Department of Correctional Services pursuant to a Use and Dissemination Agreement with the Division of Criminal Justice Services (see Exhibit C to Item 4). Defendant opposes disclosure of this documentation, relying upon the restrictions contained in the Use and Dissemination Agreement, Executive Law § 837(8), the Public Interest Privilege, and relevancy.

Claimant maintains that the criminal history of his assailant, Mr. Brana, is just as relevant to the issue of whether the State had notice of his propensity to commit violent acts as is his prison disciplinary record, which this Court, in its prior decision and order, directed to be disclosed.

Having completed its review of the documentation submitted in camera (Exhibit B to Item 4), this Court finds and determines that these pages contain no information relevant or material to the allegations of this claim. Mr. Brana’s criminal record is devoid of any information that would have placed the State on notice of Mr. Brana’s propensity to commit a violent act. Since this documentation contains no information relevant to this claim, it need not be disclosed, and it is therefore not necessary for this Court to address defendant’s reliance upon Executive Law § 837(8) and the Public Interest Privilege.

Therefore, it is

ORDERED, that Motion No. M-71027 is hereby DENIED[2].

May 31, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. See Decision and Order to Verges v State of New York, Ct Cl, September 27, 2004, Midey, J., Claim No. 107755, Motion No. M-68185, [UID #2004-009-59]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2]. Since this Court has determined that disclosure need not be made, the documents submitted by defendant in camera, and designated as Exhibit B to Item 4 are being returned directly to defendant’s attorney by Chambers to insure their confidentiality. Similarly, the “Sealed Document” submitted by claimant’s attorney directly to Chambers pursuant to the Stipulation of Confidentiality (designated as Item 3), is being returned directly to him.