New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2006-030-571, Claim No. 109315, Motion No. M-71891


In camera inspections granted of disciplinary and psychiatric records

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
September 19, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read on Claimant’s motion for an order allowing an in camera inspection of Claimant’s alleged assailant’s disciplinary infraction history and psychiatric records:
1,2 Notice of Motion, Affirmation by Andrew F. Plasse, Esq., Counsel for Claimant, and attached exhibits

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, and attached exhibits
4, 5 Filed Papers: Claim, Answer

Claimant alleges in Claim Number 109315 that Defendant’s agents at Green Haven Correctional Facility failed to protect him from an assault by another inmate as Claimant worked at his assigned position in the upholstery shop on February 23, 2004. Specifically, he states that at approximately 10:15 a.m. on that day, he was working at his assigned post when inmate Robert Sweeney [97-A-3514] stabbed Claimant in the left upper back with a large pair of shears as inmate Sweeney declared that “he wanted to kill the devil”, causing Claimant to suffer serious, permanent injury. Claimant alleges that Defendant’s agents knew of inmate Sweeney’s mental health history, and knew that he was a risk to his fellow prisoners, yet negligently allowed him access to dangerous tools and allowed his circulation within the general prison population.

Mr. Sweeney is identified as the Claimant’s assailant in a contemporaneous interdepartmental memorandum by an investigating sergeant noting that Sweeney “. . . stabbed [Claimant] in the back of his left shoulder with a 10" cutting shears, referring to inmate Perez as the ‘Devil’, and he was going to ‘rebuke him in the name of Jesus.’ ” [Affirmation by Andrew F. Plasse, Exhibit B]. Counsel for Claimant indicates that records of any disciplinary infractions involving Mr. Sweeney, and of any psychiatric history showing a propensity for violence, are material and necessary to the prosecution of this claim. Clearly, a primary element of such a claim is whether the Defendant knew or should have known of the assailant’s dangerous propensities, and whether Defendant failed, accordingly, to take proper precautions.
Counsel for the Defendant acknowledges that this was an unprovoked attack and that disciplinary proceedings against the assailant resulted in his loss of privileges and placement in a special housing unit for a period of eighteen (18) months. Counsel argues, however, that all inmates in a maximum security facility are likely dangerous, thus this inmate’s assault is not any more foreseeable than an assault by any other incarcerated person. Defendant avers that because the inmate was received into State custody in 1997, the request is onerous, since it would require production of nine (9) years of disciplinary records. Defendant also argues that Claimant has not established whether the inmate has a psychiatric history in any event, and thus Claimant has not established entitlement to in camera review.
Records concerning an inmate’s behavior during his incarceration may be disclosed if material and necessary to the prosecution of a claim alleging the State’s negligent failure to segregate an assailant with known dangerous propensities. Wilson v State of New York, 36 AD2d 559 (3d Dept 1971). Absent an express waiver by Mr. Sweeney, his medical records are privileged as confidential. See Mental Hygiene Law § 33.13; Civil Practice Law and Rules §§ 4504, 4507 ; Moore v St. John’s Episcopal Hospital, 89 AD2d 618, 619 (2d Dept 1982). A claimant may receive his assailant’s records as they concern any prior assaultive behavior in confinement prior to the assault at issue, but is not entitled to records pertaining to the assailant’s prognosis and diagnosis. See Mental Hygiene Law §33.13(c)(1); Civil Practice Law and Rules §§4504, 4507; Sohan v Long Island College Hospital, 282 AD2d 597, 598 (2d Dept 2001); Moore v St. John’s Episcopal Hospital, supra; Mayer v Albany Med. Center Hosp., 37 AD2d 1011 (3d Dept 1971).

Procedurally, the Court determines, after an in camera inspection of the records, exactly what information will be disclosed. Brier v State of New York, 95 AD2d 788 (2d Dept 1983); Villano v State of New York, 127 Misc2d 761 (Ct Cl 1985); See also Sohan v Long Island College Hospital, supra. The guidelines set forth by the Appellate Division in Brier v State of New York, supra, for examining hospital records are:
In the process of redacting the hospital record the court shall exclude therefrom (1) all reports and references concerning physical and psychological examinations, the results thereof, prognosis, diagnosis and treatment, (2) any entry where a doctor, nurse or other medical personnel refers to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient and (3) any entry by medical personnel concerning treatment of the patient for the specific incident which was the basis of his referral to them. The court shall include in the redacted copy of the hospital record to be furnished to the claimants (1) all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and (2) the number of times the patient was confined to defendant’s institution and the length of each stay thereat . . .
With respect to Mr. Sweeney’s institutional disciplinary record, such information is clearly relevant, and material and necessary to the prosecution of the claim herein. Defendant’s arguments, in light of the broad discovery provisions concerning the prosecution and defense of civil actions [See generally Civil Practice Law and Rules §3101], are unconvincing.[2] Whether other incarcerated persons are violent, or whether Counsel for Claimant knows of any psychiatric history of Claimant’s assailant, is simply not the issue, when a Claimant is entitled to discovery of all matter that may be material and necessary to the prosecution of his claim. Certainly, the quotations attributed to Mr. Sweeney that are noted by the investigating sergeant are suggestive.

For all the above reasons Defendant is directed to provide the Court with the alleged assailant’s complete disciplinary and psychiatric history from the date he was received in State custody in 1997, up to and including February 23, 2004, within forty-five (45) days of the filing date of this decision and order by the Clerk. The records should be identified, certified for authenticity, and paginated for ease of review.

After in camera review, the Court will determine what portions, if any, are subject to disclosure and direct the Defendant accordingly.

September 19, 2006
White Plains, New York

Judge of the Court of Claims

[2]. For example, although it is not a decision involving disclosure per se, in Hann v State of New York, 137 Misc 2d 605, 608 (Ct Cl 1987), the Court of Claims refers to an assailant’s disciplinary record covering a ten (10) year period which, by context, appears to have been the assailant’s entire period of incarceration prior to the assault at issue.