New York State Court of Claims

New York State Court of Claims

FLACK v. THE STATE OF NEW YORK, #2007-015-176, Claim No. 110304, Motion No. M-73151


Claimant's motion for a subpoena duces tecum to obtain the personnel file of a State Trooper whose operation of a motor vehicle was allegedly the cause of an accident was denied as privileged pursuant to Civil Rights Law § 50-a. Motion for subpoena duces tecum relating to accident reconstruction reports of prior accidents in road where subject accident occurred was granted.

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:
Conway & KirbyBy: Kimberly Boucher Furnish, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 6, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for a subpoena duces tecum requiring the production of various documents from the defendant. Claimants have agreed to limit their application to a request for: (1) the production of those documents in the personnel file of State Trooper Kijowski which relate to the motor vehicle accident which is the subject of this action and any disciplinary actions taken in connection thereafter, and (2) accident reconstruction reports prepared by Lieutenant Stubbe regarding two prior motor vehicle accidents which occurred on the same road approximately two or three miles from the place of the subject accident.

This claim arises out of injuries allegedly sustained by the claimants when the automobile in which claimant Wendy Flack was a passenger collided with a vehicle operated by State Trooper Michael J. Kijowski. Defendant opposes the application for a subpoena duces tecum on the grounds that the personnel file of Trooper Kijowski is exempt from disclosure under Civil Rights Law § 50-a and that the accident reconstruction reports relative to the two prior accidents are irrelevant to the issues in this case.

Civil Rights Law § 50-a states in pertinent part the following:
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 . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, . . . 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.

Absent a legitimate need for the records, the disclosure of an officer's personnel records is prohibited. "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' " (Dunnigan v Waverly Police Department, 279 AD2d 833,834 [2001], quoting Taran v State of New York, 140 AD2d 429, 432 [1988]; see also, People v Gissindanner, 48 NY2d 543, 549-550 [1979]; cf., Sabilia v State of New York,14 Misc 3d 1228[A] [2007]). In other words, the party seeking the records must demonstrate a reasonable likelihood that the file will contain relevant material and that "the quest for its contents is not merely a desperate grasping at a straw" (People v Gissendanner, supra, 48 NY2d at 550). No such showing has been made here.

Here, the claimants support their request for the subpoena duces tecum regarding Trooper Kijowski's personnel records with the assertion that the records may show "(a) the complete measures taken by the defendants in an investigation of the motor vehicle accident and Trooper Kijowski's actions in the motor vehicle accident; and (b) those decisions rendered against Trooper Kijowski because of those actions". These conclusory assertions are insufficient to trigger the requirement for an in camera inspection of the records on notice to the officer involved (see Civil Rights Law § 50-a[2][3]). Notably, in opposition to the motion the defendant has indicated that all post-accident investigatory reports have been provided. In addition, the claimants have failed to establish that any disciplinary actions were, in fact, taken against Trooper Kijowski or the relevance of those actions to the instant matter. Accordingly, the request for a subpoena duces tecum for the production of documents relating to the subject accident which are contained in the personnel file of Trooper Kijowski is denied.

The request for a subpoena duces tecum is granted with respect to the accident reconstruction reports of Lieutenant Stubbe regarding the two prior motor vehicle accidents which occurred on the same road approximately two or three miles from the place of the subject accident. Claimants have indicated that these records may be relevant on the issue of State Trooper Kijowski's knowledge of the dangerous character of the roadway where this accident occurred. Production of the records is proper in that the reports may be, or may become, relevant at trial where the admissibility of the records will be determined.

April 6, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 26, 2007;
  2. Affidavit of Kimberly Boucher Furnish sworn to March 26, 2007 with exhibits;
  3. Affirmation of Glenn C. King dated April 3, 2007.