New York State Court of Claims

New York State Court of Claims

S. V. THE STATE OF NEW YORK, #2007-030-048, Claim No. 110268, Motion No. M-73977


Synopsis


Court granted claimant’s motion for in camera inspection of file maintained by Inspector General’s office concerning claimant’s convicted assailant with regard to the incident that is the subject of claim. Three causes of action, vicarious liability for departure from accepted standards of penological practice by tortious acts of correction officer; negligent training and supervision; negligent hiring and retention

Case Information

UID:
2007-030-048
Claimant(s):
SHANTELLE S.
Claimant short name:
S.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110268
Motion number(s):
M-73977
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BERANBAUM MENKEN BEN-ASHER & BIERMAN, LLPBY: BRUCE E. MENKEN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: LEA LA FERLITA, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
December 5, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion for in camera inspection of the file maintained by the Office of the Inspector General [File No. 187/03] concerning claimant’s convicted assailant with regard to the incident that is the subject of this claim:
1,2 Notice of Motion; Affirmation by Bruce E. Menken, Attorney for Claimant and attached exhibit

  1. Affirmation in Partial Support by Lea La Ferlita, Assistant Attorney General
4-7 Filed papers: Claim, Answer; Order, Shantelle S. v State of New York, Claim No. 110268, M-70538, unreported (Scuccimarra, J., filed March 1, 2007); Decision and Order, Shantelle S. v State of NewYork, UID # 2006-030-516, Claim No. 110268, Motion No. M-70538 (Scuccimarra, J., filed March 15, 2006)

This is a claim involving alleged improper sexual contact on May 28, 2003 between claimant, then an inmate at Bayview Correctional Facility, and James H., at the time a correction officer employed by the defendant. The Court already directed disclosure of portions of the correction officer’s personnel records after in camera inspection, pursuant to Civil Rights Law §50-a, and portions of the records maintained by the Office of the Inspector General, in an Order filed March 1, 2007. In accordance with the statutory privilege associated with such records, Mr. H. was given notice of the prior application, and submitted papers through counsel at the time.

When the court rendered its decision concerning whether an in camera inspection was warranted in the first instance, although Mr. H. had been indicted, the criminal charge was still pending, as was the investigation into the matter by the Office of the Inspector General. The court noted such pendency, and suggested that after their conclusion counsel might request disclosure of the results of such investigation upon a proper application.[1] When the court issued its order releasing certain portions of the documents, the criminal matter was still pending, as was the Inspector General’s investigation.[2]

It now appears that Mr. H. entered a plea of guilty to the crime of Sodomy in the Third Degree, on March 26, 2007, and was sentenced on June 12, 2007 to a ten (10) year term of probation. [Affirmation of Bruce E. Menken, Attorney for Claimant, Exhibit A].

Claimant seeks an order directing production of Inspector General File No. 187/03 for the court’s in camera review of same to determine whether any materials contained therein may be released to claimant’s attorneys. Defendant has submitted an Affirmation in Partial Support, indicating that Mr. H. should be provided with notice and an opportunity to be heard on the present application.

The statutory privilege afforded by Civil Rights Law §50-a requires that the employee whose personnel records are sought be given notice and an opportunity to be heard with regard to any release of such records. The public interest privilege is implicated with respect to any disclosure of the records maintained by the Inspector General’s Office. Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 (1974); Lowrance v State of New York, 185 AD2d 268 (2d Dept 1992); cf. LaValle v State of New York, 185 Misc 2d 699 (Sup Ct, Dutchess Co 2000). Notice to the effected individual does not seem to be specifically mandated[3], although reported cases involving FOIL requests, for example, and cases involving combined requests for discovery of personnel records and records of investigating agencies appear to have required that the employee be noticed.

Claimant served Mr. H.’s attorney with these papers in any event, thus any question as to the necessity of notice is academic.

With regard to the public interest privilege implicated by requests for information concerning investigations, in accordance with Lowrance v State of New York, supra, at 269, an inmate in a correctional facility is not generally entitled to disclosure of a report developed by the Inspector General’s Office in connection with an investigation of allegations against correction officers pursuant to the public interest privilege, which is “. . . applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality . . . (citations omitted).” Cirale v 80 Pine St. Corp., supra, at 117. The privilege is a qualified one, applicable depending on whether “. . . the State’s interest in maintaining the integrity of its internal investigation and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file (Cirale v 80 Pine St. Corp., supra, at 117).” The controlling precedent as stated in Lowrance v State of New York, supra, where an inmate seeking access is still incarcerated, is to prohibit such disclosure given the policy considerations behind the creation of the Office of the Inspector General, [see Executive Law §6; 9 NYCRR §§4.103 and 5.39]; Lamm v State of New York, Claim No. 99321, Motion No. M-62596, UID # 2001-081-87 (Fitzpatrick, J., May 31, 2001)[4] as well as the security interests of a given correctional facility.

On the other hand, the criminal investigation of this matter has concluded and a conviction has been obtained by the State. The determination as to whether some overriding public interest in confidentiality remains given such conviction [see Verges v State of New York, UID # 2004-009-59, Claim No. 107755, Motion No. M-68185 (Midey, J., September 27, 2004)] may be made after production of the Inspector General’s file, and after in camera review by the court. Clearly, where the claimant is represented by counsel and conditions upon any disclosure may be directed[5], some of the concerns expressed in Lowrance, supra and Lamm, supra, are avoided.

With regard to the substantive aspects of this application, the defendant argues the proverbial “fishing expedition” as a bar to disclosure.

Three causes of action premised in negligence are asserted in the claim. The first appears to be a variation of vicarious liability, in that Claimant alleges that the correction officer’s departure from accepted standards of penological practice renders the State liable. The second cause of action alleges negligent training and supervision of the correction officer, rendering the State liable for the consequences of this failure. Finally, the third cause of action alleges negligent hiring and retention.[6]

Based on the theories advanced the court finds that there is a substantial likelihood that material and relevant information necessary to the prosecution of the claim may be had in the file under discussion. See generally Civil Practice Law and Rules §3101.

Accordingly, Claimant’s motion is granted to the following extent: within 45 days of the date of filing of this decision and order, the Defendant shall provide to the Court a complete certified copy of File No. 187/03 maintained by the Inspector General in sealed form, for in camera inspection. The records so provided shall be certified by the agency providing them, identified, and consecutively paginated for ease of reference. If the Defendant has specific objection to information contained therein, they are to include a privilege log related to the specific document, including its page, as well as any argument concerning the privilege asserted. After in camera review, the Court will determine what portions, if any, are subject to disclosure and direct the Defendant accordingly.


December 5, 2007
White Plains, New York

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




[1]. The court said: “The Court finds that at some point after the investigation is complete, and upon a proper showing, the Claimant may renew her request for in camera review and would likely be entitled to disclosure of those parts of the report indicating that the allegations she made then, and that are the basis of the Claim for damages before this Court, have been found substantiated - or not - by the Inspector General.” Decision and Order, Shantelle S. v State of New York, UID # 2006-030-516, Claim No. 110268, Motion No. M-70538, unreported (Scuccimarra, J., filed March 15, 2006).
[2]. Order, Shantelle S. v State of New York, Claim No. 110268, M-70538, unreported (Scuccimarra, J., filed March 1, 2007)
[3]. Since Civil Rights Law §50-a(1) speaks of “[a]ll personnel records, used to evaluate performance toward continued employment or promotion . . . ”, a correction officer’s grievance records have been held privileged from disclosure under this statute unless the required showing is made and the court orders disclosure. In re: Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. Correctional Servs., 73 NY2d 26 (1988). Investigative records maintained by the Office of the Inspector General, however, are not records used to evaluate performance related to continued employment or advancement.
[4]. Judge Fitzpatrick stated: “The purpose of the office, according to both executive orders, is to investigate complaints in an effort to prevent fraud, abuse, and corruption in State agencies, departments and divisions.”
[5]. For example, although generally this is a matter for stipulation between counsel, the court may nonetheless order that disclosure of any information be authorized solely for use by claimant's counsel in prosecuting this claim and shall not be copied or otherwise disseminated to inmates for any reason.
[6]. In an earlier decision the court discussed the causes of action asserted in this claim more thoroughly, and incorporates the discussion here. See Decision and Order, Shantelle S. v State of New York, UID # 2006-030-516, Claim No. 110268, Motion No. M-70538 (Scuccimarra, J., filed March 15, 2006).