New York State Court of Claims

New York State Court of Claims

URENA v. THE STATE OF NEW YORK, #2007-030-563, Claim No. 113080, Motion No. M-73520


Claimant’s motion for in camera inspection of alleged inmate assailant’s disciplinary and psychiatric history granted. Defendant to provide court with certified disciplinary records for two (2) years prior to assault; certified psychiatric records for one (1) year prior to assault, within forty-five (45) days of the date of service of a file stamped copy of this decision and order by the Clerk. Records to be certified by agency providing them and paginated for ease of reference.

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

Signature date:
September 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered 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 by John M. Healey, Assistant Attorney General
4, 5 Filed Papers: Claim, Answer

Claimant alleges in Claim Number 113080 that Defendant’s agents at Sing Sing Correctional Facility failed to protect him an assault by another inmate on June 5, 2006. More specifically, he alleges that he was assaulted by inmate J. Andujar [82-A-2454] with a weapon, causing claimant to suffer multiple puncture wounds to the face and head, lacerations to his left palm and wrist, and other severe personal injuries. He further alleges, among other things, that the defendants knew that claimant was in physical danger, and failed to take steps to protect him, knew of the assailant’s threats of harm and vicious propensities, and were generally negligent in failing to provide adequate security under the circumstances, and in allowing Mr. Andujar to circulate in the general population of the prison.

An unusual incident report dated June 5, 2006, apparently written after the area sergeant’s investigation of the incident, identifies Mr. Andujar as Mr. Urena’s assailant. [Affirmation by Andrew F. Plasse, Counsel for Claimant, Exhibit B]. Counsel for Claimant indicates that records of any disciplinary infractions involving Mr. Andujar, from the date of his initial incarceration, as well as psychiatric records, 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.

In an Affirmation submitted by the Assistant Attorney General, he notes that he had a conference with Claimant’s counsel, and that it was agreed that the request for records would be limited in the following fashion:

(1) disciplinary records of inmate Andujar would be produced for in camera inspection for the two (2) years prior to June 5, 2006 and

(2) psychiatric records of inmate Andujar would be produced for in camera inspection only for the six (6) months preceding June 5, 2006. [Affirmation by John M. Healey, Assistant Attorney General, ¶5].

The Affirmation then indicates that the Defendant would consent to the entry of an order directing the production of the disciplinary records as set forth above, but with respect to any psychiatric records, the privilege associated with production of same is argued. [Ibid. ¶¶6,l7].

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. Andujar, his medical records are privileged as confidential. See § 33.13 Mental Hygiene Law; §§ 4504, 4507 Civil Practice Law and Rules; Moore v St. John’s Episcopal Hospital, 89 AD2d 618, 619 (2d Dept 1982). Where medical records are sought, a Claimant may receive his assailant’s records as they concern his criminal record and behavior in confinement prior to the assault at issue, but is not entitled to records pertaining to the assailant’s prognosis and diagnosis. Id.; Mayer v Albany Med. Center Hosp., 37 AD2d 1011 (3d Dept 1971 ); See also § 33.13 (c)(1) Mental Hygiene Law.

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 Misc 2d 761 (Ct Cl 1985); See also Sohan v Long Island College Hospital, 282 AD2d 597, 598 (2d Dept 2001). 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 refer 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 claimant (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, et., 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. Andujar’s institutional disciplinary record, such information is clearly relevant, and material and necessary to the prosecution of the claim herein. In light of the broad discovery provisions concerning the prosecution and defense of civil actions [See generally Civil Practice Law and Rules §3101], Claimant is also entitled to discovery of the alleged psychiatric history of claimant’s alleged assailant, at least in so far as an in camera inspection would be directed, within appropriate time limitations.

For all the above reasons Defendant is directed to provide the Court with the alleged assailant’s disciplinary history for the immediate two (2) year period up to and including June 5, 2006, as well as any psychiatric records for a one (1) year period up to and including June 5, 2006, within forty five (45) days of the date of service of a file stamped copy of this decision and order by the Clerk. The records so provided shall be certified by the agency providing them, identified, and consecutively paginated for ease of reference.

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

September 18, 2007
White Plains, New York

Judge of the Court of Claims