New York State Court of Claims

New York State Court of Claims

DOONER v. THE STATE OF NEW YORK, #2007-030-569, Claim No. 112056, Motion No. M-73686


Synopsis


Order granting in camera review of correction officer’s personnel records pursuant to Civil Rights Law §50-a. Allegations in the claim and investigative report attached to application provide sufficient bases to show that material and relevant information may be contained therein, pertinent to the issue of whether he was known to be a “habitual drunkard” under Alcoholic Beverage Control Act §65 [Dram Shop Act].

Case Information

UID:
2007-030-569
Claimant(s):
LINDSAY DOONER
Claimant short name:
DOONER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112056
Motion number(s):
M-73686
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LYNCH LAW FIRM, P.C.BY: ARTHUR V. LYNCH, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 1, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimant’s application for an Order granting in camera review of certain records concerning a correction officer pursuant to Civil Rights Law §50-d (sic):
1,2 Notice of Motion; Affirmation by Arthur V. Lynch, of counsel to Lynch Law Firm, P.C., attorneys for Claimant and attached exhibits

3, Affirmation by Dewey Lee, Assistant Attorney General

4,5 Filed papers: claim, answer

This claim arises from a fatal four car collision that occurred on December 9, 2005 on I-84 near Newburgh, New York. According to an investigative report appended to the present application, John W. VanWagenen, Jr., employed by the New York State Department of Correctional Services [DOCS] at Fishkill Correctional Facility, was traveling eastbound in the westbound passing lane of I-84, causing a head-on collision. [Affirmation by Arthur V. Lynch, Exhibit B]. The investigation indicates he had two prior convictions for DWI, occurring on January 12, 1995 and October 14, 2001 respectively. [Ibid.]. The claim alleges he had attended a holiday party sponsored by his employers at the Quality of Life Building, and that said employers negligently allowed the sale or service of alcoholic beverages to the employee, who became intoxicated. [Claim Number 112056, ¶ 2]. Blood tests administered to Mr. VanWagenen show that he had a blood alcohol content of 15% and there was Lidocaine present. [Affirmation by Arthur V. Lynch, Exhibit B].

The underlying theory of claimant’s case is that the State should be held liable for serving alcoholic beverages to Mr. VanWagenen in violation of Alcoholic Beverage Control Law §65, which provides in pertinent part:
“No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to

* * * *

2. Any visibly intoxicated person;

3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages . . .”
Mr. VanWagenen died on or about January 30, 2006. [Affirmation by Arthur V. Lynch, ¶12; Exhibit C]. His mother was appointed administrator of his estate. [Ibid.]. Counsel indicates that the estate was notified of this application by service of the motion. [Ibid.].

Claimant seeks production of the complete personnel file maintained by Mr. VanWagenen’s employer, for in camera inspection by the court pursuant to Civil Rights Law §50-d (sic). Since Mr. VanWagenen was apparently employed by DOCS, the provision actually applicable is Civil Rights Law §50-a concerning personnel records of correction officers. The standards for whether such documents should be produced for inspection are analogous, however, and have been satisfied herein in any event.

Civil Rights Law §50-a provides in pertinent part:
“1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of . . . a department of correction of individuals employed as correction officers . . . shall be considered confidential and not subject to inspection or review without the express written consent of such . . . correction 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 records found to be relevant and material available to the persons so requesting . . . ”


If notice to the estate was necessary - since this type of confidentiality concern would generally be extinguished upon the death of the person holding the privilege - it has been given. Based upon the allegations in the claim and the investigative report attached to this application there is sufficient basis to show that material and relevant information may be contained therein, pertinent to the issue of whether decedent was known to be a habitual drunkard. There has been a “clear showing of facts sufficient to warrant the judge to request the records for review” [Civil Rights Law §50-a(2)]. Claimant has made “. . . a good faith showing of facts which make it reasonably likely that the file will contain information bearing on the merits of the action, and that the request is not merely a desperate grasping at a straw . . . (citations omitted).” Wunsch v City of Rochester, 108 Misc 2d 854, 857 (Monroe Co Sup Ct, 1981).

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 the personnel file maintained by the employer including but not limited to any pre-hiring investigation, as well as the disciplinary history of correction officer John W. VanWagenen, Jr., from the date of his employment to and including December 9, 2005, in sealed form, for in camera inspection in accordance with Civil Rights Law §50-a(3). 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.

October 1, 2007
White Plains, New York

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