SABILIA v. STATE OF NEW YORK, #2007-041-001, Claim No. 111957, Motion No.
Claimants’ request for a unified trial is granted and their motion to
compel production of a portion of a police training manual is granted, subject
to in camera review by the Court. A hearing pursuant to Civil Rights Law §
50-a is ordered with respect to claimants’ request for disclosure of a
portion of police officer’s personnel file.
|PETER SABILIA AND STEPHANIE SABILIA
1 1.The caption has been amended sua sponte to identify the State of New York as
the only proper defendant in the action.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
FRANK P. MILANO
Latos, Latos & DiPippo, P.C.By: Peter Latos, Esq.
Hon. Andrew M. Cuomo
New York State Attorney
GeneralBy: John L. Belford, IV, Assistant Attorney General
January 12, 2007
See also (multicaptioned
Claimants move for an order: Directing that a unified trial of liability and
damages be held; compelling defendant to disclose certain “policies,
procedures, rules, regulations, and
training manuals;” directing defendant’s employee to answer certain
deposition questions; striking defendant’s response to claimants’
notice to admit and directing defendant to “provide responsive
answers” to the notice to admit; and awarding costs and sanctions for
defendant’s alleged failure to comply with disclosure demands.
Claimants also move to compel an inspection of a motor vehicle and a deposition
of a witness under defendant’s control. The record shows that the
inspection and deposition have been conducted during the pendency of the motion
and those aspects of the motion are moot.
The claim alleges that Peter Sabilia (Sabilia) was injured as a result of being
run over by a motor vehicle owned by the defendant and operated by John J.
Fitzwilliam (Fitzwilliam). Sabilia was sunbathing on the beach at Jones Beach
State Park when Fitzwilliam, an employee of the New York State Park Police,
allegedly drove the defendant’s Dodge Ram pick-up truck over Sabilia
while, according to Fitzwilliam, attempting to avoid a “large hole”
during a routine beach patrol.
With respect to the request for a unified trial, § 206.19 (a) of the
Uniform Rules for the Court of Claims provides as follows:
“Judges are encouraged to order a bifurcated trial of the issues of
liability and damages in any action for personal injury where it appears that
bifurcation may assist in a clarification or simplification of issues and a fair
and more expeditious resolution of the action.”
In addition, CPLR Rule 4011 provides that:
“The court may determine the sequence in which the issues shall be tried
and otherwise regulate the conduct of the trial in order to achieve a speedy and
unprejudiced disposition of the matters at issue in a setting of proper
Claimants argue that bifurcation is inappropriate because the “issues of
liability are inextricably intertwined with issues of damages.” In
particular, claimants assert that the nature of the injuries “will prove
that claimant’s version of the accident is true,” will disprove any
contention by defendant that the claimed injuries (such as herniated discs) were
not caused by the accident and will rebut any claim of comparative negligence on
the part of Sabilia.
Defendant responds by stating that the claimant has failed to show that
“the issue of liability and damages are so inseparably intertwined to the
extent that unified trial is an absolute necessity.”
As a general rule, “[i]ssues of liability and damages in a negligence
action are distinct and severable issues that should be tried and determined
separately unless plaintiff's injuries have an important bearing on the issue of
liability” (Hrusa v Bogdan, 278 AD2d 947 [4th Dept 2000];
see, Berman v County of Suffolk, 26 AD3d 307, 308 [2d Dept 2006]).
Although the Court is not convinced that the issues of injuries and damages are
so intertwined as to mandate a unified trial as an “absolute
necessity” (the standard promoted by defendant), the Court finds that
claimants have demonstrated that bifurcation would not “assist in
clarification or simplification of issues and a fair and more expeditious
resolution of the action.” In addition, the Court finds that claimants
have “established that the liability issue presented herein is
uncomplicated and that a trial on both liability and damages would be
brief” (Di Pirro v Thompson 289 AD2d 1025, 1026 [4th Dept 2001];
see, Zielinski v Van Pelt, 9 AD3d 874 [4th Dept 2004]; Swimm v
Bratt, 15 AD3d 976 [4th Dept 2005]).
The claim will be decided at a unified trial of both liability and
Claimants served a demand on defendant for production of “policies,
procedures, rules, regulations and/or training manuals regarding driving a
vehicle on the beach which were applicable at the time.” Importantly, the
claimants’ demand specifically stated that they did not seek “any
police strategies regarding pursuit techniques/strategies of any kind whatsoever
and is limited to those rules . . . dealing with driving on the beach (when not
Defendant responded by stating that “we will not be providing any
training manuals, regulations, policies, procedures or other internal
memorandums that pertain to driving a vehicle on the beach.” Defendant
asserts that its own policies and procedures have “little relevance to the
legal standard of care” and that the “standard of care in the
operation of a police vehicle is controlled by the reckless disregard standard
as defined in VTL §1104(e) and relevant case law.”
Defendant also claims that the requested materials are “privileged and
confidential” and might have “a detrimental impact on the safety and
security of the various officers, as well as the general public.” Finally,
defendant suggests that disclosure of its policy as to non-emergency, routine
operation of a pick-up truck on the beach will “limit the ability [of the
officers] to successfully perform their duties and self evaluation and
“Disclosure provisions of the CPLR are to be liberally construed;
however, the scope of permissible discovery is not entirely unlimited and the
trial court is invested with broad discretion to supervise discovery . . .
” (NBT Bancorp, Inc. v Fleet/Norstar Financial Group, 192 AD2d
1032, 1033 [3d Dept 1993]).
“The party seeking to prevent disclosure has a heavy burden, especially
where the materials sought are relevant” (Marten v Eden Park Health
Services Inc., 250 AD2d 44, 46 [3d Dept 1998]). It is the party opposing
discovery who has the burden to prove that the particular items sought are
exempt or immune from disclosure (Salzer v Farm Family Life Insurance
Company, 280 AD2d 844, 845 [3d Dept 2001]).
Contrary to the defendant’s assertion, the defendant’s internally
adopted standard of care, if any, for the routine, non-emergency operation of a
motor vehicle on the beach, is relevant. The Court notes that a party’s
“failure to abide by its own rule is some evidence of negligence”
(Haber v Cross County Hospital, 37 NY2d 888, 889 ; Kadyszewski v
Ellis Hosp. Assn., 192 AD2d 765, 766 [3d Dept 1993]) while also recognizing
that “[v]iolation of a company’s internal rules is not negligence in
and of itself, and where such rules require a standard that transcends
reasonable care, breach cannot be considered evidence of negligence”
(Sherman v Robinson, 80 NY2d 483, 489 n 3 ; see, Gilson v
Metropolitan Opera, 5 NY3d 574 ).
With respect to the recklessness standard of care set forth in Vehicle and
Traffic Law § 1104 (e), the claimants correctly state that the record is
devoid of any evidence that Fitzwilliam was “involved in an emergency
operation,” which is a prerequisite for the statute to apply.
The conclusory assertions of privilege and confidentiality regarding
defendant’s policy as to non-emergency, routine operation of a pick-up
truck on the beach, set forth in the affirmation of defendant’s attorney,
are unpersuasive. The defendant has failed to sustain its burden of showing that
the disclosure of the requested materials would pose any danger to park police
officers or the public (see, Beyah v Goord, 309 AD2d 1049, 1052
[3d Dept 2003]), nor has it been demonstrated that disclosure would impede the
ability of defendant’s officers to successfully perform their duties or
limit the defendant’s ability to evaluate the performance of its employees
(see, McBride v City of Rochester, 17 AD3d 1065 [4th Dept 2005]).
The defendant is directed to provide the requested “policies, procedures,
rules, regulations and/or training manuals regarding driving a vehicle on the
beach which were applicable at the time” to the Court for an in camera
inspection, within twenty (20) days of the filing of this decision and order
(see, Taran v State of New York, 140 AD2d 429, 432 [2nd Dept
At the deposition of Fitzwilliam, defense counsel refused to allow Fitzwilliam
to testify about whether Fitzwilliam was “disciplined as a result of this
accident.” Defense counsel directed Fitzwilliam not to answer on the basis
of “privilege” and that it was not “relevant to this
proceeding.” Claimants thereafter made a written request that Fitzwilliam
reveal whether he was “disciplined” and whether he testified about
the accident at any hearing. Defendant responded by stating that it “will
not provide an answer” to the disciplinary question posed at the
Claimants request that Fitzwilliam be ordered to appear for a further
deposition and that he be compelled to testify about whether he was subjected to
disciplinary proceedings by the New York State Park Police as a result of the
accident. Claimants further request that Fitzwilliam reveal whether he testified
at any such disciplinary proceeding and further assert that any such testimony
is discoverable as a potential admission of liability.
Defendant argues that requiring Fitzwilliam to answer the questions posed at
the deposition would violate the protections afforded Fitzwilliam by Civil
Rights Law § 50-a, which provides, at relevant part, as follows:
“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
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.”
“The legislative purpose [behind the statute] was to prevent disclosure
of officers’ personnel records except when a legitimate need for them has
been demonstrated sufficiently to obtain a court order, generally upon a showing
that they are actually relevant to an issue in a pending proceeding”
(Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155
). The party seeking the protected records has the initial burden of
making a good faith showing of a “factual predicate” justifying the
intrusion into the personnel records (Matter of Dunnigan v Waverly Police
Dept., 279 AD2d 833, 834 [3d Dept 2001], quoting People v
Gissendanner, 48 NY2d 543, 550 ).
The Court agrees that the requested disclosure is subject to the provisions of
Civil Rights Law § 50-a. The Court further finds that claimants have made a
good faith initial showing of entitlement to the requested disclosure, thus
triggering the “opportunity to be heard” provision of Civil Rights
Law § 50-a (2), since statements or testimony, if any, given by Fitzwilliam
in a disciplinary proceeding commenced as a result of the accident are clearly
relevant to the instant claim alleging that the accident was caused by
Fitzwilliam’s negligent operation of defendant’s pick-up truck
(see, Pickering v State of New York, 30 AD3d 393 [2d Dept 2006]).
The Court will conduct a hearing pursuant to Civil Rights Law § 50-a (2)
at the Court of Claims, 3rd Floor, State Office Building, Veterans Memorial
Highway, Hauppauge, NY 11788, on February 15, 2007, at 1:30 p.m. Claimants,
defendant and Fitzwilliam will be given the opportunity to be heard, orally or
in writing, at that time.
The claimants are ordered to serve a complete copy of the motion papers,
together with a copy of this decision and order, on Fitzwilliam by regular mail
to the address provided by Fitzwilliam at his deposition, on or before January
The defendant is also directed to advise Fitzwilliam in writing, on or before
January 25, 2007, of his right to participate in the above-described
Finally, claimants seek an order directing defendant to provide a response to a
notice to admit served on defendant which asked defendant to admit or deny that
the pick-up truck’s brakes, horn, directional signals and mirrors were in
good working order at the time of the accident. Defendant refused to provide a
response to the notice to admit, stating that the requested admissions involved
a “legal determination” on matters which “speak to material or
ultimate facts or legal issues of the action.” Defendant further argues
that a notice to admit may not be used as a disclosure device.
“The purpose of a notice to admit is only to eliminate from the issues
in litigation matters which will not be in dispute at trial. It is not intended
to cover ultimate conclusions, which can only be made after a full and complete
trial” (DeSilva v Rosenberg, 236 AD2d 508 [2d Dept 1997].
Defendant does not claim that the issues with respect to which the admissions
are sought will be in dispute at trial. Similarly, defendant has not shown that
the requested admission as to the condition of the pick-up truck’s brakes,
horn, directional signals and mirrors is “intended to cover ultimate
conclusions” or that it “goes to the heart of the matters at
issue” Rosenfeld v Vorsanger, 5 AD3d 462 [2d Dept 2004]). Defendant
is ordered to respond to the notice to admit within twenty (20) days of the
filing of this decision and order.
The application for motion costs is denied and the request for sanctions
pursuant to 22 NYCRR 130-1.1 is denied. The record lacks sufficient evidence of
frivolous conduct on the part of the defendant to justify claimants’
A telephone conference will be held on February 8, 2007 at 11:30 a.m. The Court
will initiate the conference call.
January 12, 2007
HON. FRANK P. MILANO
Judge of the Court of Claims
Claimant’s Notice of Motion, filed November 29, 2006;
Affirmation of Peter Latos, dated November 28, 2006, with annexed
Affirmation in Opposition of John L. Belford, IV, dated December 20, 2006 and
filed December 22, 2006;
Reply affirmation of Peter Latos, dated and filed December 26, 2006.