New York State Court of Claims

New York State Court of Claims

ELLIS v. THE STATE OF NEW YORK, #2007-041-011, Claim No. 107788, Motion Nos. M-72298, M-72562


Synopsis


Court grants claimant’s motion to compel defendant to produce the last known addresses of three residents of an Office of Children and Family Services secure facility who allegedly witnessed an assault by defendant’s employees upon the infant resident claimant.

Case Information

UID:
2007-041-011
Claimant(s):
BENJAMIN ELLIS, on behalf of ELIJAH ELLIS, his minor son
Claimant short name:
ELLIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107788
Motion number(s):
M-72298, M-72562
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
RAWLINS & GIBBS, LLPBy: Spencer C. Gibbs, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Frederick H. McGown, III Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 20, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves to compel defendant to disclose the last known addresses of three residents of the Brookwood Secure Center, a facility operated by the New York State Office of Children and Family Services for the incarceration of youthful offenders, who allegedly witnessed an assault by defendant’s employees upon the infant resident claimant.


On March 14, 2003, while a resident of the Brookwood Secure Center, claimant, a sixteen year old, was allegedly assaulted by employees of the facility. The parties have engaged in significant disclosure proceedings, including depositions, and claimant now seeks an order “requiring the defendant to disclose the identity and present address of all residents of the Brookwood Secure Center who were witnesses to the incident that is the basis of this action on the ground that this information is material and necessary to the prosecution of this action.”

According to claimant, defendant’s employees were unable to remember the names of any witnesses to the incident when questioned at deposition. Claimant was able to state the names of three fellow residents (witnesses) who witnessed the alleged assault but did not know the witnesses’ addresses.

Defendant responded to the motion by asserting that absent a court order, “defendant is precluded from any disclosure of the records concerning the residents of an Office of Children and Family Service facility.” Defendant bases its opposition on the provisions of Executive Law § 501-c and 9 NYCRR 168.7.

Executive Law § 501-c provides, at relevant part, as follows:

“1. (a) Records or files of youths kept by the division for youth shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination by any person other than one authorized to receive such knowledge or to make such inspection or examination: (i) by the division pursuant to its regulations; (ii) or by a judge of the court of claims when such records are required for the trial of a claim or other proceeding in such court; or (iii) by a federal court judge or magistrate, a justice of the supreme court, a judge of the county court or family court, or a grand jury when such records are required for a trial or proceeding in such court or grand jury. No person shall divulge the information thus obtained without authorization to do so by the division, or by such justice, judge or grand jury.”

9 NYCRR 168.7 states that:

“(a) Records or files of children who are or have been under the care or supervision of the Division for Youth may not be disclosed in whole or part to any person, agency or institution, other than the Division for Youth and New York State family courts, with the following exceptions:

(1) Records or pertinent parts thereof must be disclosed pursuant to Supreme Court order as authorized by Social Services Law article 6, section 372.”

In Quillen v State of New York (191 AD2d 31 [3d Dept 1993]), in a case involving facts strikingly similar to this claim, the Appellate Division, Third Department found that Social Services Law § 372 (4) applied to a request by a claimant in the Court of Claims seeking the mailing addresses of former residents of a Division for Youth home who were allegedly witnesses to an assault by a state employee upon the claimant/resident.

The Quillen court held that Social Services Law § 372 (4) required that notice and an opportunity to be heard in opposition to the request for disclosure of the confidential information (the mailing addresses) must be given to the former residents (Quillen, 191 AD2d at 33-34).

Accordingly, this Court issued an order to show cause directing the defendant to give notice (by regular and certified mail, return receipt requested) of the claimant’s motion to the three alleged witnesses to the assault of claimant. The order to show cause required that the witnesses, or their parents, if the witnesses remain minors, show cause, in writing, on or before February 28, 2007, why the Court should not order disclosure of the witnesses’ last known addresses.

The defendant has provided proof of service of the order to show cause and underlying motion papers on the witnesses and there has been no opposition offered by the witnesses to the relief requested by the claimant.

The Court has weighed “the need for confidentiality against the need for the evidence sought by claimant” (Quillen, 191 AD2d at 34) and finds that the testimony of the witnesses is highly relevant to the issues involved in the claim and that the witnesses “need for confidentiality [does not override] the need for the otherwise relevant evidence” (Quillen, 191 AD2d at 34). The motion is granted and the defendant is ordered to provide to claimant’s counsel the last known addresses of the three witnesses for the purpose of obtaining the deposition and/or trial testimony of the witnesses. The information shall remain otherwise confidential and claimant’s counsel shall not divulge the information obtained without authorization to do so by the Court.

March 20, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion, filed September 21, 2006;
  2. Affirmation of Spencer C. Gibbs, dated September 18, 2006, with annexed exhibit;
  3. Affirmation in Opposition of Frederick H. McGown, III, dated and filed September 28, 2006;
  4. Letter of Spencer C. Gibbs, dated November 7, 2006 and received November 9, 2006;
  5. Order to Show Cause, dated January 25, 2007, with proof of service.