New York State Court of Claims

New York State Court of Claims

ELLIS v. THE STATE OF NEW YORK, #2007-041-030, Claim No. 107788, Motion No. M-73468


Synopsis


Subject of unfounded report of child abuse is entitled to disclosure of report after Court’s in camera review to determine what portions of the report are probative of the issues in the subject claim and whether any portions should be redacted to protect the privacy of reporting individuals or others named in the report.


Case Information

UID:
2007-041-030
Claimant(s):
BENJAMIN ELLIS, on behalf ofELIJAH 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-73468
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, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 9, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves for an order permitting disclosure of an “unfounded report” of child abuse regarding the infant claimant prepared while the infant claimant was a resident of the Brookwood Secure Center, a facility operated by the New York State Office of Children and Family Services (OCFS) for the incarceration of youthful offenders. The claimant has not opposed the motion.


On March 14, 2003, while a resident of the Brookwood Secure Center, claimant, then sixteen years old, was allegedly assaulted by employees of the facility. This claim ensued.

According to the defendant, a report was made to the State child abuse hotline as a result of the alleged assault on the infant claimant and an investigation of the March 14, 2003 incident was conducted by the Division of Development and Prevention Service of OCFS.

During the course of the investigation, the following documents were generated: Facilty Unusual Incident Report; Request for Full Investigation; Memorandum of Investigation Results; Letter of Transmittal of April 17, 2003; and a Determination of the Division of Development and Prevention Service, dated May 13, 2003, and bearing ID # 21085961 and Intake ID # 22129883. Defendant characterizes these documents as an “unfounded report” of child abuse as defined in Social Services Law § 412.

Social Services Law § 422 (4) (A) provides that:
“Reports made pursuant to this title [Statewide central register of child abuse and maltreatment] as well as any other information obtained, reports written or photographs taken concerning such reports in the possession of the department, local departments, or the commission on quality of care for the mentally disabled, shall be confidential and shall only be made available to:

(d) any person who is the subject of the report or other persons named in the report;

(e) a court, upon a finding that the information in the record is necessary for the determination of an issue before the court.”

Social Services Law § 422 (5) (a) (iv) expressly permits an unfounded report to “be unsealed and made available . . . to the subject of the report.”

The defendant is the “subject” of the unfounded report and is entitled to its disclosure. (see Matter of Danielle G, 155 AD2d 731 [3d Dept 1989]).

The motion is granted and defendant, through OCFS or otherwise, is ordered to produce the complete report, within thirty (30) days of the filing of this decision and order, for in camera review by the Court to determine: What portions of the report are probative of the issues in the subject claim; and whether any portions of the report should be redacted to protect the privacy of reporting individuals or others named in the report (see Social Services Law §§ 422 [4] [A]; [5] [a] and [b]).

The Court notes that disclosure of the unfounded report is ordered only for the purpose of assisting the parties in obtaining information leading to admissible evidence since:
“[A]n unfounded report shall not be admissible in any judicial or administrative proceeding or action; provided, however, an unfounded report may be introduced into evidence: (i) by the subject of the report where such subject is a respondent in a proceeding under article ten of the family court act or is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment; or (ii) in a criminal court for the purpose of prosecuting a violation of subdivision three of section 240.55 of the penal law” (Social Services Law § 422 [5] [b]).

If the subject report is currently in the possession of the Office of the Attorney General, a certified copy may be provided directly to the Court.


July 9, 2007
Albany, New York

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


Papers Considered:

  1. Defendant’s Notice of Motion, filed May 29, 2007;
  2. Affirmation of Frederick H. McGown, III, dated May 29, 2007.