New York State Court of Claims

New York State Court of Claims

MONTALVO v. THE STATE OF NEW YORK, #2007-044-532, Claim No. 109004, Motion No. M-72899


Claimant moves to compel disclosure of the disciplinary history and ambulatory health records of the fellow inmate who assaulted him. An in camera review of the disciplinary history reveals no relevant records. The assailant has been given notice of the motion and has made no objection to release of the records, and defendant is ordered to submit his ambulatory health records for in camera review by the court.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 10, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim to recover for personal injuries allegedly received when he was attacked by Inmate Charles Jenkins while both were incarcerated at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Claimant now moves to compel defendant to provide both the disciplinary history and the ambulatory health record of Inmate Jenkins. Defendant opposes the motion, arguing that it is not authorized to disclose private information protected by Public Officers Law § 96 without a court order. Defendant has submitted Jenkins’ disciplinary history for the Court’s in camera review, but has not submitted the ambulatory health record.

It appears that on April 7, 2003, at approximately 8:50 a.m., Jenkins was involved in an altercation with another inmate, Elhajj El Shabazz. As a result of that incident, Jenkins was taken to the facility’s hospital and examined. Thereafter, Jenkins was apparently brought to the waiting area without restraints, where he encountered and allegedly assaulted claimant at approximately 9:45 a.m. In this motion, claimant specifically seeks production of Jenkins’ “ambulatory health record for 4/7/03 and any log, document, duty chart, or other paper that would establish whether any physicians or physician’s assistants were on duty at the time and place of the incident and . . . the hearing minutes and transcripts of the misbehavior hearings against [Jenkins as a result of the incident] and his institution record for the 45 days prior to 4/7/03.”

In an inmate-on-inmate assault, a claimant may need access to a fellow inmate’s disciplinary and/or medical records in order to establish that defendant had notice that the assault was reasonably foreseeable (see Brier v State of New York, 95 AD2d 788 [1983]; Wilson v State of New York, 36 AD2d 559 [1971]). “Reports of similar assaultive or violent behavior, and the circumstances surrounding such conduct, are therefore generally discoverable” (Serrano v State of New York, Ct Cl, Dec. 28, 2006, Midey Jr., J., Claim No. 112135, Motion No. M-71889

[UID #2006-009-080]). With respect to medical records, however, disclosure is limited to information contained therein which concerns “the attacker’s criminal record and behavior in confinement prior to the assault,” as the claimant is not entitled to information relating to prognosis and diagnosis of his or her assailant (Wilson v State of New York, supra, at 560).

Defendant is correct in asserting that Jenkins has a privacy interest in his ambulatory health record, and the Court previously directed that he be served with a copy of this motion. An affidavit of service indicates that on January 28, 2007, a copy of this motion to compel was mailed to Jenkins at Sing Sing Correctional Facility, where he is currently incarcerated. Jenkins has not responded.

Claimant contends production of the ambulatory health record is necessary to determine whether the removal of Jenkins' restraints was authorized. Pursuant to 7 NYCRR 305.3 (c)

(1) (i), the restraints on an inmate assigned to a Special Housing Unit (SHU) may be temporarily removed to accommodate “a request of a physician or a physician’s assistant (P.A.) when removal is necessary to permit medical treatment.” Defendant advises that this particular regulation is the only directive which may be applicable to the circumstances surrounding the removal of Jenkins' restraints prior to the assault. The Court finds that an in camera review of Jenkins’ medical record is appropriate in order to determine whether it contains information which may reveal whether such a request was made by a physician or P.A. Defendant is directed to submit that portion of Jenkins’ ambulatory health record which sets forth any medical treatment he may have received on April 7, 2003.

Additionally, the Court has reviewed Jenkins’ inmate disciplinary history in camera, and finds that there are no entries concerning disciplinary charges for the 45-day period preceding his altercation with claimant on April 7, 2003. Although there is an entry for April 7, 2003, the record indicates that the corresponding incident occurred at 4:25 p.m. and thus is not relevant to the issue of defendant’s prior notice in this case. Accordingly, disclosure of Jenkins’ disciplinary history is not warranted.[1]

Claimant’s Motion No. M-72899 for disclosure is granted to the extent that defendant is ordered to submit a copy of Inmate Jenkins’ ambulatory health record for April 7, 2003 for an in camera review within 20 days of the filing of this decision and order. The remainder of the motion as it pertains to Jenkins’ disciplinary history is denied, based upon this Court’s in camera review.

May 10, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion to compel disclosure:

  1. Notice of Motion filed on January 31, 2007; Affirmation of Gary E. Divis, Esq. dated January 28, 2007 and attached exhibit.
  1. Affirmation in Opposition of Carol A. Cocchiola, AAG, dated March 7, 2007.

Filed papers: Claim filed on March 5, 2004; Verified Answer filed on April 14, 2004.

[1]. Assistant Attorney General Carol A. Cocchiola acknowledges that disciplinary action was proposed against Jenkins for the altercation with El Shabazz. Because Jenkins’ disciplinary history does not reflect a Tier III hearing, AAG Cocchiola is hereby ordered to make another inquiry of Department of Correctional Services staff regarding the existence of additional documentation pertaining to any disciplinary conduct taken as a result of the incident. Any such documentation shall be submitted to this Court for further in camera review.