New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2008-009-007, Claim No. 113098, Motion No. M-73246


The Court directed defendant to produce certain documents for an in camera review.

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:
Attorney General
BY: Thomas M. Trace, Esq.
Senior Attorney,Of Counsel.
Third-party defendant’s attorney:

Signature date:
January 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order to compel discovery.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2

Affirmation in Opposition, with Exhibits 3

Reply Affidavit 4

Correspondence from Herbert Scandell, dated October 19, 2007 5

Claimant has filed this claim seeking to recover for personal injuries allegedly suffered by him when he was assaulted by inmate Herbert Scandell on October 20, 2006, while both were incarcerated at Marcy Correctional Facility. Claimant also seeks damages for personal injuries allegedly sustained by him from a broken window in the Special Housing Unit cell where he was confined after the incident of October 20, 2006.

During discovery, claimant brought this motion seeking an order compelling defendant to provide full and complete responses to his previously served discovery demands, served in February, 2007.

A significant number of these demands request documents, reports, or records pertaining to inmate Scandell, claimant’s assailant. Defendant has refused to produce any of these documents, reports, or records, on the basis that it cannot disclose private information pertaining to inmate Scandell without his consent or a court order, pursuant to Public Officers Law § 96. Defendant further objected on the basis that claimant had failed to serve a copy of this motion upon inmate Scandell, also as required by Public Officers Law § 96.

This Court, by an Interim Decision and Order dated October 4, 2007, directed that inmate Scandell be served with a copy of these motion papers. The Court has now received confirmation of such service as well as a written response from inmate Scandell objecting to the release of any such personal information. Since inmate Scandell has not consented to the release of this information, such information cannot be released absent a court order.

In an inmate-on-inmate assault, a claimant may need access to the disciplinary record of his assailant in order to establish that defendant had notice that the assault was reasonably foreseeable (Brier v State of New York, 95 AD2d 788; Wilson v State of New York, 36 AD2d 559). It is well settled that the reports of similar assaultive or violent behavior by such inmate, and the circumstances surrounding such conduct, are therefore generally discoverable (see Serrano v State of New York, Court of Claims, December 28, 2006, Midey Jr., J., Claim No. 112135, Motion No. M-71889 [UID No. 2006-009-080]).[1]

Accordingly, prior to determining claimant’s motion to compel, the Court will conduct an in camera review of the inmate disciplinary history of inmate Scandell, as well as certain of the other documents requested by claimant in his motion which may be relevant to his claim.

Specifically, defendant is hereby directed to provide the Court, for in camera review, the following documents and statements (referenced by the Number of the Demand set forth in claimant’s “Notice of Demand for Production of Documents for Disclosure and Inspection”):
Demand 2: Disciplinary Report issued to Herbert Scandell on 10-20-06.
Demand 3: Disciplinary Hearing Disposition - Herbert Scandell (regarding incident of October 20, 2006).
Demand 6: Complete Disciplinary History - Herbert Scandell.
Demand 21: Statements given by claimant to New York State Police (in connection with the incident of October 20, 2006).
Demand 22: Statements given by Herbert Scandell to New York State Police (limited to incident of October 20, 2006).

Defendant is directed to produce two copies of the above referenced documents to this Court for in camera review. One copy is to be un-redacted, and the second copy is to be redacted in a manner which the State believes presents information relevant to this claim while removing privileged or irrelevant information. Such documents are to be provided to this Court within 60 days of the filing date of this Decision and Order.

Upon receipt of these records and documents, the Court will conduct its review and made a determination as to what portions, if any, are subject to disclosure.

January 28, 2008
Syracuse, New York

Judge of the Court of Claims

[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at