New York State Court of Claims

New York State Court of Claims

CASTRO v. THE STATE OF NEW YORK, #2008-030-553, Claim No. 109475, Motion Nos. M-75123, CM-75299


Claim alleges wrongful termination from employment with the New York State Department of Health. Cross-motions to compel and for a protective order granted in part to the extent the defendant shall provide to the Court a complete certified copy of the personnel file of the supervisor significantly involved in the termination, in sealed form, for in camera inspection. The request is not unduly overbroad, nor has any specific applicable privilege been asserted, other than general considerations of privacy under Public Officers Law §96 and under FOIL. Specific objections to disclosure of information in file, to be set forth in a privilege log related to the specific document, including its page, as well as any argument concerning the privilege or objection asserted and accompanying legal authority, will be considered during 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:
Third-party defendant’s attorney:

Signature date:
August 25, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on the cross-motions submitted herein:

1,2 Notice of Motion; Affirmation of Bruce Ettman, counsel for claimant and attached exhibits

3,4 Notice of Cross-Motion; Affirmation in Opposition to Claimant’s Motion and in Support of Defendant’s cross-motion for a protective Order by Ellen S. Mendelson, Assistant Attorney General and attached exhibits

  1. Claimant’s Brief in Reply to Defendant’s Opposition and in Further Support of Claimant’s Motion to compel discovery and in opposition to defendant’s cross-motion for a protective order keeping relevant files from being revealed
  1. Reply Affirmation in further support of defendant’s cross-motion for a protective order by Ellen S. Mendelson, Assistant Attorney General
7,8 Filed papers: Claim, Answer

Antonia Castro alleges in her claim that she was wrongfully terminated from her employment with the New York State Department of Health on or about March 23, 2004. [See Claim No. 109475, filed June 14, 2004]. More specifically, she alleges that the individual in charge of her unit, George Hartoularos, Deputy Director, Investigative Services Unit of the Department’s Division of Nutrition, called claimant into his office on that day and threatened her with the loss of all her pension and health benefits unless she signed a letter of resignation then presented to her. She alleges that the Deputy Director advised her that she had not complied with procedures in an investigation she had conducted the previous week, and this was the reason for seeking her resignation. She signed the letter presented.

In its answer, in addition to general denials, the defendant asserts six (6) defenses, including but not limited to claimant’s culpable conduct, or the culpable conduct of others for whom the State does not bear responsibility; absolute or qualified immunity for discretionary conduct; a lack of subject matter jurisdiction premised upon any asserted civil rights violations; as well as a lack of jurisdiction over a cause of action more properly heard first in the context of an Article 78 proceeding in New York State Supreme Court.

In a Notice to Produce served on defendant on or about March 3, 2008, claimant sought production of the personnel file of George Hartoularos pursuant to Civil Practice Law and Rules §§3101(a); 3102(a) and (f); 3120. [Affirmation of Bruce Ettman, ¶7, Exhibit B]. In response to the Notice to Produce, defendant had advised that it would not produce such file based upon the confidentiality provisions of the Public Officers Law. This motion by claimant to compel production has followed, as has the defendant’s cross-motion for a protective order. Civil Practice Law and Rules §§3103; 3124.

The Notice to Produce seeks:
“...1. The personnel file(s) and/or employment file(s) (however named or identified) of George Hartoularos that includes, among other things, employment history, positions held, commendations, disciplinary records, correspondence, performance reviews, salary history, termination or resignation notices, and all other information commonly contained in such file(s).

2. Any other file that contains the information and documentation identified above that was not requested by the above Demand.” [Affirmation of Bruce Ettman, Exhibit B].

Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [see Court of Claims Act §9(9)], provides in pertinent part that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . . ” Discovery of matter that is material and necessary is generally liberally allowed, however that generous proviso does not mean that a claimant may then obtain anything she may wish to examine during discovery. Allen v Crowell-Collier Publishing Co., 21 NY2d 403 (1968). The test of materiality and necessity has been interpreted as that “which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable.” Allen v Crowell-Collier Publishing Co., supra at 406-407. Disclosure should be required, “. . . upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason . . . (citation omitted).” Allen v Crowell-Collier Publishing Co., supra, at 406. The Court of Appeals further wrote “. . . the word ‘necessary’, even under . . . the Civil Practice Act, was held to mean “needful” and not indispensable . . . (citation omitted).” Allen v Crowell-Collier Publishing Co., supra at 407.

Exemptions from full disclosure are matters protected by privilege and material prepared for litigation. See Civil Practice Law and Rules §§3101 (b) and (d). Privacy concerns, too, involve additional considerations beyond materiality and relevance, requiring any release of such information be preceded by the court’s in camera inspection to determine whether the file contains any material and relevant documents, and redaction of privileged or protected materials. See e.g. Matter of Jasmine G., 35 AD3d 604, 606 (2d Dept 2006); Matter of New York 1 News v Office of President of Borough of Staten Island, 231 AD2d 524, 525 (2d Dept 1996); see also Matter of Humane Soc. of U.S. v Brennan, 53 AD3d 909 (3d Dept 2008); Matter of Harris v City University of New York, Baruch College, 114 AD2d 805, 806 (1st Dept 1985). “Disciplinary files containing disciplinary charges, the agency determination of those charges, and the penalties imposed . . . are not exempt from disclosure under FOIL; ‘personal and intimate details of an employee’s personal life’ are exempt . . . (citation omitted).” Matter of Obiajulu v City of Rochester, 213 AD2d 1055 (4th Dept 1995). Additional protections would be a direction that any release be limited to the present litigation.

In support of the application, counsel for claimant has indicated that Mr. Hartoularos is asserted to have been “an active wrongdoer” by the claimant. [Claimant’s Brief in Reply, page 3]. Information in his personnel file
“pertain[ing] to the incident in question, his actions in response to the incident, his decision to force Claimant’s resignation rather than proceed through normal channels, and any consequences of his decision . . . The Notice also seeks information regarding any history Hartoularos may have of conducting himself toward other employees under his supervision in the manner Claimant asserts he conducted himself toward her in this case . . . If Hartoularos was charged internally or disciplined in any way because of the way he acted in this matter or because of similar conduct toward others, such information is indisputably disclosable under the CPLR.” [Claimant’s Brief in Reply, pages 3 and 4].

Although there is no common law right to privacy in New York State [see Arrington v New York Times Co., 55 NY2d 433, 440 (1982)] such rights are provided by various statutes. For example, police officers and correction officers among others enjoy specific statutory protection under the Civil Rights Law [see Civil Rights Law §50-a], and much of the case law interpreting privacy interests in personnel matters has arisen in the context of such protection under the Civil Rights Law. See e.g. People v Gissendanner, 48 NY2d 543, 550 (1979)[1]; Zarn v City of New York, 198 AD2d 220 (2d Dept 1993).[2]

Mr. Hartoularos is the type of employee protected only by the general provisions of Public Officers Law §96 and, by reference, some of the provisions in other sections of the Public Officers Law usually utilized to consider the appropriateness of a FOIL request [see generally Public Officers Law §§87 and 89]. The more limiting considerations of the Civil Rights Law, clearly designed with the different interests in mind of preserving the safety of police and peace officers and sometimes the public interest privilege do not strictly apply.[3]

In reviewing the sworn allegations[4] contained in the claim, the affirmations of claimant’s counsel, and considering the elements needed to be proved in order to sustain her burden of proof against the State of New York, the Court finds that claimant has established a sufficient factual predicate to warrant a review, in camera, of the personnel records of the employee who allegedly forced claimant’s resignation to determine if there is evidence that is material and necessary to the cause of action asserted in the claim that should be disclosed. While defendant argues that Mr. Hartoularos’ deposition on the issues surrounding claimant’s termination would be more fruitful and less invasive as a first step, claimant is entitled to pursue discovery in the order in which she chooses to pursue it, in a manner most likely to produce verifiable information. Indeed, if there is discoverable material in his personnel file as to this incident, and any repercussions therefrom,[5] it would be helpful to know this prior to any such deposition. The request is not unduly overbroad - indeed only the records of this one individual who, according to the sworn allegations in the claim, played a pivotal role in claimant’s firing, have been sought - nor has any specific applicable privilege been asserted, other than considerations of privacy under the personal privacy act codified under Public Officers Law ART. 6-A and under the Freedom of Information Law [FOIL] codified at Public Officers Law §§84 et seq.

The Court necessarily views the assertions in support of disclosure “liberally because, in the usual case, a party seeking discovery will, of course, not know precisely what pertinent information is within a personnel record.” See Cox v New York City Housing Auth., 105 AD2d 663, 664 (1st Dept 1984). The reasons to allow disclosure of the employee’s personnel file - at least for in camera inspection - are sufficiently compelling for these preliminary purposes to determine whether, if at all, any portion of it may be then disclosed to claimant because there has been a showing that the discovery sought is “. . . reasonably calculated to lead to relevant evidence . . .” [cf. Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733 (2d Dept 1986); Jordan v Blue Circle Atlantic, Inc., 296 AD2d 752 (3d Dept 2002)][6], bearing in mind the cause of action at issue and the limited information claimant has available to “. . . know precisely what pertinent information . . . ” [see Cox v New York City Housing Auth., supra] may be available. The cause of action at issue is whether the State wrongfully terminated claimant’s employment. It is clear that the active role taken by Mr. Hartoularos in claimant’s termination is germane and presents issues of fact. Accordingly, the Court agrees with defendant’s alternative suggestion that where there is an issue of fact as to whether non-exempt material may be found, such as that present here, the Court should conduct an in camera inspection.

Accordingly, claimant’s motion to compel, and defendant’s cross-motion for a protective order, are each granted in part to the following extent: within sixty (60) days of the date of filing of this decision and order, the defendant shall provide to the Court a complete certified copy of the personnel file maintained by the employer including but not limited to any disciplinary history of George Hartoularos, in sealed form, for in camera inspection. The records so provided shall be certified by the agency providing them, identified, and consecutively paginated for ease of reference. If the defendant has specific objections to disclosure of information contained therein, he is to include a privilege log related to the specific document, including its page, as well as any argument concerning the privilege or objection asserted and accompanying legal authority.

After in camera review, the Court will determine what portions, if any, are subject to disclosure and direct the defendant accordingly. This material shall remain confidential and if released, may only be used in the case before this Court, and may not be disseminated or shared with anyone not a party to this litigation, except for retained experts.

August 25, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Under Civil Rights Law §50-a, and as it has arisen in the context of the seminal case involving a criminal prosecution - not a civil matter - the person seeking discovery is not required to “. . . make a preliminary showing that the record actually contains information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends . . . [There is] no inviolable shield to prevent the discovery of what might turn out to be relevant and exculpatory material . . .[What is called] for is the putting forth in good faith of some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw . . . ” People v Gissendanner, supra at 550.
[2]. In a wrongful death suit by the widow of a city police officer who had committed suicide, motion for inspection and release of personnel records of a fellow officer who witnessed the suicide was denied, with the court finding that there was no factual showing that the officer’s career was related to the death. Zarn v City of New York, supra. The court found that this was an impermissible fishing expedition into collateral matters.
[3]. The public interest privilege is “. . . applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality . . . (citations omitted).” Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 (1974). The privilege is a qualified one, applicable depending on whether “. . . the State’s interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file (Cirale v 80 Pine St. Corp., supra, at 117).” Lowrance v Sate of New York, 185 AD2d 268, 269 (2d Dept 1992); see also In re World Trade Center Bombing Litigation, 93 NY2d 1, 7-12 (1999).
[4]. Civil Practice Law and Rules §105(u) indicates that “. . . [a] ‘verified pleading’ may be utilized as an affidavit whenever the latter is required” thus the verified claim itself suffices as a sworn statement by someone with knowledge in support of the motion.
[5]. Defendant has submitted a photocopy of the Administrative Law Judge’s [ALJ] determination denying claimant’s application for unemployment insurance benefits. [Affirmation in Opposition to Claimant’s Motion and in Support of Defendant’s Cross-Motion for a Protective Order, Exhibit 1]. It contains some findings by the trier of fact concerning claimant’s version of events, and those that other witnesses may have testified to. The ALJ wrote as part of her factual recitation, that when claimant met with the deputy director he was “calm”, did not coerce her, and had prepared a letter of resignation as an alternative to discipline as instructed by his own supervisor. The ALJ wrote: “The deputy director, who had held the position for about 15 years, had never before been involved in any similar disciplinary matter.” [See ibid.]. The ultimate finding that claimant had left employment under disqualifying conditions was premised, in strong part, upon credibility determinations made by that trier of fact and law, such determinations being material and relevant to establishing a cause of action wherein there are, essentially, only two witnesses. In the context of the present lawsuit, this administrative determination highlights why this is not a collateral matter.
[6].In both Stevens v Metropolitan Suburban Bus Auth., supra, and Jordan v Blue Circle Atlantic, Inc., supra, the Courts found that the disclosure of the subject employee’s personnel file was not warranted in the personal injury lawsuits at issue, since no allegations of negligent supervision or related causes of action had been pleaded. Because the materials could arguably be relevant for other purposes here, the Court does not find that such a cause of action need be pleaded to warrant at least preliminary review in camera.