New York State Court of Claims

New York State Court of Claims

CONTE v. THE STATE OF NEW YORK, #2008-033-321, Claim No. 113325, Motion No. M-75251


Synopsis



Case Information

UID:
2008-033-321
Claimant(s):
ROBERT CONTE
Claimant short name:
CONTE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113325
Motion number(s):
M-75251
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Massimo & Panetta, P.C.By: Frank C. Panetta, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 23, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Robert Conte (hereinafter "claimant"). The claim alleges causes of action for unjust conviction, false imprisonment, abuse of process, intentional infliction of emotional distress, “harassment and oppression”, denial of freedom of speech, denial of right of equal protection and abuse of discretion. The claim arose as a result of defendant’s supervision of claimant while he was on parole. The objectionable conduct is alleged to have occurred from the date of claimant’s release from prison until November 15, 2006.[1]

Claimant moves this Court for an order compelling defendant to produce the personnel file of his parole officer[2]. Claimant seeks the file for evidence of an alcohol problem (¶17 of Affirmation in Support of the motion). Claimant’s request for the personnel file is based upon “specific suspicions” (¶15 of Affirmation in Support of the motion) concerning the parole officer. According to the motion papers, the “suspicion” is based upon one incident in which claimant states the parole officer called him either inebriated or high on drugs (¶6 of Affirmation in Support of the motion).

Defendant opposes the motion based upon Civil Rights Law §50-a. Defendant asserts claimant has not overcome the protection provided to the parole officer by Civil Rights Law §50-a.

Civil Rights Law §50-a gives great protection to files of police officers, among others. The statute was designed to prevent unwarranted fishing expeditions into personnel folders (Becker v City of New York, 162 AD2d 488; see also People v Gissendanner, 48 NY2d 543). The records of a police officer may be disclosed after an in camera review of them. However, there is a procedure that must be followed before the Court can order the in camera review of the documents. In relevant part, it states:
1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . of individuals defined as police officers in section 1.20 of the criminal procedure law . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.


2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.


3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.

Claimant in describing the conversation with the parole officer indicates she was yelling, screaming, cursing and slurring her speech. The phone call was made to claimant as part of the duty of the parole officer supervising claimant.
The Court is satisfied that claimant has offered a factual predicate to require an in camera review of the personnel file of the parole officer (People v Gissendanner, 48 NY2d 543; Blanco v County of Suffolk, 51 AD3d 700). The purpose of the in camera review is limited to a review of alcohol abuse by the parole officer.

Based upon the foregoing, claimant’s motion is granted. Defendant is directed to seal the personnel file of the parole officer and deliver it to the Court for an in camera review and determination as to whether the records are relevant in this proceeding within forty-five (45) days of the filing date of this Decision and Order.




December 23, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The claim does not specify the beginning date of the objectionable conduct by a specific date.
[2].The following papers have been read and considered on claimant’s motion: Notice of Motion dated July 15, 2008 and filed on July 17, 2008; Affirmation in Support of Claimant’s Notice of Motion of Frank C. Panetta, Esq. dated July 15, 2008 and filed July 17, 2008; Affirmation in Opposition to Motion to Compel Discovery of Kimberly A. Kinirons, Esq. with annexed Exhibits A-B dated August 19, 2008 and filed August 20, 2008.