New York State Court of Claims

New York State Court of Claims

LIVINGSTON v. STATE OF NEW YORK, #2008-039-102, Claim No. 106797, Motion No. M-74581


Synopsis


Claimant’s second motion for an order compelling the disclosure of six items requested in a further demand is granted. Defendant contends that it complied with claimant’s demand with respect to two of the items demanded which relate to civil lawsuits and criminal charges brought against a correction officer. Claimant satisfied his burden of establishing that material sought with respect to three of the items demanded, which relate to injuries sustained by a correction officer during the subject incident, will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the prosecution or defense of the claim. Moreover, defendant did not oppose production of the three items. Additionally, defendant did not oppose claimant’s request for an order to compel production of any Inspector General’s investigative report regarding the subject incident and, accordingly, the request is granted as limited by the Court.

Case Information

UID:
2008-039-102
Claimant(s):
DETROY LIVINGSTON
Claimant short name:
LIVINGSTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106797
Motion number(s):
M-74581
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Detroy Livingston, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Joan MatalavageAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 17, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises out of an alleged assault upon claimant by a correction officer on November 26, 2001, at the Coxsackie Correctional Facility. Issue was joined, and on May 30, 2003, claimant filed a motion pursuant to CPLR § 3124 to compel disclosure of certain items of discovery from his demand dated January 27, 2003 (hereinafter referred to as “initial demand”).

By Decision and Order dated November 18, 2003, the Court (Sise, J.) denied in part and granted in part claimant’s motion to compel. More specifically, the Court (Sise, J.) denied claimant’s motion with respect to the disclosure of audiotapes of a Tier III disciplinary hearing, identified as demand “4”; the names of correction officers that responded to the alleged assault, identified as demand “5”; an injury report prepared by Correction Officer Notabartolo related to the alleged assault, identified as demand “10”; “[a]ll/any documents regarding investigation of felony complaint filed by Claimant against C.O. Notabartolo and Capt. P. Griffin with the Justice Court: Town of Coxsackie, Police Chief: Coxsackie Village Police Department, and Greene County District Attorney”, identified as demand “16”, and the names and present locations of two inmate witnesses that testified at the disciplinary hearing, identified as demand “17”. The Court (Sise, J.) directed, insofar as is relevant to the instant motion, that defendant comply with demands “2” and “3” by producing information in its possession relating to “civil lawsuits [against C.O. Notabartolo] which allege similar conduct against inmates as that set forth in this claim” and “documents relating to any criminal charges for assault or battery by C.O. Notabartolo.”[1]

Claimant now moves the Court for a second time seeking an order compelling the disclosure of six items requested in a subsequent demand dated November 26, 2007 (hereinafter referred to as “current demand”) and filed with the Court on December 3, 2007. The items requested include an “[i]njury report of C.O. Thomas T. Notabartolo regarding the November 26, 2001 incident,” identified as demand “1”; “[a]ny/all lawsuit against C.O. Thomas T. Notabartolo going back five (5) years prior to the November 26, 2001 incident,” identified as demand “2”; “[a]ny/all criminal complaints against C.O. Thomas T. Notabartolo going back five (5) years prior to the November 26, 2001 incident”, identified as demand “3”; “[t]he investigation report from the Inspector General’s office on C.O. Thomas T. Notabartolo regarding the November 26, 2001 incident, and any other incidents similar to this claim,” identified as demand “4”; “[a]ny/all photographs of C.O. Thomas T. Notabartolo’s alleged injuries sustained by him during the November 26, 2001 incident,” identified as demand “5”; and “[a]ny/all documents that pertains to the description of C.O. Thomas T. Notabartolo’s alleged injuries that he sustained during the incident on November 26, 2001,” identified as demand “6.”

Defendant opposes the motion on the grounds that it fully complied with the Court’s (Sise, J.) prior Decision and Order, and that claimant’s motion is barred by the principles of res judicata, collateral estoppel and issue preclusion.

The Court finds in the first instance that the production of items identified as “2” and “3” from claimant’s current demand, which relate to civil lawsuits and criminal charges brought against C.O. Notabartolo, were addressed in the Court’s (Sise, J.) prior Decision and Order dated November 18, 2003. As previously noted, defendant asserts that it has fully complied with the Court’s (Sise, J.) prior Decision and Order. In the event that defendant has not provided information complying with items “2” and “3” from claimant’s current demand, or a statement that no such documents exist, then copies of such information or a statement should be served on claimant within 20 days from the filing date of this Decision and Order. Defendant’s failure to comply with the Court’s direction could lead to sanctions.

With respect to items identified as “1”, “5” and “6” from claimant’s current demand, which relate to injuries sustained by C.O. Notabartolo during the November 26, 2001 incident, the Court (Sise, J.) held that such information is not protected by Civil Rights Law § 50-a, but that, based on the record then before the Court, it was not persuaded “the C.O.’s medical condition is an issue in controversy at this time.” It is well settled that “the party seeking disclosure . . . [must] demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the [prosecution] or defense . . . of the claims” (Herbst v Bruhn, 106 AD2d 546, 549 [1984]). “[T]he burden of establishing that the material sought to be discovered is privileged falls upon the party opposing disclosure” (id.).

In support of the instant motion, claimant states that information about C.O. Notabartolo’s injuries on the occasion in question “is needed to establish that his claim[ed] injuries is [sic] not consistent with how he stated the incident occurred” (Livingston affidavit, ¶ 13). Defendant does not challenge this explanation and, therefore, the motion will be granted insofar as it relates to items “1”, “5” and “6” from claimant’s current demand.

Finally, the Court must address claimant’s demand for the production of “[t]he investigation report from the Inspector General’s Office on C.O. Thomas T. Notabartolo regarding the November 26, 2001 incident, and any other incidents similar to this claim,” identified as item “4” in claimant’s current demand. Since defendant has not raised an objection to this request, or asserted any privilege which protects such a document, the Court concludes that the request for an order to compel is granted with respect to any Inspector General’s investigative report regarding the November 26, 2001 incident.[2] However, the request for an order to compel Inspector General reports relating to “any other incidents similar to this claim” is modified to require production of any Inspector General’s investigative reports involving C.O. Notabartolo and being factually similar to the events giving rise to this claim and, as so modified, is granted. Defendant may, if it deems necessary, move the Court for a protective order with a copy of the documents in question submitted as an exhibit for in camera review.

Accordingly, it is hereby

ORDERED that M-74581 is granted as more fully set forth in the Court’s Decision.


November 17, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Compel Disclosure dated February 15, 2008;
  2. Affidavit in Support of Motion to Compel Disclosure by Detroy Livingston, sworn to on February 19, 2008, with exhibits; and
  3. Affirmation in Opposition by Dennis M. Acton, AAG, dated February 29, 2008

[1]. The Court held that such documents would not fall within the protection of Civil Rights Law §50-a and directed that, if defendant wished to raise any other privilege, confidentiality or security concern regarding such documents, it do so within 30 days of the filing of the Decision and Order.
[2]. The Court notes that claimant sought, in his initial demand, an “[u]nedited copy of unusual incident report of 11-26-01 incident” and defendant agreed to produce the documentation. This does not appear, however, to be the same as claimant’s current request related to any investigative reports by the Inspector General regarding the November 26, 2001 incident.