New York State Court of Claims

New York State Court of Claims

WADDY v. STATE OF NEW YORK, #2008-039-106, Claim No. 111433, Motion No. M-75291


Synopsis


Claimant moves the Court for an order compelling defendant to disclose to her various documents requested in her Notice for Discovery and Inspection, including information from a correction officer’s personnel records. Pursuant to Civil Rights Law § 50-a (2), as an interested party, the correction officer was entitled to notice of claimant’s request to obtain documents from his personnel file. There being no proof before the Court that the correction officer was notified of the instant motion, the Court finds that he should be permitted an opportunity to be heard on the motion. Accordingly, claimant is directed to serve upon the correction officer a complete copy of, among other things, her motion papers, and the correction officer is directed to serve upon claimant and defendant, and file with the Court, any opposition to the motion.

Case Information

UID:
2008-039-106
Claimant(s):
LATANYA WADDY
Claimant short name:
WADDY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111433
Motion number(s):
M-75291
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Godosky & Gentile, P.C.By: David M. Godosky, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Robert J. SchwerdtAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant alleges that on May 19, 2004 she was shot by off-duty Correction Officer Uriel DeLeon (hereinafter C.O. DeLeon) outside of a jewelry store while the officer was in pursuit of several robbers. Issue was joined, and claimant now moves the Court for an order compelling defendant to disclose to her various documents requested in her Notice for Discovery and Inspection dated June 26, 2008.

More specifically, claimant seeks (1) copies of all Firearms Qualification and Requalification records for C.O. DeLeon; (2) copies of all written and/or additional instructions provided to C.O. DeLeon; (3) all dates that C.O. DeLeon qualified and/or requalified and received instruction and/or additional instruction on the use of deadly force; (4) a copy of the Department-approved lesson plan referenced at section III Procedures, subparagraph “C” Initial Qualification Requirements, paragraph numbered “1”;[1] (5) copies of the Weapons Qualification Card issued annually to C.O. DeLeon for the years 1996 to date; and (6) copies of all use of force reports and monthly use of force summaries for C.O. DeLeon for the years 1996 to date.

“Under Public Officers Law § 87 (2) (a), an agency may deny access to public records which are ‘specifically exempted from disclosure by state or federal statute’ ” (Wong v State of New York, 19 Misc 3d 1122 (A) [2008]). “Civil Rights Law § 50-a (1) exempts from disclosure personnel records of [correction] officers without the express written consent of the subject officer or a lawful court order” (Telesford v Patterson, 27 AD3d 328, 330 [2006]).

“Prior to issuing an order for an in camera review of an officer’s personnel records, the court must give ‘interested parties the opportunity to be heard’ and the inspection may be conducted only upon ‘a clear showing of facts sufficient to warrant the judge to request records for review’ ” (id., quoting Civil Rights Law § 50-a [2]). “The initial burden therefore is on the party seeking disclosure to demonstrate ‘in good faith, some factual predicate warranting the intrusion into the personnel records of’ the officer” (id., quoting Taran v State of New York, 140 AD2d 429, 432 [1988] [quotations omitted]).

Here, there is no proof before the Court that C.O. DeLeon was notified of the instant motion. Since he is an individual who might be inequitably affected by any judgment rendered in this matter, the Court finds that, pursuant to Civil Rights Law § 50-a (2), he should be permitted an opportunity to be heard on the motion to compel portions of his personnel file.

Accordingly, it is hereby

ORDERED that claimant shall, within twenty (20) days from the date of filing of this Interim Decision and Order, serve upon Correction Officer Uriel DeLeon a complete copy of all papers submitted in connection with this motion, together with a copy of the Court’s Interim Decision and Order, with proof of service thereof upon the Court; and it is further

ORDERED that Correction Officer Uriel DeLeon shall, within thirty (30) days from the date of service of this Interim Decision and Order, serve upon claimant and defendant and file with the Court any opposition to the motion, with proof of service thereof upon the Court.

January 16, 2009
Albany, New York

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


Papers Considered
:
  1. Notice of motion dated July 23, 2008;
  2. Affirmation of Good Faith by David Godosky, Esq. dated July 23, 2008;
  3. Affirmation in support of motion to compel by David Godosky, Esq. dated July 23, 2008, with exhibits; and
  4. Affirmation in Opposition by Robert J. Schwerdt, Esq. dated August 1, 2008.

[1]. In its Response to Notice for Discovery, defendant stated that it was not currently in possession of this item, but that it would “turn over [the item] upon receipt.”