New York State Court of Claims

New York State Court of Claims

H.L. v. THE STATE OF NEW YORK, #2008-040-027, Claim No. 113054, Motion Nos. M-74374, CM-74410


Synopsis


Claimant’s motion to compel discovery granted in part. Defendant is to produce documents to the Court for in camera inspection.

Case Information

UID:
2008-040-027
Claimant(s):
H.L.
Claimant short name:
H.L.
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113054
Motion number(s):
M-74374
Cross-motion number(s):
CM-74410
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
ELLIOT IFRAIMOFF & ASSOCIATES, P.C.By: Julio Cesar Roman, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 9, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Claimant’s Motion for an order: (1) compelling Defendant to comply with Claimant’s Notice for Discovery and Inspection; (2) for an order unsealing the criminal records along with the district attorney’s records; and (3) extending the time to serve and file a Note of Issue and Certificate of Readiness is granted in part and denied in part. Defendant’s Cross-Motion for a protective order is denied.

The Claim alleges that Claimant was an inmate at Wallkill Correctional Facility, located in Wallkill, New York (“Wallkill”), during the period November 29, 2004 through April 2005, where he was sexually assaulted by a male nurse employed at Wallkill. It is alleged that Defendant was negligent in the hiring, training, supervision and control of the nurse.

Claimant is seeking the nurse’s employment, psychiatric and mental health records, as well as incident reports prepared by the Department of Correctional Services (“DOCS”) Inspector General and the State Police concerning Claimant. He also seeks the unsealing of criminal records and district attorney records “pertaining to these incidents or any other similar incidents” (Julio Cesar Roman Affirmation in Support of Motion, ¶ 14).

In his Affirmation in Support, counsel further asserts Claimant’s contention that the State had actual or constructive knowledge of the nurse’s propensities because it received complaints from other inmates and Claimant. He states it is important for the State to produce the nurse’s unredacted employment records to determine the extent and timing of the State’s knowledge (Roman Affirmation, ¶ 13). Counsel asserts that, on or about March 1, 2007, Claimant served upon Defense Counsel a Notice for Discovery and Inspection (see Ex. C attached to Claimant’s Motion[1]).

In support of its Cross-Motion for a protective order, Defendant asserts that, on April 27 , 2007[2], it served a response to Claimant’s Combined Demands for Discovery dated March 1, 2007. Defense Counsel states in his Affirmation that the State’s April 27, 2007 response indicated that most of the materials requested were privileged and could not be produced absent a Court order (Affirmation of Frederick H. McGown, III, in Support of Cross-Motion, ¶ 4).

Generally, the scope of discovery is broad and CPLR 3101(a) mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” It is to be liberally construed, subject to a showing of materiality and necessity, and in the absence of a privilege that militates against disclosure (Hoenig v Westphal, 52 NY2d 605, 608 [1981]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Mc Kinney v State of New York, 111 Misc 2d 382, 384 [Ct Cl 1981]).

In order to establish that branch of a claim based on negligent hiring and supervision, a claimant must establish that the defendant knew of its employee's propensity to engage in the proscribed activity, or that the defendant would have known of such propensity if it had used adequate hiring and supervising procedures (see Honohan v Martin's Food of South Burlington, Inc., 255 AD2d 627, 628 [3d Dept 1998]; Ray v County of Delaware, 239 AD2d 755, 757 [3d Dept 1997]; Detone v Bullit Courier Service, Inc., 140 AD2d 278 [1st Dept 1988], lv denied 73 NY2d 702 [1988]). Negligent training requires a showing of some type of specific deficiency in training that led the employee to engage in misconduct, in this Claim, the sexual assault of Claimant by the nurse (Beasley v State of New York, UID # 2002-016-054, Claim No. 102424, Motion No. M-64929 [Marin, J., June 10, 2002], quoting Vippolis v Village of Haverstraw, 768 F2d 40, 44-45 (2d Cir 1985), cert denied 480 US 916 [1987]).

In reviewing the sworn allegations contained in the Claim, the Affirmation and Affirmation of Good Faith of Claimant’s counsel, and considering the elements needed to be proved in order to sustain his 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 employment, psychiatric and mental health records of the nurse who allegedly assaulted Claimant to determine if there is evidence that is material and relevant to the causes of action asserted in the Claim that should be disclosed. In so finding, the Court views Claimant’s 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” (Cox v New York City Housing Authority, 105 AD2d 663, 664 [1st Dept 1984]; see Randall v State of New York, UID # 2003-018-239, Claim No. 100522, Motion No. M-66072 [Fitzpatrick, J., July 15, 2003]),

As for the incident reports prepared by DOCS’ Inspector General and the State Police, “[i]t has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure” (Lowrance v State of New York, 185 AD2d 268, 268 [2d Dept 1992]; see Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]). “The hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality” (Cirale v 80 Pine St. Corp., 35 NY2d 113, supra at 117). 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” [citations omitted] (Lowrance v State of New York, 185 AD2d 268, supra at 269).

The Court finds that Claimant has established a sufficient basis to justify a review, in camera, of the Inspector General and State Police incident reports regarding the subject incident to determine if there is evidence that is material and relevant to the causes of action asserted herein.

The Court next turns to Claimant’s request for an order unsealing “the criminal records along with the district attorney’s records.” As stated above, the Claim alleges Defendant was negligent in the hiring, training, supervision and control of the nurse. Claimant has failed to establish the relevance of “criminal records along with the district attorney’s records” to the causes of action asserted in the Claim. In addition, district attorneys are local officials, not State officials, and there is no indication that any district attorney was put on notice of this Motion. Therefore, that portion of Claimant’s Motion is denied.

The State’s Cross-Motion for a protective order is denied.

As set forth herein, Claimant’s Motion to compel discovery is granted in part and denied in part. It is ORDERED that Defendant is to provide the Court, for purposes of an in-camera inspection, copies of the nurse’s personnel file, including his employment, psychiatric and mental health records, as well as any incident reports prepared by the State Police and/or the DOCS Inspector General within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims.

Claimant also seeks an order extending his time to serve and file a Note of Issue and Certificate of Readiness. Pursuant to the Court’s Preliminary Conference Order, dated March 5, 2007, discovery was to have been completed and Claimant was to have served and filed a Note of Issue and Certificate of Readiness on or before December 31, 2007. In light of the motion to compel, and the fact that discovery is still ongoing, the Court hereby extends the time to complete discovery and for Claimant to serve and file a Note of Issue and Certificate of Readiness to December 31, 2008.


May 9, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Claimant’s motion and the State’s cross-motion:

Papers Numbered


Notice of Motion, Affirmation of

Good Faith, Affirmation in Support
and Exhibits Attached 1


Notice of Cross-Motion and
Affirmation in Support 2

Affirmation in Opposition to Cross-Motion 3



[1].The Court notes that Ex. C is labeled “Claimant’s Combined Demands for Discovery.”
[2].Defense Counsel asserts in his Affirmation that the response is attached thereto as Exhibit A; however, it was not attached to the copy received by the Court. The Court also notes that ¶ 4 appears to include a verbatim recitation of Defendant’s answers from its Response to Combined Discovery Demands, filed with the Court on April 27, 2007, in which Defendant asserted a privilege. In some instances, the asserted defense explicitly relies upon Public Officers Law Article 6-A, the Personal Privacy Protection Law. In other cases, the Affirmation is not explicit, but the privilege appears to be premised upon Civil Rights Law § 50-a.