New York State Court of Claims

New York State Court of Claims

RUSSO v. THE STATE OF NEW YORK, #2009-009-018, Claim No. 114180, Motion Nos. M-76058, CM-76153


Synopsis


After an in camera review, the Court directed that documents pertaining to an internal affairs investigation, the personnel files for certain State Police Officers, and portions of the State Police Field Manual and Administrative Manual were to be produced, subject to a Stipulation of Confidentiality.

Case Information

UID:
2009-009-018
Claimant(s):
JENNY M. RUSSO and WALTER J. RUSSO
Claimant short name:
RUSSO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114180
Motion number(s):
M-76058
Cross-motion number(s):
CM-76153
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
HOFFMANN, HUBERT & HOFFMANN, LLP
BY: Terrance J. Hoffmann, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
July 20, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought a motion (M-76058) seeking an order to compel disclosure. Defendant has responded with a cross-motion (CM-76153) seeking a protective order for documents that it contends are privileged and therefore not subject to disclosure.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, with Attachments (M-76058) 1,2


Notice of Motion, Affirmation in Support (CM-76153) 3,4

Affidavit in Opposition to Cross-Motion (CM-76153) 5

In addition to the above papers, defendant’s counsel has submitted to the Court, under separate cover, the following documents for purposes of an in camera review: (a) documents pertaining to the internal affairs investigation which was conducted in response to the incident forming the basis of this claim; (b) copies of the personnel files for Investigator Daniel P. Smith, Investigator Brent A. Martin, Trooper Christopher G. Skinner, Trooper Travis B. Kline, and Trooper William B. Garland; (c) copies of Articles 32, 33, and 34 of the New York State Police “Field Manual” and a copy of Regulation 8 of the New York State Police “Administrative Manual” governing the “conduct and activities of members”.

Counsel for the parties acknowledge that this discovery dispute, leading to the instant motion and cross-motion, is limited solely to the issue of whether the above documents submitted for in camera review are subject to disclosure. In her affirmation in support of the State’s cross-motion, defendant’s counsel has raised no other objections to claimants’ discovery demands (with one limited exception to be subsequently addressed herein).

The Court has now completed its review of the aforementioned documents which were submitted by defendant for an in camera review. The Court finds that these documents may contain information relevant to the issues raised in this claim, and therefore must be disclosed by the defendant.

However, the Court is also sensitive to the concerns expressed by defendant’s counsel in the request for a protective order, especially with regard to privacy rights of the named officers whose personnel files will be disclosed, as well as the public safety concerns raised by the State Police regarding certain sections of its “Field Manual”.

Accordingly, prior to any disclosure, counsel for the parties must execute a “Stipulation of Confidentiality” with regard to those records and documents to be produced. If counsel are unable to agree on the terms of such a “Stipulation of Confidentiality”, they are directed to contact Chambers to request further Court assistance.

Finally, defendant seeks a protective order to prohibit disclosure of the personnel records of certain New York State Police Officers who were either not alleged to have been involved in the incident forming the basis of this claim, or who have not been individually named in a companion Supreme Court action. The Court agrees that disclosure of such personnel records, to the extent that they were requested by claimants, is not relevant or necessary to resolve the issues raised in this claim, and therefore such records need not be disclosed.

Accordingly, based upon the foregoing, it is

ORDERED, that upon execution of a “Stipulation of Confidentiality”, as agreed to by counsel for the parties, defendant shall provide claimants’ counsel with documents pertaining to the Internal Affairs investigation conducted by the New York State Police relating to this incident; copies of Articles 32, 33, and 34 of the New York State Police “Field Manual”; copy of Regulation 8 from the New York State Police “Administrative Manual”; and copies of the personnel files for Investigator Daniel P. Smith, Investigator Brent A. Martin, Trooper Christopher G. Skinner, Trooper Travis B. Kline, and Trooper William B. Garland, such documents having been previously submitted to this Court for an in camera review; and it is further

ORDERED, that defendant is granted a protective order and therefore need not disclose the personnel records of New York State police officers who are not alleged to have been involved in the incident forming the basis of this claim, or who were not individually named in the companion Supreme Court action.


July 20, 2009
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims