New York State Court of Claims

New York State Court of Claims

CORRENTI v. THE STATE OF NEW YORK, #2009-015-125, Claim No. 114625, Motion Nos. M-75664, CM-75825


Pro se inmate's motion to compel production of inspector general's file and defendant's cross-motion for a protective order was granted in part and denied in part.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Anthony Correnti, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 30, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for a subpoena compelling the production of original records of the Department of Correctional Services Inspector General’s Office relating to its investigation of the theft of certain personal property from his cell by correction officers or someone acting at their behest. Defendant opposes the motion and cross-moves for a protective order on the ground that the Inspector General’s file relating to this matter is exempt from discovery pursuant to the public interest privilege. Claimant alleges causes of action for intentional infliction of emotional distress arising out of the conduct of certain correction officers in revealing to other inmates the crimes with which he was charged and negligence in connection with the theft of certain of his personal property from his locked cell.

Claimant’s discovery demand for the Inspector General’s file relating to this matter was previously the subject of a motion to compel. In a Decision and Order filed September 26, 2008, the Court found that the defendant’s response to this demand that “No such records exist” set forth in the attorney’s affirmation of Michael W. Friedman in opposition to the motion dated June 25, 2008 was adequate.

Despite this representation by Mr. Friedman, the defendant now submits the case file compiled by the Inspector General's Office regarding the events at issue here. The case file was communicated to the Office of the Attorney General by cover letter dated September 1, 2008, almost three months subsequent to the date of Mr. Friedman's affidavit in opposition to the prior motion. It would appear, then, that there existed no reasonable basis upon which Mr. Friedman could premise his representation that the requested records did not exist. In fact, the records exist and have now been submitted to the Court for in camera inspection upon the claimant's second motion to secure their production. It is not clear on this record whether the failure to disclose in this matter was the result of wilfulness or simple arrogance and neglect on the part of Mr. Friedman. As a result, the Court is constrained from taking action to impose a sanction pursuant to CPLR 3126. Any similar future incidents will be subject to sanction to the maximum extent permitted under law.

The Court will now turn to the merits of the claimant’s motion and the defendant’s cross-motion for a protective order. In general, “ ‛a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence' ” (Matter of Murray v Hudson, 43 AD3d 936, 937 [2007], quoting People v Gissendanner, 48 NY2d 543, 551 [1979]). Thus, while a subpoena is not the appropriate vehicle for obtaining discovery from the defendant, the claimant properly sought the Inspector General's file in his prior discovery demand and motion to compel. Accordingly, in light of the fact that the file of the Inspector General is now known to exist, the Court will consider claimant’s motion as one to renew his prior motion to compel disclosure.

CPLR 3101 (a) provides for the disclosure of all items "material and necessary in the prosecution or defense of an action". The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406). Exceptions to the policy of liberal disclosure include the disclosure of statutorily privileged material (e.g. CPLR 4501- 4508) or material which is privileged under the common law (Wilson v State of New York, 36 AD2d 559 [1971]). " 'In light of the strong policy in favor of full disclosure unless the information sought is immunized, the burden of showing the appropriate immunity should be on the party asserting it' " (Id. at 560, quoting Koump v Smith, 25 NY2d 287, 294 [1969]).

Inasmuch as the Inspector General’s file contains the results of its investigation into the same allegations as are asserted in this case, the Court concludes that the documents sought are material and relevant to the issues to be resolved in this action. Whether or not the file is immune from discovery by virtue of the public interest privilege is another matter.

The public interest privilege is a common law creation applied to immunize the disclosure of "confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged" (Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 [1974] [quotation omitted]; see also Lowrance v State of New York, 185 AD2d 268 [1992]). The privilege is not absolute and whether it attaches in a particular case is a fact-specific determination requiring the Court to balance the interests of the party seeking disclosure against the governmental-public interest at stake should the sought-after materials lose their shield of confidentiality (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8-10 [1999]). Entitlement to the privilege requires that "an agency claiming some special governmental-public interest 'cone of silence' demonstrate the specific public interest that would be jeopardized by an otherwise customary exchange of information" (Id. at 8, quoting Cirale v 80 Pine St. Corp., 35 NY2d at 119; see also Parker v State of New York, 269 AD2d 255 [2000]). Applying this standard, it has been held that directives of the Department of Correctional Services and reports developed by the Inspector General's Office may be privileged where they relate to the fundamental mission of security of the prison (Turner v State of New York, Ct Cl, February 27, 2007 [Claim No. 108423, Motion No. M-72434, UID #2007-039-008] Ferreira, J.; Shantelle S. v State of New York,11 Misc 3d 1088[A]; Tyree v State of New York, Ct Cl, May 6, 2002 [Claim No. 101474, Motion No. M-63202, UID #2002-019-530] Lebous, J. ; Brown v State of New York, Ct Cl, November 5, 2001 [Claim No. 103284, Motion No. M-63858, UID #2001-015-200] Collins, J.). Here, defendant argues that “in order for the investigators of the Office of the Inspector General to be able to effectively conduct their investigations in the almost cloistered environment of the New York State prison system, the individuals who provide information should be assured of confidentiality except under the most extreme conditions, such as where the information is vital, and for some valid reason, could not be obtained elsewhere” (affirmation in opposition, dated November 12, 2008, ¶ 14). Defendant further contends that the claimant may conduct his own investigation and call his own witnesses at the time of trial.

The Court has reviewed the Inspector General’s file and finds that upon balancing the interests of the claimant in obtaining the disclosure against the governmental-public interest at stake should the sought-after materials lose their shield of confidentiality, the following documents should be provided to the claimant subject to redaction as set forth below:
- The Investigative report with inmates' names and DIN numbers redacted;

- Letter from attorney Fishbein dated January 31, 2007, pp. 3-4 of file;

- Interdepartmental Communication dated February 14, 2007 from Sergeant Nabozny, p. 18 of file;

- Anonymous letter from inmate received February 7, 2007, p. 20;

- Letters from inmate Joshua Liner dated March 8, 2007 and February 7, 2007 addressed to the Governor and Lieutenant Governor, pp. 21 - 25);

- Interdepartmental Communication dated February 16, 2007 from Sergeant Nabozny, p. 26 of file;

- Package Room Permit Cover Sheet for inmate Correnti, p. 27 of file;

- Marking Permits, pp. 28 -30 of file;

- Inmate Guidelines For Possession Use of Personally Owned Television Sets, p. 31 of file;

- Proof of Ownership of Smith Corona, p. 32 of file;

- Proof of Ownership of Sony, p. 33 of file;

- Interdepartmental Communication dated January 26, 2007 from J. Scroggy, p. 34 of file;

- G.M.F.C. Phone Call Form, p. 35 of file;

- Letter from Attorney Fishbein dated January 25, 2007 p. 36 of file;

- Contraband Receipt of Mark Anselm indicating no contraband found dated February 15, 2007, p. 39 of file;

- Letter from Inmate with the name and any other identifying criteria redacted, pp. 40 - 43;

- Interdepartmental Communication dated January 11, 2007 with the inmate’s name redacted;

- Letters from inmate dated January 8, 2007 with inmate’s name redacted, pp. 53 - 54 of file;

- Reports of Interview with inmates' names and identifying information redacted, pp. 55 - 65 of file.

Based on the foregoing, claimant’s motion and the defendant’s cross-motion are denied in part and granted in part to the extent indicated herein.

January 30, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion filed October 10, 2008;
  2. Affidavit of Anthony Correnti sworn to October 2, 2008;
  3. Notice of cross-motion dated November 12, 2008;
  4. Affirmation of Thomas R. Monjeau dated November 12, 2008;
  5. Reply of Anthony Correnti dated November 15, 2008;
  6. Inspector General's file.