New York State Court of Claims

New York State Court of Claims

WADDY v. STATE OF NEW YORK, #2009-039-125, Claim No. 111433, Motion No. M-75291


Claimant’s motion to compel the production of various documents related to her claim for damages after she was shot by an off-duty corrections officer is granted to the extent that defendant is ordered to provide the Court with certified copies of the documents for its in camera inspection.

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):

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:
June 17, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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. By Interim Decision and Order dated January 16, 2009, the Court ordered claimant to serve upon C.O. 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.” The Court further ordered C.O. DeLeon to “serve upon claimant and defendant and file with the Court any opposition to [claimant’s] motion” within thirty days from the date of service upon him of the Court’s Interim Decision and Order. By letter dated February 6, 2009, claimant provided the Court with a copy of her affidavit of service evidencing personal service upon C.O. DeLeon, per the Court’s Interim Decision and Order. To date, the Court has not received any opposition to claimant’s motion from C.O. DeLeon.

The documents that claimant seeks include (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, claimant alleges, among other things, that while passing a jewelry store, and “without provocation or justification, [she] was shot by [C.O. DeLeon]” as he attempted to stop several persons suspected of robbing the jewelry store (Claim, ¶ 2). Claimant further alleges, in part, that defendant was negligent in failing to train C.O. De Leon “in the proper use of weapons and firearms” (Claim, ¶ 2). This was reiterated in claimant’s letter response to defendant dated July 9, 2008, and attached to her motion papers as Exhibit “C,” wherein she stated that the requested documents relate to C.O. De Leon’s “training and performance of the State’s employee with respect to the use of a firearm.”

“Negligent training requires a showing of some type of specific deficiency in training that led [C.O. De Leon] to engage in misconduct,” (Shantelle S. v State of New York, 11 Misc 3d 1088 (A), *5 [2006]), which, in this instance, was the allegedly errant shooting of claimant. The documentation sought by claimant is confined to information that relates to the firearms qualifications of C.O. DeLeon and the use of force by C.O. DeLeon. The Court concludes that claimant has sustained her burden to demonstrate “some factual predicate warranting the intrusion into the personnel records of [C.O. DeLeon]” (Telesford v Patterson, supra at 330).

Accordingly, it is hereby ordered that M-75291 is granted to the extent that, within 20 days of the date of filing of this decision and order, defendant shall provide the Court with certified copies of items “1”, “2”, “3”, “5” and “6”, as more fully described in claimant’s Notice for Discovery and Inspection dated June 26, 2008, in sealed form, for the Court’s in camera inspection.

June 17, 2009
Albany, New York

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 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.” There is no information presently before the Court which would establish that defendant has provided claimant with the requested excerpt from the Department-approved lesson plan.