This matter comes before the court on a discovery motion brought by
. In the underlying claim it is
alleged by claimant that on or about March 10, 2006, while he was an inmate at
the Marcy Correctional Facility:
Correction Officer Sgt. Stephen T. Lockwood, then and there employed by the
State of New York and New York State Department of Corrections at Marcy
Facility, sexually assaulted the Claimant in that Claimant was forced to commit
oral sodomy upon the person of Correction Officer Sgt. Stephen T. Lockwood, who
threatened the Claimant that if he did not perform said act, Correction Officer
Sgt. Stephen T. Lockwood would use his authority to revoke various privileges
which the Claimant would normally receive, and would use his authority to extend
the Claimant’s prison term. After forcing said act, Correction Officer
Sgt. Stephen T. Lockwood struck Claimant about the body in an attempt to coverup
Claimant further alleges that the defendant was negligent in its hiring,
instruction and supervision of Correction Officer Sgt. Stephen T. Lockwood, and
that defendant had actual and constructive notice, or should have anticipated,
that said Correction Officer Sgt. Stephen T. Lockwood was likely to cause injury
to inmates at the Marcy Correctional Facility. Additionally, the claim asserts
that the defendant failed to conduct an adequate or complete background check of
said officer and retained said officer in its employ after it knew or should
have known of his violent propensities.
It is in this context that the discovery dispute between the parties has
arisen. By this motion claimant seeks to compel the defendant to provide:
Defendant opposes the motion in all respects and details the nature of each
objection. However, as a preliminary matter, defendant asserts that notice must
be given to Sgt. Lockwood of the motion, as it pertains to his personnel records
and the inspector general’s report.
Civil Rights Law Section 50-a governs the release of records of individuals
employed as correction officers. It is undisputed by the parties that this
provision of law is applicable to the discovery demands herein. The law
provides that records cannot be inspected or reviewed “without the express
written consent” of the affected officer, “except as may be mandated
by lawful court order”. However, Civil Rights Law Section 50-a (2)
mandates further that prior to the issuance of such an order, the judge must
“give interested parties the opportunity to be heard”.
Given the defendant’s preliminary objection, the court, by letter to both
counsel dated November 10, 2008, stated in relevant part that:
[t]he November 5th motion is being adjourned to the court’s motion
calendar on January 7, 2009 in order that the claimant might give
appropriate notice to Sgt. Stephen T. Lockwood in accordance with the Civil
Rights Law and the Civil Practice Law and Rules. Proof of service of the
appropriate notice should be provided to the Clerk’s Office, with a copy
to my Chambers and opposing counsel.
In response, the court received a letter from claimant’s counsel,
addressed to the clerk of the court, dated December 10, 2008, stating in
[i]n this matter, enclosed please find the unclaimed certified return receipt
requested packet [which included claimant’s moving papers and memorandum
of law on this motion] which was send to Stephen T. Lockwood as a Notice of
Motion in this matter.
Attached to the letter is an unsigned certified mail receipt, the contents of
which are typically filled in by the sender; the receipt is addressed to
“Stephen T. Lockwood, 7327 Davis Road, Rome, NY 13440". Attached
underneath the receipt is a photocopy of an envelope. The markings on the
photocopied envelope are only partially legible. However, the certified mail
numbers match the numbers assigned to the receipt. No handwriting on the
photocopied envelope is legible, but a stamped notation on the envelope appears
to indicate that the envelope was “unclaimed”.
This is insufficient to satisfy the requirements of Civil Rights Law Section
50-a (2) that notice be given to an interested party, in this case, the
correction officer whose alleged behavior is at the heart of the claim. There
is no affidavit of service; there is no reason offered for the envelope being
“unclaimed”, or even a representation that the address is current or
correct. As a result, Sgt. Lockwood has apparently received no notice of this
The issue of notice has received little attention in the case law, but one
appellate court, in Telesford v Patterson, 27 AD3d 328 (2006), has
addressed the issue. In Telesford, petitioner, a correctional facility
inmate, sought FOIL (Freedom of Information Law) production of a Civilian
Complaint Review Board’s audiotaped interview with a police officer
against whom petitioner had filed an excessive force complaint. The lower court
equated notice to the respondent FOIL officer as notice to the police officer.
The appellate court disagreed stating:
[t]here is no question the police officer is a necessary party to this
proceeding, as he “stands to be inequitably affected by any judgment
rendered in this proceeding” (Matter of Dunnigan v Waverly Police
Dept., 279 AD2d 833, 835 , lv denied 96 NY2d 710 ). The
record reflects that the officer was not named as a respondent, nor was he given
notice of these proceedings by any method authorized by the CPLR. Notice to the
FOIL appeals officer of the CCRB does not constitute notice to the police
officer. There is no unity of interest between them and, in fact, their
interests may very well be divergent.
Telesford v Patterson
, 27 AD3d 328, 330 (2006).
While Sgt. Lockwood is not a “necessary party” in the Court of
Claims, clearly he is affected by the outcome of this motion, and by statute is
entitled to notice, which notice the Telesford court finds ought to be by
a method authorized by the CPLR. Inasmuch as disclosure from non-parties under
the CPLR generally requires service of subpoenas upon non-parties in the same
manner as a summons (see e.g. CPLR § 3106, CPLR § 3120), by
analogy such service would seem to be the minimal service required upon Sgt.
Lockwood under the facts of this case.
Given the correction officer’s apparent lack of notice of this discovery
motion, and given the lack of service upon said officer in accordance with the
provisions of the CPLR and the mandates of Civil Rights Law Section 50-a (2),
claimant’s motion is denied in its entirety without prejudice.