New York State Court of Claims

New York State Court of Claims

DOE v. STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF CORRECTIONS, #2009-042-505, Claim No. 113388, Motion No. M-75598


Synopsis


This is a discovery motion brought by claimant seeking various documents, including, but not limited to, information from a correction officer’s personnel records and Inspector General’s report of the underlying incident relating to this claim. Defendant opposes the motion asserting that notice must be given to the correction officer. The court finds that the claimant’s service of the underlying moving papers and memorandum of law were insufficient to satisfy the requirement of Civil Rights Law Section 50-a (2) that notice has been given to an interested party, the correction officer whose alleged behavior is at the heart of this action. Claimant’s motion is denied in its entirety without prejudice.

Case Information

UID:
2009-042-505
Claimant(s):
JOHN DOE
Claimant short name:
DOE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF CORRECTIONS
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113388
Motion number(s):
M-75598
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
BOUVIER PARTNERSHIP, LLPBy: GEORGE R. BLAIR, JR., ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 1, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s discovery motion:
  1. Notice of Motion, filed September 29, 2008
  2. Affidavit of George R. Blair, Jr., Esq., sworn to September 25, 2008
  3. Affidavit of John Doe, sworn to November 26, 2007
  4. Exhibits 1 - 4, annexed to the moving papers
  5. Opposition affirmation of Joel L. Marmelstein, Esq., dated October 24, 2008
  6. Exhibits A - C, annexed to the opposition affirmation
  7. Reply affidavit of George R. Blair, Jr., Esq., sworn to October 31, 2008
  8. Court's letter to counsel, dated November 10, 2008
  9. Letter of George R. Blair, Jr., Esq., dated December 10, 2008, together with attachments
____________________________________

This matter comes before the court on a discovery motion brought by claimant[1]. 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 said act.


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:
  1. the personnel records of Sgt. Lockwood, or in the alternative, an in camera inspection by the court to determine what records should be released;
  1. a copy of the Inspector General's report of the underlying incident, or in the alternative, an in camera inspection by the court to determine what records should be released;
  1. copies of all sexual harassment, abuse, and assault claims from January 1, 2003 to March 10, 2006 at the Marcy Correctional Facility;
  1. copies of all lawsuits filed against Marcy Correctional Facility or its employees from January 1, 2003 to March 10, 2006.

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 part:

[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 application.

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 [2001], lv denied 96 NY2d 710 [2001]). 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.



April 1, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. This claim includes allegations that claimant was the victim of a sexual offense. Thus, the claimant is entitled to the privacy protections of Civil Rights Law Section 50-b. As a result, claimant shall not be referred to by name, but shall be identified as “John Doe”.