New York State Court of Claims

New York State Court of Claims

RANDALL and BONSELL v. THE STATE OF NEW YORK, #2009-044-510, Claim No. 113675 and113690, Motion No. M-75922


Court grants claimants’ motion to compel disclosure of Contract Accident Review Group Report in part.

Case Information

LINDA J. RANDALL, as Administratrix of the Estate of JONATHON J. RANDALL, Deceased and REBECCA BONSELL, Individually, as Parent and Natural Guardian of WAYNE P. BONSELL JR. and DAVID BONSELL, INFANTS, and as Administratrix of the Estate of WAYNE P. BONSELL, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113675 and113690
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
BY: Philip C. Johnson, Esq., of counsel (113675)
BY: John Scarzafava, Esq., of counsel (113690)
Defendant’s attorney:
BY: Sugarman Law Firm, LLP James G. Stevens, Jr., Esq., of counsel
Third-party defendant’s attorney:

Signature date:
February 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


These claims[1] have been brought to recover for the wrongful death of two people arising out of a vehicular accident in a construction zone on Interstate 81 on May 20, 2005. During the course of its investigation of the accident, defendant State of New York (defendant) created an accident report compiled by a Contract Accident Review Group (the CARG Report), but declined to produce it during discovery on the ground that it is privileged and not subject to disclosure. Claimants now move to compel disclosure of the CARG Report[2] on the ground that the document was created in the regular course of business by DOT, and is thus discoverable pursuant to CPLR 3101 (g).[3] In response to this motion, defendant has submitted a copy of the CARG Report for in camera review by the Court, along with the seemingly contradictory statement that “the State’s position [is] that the [CARG Report] . . . be deemed privileged and not subject to disclosure consistent with the holding in Blakesley v. State of New York, 244 AD2d 947.”[4] However, the Blakesley case holds that the lower court properly granted a motion to compel the State to disclose a CARG Report prepared in response to an accident, but required that an in camera review be conducted by that Court to redact material from the report which contained “mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation” pursuant to CPLR 3101 (d) (2). Both Janice A. McLachlan, Director of the Office of Legal Affairs for DOT, as well as defendant’s counsel, further list a series of pages in the CARG Report which defendant contends should not be subject to disclosure pursuant to CPLR 3101 (d) (2).

Based on defendant’s submission of the CARG Report for in camera review, combined with McLachlan’s statement that, for purposes of this case, defendant does not take issue with the Blakesley holding,[5] and the list of specific portions of the CARG Report for which a privilege is claimed, the Court can only conclude that defendant is conceding that the CARG Report in this instance constitutes an accident report prepared in the regular course of DOT’s business, which is thus discoverable pursuant to CPLR 3101 (g), with the exception of those portions of the document defendant contends are exempted by CPLR 3101 (d) (2).

Defendant first contends that Section VI of the CARG Report, entitled “Findings and Conclusions,” should be redacted. While the subsections entitled “Conclusions” are clearly that, and have been redacted by the Court, the “Findings” portion of that section contains nothing more than factual statements of the circumstances surrounding the accident which must be disclosed.

Defendant next contends that Section VII, entitled “Recommendations,” is not only privileged pursuant to CPLR 3101 (d) (2), but also constitutes “potential post-accident measures, which are not discoverable or admissible,”[6] citing Hughes v Cold Spring Constr. Co. (26 AD3d 858, 859 [2006]).[7] Despite this contention, subsection A of this section of the Report does not discuss post-accident remedial measures. Rather, it sets forth actions which could have been undertaken before the accident which might have enhanced worker safety. However, this list of actions is clearly a set of conclusions and opinions drawn by the authors of the CARG Report, and is thus subject to redaction pursuant to CPLR 3101 (d) (2). Subsection B of Section VII clearly constitutes suggestions for post-accident remedial measures, and has been redacted by the Court.

Defendant next asserts that Appendix A1 of the Report, entitled “Interview Statements,” should be redacted, with the exception of two signed statements and the list of interviewees. McLachlan contends that:
the summaries of the meetings . . . are no more than conclusions, impressions, or opinions of what was conveyed by certain individuals, inasmuch as they are not claimed to be nor are they in the form of verbatim transcripts of what was said nor are they signed or otherwise acknowledged by the purported speakers as being accurate or complete. In addition, each section contains “miscellaneous remarks” which are not attributed to any particular speaker.[8]

Defendant, as the party opposing discovery, has the burden of demonstrating that the items sought to be disclosed are actually exempt (Pinkans v Hulett, 156 AD2d 877 [1989]). McLachlan’s conclusory statement that the entire summation of the information gathered from 20 witnesses to the circumstances surrounding the accident are the “impressions, or opinions of what was conveyed” of the CARG Committee far from satisfies this burden. The argument is essentially an attempt to bootstrap the information conveyed to the CARG committee into confidentiality, and must be rejected. The fact that the interview statements are not verbatim transcripts nor are they signed is also irrelevant. The interview committee gathered and summarized what it considered to be relevant factual information from these individuals. Moreover, simply because the “miscellaneous remarks” section of the interviews are not attributed to a particular speaker does not confer any privilege thereon. Further, defendant makes no claim that any of the interviewees were its “representatives,” such that any of their impressions, conclusions or opinions should be redacted. Accordingly, the entire content of Appendix A1 must be disclosed to claimants.

Finally, defendant seeks the redaction of certain e-mails contained in Appendix A8. The first two e-mails[9] are communications to counsel which are clearly exempt from discovery. Three of the next six e-mails1[0] are from “Dan Mencucci to Joseph Boardman and others,”1[1] while the remaining three e-mails are from Dan Mencucci to various other individuals, including Joseph Boardman.1[2] Neither McLachlan nor defendant’s counsel identify for the Court exactly who either Dan Mencucci1[3] or Joseph Boardman are (much less the “others”), nor do they set forth any reason for the request for redaction, other than the generalized statement that all of “the portions of the report for which the State asserts its privilege constitute mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.”1[4] No assertion has been made that Mencucci, Boardman or the “others” actually constitute defendant’s legal representatives, nor should the Court be required to speculate. Defendant has not met its burden of proof with regard to these items (see Pinkans v Hulett, supra), and they must be disclosed to claimants.

Defendant is directed to provide copies of the CARG Report, as it has been redacted by the Court, to claimants’ counsel within 15 days of the date of filing of this Decision and Order.

The Chief Clerk of the Court is directed to seal and preserve the original copy of the CARG Report provided by defendant to the Court for this in camera inspection in the event of possible appellate review.

February 11, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimants’ motion:

1) Notice of Motion filed on November 26, 2008; Affidavit of Philip C. Johnson, Esq., sworn to on November 24, 2008, and attached Exhibits A through G.

2) Letter from James G. Stevens, Jr., Esq. to the Court dated December 15, 2008; Affidavit of Janice A. McLachlan, Esq., sworn to on December 12, 2008, and attached Exhibit A; CARG Report with accompanying appendices.

3) Reply Affidavit of Philip C. Johnson, Esq., sworn to on December 16, 2008.

4) Letter from the Court to the parties dated February 2, 2009.

5) Letter from Philip C. Johnson, Esq. to the Court dated February 3, 2009.

5) Letter from James G. Stevens, Jr., Esq. to the Court dated February 10, 2009; Affidavit of Thomas Melander sworn to on February 10, 2009, and attached exhibit.

Filed papers: Claim No. 113675 filed on May 9, 2007; Verified Answer filed on July 2, 2007; Claim No. 113690 filed on May 11, 2007; Verified Answer filed on July 2, 2007.

[1]. The parties have stipulated that the claims be joined for purposes of discovery and trial due to their foundation in the same set of facts.
[2].In this motion, claimants also sought disclosure of a number of documents. During the pendency of the motion, at the Court’s request, claimants’ counsel indicated that the only documents still being sought (in addition to the CARG Report) were a “Form C-Detail Report” and certain bus inspection documents. Defendant’s counsel subsequently advised that preparation of a Form C-Detail Report was not required by Department of Transportation (DOT) regulations at the time of the accident, and that defendant has disclosed all pertinent bus inspection documents. Accordingly, this Decision and Order addresses the only outstanding demand, that being for the CARG Report.
[3]. Claimants cite to DOT’s Manual for Administrative Procedure § 2.14-51-1 for the proposition that “a fatal or serious accident involving a [DOT] employee or vehicle may require a Department Accident Review Board investigation and report” (Affidavit of Philip C. Johnson, Esq., in Support of Motion to Compel Disclosure, ¶ 20). However, claimants have not provided a copy of this portion of the manual, nor does it appear to be available on DOT’s website.
[4]. Affidavit of Janice A. McLachlan, Esq., ¶ 2.
[5]. Id. at ¶ 5.
[6]. Id. at ¶ 10.
[7]. Interestingly, the holding in Hughes was that while evidence of subsequent remedial measures is usually not discoverable, under the circumstances of that particular case those measures were required to be disclosed.
[8]. Affidavit of Janice A. McLachlan, Esq., ¶ 9.
[9].These two e-mails are identified by defendant’s counsel with Bates Stamp Numbers CARG000241 to CARG000242 and CARG000243 to CARG000245.
1[0].These e-mails are identified as Bates Stamp Numbers CARG000246, CARG000279, CARG000280, CARG000281 to CARG000282, CARG000283 to CARG000285, and CARG000286 to CARG000288.
[1]1. Affidavit of Janice A. McLachlan, Esq., ¶ 7 (g), (h) and (i).
1[2]. Id. at ¶ 7 (f), (j) and (k).
1[3]. A review of the 303-page report reveals that Dan Mencucci is apparently an employee of DOT’s “Main Office Safety” (see CARG000028).
1[4]. Affidavit of Janice A. McLachlan, Esq., ¶ 8.