|Claimant short name:||KK|
|Footnote (claimant name) :||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 "KK".|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Levinson, Reineke & Ornstein, P.C.
By: Justin E. Kimple, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Michele M. Walls, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||May 24, 2010|
|See also (multicaptioned case)|
The claim, filed on August 8, 2006, alleges that on April 19, 2005, Wade Thompson, a professor at SUNY New Paltz, attacked and sexually assaulted claimant, who was a student at said school. The claim alleges, among other things, that defendant negligently hired, monitored and evaluated its employees.
Claimant served defendant with a Notice for Discovery and Inspection, dated July 10, 2008, which requested, in pertinent part, the employment and disciplinary records of Wade Thompson, and all records of any claims against SUNY New Paltz alleging sexual misconduct or assault against its employees, agents or representatives, including unredacted records of all prior or pending legal actions on said claims. In Defendant's Response to Claimant's Notice for Discovery and Inspection, dated October 8, 2008, defendant objected to said demands. Claimant now moves this Court for an order compelling defendant to provide claimant with the demanded documents. Defendant opposes the motion. For the reasons set forth below, claimant's motion is granted in part and denied in part.
CPLR §3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of burden of proof (CPLR § 3103[a]). The phrase "material and necessary" is to be interpreted liberally to require disclosure, upon request, of facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 . This standard of "material and necessary" applies regardless of whether the request is directed to a party (see CPLR § 3101 [a]) or to a nonparty (see CPLR § 3101[a]). However, even where said threshold has been met, the trial court has the authority to impose, in its discretion, appropriate restrictions on demands to prevent abuse by issuing a protective order where the discovery request may cause "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103 [a]). The trial court also has the authority to impose, in its discretion, appropriate restrictions on demands where the demands are unduly burdensome (Mead v Pentair Pump Group, Inc., 30 AD3d 788 [3d Dept 2006]).
Employment and Disciplinary Records of Wade Thompson
Defendant opposes the portion of claimant's motion which requests the employment and disciplinary records of Wade Thompson on the basis that claimant has failed to make an adequate showing that she is entitled to said records and that said records were previously sought by claimant in a parallel Supreme Court case against Wade Thompson, individually. Claimant asserts, in response, that the employment and disciplinary records of Mr. Thompson are material and necessary for the prosecution of this claim because a significant issue is whether or not defendant knew or should have known that Mr. Thompson posed a danger to SUNY New Paltz students. The Court agrees. In order for a party to establish a claim of negligent hiring and supervision, said party must establish that defendant knew, or should have known, of its employee's propensity to engage in the proscribed activity (see Honohan v Martin's Food of South Burlington, Inc., 255 AD2d 627, 628 [3d Dept 1998]). In the present case, Mr. Thompson's employment and disciplinary records may contain information which would establish if defendant knew or should have known whether Mr. Thompson had a propensity to act in the manner alleged in the claim.
Accordingly, defendant is directed to produce the employment and disciplinary records of Wade Thompson, relative to his employment at SUNY New Paltz, to the Court within twenty days of the entry of this Decision and Order, for an in camera inspection. The Court will thereafter determine what portion of said records, if any, is subject to disclosure and direct defendant accordingly.
Records of Claims against SUNY New Paltz
Claimant's motion seeks "records of any claims against SUNY New Paltz alleging sexual misconduct or assault against its employers, agents or representatives and unredacted records of all prior or pending legal actions on such claims" (Kimple Affirmation, dated December 8, 2009, at ¶ 2). Although claimant's Notice for Discovery and Inspection, dated July 10, 2008, limits the demand for records of legal actions to 10 years, there is no time period referenced with regard to the demand for the records of claims against the school. Defendant opposes claimant's request on the basis that the demand is overbroad and seeks information that would be irrelevant to prosecuting the claim. The Court agrees.
Accordingly, the portion of claimant's motion to compel which requests the production of records of claims against SUNY New Paltz alleging sexual misconduct or assault, and records of legal actions on such claims is denied.
Based upon the foregoing, claimant's motion to compel is granted in part and denied in part.
May 24, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affirmation of Justin Kimple, Esq., dated December 8, 2009, with Exhibit;
2. Affirmation of Michele M. Walls, AAG, in Opposition to Claimant's Motion to Compel Discovery, dated March 1, 2010; and
3. Affirmation in Response of Justin Kimple, Esq., dated March 9, 2010, with Exhibit.
Papers Filed: Claim, filed August 8, 2006; Decision and Order, dated July 19, 2007; Verified Answer, filed July 31, 2007; Decision and Order, filed July 23, 2009.