Claimant's motion for post-note of issue in camera review of a DEC Forest Ranger's personnel file is denied. Although claimant was not conducting a pre-note of issue fishing expedition, the facts anticipated to be found in the personnel file would not be admissible at trial for the litigation purposes expressly proposed by claimant, and accordingly, in camera review of the personnel file was unwarranted.
|Claimant short name:||GARMLEY|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ROBERT A. BECHER, ESQ.|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 5, 2019|
|See also (multicaptioned case)|
This claim seeks compensation for injuries sustained by claimant as the result of a vehicular accident involving a vehicle operated by New York State Forest Ranger Joseph Hess. Claimant moves for an order directing defendant to produce the personnel file of Ranger Hess to the Court for in camera review to determine whether "any portion of the said personnel file should be disclosed to claimant to assist claimant in cross-examining Forest Ranger Joseph Hess at the trial of this action" (Becher Affirmation, ¶ 4). Defendant opposes the motion on the ground that claimant has made an insufficient factual showing to warrant in camera review of Ranger Hess's personnel file.
Claimant's motion is necessary because Ranger Hess's personnel record is deemed confidential by Civil Rights Law § 50-a (1), which provides that "[a]ll personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law . . . shall be considered confidential" and shall not be discoverable in litigation in the absence of the expressed written consent of the officer, or by a court order (see also Criminal Procedure Law § 1.20  [v] [defining forest rangers employed by the Department of Environmental Conservation as police officers]). The purpose of requiring judicial oversight in the nature of in camera review is "to protect the officers from the use of records - including unsubstantiated and irrelevant complaints of misconduct - as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept, of Correctional Servs., 73 NY2d 26, 31-32 ; see also Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 569 ; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], lv denied 96 NY2d 710 ). A party seeking a police officer's personnel record must make a "clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a ). The movant must demonstrate "some factual predicate which would make it reasonably likely that the file will bear [relevant] fruit and that the quest for its contents is not merely a desperate grasping at a straw" (People v Gissendanner, 48 NY2d 543, 550 ), such that an intrusion into the personnel record is warranted (see Taran v State of New York, 140 AD2d 429, 432 [2d Dept 1988]).
In civil litigation, a motion seeking in camera review of police officer personnel records is typically made during the conduct of discovery, at which time the Court's in camera review would be primarily addressed to whether the contents of the file provides information that is relevant to the incident at issue or may lead to other relevant discovery, ensuring that the request for the personnel file is legitimate and not a foundation for a pre-note of issue fishing expedition (see Matter of Dunnigan v Waverly Police Dept., supra). The instant matter is, however, post-note of issue, and claimant seeks pre-trial production of Ranger Hess's personnel file for the express purposes of discovering whether it contains evidence of prior bad acts and also provides a basis to impeach Ranger Hess's credibility (see Becher Affirmation ¶¶ 8, 9). Here, due to the timing and purpose of claimant's motion, the Court's consideration of the motion is not addressed to whether the request for the personnel file is a pre-note of issue fishing expedition, but whether the personnel file contains information that may be relevant during the upcoming trial of liability. Because claimant has not made the requisite factual showing that such is the case, and because a motion for production of personnel records may be summarily denied without in camera review when the movant's papers fail to satisfy the factual showing required by Gissendanner (see People v Henry, 242 AD2d 877 [4th Dept 1997], lv denied 91 NY2d 834 ; Smalls v State of New York, UID No. 2005-015-083 [Ct Cl, Collins, J., Apr. 14, 2006]), claimant's motion seeking in camera review will be denied, for the reasons that follow.
The claim alleges that the collision was caused by Ranger Hess's negligent operation of the State-owned pickup truck, including operating the vehicle "without turning on the headlights" (Claim number 129218, ¶ 14 [q]). In support of the instant application, claimant asserts that he was operating a Utility Terrain Vehicle (UTV) in the Pittstown State Forest at 12:30 A.M. on June 30, 2016 when he crested a hill and collided with Ranger Hess's vehicle that was, at the time of the collision, stopped in the middle of the dirt road just beyond the crest of the hill without its lights on (see Becher Affirmation, ¶ 6). Claimant and his passenger on the UTV testified at their examinations before trial (EBT) that the headlights on the pickup truck were not illuminated, and claimant argues that Ranger Hess's alleged conduct "made the collision unavoidable" (id.). Claimant further implies that Ranger Hess's veracity is suspect (see id. ¶ 7). As noted above, claimant seeks production of Ranger Hess's personnel file for the express purposes of discovering whether it contains evidence of prior bad acts and also provides a basis to impeach Ranger Hess's credibility at trial (see id., ¶¶ 8, 9).
Claimant's motion is supported by a portion of his EBT testimony, during which he testified about "various alleged bad acts committed by Forest Ranger Hess before the accident" (id. ¶ 8; see also, Exhibit J [Garmley EBT transcript]). Claimant testified that he understood that Ranger Hess had been suspended in 2012 or 2013 for operating a vehicle at a speed of 35 to 40 miles per hour in the "U circle driveway" of claimant's work, kicking up rocks and causing property damage (see id., Exhibit J, p.36-37). Claimant further testified that Ranger Hess had "actually pulled his gun" on two individuals who were just sitting on "four-wheelers" a "couple [of] years" prior (id., Exhibit J, p.38), that Ranger Hess had acted improperly with respect to a friend of claimant's, including that Hess had ridden on the friend's property "and then he stole his helmets off him and was kind of giving him problems" (id., Exhibit J, p.39), that there were two incidents, one in 2001 and another on another unidentified date, where individuals died and Ranger Hess did not seem to care about the fatalities and wrote tickets to individuals in the vicinity, and that "[t]here's been a bunch of incidents where he's just an [expletive]" (id., Exhibit J, pp.39-40). Claimant argues that Ranger Hess's personnel file "may certainly include similar acts of misconduct and egregious behavior having relevance to the issues involved in the [claim], as well as providing a basis to conclude that Forest Ranger Hess possessed a strong motive to falsify his testimony" (id., ¶ 9).
As indicated above, the Court's review of this motion is to determine whether the intrusion into Ranger Hess's confidential personnel file is justified by the presence of information that claimant may use at trial. Thus, as distinguished from a pre-note of issue motion, claimant's burden to demonstrate a factual predicate to warrant in camera review of the personnel file includes a nominal showing of the admissibility at trial of facts that may be found within the personnel file. Here, because the facts sought by claimant would be inadmissible at trial, in camera review of the personnel file is unwarranted. Specifically, claimant's proffer that Ranger Hess was previously suspended for negligent or reckless driving, even if true, describes a prior event that was so remote and factually distinguishable from his alleged misfeasance in this claim that it is patently irrelevant and would be inadmissible at trial. Further, even assuming that the prior alleged negligent or reckless act was similar to Ranger Hess's actions on June 30, 2016, or that there were other similar previous bad acts documented in his personnel file, those prior acts cannot be used at trial of this claim to prove that Ranger Hess acted improperly on June 30, 2016 (see Matter of Brandon, 55 NY2d 206, 210-211 ; Grenadier v Surface Transp. Corp. of N.Y., 271 App.Div. 460, 461[1st Dept 1946]; Cabezudo v New York's Eldorado, 50 AD2d 794, 795 [1st Dept 1975]), and the remaining alleged prior bad acts are so dissimilar from Ranger Hess's alleged misfeasance in this matter that they have no bearing on or relevance to his conduct on June 30, 2016. Finally, to the extent that claimant seeks to use evidence of bad acts contained in Ranger Hess's personnel file to impeach his credibility at trial, disclosure for such a collateral purpose is prohibited (see Matter of Prisoners' Legal Servs. of N.Y., supra; Matter of Capital Newspapers Div. of Hearst Corp., supra; Matter of Dunnigan, supra).
In sum, because none of the factual information claimant hopes to find in Ranger Hess's personnel file would be admissible at the trial of this claim, he has not demonstrated that post-note of issue in camera review of the personnel file is warranted.
Accordingly, it is
ORDERED, that claimant's motion number M-93584 is DENIED.
April 5, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129218, filed January 25, 2017;
(2) Note of Issue, filed July 11, 2018;
(3) Notice of Motion, dated February 28, 2019;
(4) Affirmation of Robert A. Becher, Esq., dated March 4, 2019, with Exhibits A-J;
(5) Affirmation of Michael T. Krenrich, AAG, in Opposition to Claimant's Motion,
dated March 18, 2019.
1. The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.