New York State Court of Claims

Decision

Claimant, a former inmate, allegedly suffered a collapsed lung following the use of excessive force by correction staff at Mohawk Correctional Facility on May 10, 2015. Causes of action for assault and battery, emotional distress, negligent hiring, retention, training and supervision and negligent failure to provide medical treatment are alleged in the claim. On or about September 20, 2016, shortly after issue was joined in this matter, claimant served defendant with combined discovery demands which included a request for the "Personnel Records of Sergeant Norman, and Officers Allbright, and John Does #1-2" (claimant's Exhibit 2, p. 4). Defendant responded on or about October 20, 2016, objecting to the production of these records as confidential under Civil Rights Law § 50-a (claimant's Exhibit 3). On March 15, 2019, claimant filed a Note of Issue and Certificate of Readiness for Trial (defendant's Exhibit A), and on June 12, 2020 Civil Rights Law § 50-a was repealed. By letter dated August 2, 2020 (claimant's Exhibit 4) claimant requested that the defendant supplement its discovery response to provide the personnel records for Sergeant Norman, and Correction Officers Allbright, Scholl, and Mattie. Defense counsel responded by letter dated August 7, 2020, objecting to any supplemental discovery on the basis that the Note of Issue had already been filed. Defendant similarly argues in opposition to the instant motion that absent unusual or unanticipated circumstances, not present here, post-note of issue discovery should not be permitted.

The Uniform Rules for the Court of Claims permit discovery after the filing of a Note of Issue and Certificate of Readiness for Trial in the following circumstances:

"Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings" (22 NYCRR 206.12 [c]).

The repeal of Civil Rights Law § 50-a on June 12, 2020, more than a year after the note of issue was filed, constitutes an unanticipated circumstance warranting further pretrial proceedings with respect to the requested personnel records. Moreover, CPLR 3101 (h) imposes upon a party a continuing duty to supplement a discovery response when "the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading." In light of the repeal of Civil Rights Law § 50-a, defendant's response that the requested documents are confidential under the statute is now both incorrect and misleading. In the Court's view, fundamental fairness warrants disclosure of the requested personnel records.

Defendant's contention that these records are irrelevant overlooks the fact that in addition to causes of action for assault and battery based upon a theory of respondeat superior, claimant has set forth a basis for the imposition of direct liability against the State premised upon its alleged negligent hiring, retention, training and supervision of the correction staff involved. The personnel records of the individuals involved are clearly relevant to these causes of action (Pickering v State of New York, 30 AD3d 393 [2d Dept 2006] ); cf. Parkinson v Fedex Corp. 184 AD3d 433 [1st Dept 2020]).

Based on the foregoing, claimant's motion is granted and defendant is directed to supplement its response to claimant's Combined Demands to include the sought-after personnel records within thirty days of the date this Decision and Order is filed.