Claimant's motion to compel disclosure of correction officer's personnel records held in abeyance pending submission of the records for in camera review.
|Claimant short name:||BLOUNT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||HERMANN P. WALZ, ESQ.|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 15, 2020|
|See also (multicaptioned case)|
This claim seeks compensation for injuries allegedly sustained when claimant, then an inmate at Shawangunk Correctional Facility (CF), was assaulted by correction officers on July 8, 2015. Claimant now moves pursuant to Civil Rights Law § 50-a for an order directing the release of the personnel records of Correction Officer (CO) Riccobono. Defendant opposes the motion.
The claim alleges that on the night of July 8, 2015, while claimant was an inmate at Shawangunk CF, he was assaulted by correction officers, causing him to sustain injuries to his neck, back, shoulder, eye, and face, and that he underwent neck surgery as a result (see Claim No. 128074, ¶¶ 2-5). The claim alleges that claimant sustained his injuries "as a result of the negligence, intentional, careless, recklessness and gross negligence" of defendant's agents (id. at ¶ 2). Claimant has identified CO Riccobono and CO Gay as the two correction officers involved in the alleged assault (see Walz Affirmation, ¶ 5) and now seeks production of CO Riccobono's personnel file.
Claimant asserts in support of the instant motion that he initially reported that he was injured when he hit his own head against a wall because he feared "reprisal" from correction officers, and that the Department of Correction and Community Supervision (DOCCS) internal investigation - during which the correction officers involved claimed that they had restrained claimant and that there had been no assault - subsequently cleared CO Riccobono of any wrongdoing (see id. at ¶¶ 6-11). Claimant further asserts, however, that a subsequent investigation conducted by the DOCCS Office of Special Investigations (OSI) resulted in CO Riccobono's termination from employment (see id. at ¶¶ 12-13). Claimant states that "[a]ttempts to locate former CO Riccobono have not been successful and [have been] severely hampered by the current [Coronavirus] pandemic," that DOCCS has attempted to prevent the facts surrounding the alleged assault from being revealed since before this claim was filed, and that claimant is seeking CO Riccobono's records to "demonstrate acts not consistent with CO Riccobono[']s employment, training, and supervision" and because he anticipates that they "will not be consistent with the internal documents of [DOCCS]" (id. at ¶¶ 18-21). Claimant also asserts that CO Gay appeared at an examination before trial (EBT) where "he refused to answer questions citing his 5th amendment rights to remain silent in an effort to not disclose incriminating information" (id. at ¶ 17).
Claimant argues that CO Riccobono's records are relevant to the claim because he was "investigated and terminated from [his] employment with [DOCCS] . . . for action directly involved in this [claim]" (Memorandum of Law, pg. 7). Claimant argues that CO Riccobono's termination following the OSI investigation "is Ipso Facto proof that there is information in the records of CO Riccobono that justify [DOCCS's] actions," but that neither the basis for CO Riccobono's termination nor the findings that led to the termination have been disclosed to claimant (id. at pg. 8). Claimant argues that his request for CO Riccobono's records is "not a fishing expedition" but rather a good faith request on the ground that "relevant information related to this assault was uncovered" during the course of the investigation that led to CO Riccobono's termination (id.). Claimant further argues that because CO Gay, the other correction officer involved in the alleged assault, "was also subject to the same investigation and not terminated," it is reasonably likely that CO Riccobono's personnel records will "reveal a history of inappropriate actions," and that because other documentary evidence revealed that other correction officers at Shawangunk CF either "supported the claims of CO Riccobono or CO Gay or denied having witnessed any activity . . . , the only conclusion for the termination of CO Riccobono and not CO Gay is that CO Riccobono had prior incidents or violations in his record that warranted his termination" (id. at pg. 9 [emphasis in original]).
In opposition to the motion, defendant argues that although Civil Rights Law § 50-a was repealed on June 12, 2020 and became effectively immediately, it is not retroactive absent a clear indication of legislative intent, which is not present here, and does not apply to pending litigation, and that the exception to the rule against retroactivity does not apply here because the repeal of Civil Rights Law § 50-a was not procedural or remedial (see Calabrese Affirmation in Opposition, ¶¶ 7-14). Defendant argues that if Civil Rights Law § 50-a were not applicable here, claimant's motion should be denied because claimant has failed to show that the requested records exist or that they are relevant to this claim (see id. at ¶ 15).(1)
As an initial matter, the Court notes that although claimant argues that CO Riccobono's personnel records are not entitled to confidentiality pursuant to Civil Rights Law § 50-a and asks that the Court conduct a hearing on the motion and an in camera review of the records at issue pursuant to that statute (see Memorandum of Law, pp. 7, 9-10), the Legislature repealed Civil Rights Law § 50-a on June 12, 2020 (see L 2020, ch 96, § 1), four days before claimant filed the instant motion. As defendant correctly observes, statutes are not to be applied retroactively "unless the language expressly or by necessary implication requires it" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 ). However, the application of the Legislature's repeal of Civil Rights Law § 50-a to CO Riccobono's personnel records would not be retroactive inasmuch as claimant's motion was made after the statute was repealed. To accept defendant's argument would mean that the Legislature intended for the repeal of Civil Rights Law § 50-a to apply only to those cases that were filed on or after the effective date of the repeal and that the records of covered employees in lawsuits that were filed before the effective date of the repeal would permanently be entitled to the statutory grant of confidentiality. Certainly such a result was not intended by the Legislature, and there is no indication in the legislative history to suggest that such was the case. Inasmuch as Civil Rights Law § 50-a was repealed effective June 12, 2020, that statute is no longer available to shield CO Riccobono's personnel records from disclosure. Thus, the Court will address this motion as one seeking disclosure of those records on relevance grounds, without reference to the repealed statute.
The CPLR reflects this State's policy in favor of broad disclosure by mandating "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR § 3101 [a]; see Calhoun v Pickett, 77 AD2d 776, 776 [3d Dept 1980], affd sub nom Hoenig v Westphal, 52 NY2d 605 ). The Court of Appeals has explained that "[t]he words, 'material and necessary', are . . . to be interpreted liberally to require disclosure, upon request, of any 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 ; see Matter of Saratoga Prop. Devs., LLC v Assessor of City of Saratoga Springs, 62 AD3d 1107, 1108-1109 [3d Dept 2009). As the Appellate Division, Third Department, has instructed,
"[c]ourts must evaluate disclosure demands on a case-by-case basis with due regard for the strong policy supporting open disclosure, while balancing competing interests such as the demanding party's need for the information, its possible relevance, the burden imposed on a party or nonparty by ordering disclosure, and the potential for confusion or delay"
(Perez v Fleischer, 122 AD3d 1157, 1158 [3d Dept 2014], lv dismissed 25 NY3d 985 ). It is well settled that "[t]he trial court is afforded broad discretion in supervising disclosure (Di Mascio v General Elec. Co., 307 AD2d 600, 601 [3d Dept 2003]; see Mitchell v Stuart, 293 AD2d 905, 906 [3d Dept 2002]), and may conduct an in camera inspection of the documents at issue to determine whether they are "relevant and material to the issues to be decided in th[e] action" (Solomon v Meyer, 103 AD3d 1025, 1026 [3d Dept 2013]).
Here, claimant seeks disclosure of CO Riccobono's entire personnel file, arguing that it must contain information relevant to the alleged assault at issue here, but that it must also reveal instances of prior assaults by CO Riccobono that led to his termination following the alleged assault that forms the basis of this claim. The Court agrees with claimant that, to the extent CO Riccobono's personnel records contain information related to the alleged assault that forms the basis of this claim and to the reason for his termination from DOCCS employment, claimant's need for disclosure of CO Riccobono's personnel records is a significant factor, especially in light of CO Gay's assertion of his Fifth Amendment rights at his examination before trial and the inability to locate CO Riccobono. Moreover, any record of prior assaults in CO Riccobono's personnel records may be relevant to the claim insofar as it asserts a cause of action sounding in negligence. However, defendant has not provided the Court with CO Riccobono's personnel records for review in connection with this motion, and argues merely that claimant has failed to prove that the personnel records exist or are relevant to this claim. Thus, an in camera review of CO Riccobono's personnel records is necessary for the Court to determinate to what extent they are relevant to this claim and must be disclosed.
Accordingly, it is
ORDERED, that defendant shall, within thirty (30) days of the filing of this decision and order, submit to the Court for in camera review a complete copy of CO Riccobono's personnel record; and it is further
ORDERED, that this motion shall be HELD IN ABEYANCE pending the Court's in camera review of the personnel records.
September 15, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 128074, filed June 14, 2016;
2. Verified Answer, filed July 15, 2016;
3. Notice of Motion, dated June 15, 2020;
4. Affirmation of Hermann P. Walz, Esq., dated June 15, 2020;
5. Memorandum of Law in Support of Motion, dated June 15, 2020;
6. Affirmation of Christina Calabrese, AAG, in Opposition, dated July 23, 2020.
1. Defendant also argues that the records from OSI's investigation should not be disclosed under the public interest privilege (see Calabrese Affirmation in Opposition, ¶¶ 4-6). However, inasmuch as claimant only seeks the disclosure of CO Riccobono's personnel records in his notice of motion and papers in support of the motion (see Notice of Motion, dated June 15, 2020; Walz Affirmation, ¶ 3; Memorandum of Law in Support of Motion), and not the OSI records, the Court need not address defendant's arguments on this point.