Claimant's motion to compel disclosure of correction officer's disciplinary file held in abeyance pending in camera review. The remainder of the motion is denied as duplicative.
|Claimant(s):||JASON BERRY (15-A-1433)(1)|
|Claimant short name:||BERRY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DEVON M. RADLIN, 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:||June 28, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries he sustained when he was allegedly assaulted by multiple correction officers at Great Meadow Correctional Facility (CF) on July 30, 2015. Claimant now moves to compel defendant to respond to an April 22, 2021 discovery demand.
The claim alleges that on the morning of July 30, 2015, claimant was assaulted by ten correction officers in the A-block stairwell at Great Meadow CF (see Claim No. 128629, ¶¶ 3-4). The claim alleges that claimant then was grabbed by the hair and pulled down the stairwell to the next landing, where he was again assaulted by the ten correction officers (see id.). The claimant alleges that after the second assault, Correction Officer (CO) Jeremy Saunders "pushed his baton stick into claimant's anus until [c]laimant defecated all over himself" (id.). The claim alleges that claimant sustained physical and psychological injuries as a result of the assault and demands $1 million in damages (see id. at ¶¶ 5, 7).
As pertinent to this motion, claimant served defendant with a discovery demand dated December 20, 2018 that sought (1) CO Saunders's disciplinary file, and (2) "[p]aperwork, dispositions, index number, claim number, complaints, and court in which litigation is/was pending in which [CO Saunders] was a named defendant" (Radlin Affirmation, Exhibit 4). Defendant served claimant with a response dated January 22, 2019 objecting to the demand for CO Saunders's disciplinary file as "privileged" and "not subject to disclosure pursuant to the Civil Rights Law § 50-a and Public Officers Law § 96 and § 89" (id., Exhibit 5 [Response to Post EBT Demands, ¶ 1]). Defendant also objected to the demand for litigation documents as "overly broad, unduly burdensome and not relevant to the claim" and "not subject to disclosure pursuant to the Civil Rights Law § 50-a and Public Officers Law § 96 and § 89" (id. at ¶ 2). Claimant thereafter moved for an order compelling defendant to respond to the December 20, 2018 discovery demand. By Decision and Order dated November 22, 2019, the Court denied claimant's motion, holding, in pertinent part, that CO Saunders's disciplinary records were subject to Civil Rights Law § 50-a and that claimant had failed to make a showing that CO Saunders's disciplinary records were relevant to the assault and battery claims sufficient to warrant in camera review of the records, and further holding that claimant had failed to demonstrate that any documents related to prior litigation in which CO Saunders was a defendant were material and necessary to the prosecution of this claim (see Berry v State of New York, UID No. 2019-038-609 [Ct Cl, DeBow, J., Nov. 22, 2019]).
Following the repeal of Civil Rights Law § 50-a on June 12, 2020 (see L.2020, ch. 96, approved June 12, 2020), claimant served defendant by email with a renewed demand for CO Saunders's disciplinary file and documents related to any litigation in which CO Saunders was or is a defendant (see Radlin Affirmation, Exhibit 6 [Radlin Email, dated Apr. 22, 2021]). In email correspondence dated April 23, 2021, defendant objected to the demands as "over broad, unduly burdensome and not relevant to the . . . claim" and stated that "such documents will not be provided absent a Court Order pursuant to Public Officers Law § 96" (id. [Krenrich Email, dated Apr. 23, 2021]). With the Court's permission (see So-Ordered Correspondence, dated Apr. 22, 2021), claimant now moves to compel defendant to comply with the April 22, 2021 discovery demand.
Claimant argues that the information sought in the April 22, 2021 demand is discoverable due to the repeal of Civil Rights Law § 50-a (see Radlin Affirmation, ¶ 39), and, based upon CO Saunders's testimony at his examination before trial (EBT) that he had been a named defendant in a lawsuit three times and had been deposed three or four times, that his disciplinary records and the allegations in the lawsuits "whether substantiated or unsubstantiated, could lead to evidence that would be admissible at trial and, thus, are discoverable" (id. at ¶ 33). Claimant concedes that "unsubstantiated allegations are not admissible at trial" but argues that "[t]hey may lead to witnesses who have evidence which would tend to prove defendants' intent" (id. at ¶ 34) and "are relevant, material and necessary for the prosecution of [this] action" (id. at ¶ 40).
Defendant argues in opposition that CO Saunders's disciplinary file is not material and relevant because the fact that he was a named defendant in several prior lawsuits "is hardly a unique circumstance for any . . . correction officer" (Krenrich Affirmation, ¶ 12), and because CO Saunders testified at his EBT that he had never been disciplined as a result of this claim or the prior lawsuits (see id. at ¶ 13). Defendant further argues that CO Saunders's disciplinary records lack relevance because the claim sounds only in assault and does not allege a cause of action sounding in negligent hiring, training, or supervision, and that evidence of prior wrongful acts - such as prior complaints or disciplinary actions included in CO Saunders's personnel records - may not be used to prove that CO Saunders acted similarly at the time of the incident alleged here (see id. at ¶ 14). With respect to that branch of claimant's motion seeking disclosure of discovery related to the prior lawsuits in which CO Saunders was a defendant, defendant argues that it is barred by the doctrine of collateral estoppel because that issue was decided in the Court's November 22, 2019 Decision and Order (see id. at ¶¶ 15-16).
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]).
Although the Court held in connection with the prior motion that claimant had failed to make the necessary showing to warrant in camera review of CO Saunders's disciplinary file based upon the more stringent standard applied to personnel files that were subject to Civil Rights Law § 50-a (see Berry v State of New York, UID No. 2019-038-609, supra), the more liberal standard governing the exchange of discovery generally is now applicable to claimant's request for CO Saunders's personnel file in light of the repeal of Civil Rights Law § 50-a. Accordingly, the Court agrees that should CO Saunders's disciplinary file contain information related to the July 30, 2015 incident, it would be relevant to the allegation that CO Saunders participated in the assault and battery of claimant on that date, and it would be discoverable.(2) Moreover, should CO Saunders's disciplinary file contain other information that would aid claimant in the prosecution of his claim, such as other incidents of discipline that could be used for impeachment purposes, it would also be subject to disclosure (see Matter of Crowe v Kelly, 38 AD3d 435, 438 [1st Dept 2007], lv denied 9 NY3d 801 ; Goberman v McNamara, 76 Misc 2d 791, 792-793 [Sup Ct, Nassau County 1974]).(3)
However, as the Court held in its previous Decision and Order, evidence of prior similar assaultive acts in the disciplinary file would not be admissible to prove intent inasmuch as "evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself" (People v Edmonds, 165 AD3d 1494, 1498 [3d Dept 2018]; see People v Nicholson, 97 AD3d 968, 969 [3d Dept 2012], lv denied 19 NY3d 1104  ["Defendant's intent (to assault his victim) may be inferred from his conduct and the surrounding circumstances"]). Accordingly, any information in CO Saunders's disciplinary file regarding prior incidents of assault would not be material and necessary to the prosecution of his claim and would not be discoverable for the purpose of proving intent.(4)
The Court therefore concludes that an in camera review of CO Saunders's disciplinary file is necessary to determine whether and to what extent those records are relevant to this claim and must be disclosed, and defendant is directed to submit those records to the Court for its review. Claimant will also be directed to submit the full transcript of CO Saunders's EBT. Thus, the motion insofar as it seeks disclosure of CO Saunders's disciplinary file will be held in abeyance pending the Court's in camera review of the disciplinary records and the transcript of CO Saunders's EBT.
Turning to claimant's renewed demand for discovery related to the prior lawsuits in which CO Saunders was a named defendant, as defendant correctly argues, the Court previously held in its November 22, 2019 Decision and Order that claimant failed to demonstrate that such documents were relevant and subject to disclosure inasmuch as "the existence of prior lawsuits is not relevant evidence to prove intent," that claimant failed to show that the "records of prior litigation involving CO Saunders are 'material and necessary' to the prosecution of his assault and battery claims," and that "it . . . appears that claimant is engaged in an impermissible fishing expedition" (Berry v State of New York, UID No. 2019-038-609 [Ct Cl, DeBow, J., Nov. 22, 2019]). Unlike CO Saunders's disciplinary file, the records related to prior litigation in which CO Saunders was a named defendant were not subject to Civil Rights Law § 50-a (see Berry, UID No. 2019-038-609, supra), and the Court's prior ruling with respect to those documents is unaffected by the repeal of the statute. Claimant thus appears to be seeking a second bite at the apple by merely reiterating the argument raised on the prior motion with respect to discovery of documents related to prior litigation, and the Court sees no reason to deviate from its prior holding that claimant has failed to show that such records are relevant or material and necessary to the prosecution of this claim for the intentional torts of assault and battery. The motion to compel disclosure of any such documents will therefore be denied.
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 Saunders's disciplinary file; and it is further
ORDERED, that claimant shall, within thirty (30) days of the filing of this decision and order, submit to the Court the full transcript of CO Saunders's examination before trial; and it is further
ORDERED, that this motion shall be HELD IN ABEYANCE pending the Court's in camera review of the disciplinary records; and it is further
ORDERED, that claimant's motion number M-96734 is in all other respects DENIED.
June 28, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 128629, filed October 4, 2016;
2. Verified Answer, filed March 22, 2016;
3. Notice of Motion, dated April 25, 2021;
4. Affirmation of Devon M. Radlin, Esq., in Support of Motion, dated April 25, 2021, with Exhibits 1-6;
5. Affirmation of Michael T. Krenrich, AAG, in Opposition to Claimant's Motion, dated May 26, 2021, with Exhibit A;
6. Berry v State of New York, UID No. 2019-038-609 (Ct Cl, DeBow, J., Nov. 22, 2019).
1. Claimant, who alleges that he is the victim of a sexual assault as defined in article 130 of the Penal Law, waived the confidentiality protections of Civil Rights Law § 50-b in writing (see Civil Rights Law § 50-b  [c]).
2. Notwithstanding that CO Saunders testified at his deposition that he was never disciplined in connection with the alleged assault, he did not testify that the incident was not investigated, nor does defendant argue that the disciplinary file would contain no such information.
3. To be sure, while Civil Rights Law § 50-a was intended "to protect [correction] officers from the use of records - including unsubstantiated and irrelevant complaints of misconduct - . . . for purposes of cross-examination by (claimant'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 Becker v City of New York, 162 AD2d 488, 489 [2d Dept 1990] [Civil Rights Law § 50 (a)(2) was "designed to eliminate fishing expeditions of [correction] officers' personnel files for collateral materials to be used for impeachment purposes"]), its repeal now means that disciplinary records are now discoverable for impeachment purposes.
4. As noted in the Court's November 22, 2019 Decision and Order (see Berry, UID No. 2019-038-609, supra), while defendant's knowledge of prior assaultive acts by CO Saunders would be relevant to prove a claim for negligent hiring, training, or supervision, the claim does not allege any such causes of action, notwithstanding that claimant maintains that he has done so through his bill of particulars, which he cannot do (see Webster v Supermarkets Gen/Corp., 209 AD2d 405, 405 [2d Dept 1994] ["attempt to assert a new cause of action by resort to bill of particulars is improper]; B.&F. Leasing Co. v Ashton Cos., 42 AD2d 652, 653 [3d Dept 1973] [bill of particulars "cannot add or substitute a new theory or cause of action . . . nor can it change the cause of action set frth in the complaint"]; Montalvo v State of New York, UID No. 2001-018-114 [Ct Cl, Fitzpatrick, J., Dec. 14, 2001]).