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New York State Court of Claims

New York State Court of Claims
BERRY v. THE STATE OF NEW YORK, # 2021-038-551, Claim No. 128629, Motion No. M-96734

Synopsis

Claimant's motion to compel disclosure of correction officer's disciplinary file granted. File is relevant to the prosecution of this claim insofar as it contains information that could be used for impeachment purposes at trial.

Case information

UID: 2021-038-551
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) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128629
Motion number(s): M-96734
Cross-motion number(s):
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: August 23, 2021
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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 filed this motion to compel defendant to respond to an April 22, 2021 discovery demand seeking, among other things, a complete copy of Correction Officer (CO) Saunders's disciplinary file. Defendant opposed the motion. In a Decision and Order dated June 28, 2021, the Court held that in light of the repeal of Civil Rights Law 50-a, the disciplinary file would be discoverable to the extent that it is relevant to the July 30, 2015 incident or contains information that would aid claimant in the prosecution of his claim, and held claimant's motion in abeyance pending submission by defendant of the disciplinary records and a transcript of CO Saunders's examination before trial for in camera review to determine their relevance (see Berry v State of New York, UID No. 2021-038-535 [Ct Cl, DeBow, J., June 28, 2021]).

As discussed in the Court's prior Decision and Order, 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 [1981]). 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 [1968]; 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,

"Courts 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 [2015]). 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]). "The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant," and is thus obligated to "establish[] that the information sought is immune from disclosure" (Marten v Eden Park Health Servs., 250 AD2d 44, 46-47 [3d Dept 1998] [internal quotation marks omitted]), such as privileged materials and attorney work product, which are statutorily exempt from disclosure (see CPLR 3101 [b], [c]).

As noted in the Court's previous Decision and Order, claimant argued that CO Saunders's disciplinary file is material and relevant, and thus discoverable, because it could lead to evidence that would be admissible at trial, including possible witness testimony, and defendant argued that the disciplinary file is not material or relevant to the instant claim because CO Saunders testified at his examination before trial (EBT) that he had never been disciplined in connection with the July 30, 2015 incident, and it may not be used as evidence of intent with respect to the alleged assault (see Berry, supra, at pp. 3-4). The Court held that the disciplinary file would be material and relevant to the extent that it contains information related to the July 30, 2015 incident or other information that would assist claimant in the prosecution of this claim, such as other instances when CO Saunders was subjected to discipline, that could be used to impeach the credibility of his trial testimony, but that evidence of prior, similar assaultive acts contained in CO Saunders's disciplinary file would not be admissible to prove intent (see id. at pp. 5-6).

Defendant has submitted to the Court for in camera review a complete, unredacted copy of CO Saunders's disciplinary file, and a complete copy of his EBT transcript. The Court's in camera review of CO Saunders's disciplinary file reveals that it does not contain any information related to the July 30, 2015 incident that forms the basis of this claim. However, the disciplinary file does contain extensive information related to a subsequent occurrence that led to CO Saunders's termination from his employment at Great Meadow CF on November 20, 2017. In light of the liberal standard for disclosure articulated above, which now applies to CO Saunders's disciplinary file as a result of the repeal of Civil Rights Law 50-a, the Court concludes that although the disciplinary file contains no information related to the July 30, 2015 incident that forms the basis of this claim, it is nevertheless relevant to claimant's prosecution of the claim insofar as it contains information that could be used for impeachment purposes at trial.(2)

In balancing the competing interests of the parties, as it must, the Court concludes that claimant's need for the information contained in CO Saunders's disciplinary file in order to prosecute this claim is significant inasmuch CO Saunders maintained at his EBT that it was claimant who assaulted him on July 30, 2015, and that he was compelled to use force to subdue claimant, and the material in his disciplinary file could be used to impeach his credibility at trial. As discussed above, defendant has made no argument with respect to the disclosure of CO Saunders's disciplinary file other than that it lacks relevance because CO Saunders testified at his EBT that he was never disciplined as a result of the July 30, 2015 incident and because evidence of similar assaultive behavior is not relevant to the issue of intent with respect to the cause of action for assault asserted in this claim.(3) As the Court held in the prior Decision and Order, defendant is correct that the disciplinary file may not be used to prove the issue of intent at trial (see Berry, supra at pg. 6), and the Court's in camera review confirms defendant's argument that the disciplinary file contains no indiction that CO Saunders was disciplined in connection with the July 30, 2015 incident. Nevertheless, as discussed above, the disciplinary file is relevant for purposes of impeachment, and there is no indication that disclosure of the disciplinary file constitutes a burden on any party or would cause confusion or delay in the resolution of this matter. Considering the strong policy in New York courts in favor of full and open disclosure, the Court concludes that defendant must turn over to claimant's counsel CO Saunders's complete disciplinary file, with appropriate redactions of his personal information, including CO Saunders's date of birth, address and telephone number, and Social Security Number.

Accordingly, it is

ORDERED, that claimant's motion number M-96734 is GRANTED, and defendant is directed to disclose to claimant within thirty (30) days of the filing of this decision and order a complete copy of CO Saunders's disciplinary file, with redactions as herein identified.

August 23, 2021

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

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 1;

6. Correspondence of Michael T. Krenrich, AAG, dated August 4, 2021, with In Camera Submission of Disciplinary File of CO Saunders;

7. Email Correspondence of Michael T. Krenrich, AAG, dated August 9, 2021, with In Camera Submission of EBT Transcript of CO Saunders;

8. Berry v State of New York, UID No. 2019-038-609 (Ct Cl, DeBow, J., Nov. 22, 2019);

9. Berry v State of New York, UID No. 2021-038-535 (Ct Cl, DeBow, J., June 28, 2021).


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 [2] [c]).

2. As previously noted in the Court's prior decision and order, 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 [1988]; 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 means that disciplinary records are now discoverable for impeachment purposes.

3. As noted in a November 22, 2019 Decision and Order by the Court (see Berry v Sate of New York, UID No. 2019-038-609 [Ct Cl, DeBow, J., Nov. 22, 2019]) and the Court's June 28, 2021 Decision and Order (see Berry, UID No. 2021-038-535 [Ct Cl, DeBow, J., June 28, 2021]), 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 forth in the complaint"]; Montalvo v State of New York, UID No. 2001-018-114 [Ct Cl, Fitzpatrick, J., Dec. 14, 2001]).