Motion to compel disclosure of basic assignment information of potential assailant in case commenced pursuant to Child Victims Act granted.
|Claimant short name:||Coon|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Hach Rose Schirripa & Cheverie, LLP
By: Hillary M. Nappi, Esq.
|Defendant's attorney:||Letitia James, New York State Attorney General
By: Elizabeth A. Gavin, Esq., Assistant Attorney General (no appearance)
|Third-party defendant's attorney:|
|Signature date:||October 15, 2021|
|See also (multicaptioned case)|
On February 18, 2020, Claimant Donald Coon filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated against him at Hudson River State Hospital beginning in 1964 and continuing through 1968. Claimant alleges he was sexually assaulted by "Harris," who is described as "a security guard or nightwatchman at Hudson River State Hospital" (see Affirmation of Hillary Nappi, Esq. [Nappi Aff], Ex A [Claim] ¶ 19). Issue was joined on August 10, 2020 (id., Ex B [Answer]) and discovery ensued.
On or about October 14, 2020, Claimant served a Request for Production of Documents upon Defendant (Nappi Aff, ¶ 5). As relevant here, Claimant's first demand sought "[a]ll documents relating, referring or otherwise pertaining to Harris including, but not limited to, his personnel file, employment file, and any and all documents referring or relating to suspicions, complaints, claims, charges, allegations or information that he engaged in misconduct, sexual misconduct and/or boundary violations" (id., Ex C [Response to Claimant's Combined Demands] ¶ 1). Defendant objected to this demand on the ground that "any and all documents in the personnel file of Harris are confidential pursuant to Public Officers Law § 96" (id.). Defendant further advised that "Harris is no longer an employee of the State of New York, and therefore [is] a nonparty to this proceeding" (id.). Additionally, "[w]ithout waiving any objection," Defendant indicated "the personnel file for Harris has been destroyed" (id.).
Claimant's second demand sought "[a]ll confidential, secondary confidential files created or maintained by any agent, employee, or official of defendant referring or relating to Harris that are kept separate and apart from the main personnel file" (id. ¶ 2). Defendant also objected to this demand. To the extent the demand sought documents in Harris' personnel file, Defendant restated the documents were confidential under Public Officers Law § 96 (see id.). Defendant also reiterated that Harris is no longer an employee of the State and, as such, is a nonparty to this proceeding.
However, Defendant advised that it has "basic assignment information, date of birth, and social security numbers from the time period in question for two employees that may be Harris: Sherrian E. Harrison and Joseph Harris" (id.). Defendant stated that "[b]oth of these employees were attendants during the time period when the claimant was at the Hudson River State Hospital" (id.). Nevertheless, Defendant objected to the disclosure of these individuals' information on the ground that the information was confidential and protected under 42 USC § 405 (c) (2) (C) (viii) (I) and Bibeau v Cantiague Figure Skating Club, 294 AD2d 525 (2d Dept 2002) (see id.). Following the service of its response to the Claimant's demands, Defendant explained that the withheld documents responsive to the second demand comprise of two pages (Nappi Aff ¶ 12).
Claimant now moves to compel the disclosure of the basic assignment information in Defendant's possession. Although Claimant represents the parties have executed a Confidentiality Agreement to govern the disclosure in this matter (id. ¶ 13), such agreement has not been submitted to the undersigned either in the context of this motion or otherwise. Defendant has not responded to Claimant's motion.
"It is well settled that a trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Voss v Duchmann, 129 AD3d 1697, 1698 [4th Dept 2015]). "Disclosure in civil actions is generally governed by CPLR 3101 (a), which directs: '[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof'" (Forman v Henkin, 30 NY3d 656, 661 ). A party seeking discovery must establish that the discovery sought is relevant to an issue in the case or reasonably calculated to lead to relevant information (see id.; Matter of Kapon v Koch, 23 NY3d 32, 38 ). Thus, discovery may be denied if the demand is found to be unduly burdensome or not reasonably calculated to lead to material and necessary information (see Van Horn v Thompson & Johnson Equip. Co., 291 AD2d 885, 885-886 [4th Dept 2002]). As the party seeking disclosure, it is Claimant's burden to establish that the information sought is relevant to the issues raised by the Claim (see Davis v Cornerstone Tel. Co., LLC, 78 AD3d 1263, 1264 [3d Dept 2010]).
The Personal Privacy Protection Law codified in Article 6-a of the Public Officers Law prevents the disclosure of any record or personal identification information of a public employee absent the request or consent of the affected individual (see Public Officers Law § 91 et seq.). The law "is intended to prevent the disclosure of documents constituting an unwarranted invasion of privacy" (Feliciano v State of New York, 175 Misc 2d 671, 672 [Ct Cl 1997]; see Reale v Kiepper, 204 AD2d 72, 74 [1st Dept 1994], lv denied 84 NY2d 813 ). Public Officers Law § 96 (1) (k) provides that "[n]o agency may disclose any record or personal information unless such disclosure is . . . pursuant to a court ordered subpoena or other compulsory legal process." The party seeking disclosure of a public employee's information must present a rational basis for an order of disclosure (see Vogel v State of New York, UID No. 2019-040-137 [Ct Cl, McCarthy, J., Dec. 23, 2019]; Washby v State of New York, UID No. 2004-009-75 [Ct Cl, Midey, Jr., J., Nov. 22, 2004]; Mosley v State of New York, UID No. 2002-013-003 [Ct Cl, Patti, J., Feb. 26, 2002]).
The facts of the instant case are directly comparable to those presented in Feliciano v State of New York, 175 Misc 2d 671 (Ct Cl 1997). In Feliciano, the Claimant, then a 14-year-old patient at Bronx Children's Psychiatric Center, sought damages for an alleged sexual assault committed by an employee of the center (see 175 Misc 3d at 672). The Claimant served a demand upon the Defendant, the State of New York, for the alleged assailant employee's personnel file. Similar to circumstances here, the State objected to the demand, arguing that the employee's records were privileged under Public Officers Law § 96. After an in camera review, Judge Alan C. Marin held that the employee's 74-page personnel file should be disclosed to Claimant subject to certain conditions (see id. at 673). Specifically, the Court required the name of any patient other than Claimant's to be redacted from the personnel file and prohibited data searches utilizing the employee's social security or Department of Motor Vehicle Identification numbers, or other similar means, without authorization from the Court.
Here, it is evident that the basic assignment information of Sherrian E. Harrison and Joseph Harris is relevant and/or reasonably calculated to lead to relevant information relating to this Claim. Specifically, the basic assignment information will aid Claimant in identifying "Harris," his alleged assailant and uncovering whether Defendant had notice of the employee's propensity to commit a sexual assault. Moreover, the other information contained in these individuals' personnel files may assist Claimant in locating these individuals who may have relevant information relating to this Claim. Indeed, Defendant has affirmed "[b]oth of these employees were attendants during the time period when the claimant was at the Hudson River State Hospital" (Response to Claimant's Combined Demands ¶ 2). Nevertheless, consistent with the purpose of the Personal Privacy Protection Act and the holding in Feliciano, no data search may be undertaken using the social security numbers of Sherrian E. Harrison and Joseph Harris absent further authorization of this Court. Additionally, disclosure made pursuant to this order shall be subject to any agreement between the parties relating to confidentiality.
Accordingly, it is hereby:
ORDERED Motion No. M-97088 is hereby GRANTED; and it is further
ORDERED that, within 30 days of the filing of this order, Defendant shall disclose the basic assignment information, date of birth, and social security numbers of Sherrian E. Harrison and Joseph Harris, consisting of two pages of information, to Claimant for use in this matter; and it is further
ORDERED no data search may be undertaken using the social security numbers of Sherrian E. Harrison and Joseph Harris absent further authorization of this Court; and it is further
ORDERED the disclosure made pursuant to this order shall be subject to any agreement between the parties relating to confidentiality.
October 15, 2021
Albany , New York
Catherine E. Leahy-Scott
Judge of the Court of Claims
The Court considered the following papers in deciding this motion:
(1) Notice of Motion, dated June 24, 2021.
(2) Affirmation of Hillary Nappi, Esq., dated June 24, 2021, with attachments.
(3) Claimant's Memorandum of Law in Support, dated June 24, 2021.