Opinion
# 2016-015-178 Claim No. 125136 Motion No. M-88614
11-09-2016
RAMON FABIAN v. THE STATE OF NEW YORK
DeSimone & Associates, LLC By: Ralph DeSimone, Esquire Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
In a claim alleging that a correction officer at Great Meadow Correctional Facility assaulted claimant by kicking him in the groin, resulting in the need for surgery, claimant's counsel requested, among other things, the personnel records of the assailant-correction officer, the investigation file from the Office of Special Investigations, and records related to prior incidents involving the assailant-correction officer. Court found that, with the exception of the disciplinary records related to the subject incident, claimant failed to establish the relevance of the assailant-correction officer's personnel records since no cause of action for negligent hiring or supervision was alleged. With respect to the records from the Office of Special Investigations (formerly the Inspector General's Office), defendant was ordered to submit the file to the Court for its in camera review. In addition, the Court ordered defendant to provide claimant's counsel with the last known address of the assailant-correction officer for service of a subpoena since the officer's employment had been terminated and the defendant refused to produce him for an EBT voluntarily.
Case information
| UID: | 2016-015-178 |
| Claimant(s): | RAMON FABIAN |
| Claimant short name: | FABIAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125136 |
| Motion number(s): | M-88614 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | DeSimone & Associates, LLC By: Ralph DeSimone, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 9, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an Order compelling defendant to provide proper responses to his notice for discovery and inspection, and to produce two individuals for examinations before trial pursuant to CPLR 3124 and 3126. Claimant also moves to amend the claim to include Michael Bukowski as a defendant pursuant to CPLR 3025.
Claimant, a former inmate, seeks damages for injuries allegedly sustained when he was assaulted by a correction officer at Ulster Correctional Facility on July 22, 2014 and July 24, 2014. Claimant alleges the second assault occurred when:
"Corrections Officer Stack took Claimant to an area between the doors and violently and viciously kicked Claimant in the groin area admonishing Claimant not to ever talk during his "Count". As a result of said assault, Claimant sustained severe injury to Claimant's groin and testicles requiring Claimant to undergo surgery" (claimant's Exhibit A, claim, p. 2).
Although the claim alleges the assailant was Correction Officer Stack, claimant's counsel states in an affirmation submitted in support of the instant motion that he later learned that the assailant was Correction Officer Bukowski, not Correction Officer Stack as set forth in the claim. Claimant's counsel states that the incident was investigated by the Inspector General's Office and Bukowski was criminally charged with the assault. As reflected in a decision/judgment of the Supreme Court in a CPLR article 75 proceeding to confirm an arbitration award (claimant's Exhibit E), Bukowski was charged with violating certain provisions of the DOCCS' employee manual and Directive 4944, specifically that he:
"(1) 'used excessive force and unjust physical force when [he] employed corporal punishment on inmate [RF] . . . by kicking his testicles, causing serious physical injury'; (2) 'failed to complete the 'Use of Force Report' Form . . . ; (3) 'failed to notify [his] supervisor or medical staff that inmate [RF] . . . was observed to be in tears, doubled over, and in medical distress'; and (4) 'provided a false and misleading statement regarding the use of force,' by indicating in a memorandum to a correction sergeant 'that at no time did [he] kick inmate [RF] . . . in the groin, which he did' " (claimant's Exhibit E, pp. 2-3).
Bukowski was suspended without pay and thereafter filed a grievance (id. at p. 3). An arbitrator found him guilty of the charges but amended the proposed penalty of termination to a 120-day suspension in light of the absence of prior misconduct. In deciding Bukowski's article 75 petition, the Hon. Kimberly A. O'Connor, A.S.C.J., confirmed the arbitrator's determination to the extent he found Bukowski guilty of all charges but found the penalty "so disproportionate to [petitioner's] offense as to be shocking to one's sense of fairness" (id. at p. 6). Accordingly, Supreme Court remitted the matter for the imposition of a new penalty consistent with its decision. Defense counsel indicates that although an appeal from the Supreme Court Judgment is pending, Bukowski "has not worked for DOCCS" since August 5, 2014 (Cagino affidavit, ¶ 12).
Claimant served a Notice of Discovery and Inspection dated March 17, 2016 in which he requested, as relevant here, the following:
"2. All photographs, motion pictures, videotape films, all surveillance materials taken of the claimant of any kind whatsoever.
3. All reports, incident reports and statements made in the regular course of business of the defendant(s), whether written, recorded or otherwise, relating to the occurrences in which the claimant claims injury, including but not limited to, whether claimant's injuries actually occurred at the hands of an individual named Mike [Bukowski]. . . .
7. Copies of all statements, whether oral, signed, unsigned, recorded or unrecorded, electronically recorded by the defendant(s), or any of them, in any way relating to the occurrence(s). . . . ***
11. A copy of each and every personnel, employment and/or disciplinary record for, including all complaints made against, Mike [Bukowski], "John" Stack or any other employee, independent contractor or other individual acting on behalf of defendants(s) that are in any way responsible for causing claimant's injuries or damage alleged in this action, and/or were present at the scene of the occurrence(s).
12. Any documents relating to any and all incidents involving Mike Bukowski in any way which caused or resulted in injury or harm to any other prisoner at Ulster Correctional Facility during his tenure of employment for DOC.
13. Documents related to any disciplinary proceeding against any employees of the DOC concerning these occurrence(s).
14. Copies of all records relating to any past disciplinary proceedings and/or complaints against Mike Bukowski and/or any other DOC employees or other individuals acting on defendant(s) behalf involved in these occurrence(s) and/or relating to past incidents during their employ with DOC."
Defendant objected to requests numbers "2", "3" and "7" as follows:
"Without stating whether any such items exist, such items may be part of the file of the Department of Correctional and Community Supervision's Office of Special Investigations. Such a file is privileged and exempt from disclosure. See Shantell v SONY, 11 Misc 3d 1088. Photographs may be contained within the medical records" (claimant's Exhibit C).
Defendant objected to requests numbers "11", "13" and "14" on the ground that "[p]ersonnel, employment and or disciplinary records of New York State employees are exempt for [sic] disclosure and will not be provided" (claimant's Exhibit C). Defendant objected to claimant's request number "12", stating: "It is not understood what you are requesting by 'Any documents relating to any and all incidents . . .' Kindly rephrase your request and be reasonably specific on the document you are requesting" (id.).
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has interpreted these words liberally to require the disclosure "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 also Wiggins v Kopko, 105 AD3d 1132 [3d Dept 2013]). Nevertheless, not all requests for discovery which may in some unspecified way yield relevant information are proper. " 'Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party' " (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998], quoting O'Neill v Oakgrove Constr., 71 NY2d 521, 529 [1988], rearg denied 72 NY2d 910 [1988]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 747 [2000]). It is therefore incumbent upon the party seeking disclosure "to demonstrate how the requested materials are relevant to the issues in the matter" (Davis v Cornerstone Telephone Co., LLC, 78 AD3d 1263 [3d Dept 2010] [quotation marks and citation omitted]; see also Gold v Mountain Lake Pub. Telecom., 124 AD3d 1050 [3d Dept 2015]; Vyas v Campbell, 4 AD3d 417, 418 [2d Dept 2004]). However, where a party asserts that material sought in disclosure is privileged, that party bears the burden of demonstrating that the material sought to be withheld is immune from discovery (Ren Zheng Zheng v Bermeo, 114 AD3d 743, 744 [2d Dept 2014]).
Civil Rights Law § 50-a (1) exempts from disclosure personnel records of correction officers without express written consent of such officer or a court order. Absent a legitimate need for the officer's personnel records, disclosure is prohibited. "Thus, the initial burden is on the party seeking the subject records to demonstrate 'in good faith, "some factual predicate" warranting the intrusion into the personnel records' " (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], lv denied 96 NY2d 710 [2001], quoting Taran v State of New York, 140 AD2d 429, 432 [2d Dept 1988] [other citation omitted]; see also Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26 [1988]; People v Gissendanner, 48 NY2d 543, 549-550 [1979]; Blanco v County of Suffolk, 51 AD3d 700 [2d Dept 2008]; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]; Petroski v Petroski, 6 AD3d 1194 [4th Dept 2004]). Only after this threshold showing has been made is an in camera review of the records warranted to determine those parts of the records, if any, which are relevant and material to the claim (McFarlane v County of Suffolk, 79 AD3d 706 [2d Dept 2010]; Blanco v County of Suffolk, 51 AD3d at 702; Telesford v Patterson, 27 AD3d at 330; Petroski v Petroski, 6 AD3d at 1195; Ohnmacht v State of New York, 23 Misc 3d 1134 [A] [2009]). With one exception, no such showing has been made here.
Civil Rights Law § 50-a (1) states, in relevant part:
"All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision . . . except as may be mandated by lawful court order."
Criminal Procedure Law § 2.10 [25] defines peace officers to include correction officers of any State correctional facility.
Personnel records may be relevant and material to claims alleging negligent hiring, retention or supervision and such causes of action may be alleged as alternative theories of liability (see e.g. Pickering v State of New York, 30 AD3d 393 [2d Dept 2006]). Here, however, no such cause of action was alleged. As a result, the requested personnel records (claimant's Exhibit B, request no. "11"), are irrelevant and unnecessary to the prosecution of the claim because "it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion' " (Kourtalis v City of New York, 191 AD2d 480, 481 [2d Dept 1993], quoting Matter of Brandon, 55 NY2d 206, 210-211 [1982]; see also Saunders v State of New York, UID No. 2011-038-503 [Ct Cl, DeBow, J., March 17, 2011]; Townsend v State of New York, UID No. 2010-030-503 [Ct Cl, Scuccimarra, J., Jan. 5, 2010]; Ohnmacht v State of New York, UID No. 2009-038-538 [Ct Cl, DeBow, J., May 4, 2009]). Claimant's motion is therefore denied to the extent it seeks to compel a response to his demand for the wholesale disclosure of the employment files of the correction officer(s) involved (claimant's request no. "11").
Where an employee is acting within the scope of his or her employment when the conduct giving rise to the claim occurred, a cause of action alleging negligent hiring, investigation, training or supervision is subject to dismissal as a matter of law (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Leftenant v City of New York, 70 AD3d 596, 597 [1st Dept 2010]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1471-1472 [4th Dept 2009], lv denied 72 AD3d 1658 [2010]; Segal v St. John's Univ., 69 AD3d 702 [2d Dept 2010]); Sato v Correa, 272 AD2d 389 [2d Dept 2000]).
However, claimant's request for documents related to disciplinary proceedings "against any employees of the [DOCCS] concerning these occurrence(s)" (claimant's Exhibit B, request number "13"), is clearly calculated to lead to the discovery of relevant evidence. To the extent defendant invokes Civil Rights Law § 50-a (1) in an attempt to shield these records from disclosure, an in camera review of the documents is necessary and all interested parties must be given the opportunity to be heard (Civil Rights Law § 50-a [2]). At this juncture, however, only Bukowski's involvement has been implicated. To the extent claimant's request number "13" may pertain to yet unidentified individuals, the Court finds it to be overly broad. Defendant is therefore ORDERED to provide the Court with two sets of records responsive to claimant's request number "13", as limited by the Court to records pertaining to Correction Officer Michael Bukowski, within 30 days of the date this Decision and Order is filed. One set of records should be unredacted and the second should contain defendant's proposed redactions of material it contends is privileged. Both sets should be provided directly to chambers in a sealed envelope clearly indicating they are for the Court's in camera review.
Insofar as defendant is the only party in possession of Bukowski's address, it is ORDERED that the defendant provide claimant's counsel Mr. Bukowski's address within 15 days of the date this Decision and Order is filed. Within 15 days of receipt, claimant's counsel shall serve Bukowski with a copy of all motion papers as well as the Decision and Order herein and file an affidavit of service of same in the Office of the Clerk of the Court of Claims immediately thereafter. Any opposition to the disclosure of Bukowski's disciplinary records may be submitted by Mr. Bukowski or his attorney, and shall be served on all parties within 45 days of the date this Decision and Order is filed. The Court will thereafter render a decision regarding whether and to what extent the disciplinary records of Bukowski must be disclosed.
Claimant's requests numbered "2", "3" and "7" are directly related to claimant's allegations of excessive force on July 22, 2014 and July 24, 2014 and are clearly relevant to the claim. Whether or not these materials are protected from disclosure by virtue of the public interest privilege, as defendant contends, is another matter.
The public interest privilege is a common law creation applied to immunize the disclosure of "confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged" (Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 [1974] [quotation omitted]; see also Lowrance v State of New York, 185 AD2d 268 [2d Dept 1992]). The privilege is not absolute and whether it attaches in a particular case is a fact-specific determination requiring the Court to balance the interests of the party seeking disclosure against the governmental-public interest at stake should the sought-after materials lose their shield of confidentiality (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8-10 [1999]). Entitlement to the privilege requires that "an agency claiming some special governmental-public interest 'cone of silence' demonstrate the specific public interest that would be jeopardized by an otherwise customary exchange of information" (93 NY2d at 8, quoting Cirale v 80 Pine St. Corp., 35 NY2d at 119; see also Parker v State of New York, 269 AD2d 255 [1st Dept 2000]).
Applying this standard, it has been held that reports developed by the Inspector General's office may be privileged where they relate to the fundamental mission of security of the prison or otherwise contain sensitive confidential materials (Parker v State, 269 AD2d at 255; Turner v State of New York,, UID #2007-039-008 [Ct Cl, Ferreira, J., February 27, 2007]; Shantelle S. v State of New York, 11 Misc 3d 1088 [A] [Ct Cl 2006]). Here, however, defendant has indicated only that the records requested "may" be part of the file of DOCCS' Office of Special Investigations "without stating whether any such records exist" (see claimant's Exhibit C, response to request no. 2). The defendant has not identified the interest affected should the requested materials lose their cloak of confidentiality and did not submit the records to the Court for in camera review. In fact, all defendant has done is claim the benefit of the privilege. Whether an investigation was, in fact, conducted by the DOCCS' Office of Special Investigations and, if so, the extent of its investigation has not been established. Insofar as conclusory claims of privilege are insufficient to preclude claimant's access to otherwise relevant materials (Ren Zheng Zheng, 114 AD3d 743), defendant is hereby ORDERED to produce the records responsive to claimant's requests numbered "3" and "7" for the Court's in camera review within 30 days of the date this Decision and Order is filed.
To the extent claimant requested all photographs and videotapes "taken of the claimant of any kind whatsoever" (claimant's request no. "2") the Court finds the request to be overbroad and burdensome. In the interest of judicial economy, however, the Court will direct the defendant to provide claimant with all photographs and videotapes which in any manner depict the subject incidents or claimant's injuries as a result thereof within 30 days of the date this Decision and Order is filed.
The information sought in claimant's request number "12" relating to "any and all incidents involving Mike Bukowski . . . which caused or resulted in injury or harm to any other prisoner" is irrelevant to the claim which alleges only that Bukowski was acting in the scope of his employment when the assaults were committed. Claimant does not alternatively allege a cause of action for negligent hiring or retention and notice of Bukowski's propensity for violence is therefore not an issue in the case (see Pickering, 30 AD3d 393). Defendant need not respond to claimant's request number "12".
Claimant's request to amend the claim to name Michael Bukowski as a defendant is denied as the jurisdiction of the Court of Claims is, with few exceptions, limited to claims against the State of New York (Court of Claims Act § 9). However, to the extent claimant's counsel indicates that he incorrectly identified the assailant as Correction Officer Stack in the body of the claim, he may amend the body of the claim to correctly identify Bukowski as the officer involved within 30 days of the date this Decision and Order is filed.
Claimant's motion to compel defendant to produce Bukowski for an examination before trial is denied as defense counsel has indicated that he is no longer employed by the State of New York and therefore no longer under its control (claimant's Exhibit D). That being the case, defendant is ORDERED to provide claimant's counsel with Bukowski's last known address within 15 days of the date this Decision and Order is filed so that claimant may seek his deposition through the issuance of a subpoena (see New GPC Inc. v Kaieteur Newspaper Inc., 124 AD3d 437 [1st Dept 2015]; Ewadi v City of New York, 66 AD3d 583 [1st Dept 2009]). .
Lastly, while defendant invokes the public interest privilege to shield Investigator Jonathan Nocera from an examination before trial, it failed to demonstrate how such an examination before trial would jeopardize a specific public interest. Consequently, defendant is ORDERED to produce Investigator Nocera for an examination before trial within 60 days of the date this Decision and Order is filed.
Accordingly, claimant's motion is granted to the extent indicated.
November 9, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Notice of motion dated May 18, 2016;
Affirmation of Ralph DeSimone dated May 18, 2016 with exhibits A-F;
Affidavit of Paul F. Cagino sworn to July 12, 2016.