Opinion
121681
08-29-2014
Cherron Patterson, Claimant v. State of New York
Claimant's attorney:Weisberg & Zukher, PLLC By: David E. Zukher, Esq. Defendant's attorney:Honorable Eric T. Schneiderman, Attorney General By: Suzette Corinne Rivera, AAG
Ct Cl
Claimant's attorney:Weisberg & Zukher, PLLC
By: David E. Zukher, Esq.
Defendant's attorney:Honorable Eric T. Schneiderman, Attorney General
By: Suzette Corinne Rivera, AAG
Faviola A. Soto, J.
In this claim filed August 29, 2012, alleging, inter alia, negligent supervision and retention, the material facts are essentially not disputed. Claimant, a former inmate at Bayview Correctional Facility (Bayview), was repeatedly raped and sexually abused, and impregnated by, a correction officer (CO) employed by defendant at Bayview. The CO had been the subject of four prior sexual misconduct investigations at Bayview, and the fourth investigation, which was still open when claimant was transferred to Bayview and came under the CO's supervision, resulted in the investigator's transfer of that inmate because of the "strong evidence" and "corroboration" that the CO engaged in an unauthorized relationship/sexual misconduct with that inmate.Defendant the State of New York (State) did not more closely supervise the CO or otherwise take any action, and the CO's criminal acts perpetrated upon claimant took place in plain view and, indeed, were captured on video surveillance. The CO pled guilty and was sentenced to three years in prison and ten years of post-release supervision.
A liability trial has been scheduled, since February 2014, to take place on November 12 and 13, 2014. The Court now has before it claimant's motion for summary judgment on liability, as well as an oral application for discovery sanctions that was heard on the record on July 29, 2014.
Because of the nature of the claim, it contains the Clerk's stamp that it is not to be released without authorization. Noting the sensitive and confidential nature of, and the specificity set forth in, the pleadings and papers, including the bill of particulars, discovery and motion papers, the Court sua sponte orders that the file be sealed.
The Summary Judgment Motion
Claimant's motion papers, including a memorandum of law, were served by mail on July 8, 2014, and, as set forth in the notice of motion and provided in the Stipulation and Order dated February 27, 2014 (February 2014 Order), was made returnable for July 30, 2014. Exhibits attached to the moving affirmation and claimant's affidavit include: the hallway surveillance tapes capturing certain of CO Ford's acts of sexual abuse of Ms. Patterson; the deposition transcripts; various documents relating to the State's prior four investigations of CO Ford and the investigation of the instant rapes and abuse; CO Ford's indictment and sentencing transcript; Ms. Patterson's medical records from the facility she was transferred to on June 29, 2012; certain of claimant's discovery demands, defendant's responses, stipulations and orders dated December 5, 2013 and February 27, 2014 and claimant's letters to defendant regarding the repeated failure to produce the documents as demanded and ordered.
The notice of motion provided that answering affidavits were to be served no later than seven days prior to the motion's return date of July 30, pursuant to CPLR Rule 2214 (b).
Although CPLR Rule 2103 (2) provides that five days shall be added to the prescribed period when service is made by mail, the State's opposing papers were served by mail on July 23, 2014. The opposing papers consist of a five-page attorney affirmation that relies, inter alia, upon unspecified portions of Exhibit A, a 159-page document labeled "Agreement Between the State of New York and New York State Correctional Officers and Police Benevolent Association, Inc." for the period 2009-2016 (the 2009-2016 union contract). The document is not accompanied, however, by an affidavit from someone with personal knowledge that identifies it or a certification.
Although production of a governing union agreement was demanded and ordered several times prior to the summary judgment motion, claimant did not receive it from defendant until after service of the moving summary judgment papers.
Claimant includes in her timely reply, in the form of a memorandum of law, her objection that the opposition papers are untimely.
Summary Judgment
On a summary judgment motion, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853. The showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562), and failure to make this showing "requires denial of the motion, regardless of the sufficiency of the opposing papers". Winegrad, 64 NY2d at 853. Once the proponent has made the showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that a material issue of fact exists which requires a trial. Alvarez v Prospect Hospital, 68 NY2d 320, 324.
"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . [W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided". Andre v Pomeroy, 35 NY2d 361, 364. The role of the court is issue finding, not resolution, and the court must examine the proof in a light most favorable to the party opposing the motion. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395. Summary judgment is a drastic remedy and should be granted only when there are no issues of fact and the claim can be dismissed as a matter of law. Id.Material Facts Not in DisputeThe following material facts are not in dispute. Ms. Patterson, then an inmate, was transferred to Bayview, an all female facility, on March 1, 2012, and housed on the seventh floor, Room 07S. CO James Ford, Jr., a State employee from December 17, 2007 to July 4, 2012, was then a correction officer at Bayview.
From July 2008 until March 1, 2012, CO Ford had been the subject of four State investigations which involved sexual abuse allegations involving six different Bayview inmates. Although several of the investigations were open at the same time and had the same investigator, the investigations did not reference the other investigations. Three of the investigations were closed prior to March 1, 2012 as "unsubstantiated".
The fourth, the April 2011 investigation against CO Ford for sexual misconduct, was still open and pending when, almost a year later, Ms. Patterson arrived at Bayview.
The investigator from the Inspector General's Office (IGO), who conducted two of these investigations, as well as the investigation of CO Ford's rapes and sexual abuses of Ms. Patterson, was deposed on November 18, 2013. She testified that of the approximate 400 investigations she conducted over the years of inmates' allegations against correction officers, only approximately ten involved multiple women inmates making allegations against the same particular officer, and, of these, three or four occurred at Bayview.
As to the investigation that was still open when Ms. Patterson transferred to Bayview, the investigator testified that there was "strong evidence" and "corroboration" that CO Ford engaged in an unauthorized relationship/sexual misconduct with an inmate, and that, as a result, the investigator moved the inmate out of Bayview to another facility. The investigator testified that a number of inmates reported the misconduct based on personal observation, the abused inmate initially admitted to violations of the rules, and an anonymous letter reported that there were sexual encounters by CO Ford with the inmate on a regular basis. The report, however, made an "unsubstantiated" determination because, as the investigator testified to, the inmate subsequently did not admit to the relationship and "no other evidence" existed.
With respect to what actions, if any, the State undertook as a result of these multiple allegations and investigations, the investigator asserted that due to the union contract, the State could not put CO Ford on a new bid or transfer him to a new facility, and, as the four investigations were unsubstantiated, discipline was not taken.
While the investigator made general references to a union contract, there is no evidence in the record that defendant attempted to transfer CO Ford, that defendant made any determination as to the transfer's compliance with the labor agreement, and that the defendant considered what the operational and/or financial exposure might have been had a transfer been made that was not in compliance with the labor agreement.
There also is no record evidence that the State was foreclosed by the union contract or otherwise from undertaking certain other steps or actions. CO Ford's supervisors and other State actors did not place CO Ford on any closer supervision, did not restrict his access to certain areas and did not make unannounced or random rounds to supervise him. Nor did CO Ford's supervisors or other State actors analyze whether Bayview operations or inmate or officer security would be jeopardized if CO Ford would be transferred to a post involving something other than supervising women. While in 2012 the investigator transferred one inmate as a result of the fourth investigation into CO Ford's sexual misconduct with inmates, CO Ford's supervisors and other State actors did not consider or take any other remedial, corrective or preventative steps or action, formal or informal.The State left CO Ford alone and unsupervised the majority of the time, and allowed him unrestricted key access to the seventh floor and other locations.
The investigator further testified at her deposition that the union contract did not prevent the State from acting to protect inmate safety. Labor relations could put a CO on administrative leave, suspend the CO, or, for a short period of time, move the CO to another post.
CO Ford admittedly engaged in sexual intercourse with inmate Patterson in April 2012, a few weeks after he met her for the first time as a result of receiving a new bid that provided for one day on the 7th floor, two days on the roof and gym and two days on the 5th floor. He also admitted, during a July 11, 2012 investigation, that he engaged in sexual intercourse with then inmate Patterson on four to five occasions, the first time in her room and the other times at the door to her room. He admitted that he also committed other sexual abuses upon her on eleven occasions.
As a result of CO Ford's rapes, Ms. Patterson was impregnated, and as a result of at least one of the sexual abuses, Ms. Patterson sustained physical injuries of an intimate nature. Ms. Patterson testified at her deposition and attested to in her affidavit that CO Ford had threatened to kill her. Additionally, Ms. Patterson stated that she did not initially disclose to the investigator what happened because, as she was on her way to the meeting with the investigator, CO Ford told her not to say anything . She was scared. She did not sign the June 28th statement that was prepared for her because it was not true, and, following her transfer, signed the July 3, 2012 statement prepared by the investigator.
Certain of CO Ford's misconduct was captured in June 2012 on Bayview's seventh floor video surveillance. The tapes show CO Ford engaging in sexual misconduct with the inmate claimant, with the acts occurring in open and plain view of other female prisoners on the seventh floor, including in the officer's station and the doorway of Ms. Patterson's prison cell room. The June 25, 2012 surveillance tape also shows that, after sexually abusing Ms. Patterson, CO Ford looked directly at the surveillance camera, smiled and tipped his uniform hat.
On July 4, 2012, CO Ford was placed on Administrative Leave. On July 11, 2012, CO Ford gave a confession to the IGO and the police. On July 12, 2012, the State suspended CO Ford from his employment duties as a correction officer for "engaging in a sexual relationship" with inmate Patterson, and, on July 16, 2012, the State disciplined CO Ford by terminating his employment, pursuant to its collective bargaining agreement with NYSCOPBA. The notice of discipline details numerous acts of rape and sexual abuse perpetrated by CO Ford upon Ms. Patterson from April 1, 2012 to June 30, 2012.
As part of the July 2012 investigation, six of the eleven inmates on the 7th Floor reported that CO Ford had an unauthorized relationship and engaged in sexual misconduct with Ms. Patterson. A number of the matters reported to the investigator by the other inmates were not included in the investigative report, including that CO Ford raped Ms. Patterson in her room and in the officer's bathroom.
On June 29, 2012, Ms. Patterson was transferred from Bayview to the Taconic Correctional Facility (Taconic) and, as previously scheduled, was released from State custody on July 18, 2012. While certain information does not appear on her Taconic medical records (or her record of transfer) her pregnancy was confirmed. On December 13, 2012, Ms. Patterson gave birth, via cesarean section, to CO Ford's child from the rapes. The female infant was born prematurely at 27 weeks and died minutes after she was born.
CO Ford was arrested and indicted by New York County's grand jury for multiple felony counts, including three counts of rape in the third degree in violation of New York Penal Law (PL) § 130.25 (1), one count of criminal sexual act in the third degree in violation of Penal Law
§ 130.40 (1), three counts of sexual abuse in the second degree in violation of Penal Law
§ 130.60 (1), and one count of aggravated sexual abuse in the fourth degree in violation of Penal Law § 130.65-a (1) (b).
On December 5, 2012, CO Ford pled guilty to two felony counts of rape in the third degree. On March 4, 2013, he was sentenced to serve three years in State prison and ten years post-release supervision. The court issued a full stay-away order of protection against CO Ford in favor of Ms. Patterson, and CO Ford is required to register as a sex offender.
Discussion
The governing law is clear; the dispute is whether there has been a sufficient for its application here.
Pursuant to Penal Law § 130.05 (3) (e), then inmate Patterson is deemed incapable of having consented to the sexual acts perpetrated by CO Ford. The State is required to use reasonable care to protect its inmates from foreseeable risk of harm. See Flaherty v State of New York, 296 NY 342. While the State is not an insurer of inmate safety, it "owes a duty of care to safeguard inmates". Sanchez v State of New York, 99 NY2d 247, 252. Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. Id. "[F]oreseeability is defined not simply by actual notice but by actual or constructive notice ? by what the State knew or had reason to know' . . . what the State is or should be aware of ' . . . The requisite foreseeability is as to a risk of harm' " (citations omitted). Sanchez v State of New York, 99 NY2d 247, 255.
The State may be held liable for an employee's intentional acts undertaken for the employee's own purposes and outside the course of employment under causes of action for negligent supervision and/or negligent retention. "Negligent supervision requires a claimant to show that an employer knew or should have known - - had the supervision been adequate - - of the employee's propensity for the type of conduct that injured her (citations omitted)" and "[n]egligent retention requires a claimant to establish that the employer knew of should have known of the employee's propensity for the sort of conduct that caused the injury (citations omitted)." Anna O. v State of New York, 34 Misc 3d 1206 (A), 2011 NY Slip Op 52435 (U), *6 [Ct Cl, Patti, J.].
In Anna O., Id., the Court granted claimant's motion for summary judgment. There, a lengthy investigation had been launched into an alleged sexual relationship of the CO with another inmate, the CO continued to work in a capacity that allowed him access to that facility's inmate population with little, if any, additional supervision, and the investigation was still ongoing when the CO entered into an unauthorized relationship with the inmate.
The Court found that the uncontroverted record:
"clearly shows that Defendant knew or should have known of [the CO's] propensity to pursue unauthorized relationships with inmates prior to his rape of Claimant . . . .Despite this information, [the CO] was left in a position where he could continue to pursue unauthorized relationships with inmates at [the facility]. Given the information that was uncovered during the investigation into [the CO's] unauthorized relationship with [another inmate], Defendant clearly knew or should have known that [the CO] could possibly pursue another unauthorized relationship". Id. at *7.
Liability was found despite the State's arguments that it was prevented from taking action because of the collective bargaining agreement (CBA) and State law, as asserted in the State's opposing affidavit from the Deputy Director of Labor Relations from the Department of Correctional Services (DOCS) (now known as the Department of Corrections and Community Supervision).
The Court rejected the State's argument that it could not suspend or place the CO on administrative leave without reasonable suspicion or reasonable cause that his continued job presence was a potential danger to persons or would severely interfere with operations.
The Court found the argument: "ignores completely Claimant's contention that [the CO] could have or should have been moved to a different area within the facility, where he would have had little or no access to the inmates as he did throughout the investigation and up to the occasions when he raped Claimant, or at least placed under more stringent supervision if he were to remain at his regular post." Id. The Court further noted that the State "fail[ed] to even contemplate the possibility of some action short of suspension or administrative leave as a temporary remedy to remove an employee from an area while an investigation occurs". Id. "In sum, Defendant had notice of [the CO's] propensity to pursue unauthorized relationships with inmates and yet left him in the position to continue to pursue the same, which was the proximate cause of the later rape of Claimant by [the CO]." Id. at *8.
In Morris v State of New York, 34 Misc 3d 1243 (A), 2012 NY Slip Op 50516 (U) (Ct Cl, Marin, J.), the Court similarly rejected the State's argument that the CBA prevented the facility's administration from acting. There, the CO, assigned to Bayview, had a history of allegations of sexually aggressive behavior against Bayview inmates. While the allegations were found to be unsubstantiated, the investigator testified at her deposition that only that CO and two or three other officers at Bayview had multiple allegations of sexual misconduct lodged against them.
The Court rejected defendant's argument that summary judgment was not appropriate because the prior allegations against the CO were unsubstantiated.
The investigator asserted that DOCS could not just discipline a CO based on an allegation and the CO had collective bargaining rights, and thus the State could not take any corrective action until the employee was found guilty of employee misconduct. She further testified that less severe types of discipline could not be imposed in response to a sexual misconduct allegation, such as a change in the CO's general duties, because of the CO's collective bargaining rights.
The Court noted that while the State "took the position that the collective bargaining agreement blocked [the] removal of [the CO] from proximity to female inmates . . . [the] arguments were general; they offered no specifics." Id. at *4. Nor did defendant advance
"an argument that moving one officer, while granted this is a smaller facility, would affect operations and therefore affect the security of the prison and the safety of officers and inmates. No effort was made to develop some form of workable resolution". Id.
In Morris, id., the Court reviewed at depth and quoted the collective bargaining agreement that ran from April 1, 1999 to March 31, 2003 (Agreement) (and the prior one that ran from 1995 to 1999). The Court noted that: i) "Article 6 affirms DOCS' operational authority for the management of their facilities: Except as expressly limited by other provisions of this Agreement, all of the authority, rights and responsibilities possessed by the Employer are retained by it ' "; ii) Article 8 is entitled discipline, and Section 2 describes that the disciplinary process is triggered by a written reprimand, loss of leave credits or other privilege, fine, suspension without pay, reduction in grade or dismissal from service; iii) Article 8, section 7, provides that: " Shift, pass day, job transfer or other reassignment or assignments to another institution or work station shall not be made for the purpose of imposing discipline. ' " .
The Court continued and noted that: i) Article 8, Section 4 (a)(1) "gives DOCS the authority to suspend an employee when it determines that there is probable cause that such employee's continued presence on the job represents a potential danger to persons or property or would severely interfere with its operations' "; and ii) Sections 2 and 3 of Article 24 provide that employees select pass days based on seniority, and "[t]he Employer shall have the right to make any job or shift assignment necessary to maintain the services of the department or agency involved. However, job assignments and shift selections shall be made in accordance with seniority provided the employee has the ability to properly perform the work involved.' "
While the Court noted that it was not " sitting as an arbitrator deciding whether some act or omission violated the collective bargaining agreement" (Id. at *5), it found:
[The CO] - - surely no later than February of 1999 when the last pre-[claimant] allegation was interposed - - should have been removed from proximity to female inmates. If that meant transferring him to a facility housing men, that should have been done. More to the point, defendant makes no argument that [the CO] could not have been so assigned. Other than the general views noted above, there has been no showing that such transfer was even attempted, that any determination as to the transfer's compliance with the labor agreement was made, and if it was determined not to be compliant, what the operational and/or financial exposure might have been." Id. at *5.
In Perez v State of New York, 33 Misc 3d 667, the Court held that for liability to be imposed upon the State for the rapes of the inmate claimant by a CO at Bayview, it was not required that claimant show that the defendant possessed specific knowledge. "Rather, if it can be shown that defendant reasonably should have known of the relationship, liability will obtain". Id. at 673. "It is not required that Defendant have notice of the propensity of the employee to behave in the exact manner in which he behaved with Claimant but, rather, it is sufficient that the defendant had notice of the employee's propensity to engage in the sort of behavior' " (citations omitted). Anna O., 34 Misc 3d 1206 (A), at *7.
The Application for Sanctions and Preclusion
As a result of claimant's request for sanctions and preclusion because the State failed to produce the union agreement prior to the bringing of this motion, despite claimant's numerous demands, correspondence, the parties' stipulations and this Court's Orders, both sides were advised that the Court would entertain an oral application, to be heard on the record, on July 29, 2014. The Court has considered the entire record.
A summary of certain events leading up to the Court's hearing of the sanction request and the arguments raised on the record follows.
In 2012, claimant requested production of documents, including the union contract, and continued to so request in light of the State's failure to produce this material document. The State failed to produce the union contract prior to or at the November 2013 deposition of the investigator. By letter dated December 30, 2013, claimant advised defendant of the insufficiency of its responses and production of documents and requested that defendant supplement its responses or claimant would bring a motion to compel and preclude.
As of February 27, 2014, the State had not yet produced the union contract (and the other demanded documents). At the conference held on February 27, 2014, and as set forth in the So-Ordered stipulation, the State was to produce the documents within seven days, by overnight delivery. As previously noted, the February 27th Order also provided that claimant's summary judgment motion was to be noticed for July 30, and the liability trial was scheduled for November 12 and 13, 2014.The State did not comply with the Order.
By letter dated March 26, 2014, claimant wrote the Assistant Attorney General (AAG) that the State's outstanding discovery had not been received, contrary to the February 27th Order.At the 11:00 a.m. scheduled telephone conference of June 18, 2014, claimant's counsel stated that he had not received the ordered documents. In response, the AAG asserted that she had e-mailed certain of the documents on May 9th. The AAG was advised that no such e-mail was received, and, when the AAG, during the conference, stated that she just resent the May e-mail, claimant's counsel advised that no e-mail was received.
Chambers directed the State to send the documents by overnight delivery within seven days.
The State did not do so.
By letter dated July 1, 2014 and faxed to both the Court and the AAG, claimant advised that the State did not produce the documents. Additionally, claimant's counsel advised that a diligent search of counsel's computer files was conducted and no e-mails from defendant were located. Chambers called the AAG and directed that the documents were to be produced to
claimant by overnight delivery or the Court will consider sanctions.
By letter dated July 3, 2014 and faxed to the Court and the AAG, claimant's counsel advised that on July 3rd counsel received the State's July 2nd Supplemental Responses to Claimant's Demand for Production of Documents and Combined Demands. The affirmation accompanying the documents had a July 2nd date.
The union contract was not produced.
Claimant's counsel stated in his July 3rd letter that:
"With regard to the sum and substance of the documents produced, and since November 12, 2012, [the defendant] failed and refuses to produce requested documents that are material and relevant to this action, including, e.g., Correction Officer Ford's employee manual, and the union contract which [defendant] purports to claim as a defense. Documents such as this were specifically discussed by the parties during the telephone conference with the Court and yet, despite two (2) courtesy extensions of time, said documents were not produced.
[Defendant] continues to be in violation of the Court's Stipulations and Orders."
By letter dated July 14, faxed to the Court and the AAG, claimant's counsel advised the Court that on July 11, 2014 (a Friday), he received, via Federal Express, a July 10th Supplemental Response to Claimant's Demand, with the union contract and CO Ford's employee manual. Counsel writes that "to timely comply with the Court's Scheduling Order, Claimant served her motion for summary judgment on July 8, 2014", and that it is claimant's "position that [defendant] repeatedly failed to comply with this Court's Scheduling Orders and is, therefore, precluded from relying on the[se] documents".
On July 29, 2014, on the record, the Court heard from both sides. Claimant's counsel reviewed the long history of the State's repeated failures to comply with claimant's discovery demands, the conferences, the Stipulations and the Court's Orders. Claimant's counsel stated that he conducted a diligent search of his computer and no record was found that e-mails and the documents were sent to him in May or June, and the union contract was not provided until after he served the summary judgment motion in compliance with the Court's Order.Counsel identified and articulated the prejudice resulting to claimant, particularly because the State relied upon the unproduced union contract as a principal defense and he was forced in his summary judgment to rely upon the union agreement as set forth in prior Court of Claims' decisions, including Morris [34 Misc 3d 1243 (A)].
The State asserts that it complied with its discovery obligations and this Court's Orders as evidenced by its two one-page e-mails. One e-mail is dated May 9 and one e-mail is dated June 18, at 11:02 a.m. and "re-sent" the May 9 e-mail. The State argues that these two pages demonstrate that it complied with its discovery obligations and the Court orders, and that it did not intend to refuse to comply or to wilfully disregard the Court's Orders.
The May 9th e-mail stated: "I've attached documents responsive to your requests. I will send the completed responses out with further documentation when I get back to the office. I will be out of the office until May 20th." The State did not address why the purported production occurred more than two months after the Court ordered the production and in a manner other than ordered, and why only certain documents were being produced. The e-mail dated June 18th purports to re-send the May 9th e-mail. On the record, the State did not address, however, why it was relying on this second e-mail despite the AAG having been advised during the June 18th conference that this second e-mail similarly was not received and although it was for this reason that she was specifically directed to send the documents by overnight mail.
Both of these pages reference nine attachments in pdf format. The attachments are not otherwise identified and the State did not provide copies to the Court. The State also did not provide the Court with any computer record or other document that reflected that the e-mail(s) and documents were actually transmitted and received.
In addition to the AAG's argument that the one-page e-mails evidence her compliance, she asserts that since June 18th she was prevented from complying because she was very busy and was rushing to get things done as a result of three upcoming trials. She also alludes to an unspecified personal issue.
The AAG did not address, much less offer a reasonable explanation, for why she failed to produce the union contract during the period from its initial and repeated demands until February 2014, why she failed to comply with the February 2014 Order to produce the documents by overnight delivery within seven days, why she failed to produce any documents until the purported May 2014 e-mail, which, in any event, attached only certain unspecified documents, and why, if she indeed had these documents on June 18th, she could not simply have placed them in an envelope and produced them by overnight delivery. Nor did she offer any support for her position that being busy serves to shield and immune an attorney from the consequences of their prior and ongoing failure to comply with their discovery obligations and Court Orders.
Additionally, the AAG places the responsibility for the State's failure to comply with its discovery obligations and this Court's Orders and directives on claimant's counsel. She argues that he failed to sufficiently advise her of her failure to comply and her failure to produce the ordered documents. She insists that the she did not know that the union contract was not included in the July 2nd production, that she "mistakenly believed that they [the union contract and CO Ford's employee manual] were contained" in the production, and that "there's been nothing purposeful on [her] part to hinder any discovery here" and "no intention on [her] part to fail to comply with" the Orders.
While much can be said about the State's intolerable failure to comply with its discovery obligations and this Court's Orders, suffice to say that the Court finds its explanations and excuses woefully lacking in so many respects. The Court grants claimant's application. While stronger sanctions were considered, the Court, in the exercise of its discretion, imposes the sanction requested by claimant. The State is precluded from offering or relying upon the 2009-2016 union contract, and may not offer or rely upon any details or another version of the union contract other than that as testified to by the investigator and as addressed in the 2011 and 2012 decisions and decisions and orders of the Court of Claims.
Claimant's Summary Judgment Motion on Liability is Granted
Here, claimant met her prima facie burden and demonstrated by admissible evidence that there are no remaining genuine issues of material fact and that she is entitled to judgment on liability in her favor as a matter of law on her claim for negligent supervision and negligent retention.
The burden then shifted to the State to defeat this showing by admissible evidence. This the State failed to do. Assuming without finding that the State raised any genuine issue, claimant rebutted it.
First, the Court notes claimant's proper objection that the State's opposing papers were untimely. As to the opposing affirmation itself, however, the Court, in the exercise of discretion and noting a lack of prejudice from the attorney's arguments raised therein, will consider it for what it is worth.
Whether to consider the 2009-2016 union contract, attached as Exhibit A to the opposing papers, however, raises different issues. As noted, the Court has precluded this document because of the State's refusal and failure to obey Orders and its willful failure to disclose information which this Court finds should have been disclosed. Moreover, claimant was prejudiced by the State's untimely service of the 159-page document attached as Exhibit A to the opposing papers.
Lastly and critically, the 2009-2016 union contract is not in admissible form.
The opposing papers are not accompanied by an affidavit from someone with personal knowledge as to the document's authenticity and, to the extent such a document could be certified, it is not. The document also is not otherwise part of the record evidence before the Court. For example, the 2009-2016 union contract was not authenticated during the investigator's November 2013 deposition testimony or thereafter. Accordingly, it is inadmissible and cannot be considered.
The State's attempts to stave off summary judgment and a finding of liability are similar to those raised before other courts and found to be insufficient.
The State here does not genuinely dispute the factual record demonstrated by claimant and noted herein, but argues that the record contains a number of factual issues that must be resolved by trial. For example, the State appears to be arguing that it is not established that the State knew or should have known of CO Ford's propensity for sexual misconduct and the danger facing the inmates as a result, because the prior four investigations of CO Ford were found to be unsubstantiated. This assertion fails. Indeed, that the State knew or should have known of CO Ford's propensity to engage in criminal sexual acts with inmates is particularly clear on this record. For example, the investigator testified that it was unusual for there to be four investigations of sexual abuse and rape involving six different inmates regarding the same CO. She also testified that as a result of the fourth investigation, which was still open when claimant was transferred to Bayview, an inmate victim was transferred out of Bayview because the investigator found "strong evidence" and "corroboration" of CO Ford's sexual misconduct. Yet, the State did nothing to safeguard the inmates against this known danger, and left CO Ford largely unsupervised in this all-female facility. CO Ford's criminal acts were conducted in open and plain view, witnessed by multiple inmates, and captured on video surveillance.
The State also asserts that a trial is required because of general issues raised by the union contract (which, as noted, is considered by the Court in the form testified to by the investigator and as addressed in 2011 and 2012 decisions). On this undisputed factual record, however, such an assertion fails. The State similarly fails to show the existence of a material fact by asserting that it did not know and can not be held liable because Ms. Patterson did not then report CO Ford's rapes and sexual abuse. To the extent any of the State's arguments are not addressed specifically herein, they are found similarly to be without merit.
On this undisputed factual record, the State knew or should have known of CO Ford's propensity to commit acts of sexual misconduct. The danger was foreseeable. Yet, the State failed to act reasonably (or at all) under the circumstances, resulting in Ms. Patterson's rapes and sexual assaults by CO Ford.
The Court finds that claimant is entitled to summary judgment on its liability claim against defendant for negligent retention and negligent supervision.
Scheduling of Independent Medical Examination and Damages Trial
In response to counsel's inquiry prior to the making of this motion, counsel were advised by Chambers that, while not pre-determining the motion, in the event the motion is granted, the damages trial may be held on the dates previously scheduled for the liability trial. Counsel also were advised by Chambers that Independent Medical Examination(s) (IME), if any, should be scheduled to take place in September, so that the report(s) will be available in sufficient time prior to trial.
Chambers has advised counsel by telephone of this decision and order and that they will receive a copy in the mail, and that: i) the damages trial shall be held on November 12 and 13, 2014; ii) to the extent the State has not done so, it shall serve upon claimant an IME notice by September 8, 2014; iii) the IME shall be held in New York upon a date to be agreed upon by counsel, but no later than September 25, 2014, and iv) the report shall be exchanged for receipt by claimant's counsel no later than October 10, 2014.For the foregoing reasons, it is
ORDERED that the court file is sealed; and it is further
ORDERED that defendant is precluded from relying upon a collective bargaining agreement other than as described in the investigator's deposition and 2011 and 2012 Court of Claims' Decisions and Orders and Decisions; and it is further
ORDERED that claimant's motion for summary judgment on liability on the claim for negligent supervision and negligent retention is granted; and it is further
ORDERED that if defendant wishes to take an Independent Medical Examination, and has not yet served notice, it shall serve notice on claimant for receipt by September 8, 2014, the IME shall take place in New York on a date agreed upon between counsel but no later than September 25, 2014, and the report shall be exchanged and received by claimant's counsel no later than October 10, 2014; and it is further
ORDERED that the damages trial is scheduled for November 12 and 13, 2014, promptly at 10:00 a.m.Let Interlocutory Judgment be entered.