Opinion
# 2017-032-019 Claim No. 126555 Motion No. M-90289
04-25-2017
LORELL PURDIE v. THE STATE OF NEW YORK
Gary E. Divis, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: G. Lawrence Dillon, Assistant Attorney General, Of Counsel
Synopsis
Defendant's pre-trial motion in limine to admit certain documents is granted.
Case information
| UID: | 2017-032-019 |
| Claimant(s): | LORELL PURDIE |
| Claimant short name: | PURDIE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126555 |
| Motion number(s): | M-90289 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Gary E. Divis, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: G. Lawrence Dillon, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | April 25, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim seeks monetary damages arising from an August 9, 2014 incident at Ogdensburg Correctional Facility, wherein a correction officer allegedly pushed claimant, causing him to slip on the wet floor of the mess hall and injure his knee. Prior to trial, defendant moves for the admission of 10 documents pursuant to the business records exception to the hearsay rule (see CPLR 4518).
The Court notes that the parties stipulated to the admission of three documents, including the Inmate Misbehavior Report dated August 9, 2014, the Inmate Injury Report dated August 9, 2014, and the deposition transcript of Correction Officer Rowledge (Exhibits A, B, N).
CPLR 4518 provides, as relevant here, that "[a]ll records, writings and other things referred to in [CPLR] 2306 and 2307 are admissible in evidence . . . and are prima facie evidence of the facts contained, provided they bear a certification or authentication by . . . an employee delegated for that purpose" (CPLR 4518 [c]). The documents for which defendant seeks admission pursuant to this rule include the transcript of a Tier II disciplinary hearing dated August 14, 2014, decisions rendered by the Superintendent and Central Office Review regarding the grievance that claimant filed, and various memoranda between employees of the Department of Corrections and Community Supervision (DOCCS) concerning the alleged incident (Exhibits C-M). The documents are accompanied by a statement of certification executed by Mary Anne Murray, the Inmate Records Coordinator at DOCCS, who attests that they are complete, true, and exact copies of the records, and that said records were made in the regular course of business of DOCCS (see CPLR 4518 [a]). Accordingly, the Court finds that defendant has satisfied the element of trustworthiness on which the business record exception to the hearsay rule is based and admits said documents into evidence (see People v Hayes, 98 AD2d 824, 825 [3d Dept 1983]). To the extent that any of the records contain conclusory statements to which the entrant would not be allowed to testify if he or she were called upon as a witness at trial, the Court will not consider such statements (see Stevens v Kirby, 86 AD2d 391, 396 [4th Dept 1982]).
Specifically, the Court will not consider the opinions asserted in the memorandum from Sergeant LaBrake to Lieutenant Rogers dated 8/16/14 and in the memorandum from Lieutenant Rogers to Captain Baker dated 8/18/14 (Exhibits I, K).
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion (M-90289) is granted in its entirety.
April 25, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Letter from Gary E. Divis, Esq., to the Court, dated April 18, 2017. 2. Notice of Motion in Limine, dated April 20, 2017; Affirmation in Support of Motion in Limine, affirmed by G. Lawrence Dillon, AAG, on April 20, 2017, with exhibits. 3. Letter in Reply to Defendant's Motion in Limine, signed by Gary E. Divis, Esq., on April 21, 2017. 4. Reply Affirmation, affirmed by G. Lawrence Dillon, AAG, on April 24, 2017.