Opinion
# 2012-015-318 Claim No. 119913 Motion No. M-80721
03-28-2012
VITTI v. THE STATE OF NEW YORK
Synopsis
Correction officers' personnel records were irrelevant and unnecessary to establish claim for assault and battery. Case information
UID: 2012-015-318 Claimant(s): PAUL ANTHONY VITTI Claimant short name: VITTI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption is amended sua sponte to reflect the only name) : properly named defendant. Third-party claimant (s): Third-party defendant (s): Claim number(s): 119913 Motion number(s): M-80721 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Paul Anthony Vitti, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Jessica Hall, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 28, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, a pro se inmate, moves for an Order compelling discovery.
Claimant seeks to recover damages for an assault and battery allegedly committed by four correction officers on April 8, 2011. Claimant's motion to compel is, for the most part, premature. A motion to compel discovery is appropriate only after a party fails to timely comply with a duly served demand. CPLR 3124 states: "If a person fails to respond to or comply with any request, notice, interrogatory, demand . . ., the party seeking disclosure may move to compel compliance or a response." Claimant has failed to establish that any such demand has been served on the defendant or that the defendant has failed to comply. Instead, it appears that claimant is attempting to use the instant motion as a means of initiating discovery. With the exception of personnel records, for which a motion is necessary, claimant must serve appropriate discovery demands before resorting to motion practice.
Absent a legitimate need for a correction officer's personnel records, disclosure is prohibited. In this regard, Civil Rights Law § 50-a states, in pertinent part, the following:
"1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, . . . except as may be mandated by lawful court order.
2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.
3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting."
"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 [2001], quoting Taran v State of New York, 140 AD2d 429, 432 [1988]; 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]). Only after this threshold showing has been made, is an in camera review of the records warranted (McFarlane v County of Suffolk, 79 AD3d 706 [2010]; Ohnmacht v State of New York, 23 Misc 3d 1134 [A] [2009]). No such showing has been made here. Indeed, the only theory of liability alleged in the claim is one for assault and battery. Inasmuch as defendant's knowledge of a correction officer's violent propensities is unnecessary to establish a claim for assault and battery, the correction officers personnel files are irrelevant (cf. Pickering v State of New York, 30 AD3d 393 [2006]).
Accordingly, claimant's motion is denied.
March 28, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated November 24, 2011 with exhibits;
2. Affirmation of Jessica Hall dated December 21, 2011 with exhibits.