Summary
In Wilson v State ofNew York (36 A.D.2d 559), a prisoner at Sing Sing alleged a fellow inmate had attacked him and the State had negligently supervised the assailant.
Summary of this case from State v. Monarch ChemsOpinion
January 20, 1971
Appeal from so much of an order of the Court of Claims, entered December 2, 1969, as denied in part claimant's motion requiring the State to appear and produce certain records at an examination before trial. Appellant filed a claim for personal injuries sustained when attacked by a fellow inmate at Sing Sing Prison, alleging that the State was negligent in failing to segregate or supervise properly a prisoner known to have dangerous propensities. Claimant thereafter moved, pursuant to section 17 CTC of the Court of Claims Act and CPLR 3111, for an order for the examination before trial of the State and for the production and use on the examination of: (1) behavior records of the other prisoner at Sing Sing or other places of confinement, his arrest and conviction records and records pertaining to his "social, psychological and psychiatric background"; (2) the report of the attack; and (3) hospital and other records relating to the diagnosis and treatment of claimant's injuries. The Court of Claims refused to compel the production of the documents specified in the first item but ordered the examination and production of the other records, to which the State did not object. Evidence of the attacker's prior behavior and a diagnosis of his mental condition would be material and necessary to the prosecution of this claim (see CPLR 3101, subd. [a]; Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406), since the State's duty is measured by the risks reasonably to be foreseen ( Excelsior Ins. Co. of N.Y. v. State of New York, 296 N.Y. 40, 45; Spadaro v. State of New York, 28 A.D.2d 604). However, CPLR 3101 (subd. [b]) provides that, if a party objects, as the Attorney-General has done here, "privileged matter shall not be obtainable", the term privilege to be accorded the same meaning as under the rules of evidence applicable at the trial (N.Y. Legis. Doc. 1957, No. 6 [b], First Preliminary Report of Advisory Comm. on Practice and Procedure, p. 119; Practice Commentaries by David D. Siegel, McKinney's Cons. Laws of N.Y., Book 7B [1970], CPLR 3101, p. 29). In addition to privileges recognized by statute (e.g. CPLR 4501 4508; see 5 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4501.01), a common-law privilege prevents disclosure of official information where the disclosure is either forbidden by statute (see Fisch, Evidence, § 744) or would prove harmful to the public interest ( Goergen v. State of New York, 6 A.D.2d 974; Richardson, Evidence [9th ed.], § 468). Section 15-a Correct. of the Correction Law authorizes the Commissioner of Correction to make rules as to the privacy of records kept by the Department of Correction or institutions under its control, but such rules cannot prevent disclosure "required by the court or a judge thereof". "In light of the strong policy in favor of full disclosure unless the information sought is immunized, the burden of showing the appropriate immunity should be on the party asserting it" ( Koump v. Smith, 25 N.Y.2d 287, 294) and, here, the State has made no showing that disclosure as to the attacker's criminal record and behavior in confinement prior to the assault would be contrary to the public interest. On the other hand, the State may invoke the privilege afforded by CPLR 4504 to avoid disclosure concerning confidential communications between one of its inmates and staff physicians or psychiatrists, as well as records relating to an inmate's prognosis and the diagnosis of his propensities and condition by prison physicians and psychiatrists ( Boykin v. State of New York, 13 Misc.2d 1037, affd. 7 A.D.2d 819; see, also, CPLR 4507, 4508). Order modified, on the law and the facts, so as to direct the State to produce also for use upon the examination before trial records of the assailant's criminal record and behavior in confinement prior to the alleged assault and, as so modified, affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.