Opinion
# 2014-038-518 Claim No. 121622 Motion No. M-84312
04-30-2014
CLAUDIA ZUCKER AND HAL ZUCKER v. THE STATE OF NEW YORK
GOLDBERG SEGALLA, LLPBy: William J. Greagan, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New YorkBy: Michael C. Rizzo, Assistant Attorney General
Synopsis
Claimants' motion to compel production of personnel documents of State Trooper granted. Claimants demonstrated that material sought were relevant and material to the claim, and not anillegitimate attempt to obtain impeachment materials. Defendant's opposition to disclosure onthe ground that evidence of the Trooper's breach of departmental rules or policies wasinadmissible is not compelling. Inadmissibility of a document at trial does not forecloseclaimants' right to access it in pre-trial discovery. Moreover, determinations by the Trooper'ssupervisors regarding his conduct as related to the accident do not reflect a breach of a higherstandard of care than the "reckless disregard" standard that claimants must prove in this case.
Case information
| UID: | 2014-038-518 |
| Claimant(s): | CLAUDIA ZUCKER AND HAL ZUCKER |
| Claimant short name: | ZUCKER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121622 |
| Motion number(s): | M-84312 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | GOLDBERG SEGALLA, LLPBy: William J. Greagan, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New YorkBy: Michael C. Rizzo, Assistant Attorney General |
| Third-party defendant'sattorney: | |
| Signature date: | April 30, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Claimant Claudia Zucker sustained personal injuries when her car collided with a NewYork State Police vehicle that was being operated by New York State Trooper Michael Collotonwhile in pursuit of another vehicle. The claim alleges that claimant's injuries were a result of the"grossly negligent and reckless conduct" of Trooper Colloton, and the "negligence, grossnegligence and recklessness" of the State of New York (Verified Claim, ¶ 5). Claimants' motionfor a court order directing defendant to produce all records in its possession relating to theinvestigation and discipline of Trooper Colloton which resulted from his involvement in thecollision with claimant resulted in an interlocutory decision and order that directed a hearingpursuant to Civil Rights Law § 50-a (2) (see Zucker v State of New York, UID No. 2014-038-512 [Ct Cl, DeBow, J., March 12, 2014]). Thereafter, and with Trooper Colloton's consent,defendant waived the hearing and submitted for in camera review the documents sought byclaimants (see Rizzo Correspondence, dated March 24, 2014). Defendant maintains itsopposition to disclosure of those documents on the grounds that were originally asserted inresponse to the motion (see id.; Affidavit of Michael C. Rizzo, AAG, sworn to Dec. 9, 2013).
Claimant Hal Zucker is Claudia Zucker's husband, and he asserts a derivative claim. References in thisdecision to "claimant" in the singular refer to Claudia Zucker.
The purpose of the privilege of Civil Rights Law § 50-a, which provides confidentialityfor the personnel records of police officers is to "protect the officers from the use of records -including unsubstantiated and irrelevant complaints of misconduct - as a means for harassmentand reprisals and for purposes of cross-examination by plaintiff's counsel during litigation"(Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept, of Correctional Servs., 73NY2d 26, 31-32 [1988]; see also Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833,834 [3d Dept 2001], lv denied 96 NY2d 710 [2001] [purpose of judicial review for such recordsis "to eliminate fishing expeditions into police officers' personnel files for collateral materials tobe used for impeachment purposes" (internal quotations and citations omitted)]). Nevertheless,the statute provides that after an in camera review, the court shall direct production of those partsof the record that are found to be "relevant and material" (Civil Rights Law § 50-a [3]), that is,when a legitimate need for them has been demonstrated (see Matter of Daily Gazette Co. v Cityof Schenectady, 93 NY2d 145, 155 [1999]).
Defendant does not argue that claimants seek the documents related to the investigationof and disciplinary action against Trooper Colloton for an illegitimate purpose, but it contendsthat the documents are not necessary. Defense counsel argues that it in light of defendant's priorvoluminous disclosure of witness statements, investigatory and accident reconstruction reports,along with photographs and other items, "claimants' request for disciplinary material concerningTrooper Colloton is an unwarranted intrusion into his privacy rights as there [are] amplematerials and information available to litigate this matter without it" (Rizzo Affidavit, ¶ 7). Defendant cites no authority, however, for the proposition that Trooper Colloton's privacy rightsare a factor to be considered under Civil Rights Law § 50-a, or that an order compellingproduction of the documents should follow a determination that any such privacy right outweighsclaimants' need for the documents. Rather, the statutory inquiry is whether the requesteddocuments are "relevant and material" to the action (Civil Rights Law § 50-a [3]).
This claim alleges that Trooper Colloton's actions preceding and causing the collision atissue were grossly negligent and reckless (Verified Claim, ¶ 5). It is undisputed that TrooperColloton was operating a police vehicle and was engaged in a pursuit, and it is further undisputedthat claimants must therefore prove that Trooper Colloton "acted in reckless disregard for thesafety of others . . . requir[ing] evidence that [he] has intentionally done an act of anunreasonable character in disregard of a known or obvious risk that was so great as to make ithighly probable that harm would follow and has done so with conscious indifference to theoutcome" (Saarinen v Kerr, 84 NY2d 494, 501 [1994] [internal quotations and citationsomitted]). Manifestly, claimants' request is not a mere fishing expedition for collateralimpeachment materials, as the documents regarding defendant's investigation into thecircumstances of the accident and any disciplinary action taken against Trooper Colloton appearto the Court to be clearly relevant and material to claimants' case.
Defendant disputes claimants' argument that Trooper Colloton's failure to abide bydepartmental rules is some evidence of negligence (see Claimant's Memorandum of Law, at 4;Rizzo Affidavit, ¶¶ 12-16), but defendant's arguments do not persuade the Court that claimantsshould be denied access to the requested documents. Defendant correctly asserts that evidence ofan agency's internal rules and policies are inadmissible when those rules and policies set forth astandard of care that exceeds the common law negligence standard of care. However, thisanalysis is unpersuasive opposition to this motion, for several reasons.
First, the cases upon which defendant relies address the admissibility of rules andpolicies, not whether they should be produced in discovery (see Rivera v New York City Tr.Auth., 77 NY2d 322, 329 [1991]; Rodriguez v New York City Tr. Auth., 273 AD2d 370, 371 [2dDept 2000]; Conrad v County of Westchester, 259 AD2d 724, 725 [2d Dept 1999]; Ramirez vManhattan & Bronx Surface Tr. Operating Auth., 258 AD2d 326 [1st Dept 1999], lv denied 93NY2d 817 [1999]). Civil Rights Law § 50-a does not constrict the general rule of full disclosurethat is set forth in CPLR 3101, nor does it restrict disclosure to that which would be admissible attrial. Rather, it merely provides for judicial oversight and pre-production review of requests forpolice officers' personnel records to ensure the absence of illegitimate purpose. Thus, the factthat the materials that are sought by claimants may ultimately be found to be inadmissible at trialdoes not mean that claimants should not have access to them.
Second, several of the cases upon which defendant relies address the admissibility of theagencies' rules themselves, not the investigative and disciplinary materials relating to a specificincident or particular police officer such as those that are sought in this case (see Rivera v NewYork City Tr. Auth.; Rodriguez v New York City Tr. Auth.; Conrad v County of Westchester;Ramirez v Manhattan & Bronx Surface Tr. Operating Auth.). Inasmuch as defendant asserts thatit has already produced "sections of the New York State Police Manual concerning emergencyvehicle operation and pursuit driving" (Rizzo Affidavit, ¶ 7), the applicability of these cited casesto this motion is not clear.
Finally, an agency's internal rules and policies, or evidence of violations thereof, aregenerally inadmissible upon the trial of a negligence cause of action because they "impose[] aduty higher than the [defendant] actually owes" (Crosland v New York City Tr. Auth., 68 NY2d165, 168 [1986] [emphasis added]; see Rivera v New York City Tr. Auth.; Conrad v County ofWestchester; Ramirez v Manhattan & Bronx Surface Tr. Operating Auth.). Here, it is undisputedthat the standard of duty that applies to this claim is the high standard of "reckless disregard" thatis set forth in Vehicle and Traffic Law § 1104 (e), as elaborated upon in Saarinen v Kerr. Thedocuments that claimants seek do not cite any specific rule or policy that Trooper Colloton mayhave violated, but reflect determinations by his supervisors regarding Trooper Colloton'soperation of his vehicle with respect to the accident with claimant. Defendant makes no specificargument nor cites any authority in support of its contention that the documents sought byclaimant refer to a higher standard of care than "reckless disregard," and the Court cannotconclude that it does (cf. Powell v City of Mount Vernon, 228 AD2d 572, 574 [2d Dept 1996], lvdenied 89 NY2d 807 [1997] ["officer's alleged violation of police department rules governingchases fails to establish that the officer's conduct was reckless within the meaning of thestandards prescribed by the Court of Appeals in the Saarinen case"]). Thus, because defendanthas not established that the documents at issue hold Trooper Colloton to a higher standard of carethan that which claimants must prove, defendant's argument in this regard does not providepersuasive support for its opposition to disclosure.
Accordingly, it is
ORDERED, that claimants' motion is GRANTED, and it is further
ORDERED, that defendant shall produce to claimants all of the documents that weresubmitted for in camera review under cover letter dated March 24, 2014.
April 30, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Notice of Claim, verified August 3, 2012 and filed August 13, 2012;
(2) Verified Answer, filed September 7, 2012;
(3) Notice of Motion, dated November 26, 2013;
(4) Affidavit of William J. Greagan, Esq, sworn to November 26, 2013, with Exhibits A-G;
(5) Claimants' Memorandum of Law, dated November 25, 2013;
(6) Affidavit in Opposition of Michael C. Rizzo, AAG, sworn to December 9, 2013, with
Exhibit 1;
(7) Reply Affidavit of William J. Greagan, Esq, sworn to December 10, 2013;
(8) Decision and Order, Zucker v State of New York, Claim No. 121622, Motion No. M-84312,
filed March 14, 2014;
(9) Correspondence of Michael C. Rizzo, AAG, dated March 24, 2014, with four attachments
for in camera review.