Opinion
# 2011-040-050 Claim No. 117377 Motion No. M-80127
09-14-2011
GRECO v. STATE OF NEW YORK
Synopsis
Claimant's motion directing defendant to provide DOCCS' Inspector General file regarding decedent's death for in-camera review granted. Case information
UID: 2011-040-050 Claimant(s): JARED S. GRECO, Individually and as Administrator of the Estate of EUGENE S. GRECO, deceased Claimant short name: GRECO Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 117377 Motion number(s): M-80127 Cross-motion number (s): Judge: CHRISTOPHER J. McCARTHY LAW OFFICE OF JAMES COSTO Claimant's attorney: By: James Costo, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas M. Trace, Esq., Senior Attorney Third-party defendant's attorney: Signature date: September 14, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Claimant's motion to: (1) strike Defendant's Answer for failure to produce disclosure responsive to Claimant's first set of discovery demands is denied; (2) preclude Defendant from offering evidence at trial is denied; and (3) compel Defendant to produce the discovery demanded by Claimant is granted to the extent of directing Defendant to provide the complete contents of the Department of Corrections and Community Supervision ("DOCCS") Inspector General's file regarding the subject decedent's death for an in-camera review.
The Claim alleges that, on September 11, 2007, Eugene S. Greco was found dead in his cell at Mid-State Correctional Facility ("Mid-State") with his face severely beaten, bruised and distorted, and with "clean cuts bilaterally to both arms and both sides of his neck" (Claim, ¶ 2). It is further alleged that, in August 2007, decedent was reprimanded, punished and threatened by several correction officers including Correction Officer Holiday; that decedent sent letters to officials at Mid-State, including Captain Labriola, requesting a transfer and to be removed from protective custody; that he also sent letters to family members expressing concern for his safety.
The Claim asserts causes of action for wrongful death and conscious pain and suffering based upon the intentional conduct and/or negligence of the correction officers and the improper training of the officers. The Claim also asserts that decedent's civil rights were violated.
On or about March 25, 2010, Claimant served Defendant with a Notice for Discovery, Inspection and Production "seeking, inter alia, any statements by Claimant; Statements made by the Decedent, Eugene S. Greco; photographs depicting the deceased, the cell in which he was found dead and the object purportedly involved in his death; medical records of the deceased in the possession of the State of New York; and any incident reports prepared in the regular course of business by the State of New York, its servants, agents and employees" (Affirmation of James Costo, Esq., in Support of Motion, ¶ 7 and Ex. D attached). The Notice contained 18 numbered paragraphs.
On or about April 14, 2010, Defendant served its Objection to Disclosure upon Claimant (see Ex. E attached to Mr. Costo's Affirmation).
The State objects to the demands contained in paragraphs 1, 2, 3, 4, 5, 6, 7 and 16 on the basis that the information is contained in the DOCCS' Inspector General's Report which was prepared following the Inspector General's investigation of decedent's death.
Generally, the scope of discovery is broad and CPLR 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." It is to be liberally construed, subject to a showing of materiality and necessity, and in the absence of a privilege that militates against disclosure (Hoenig v Westphal, 52 NY2d 605, 608 [1981]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Wong v State of New York, 19 Misc 3d 1122[A] [Ct Cl 2008]).
"It has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure" (Lowrance v State of New York, 185 AD2d 268, 268 [2d Dept 1992]; see Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]). "The hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality" (Cirale v 80 Pine St. Corp., 35 NY2d 113, supra at 117). The privilege is a qualified one, applicable depending on whether "the State's interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file" [citations omitted] (Lowrance v State of New York, 185 AD2d 268, supra at 269).
The Court finds that Claimant has established a sufficient basis to justify a review, in camera, of the Inspector General's report regarding the subject incident to determine if there is evidence that is material and relevant to the causes of action asserted herein.
The State objects to the demands contained in paragraphs 8, 9, 10, 11 and 12 on the basis that the information is confidential pursuant to Civil Rights Law § 50-a. In those demands, Claimant is seeking performance evaluation reports, disciplinary history reports, internal affairs history reports, internal disciplinary history reports and central monitoring reports for three named individuals. The statute provides that personnel records used to evaluate the performance of a correction officer is considered confidential and is not subject to inspection or review without the express written consent of the officer, unless mandated by Court order after review of the request and having given all interested parties an opportunity to be heard (Civil Rights Law § 50-a[1], [2]). As Claimant has failed to establish that he has complied with Civil Rights Law § 50-a, the request to compel responses to paragraphs 8, 9, 10, 11 and 12 is denied.
The State objects to the demands contained in paragraphs 13, 14, 15, 17 and 18 seeking Correctional Facility Policy, Procedures and Training Materials as overbroad, irrelevant, available from the correctional facility law library, and not within the exclusive possession and control of Defense counsel. The Court finds that response to be reasonable, and the request to compel responses to paragraphs 13, 14, 15, 17 and 18 is denied.
It is ORDERED that Defendant is to provide the Court, for purposes of an in-camera inspection, two copies of the DOCCS Inspector General's file regarding the subject incident within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. One copy shall be unredacted and the other shall be marked with proposed redactions that Defendant believes will protect any security interests or confidential information. Defendant is directed to sequentially number the pages of the records submitted. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimant.
September 14, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion:
Papers Numbered:
Notice of Motion, Affirmation in Support
& Exhibits Attached 1
Defendant's Opposition to Motion
& Exhibits Attached 2
Filed Papers: Claim, Answer