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Williams v. State

New York State Court of Claims
Dec 16, 2015
# 2015-041-076 (N.Y. Ct. Cl. Dec. 16, 2015)

Opinion

# 2015-041-076 Claim No. 122187 Motion No. M-86234

12-16-2015

SHIKEMA WILLIAMS, as Administratrix of the Estate of FREDERICK VELEZ v. THE STATE OF NEW YORK

JEFFREY A. ROTHMAN ESQ. BENNO & ASSOCIATES PC By: Ameer Benno, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: G. Lawrence Dillon, Esq. Assistant Attorney General


Synopsis

Claimant's motion to compel production of, inter alia, allegedly privileged/confidential materials involving a claim alleging that correction employees caused or contributed to death of inmate stabbed by fellow inmate is granted in part and denied in part, after in camera review of contested records and items.

Case information

UID:

2015-041-076

Claimant(s):

SHIKEMA WILLIAMS, as Administratrix of the Estate of FREDERICK VELEZ

Claimant short name:

WILLIAMS

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

122187

Motion number(s):

M-86234

Cross-motion number(s):

Judge:

FRANK P. MILANO

Claimant's attorney:

JEFFREY A. ROTHMAN ESQ. BENNO & ASSOCIATES PC By: Ameer Benno, Esq.

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: G. Lawrence Dillon, Esq. Assistant Attorney General

Third-party defendant's attorney:

Signature date:

December 16, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision

Claimant moves pursuant to CPLR 3124 for an order compelling production of certain documents and items which were not disclosed pursuant to claimant's notice for discovery and inspection. Alternatively, claimant requests that defendant's answer be stricken pursuant to CPLR 3126. Defendant opposes the claimant's motion.

The claimant was granted permission to file a late claim by a Decision and Order, filed November 7, 2012 (Williams v State of New York, UID No. 2012-048-065, Motion No. M-81432 [Ct Cl, Bruening, J., Sept. 26, 2012]), in which the Court described the incident underlying the claim as follows:

"Frederick Velez, who was an inmate at Oneida Correctional Facility, died on April 25, 2009, two hours after having been stabbed with a shank and beaten by a fellow inmate, Jose Rodriguez, after the two argued during a game of checkers. [The claim is] predicated on Defendant's alleged negligence in failing to protect Mr. Velez and in the hiring, screening, training, retention and supervision of its employees."

Significant for purposes of this motion, the Williams late claim Decision and Order granted claimant permission to, specifically:

"[F]ile a Claim pursuant to Court of Claims Act § 10 (6) only to the extent that the Proposed Claim alleges a cause of action by Shikema Williams, as Administratrix of the Estate of Frederick Velez, for damages for Mr. Velez's conscious pain and suffering based on Defendant's alleged negligence in failing to protect Frederick Velez."

Initially, defendant is directed to provide to claimant disclosure of all of those items and documents to which defendant has raised no specific objection in opposition to claimant's motion to compel. Such disclosure, includes, but is not limited to, the New York State Police Investigation file referenced in defendant's opposition papers at paragraphs 6-7.

With respect to the balance of the disputed items and documents, the Court's inquiry is guided by the principle that it has "broad discretion in managing disclosure, and absent an abuse of discretion or unreasonable interference with the disclosure of relevant and necessary material," that discretion will not be disturbed (Czarnecki v Welch, 23 AD3d 914, 915 [3d Dept 2005]).

It is equally clear that "[w]hile disclosure provisions are to be liberally construed, the trial court is vested with broad discretion to supervise discovery and determine what is 'material and necessary' under CPLR 3101 (a)" (Mora v RGB, Inc., 17 AD3d 849, 851 [3d Dept 2005]). The standard of materiality is "one of usefulness and reason," with the goal of "sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).

A party's failure to object to discovery demands within 20 days of service of the request (see CPLR 3122 [a]) precludes inquiry into the propriety of the information sought except with regard to information privileged under CPLR 3101 or demands which are palpably improper (Jefferson v State of New York, 60 AD3d 1215 [3d Dept 2009]). A discovery demand is palpably improper if it seeks information that is "irrelevant, overbroad and burdensome" (Alford v Progressive Equity Funding Corp., 144 AD2d 756, 757 [3d Dept 1988]).

The Court further recognizes that medical review and medical quality assurance records may be exempted from disclosure by Education Law 6527. In Katherine F. v. State of New York (94 NY2d 200, 204-205 [1999], the court explained that:

"The language of the statute is unequivocal. Education Law § 6527 (3) exempts three categories of documents from disclosure: records relating to medical review and quality assurance functions; records reflecting 'participation in a medical and dental malpractice prevention program;' and reports required by the Department of Health pursuant to Public Health Law § 2805-l, including incident reports prepared pursuant to Mental Hygiene Law § 29.29. Incident reports are defined as 'reports of accidents and injuries affecting patient health and welfare' (Mental Hygiene Law § 29.29). Included in such reports are any allegations of 'violent behavior exhibited by either patients or employees' (Mental Hygiene Law § 29.29 [1] [ii])."

The public interest privilege against disclosure must also be considered. The public interest privilege is explained in Lowrance v State of New York (185 AD2d 268, 269 [2d Dept 1992]), which involved an inmate's demand for disclosure of an Investigator General file compiled during the investigation of the inmate's grievance against a correction officer:

"It has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure (see, Cirale v 80 Pine St. Corp., 35 NY2d 113; One Beekman Place v City of New York, 169 AD2d 492, 493). The Court of Appeals has observed that '[t]he 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., supra, at 117-118). Under the circumstances presented, 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 (Cirale v 80 Pine St. Corp., supra, at 117)."

As stated above in Lowrance, the public interest privilege asserted by defendant ("maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context") must be weighed against the claimant's right to disclosure of information relevant and material to the claim (see CPLR 3101; Marten v Eden Park Health Servs., 250 AD2d 44, 46 [3d Dept 1998]).

It is axiomatic that determination of a disclosure dispute must focus on the relevant elements of the asserted causes of action and defenses. Here, the sole cause of action is based upon defendant's alleged negligence in failing to adequately protect claimant's decedent Frederick Velez (Velez), and the Court must be cognizant of the law relevant to claims involving a correction facility's liability for an inmate-on-inmate assault.

"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).

In determining if the State exercised reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an "'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).

The State's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State reasonably should have known--for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]).

The fact that a correction officer is not present at the exact time and place of an assault does not rise to an inference of negligence absent a showing that facility officials had notice of a foreseeable dangerous situation (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]; Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 [1990]).

A correctional facility superintendent has discretion to "provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities" (see Correction Law § 137[2] and § 18[2]; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756 [1999]). In general, courts should defer to prison authorities in matters of internal prison security (Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).

Within this context, the Court will first consider the request for disclosure as it relates to defendant's "Packet 1" and "Packet 2" submitted for in camera review. After carefully reviewing the relevance, materiality and purported confidentiality of the contents of "Packet 1" and "Packet 2," the Court directs that defendant provide the contents of the two packets to claimant with the exception of the following items, which are either irrelevant/immaterial, palpably improper or confidential/privileged: Medical records concerning inmate Jose Rodriguez; April 27, 2009 Jose Rodriguez disciplinary hearing memorandum from Hearing Officer Drown to Superintendent Connell; April 28, 2009 memorandum from Peter J. Naughton to John W. Badger and Susan A. Connell; April 27, 2009 memorandum from Linda M. Foglia to Susan A. Connell; QI Committee Review Unexpected Death Memorandum dated April 29, 2009; and the Inmate Liaison Committee Meeting Memorandum dated April 27, 2009.

The Court will next consider claimant's request for disclosure of the personnel and disciplinary records of certain named correction officers.

Defendant argues that such disclosure would violate the protections afforded by Civil Rights Law § 50-a, which provides, at relevant part:

"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."

"The legislative purpose [behind the statute] was to prevent disclosure of officers' personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155 [1999]). The party seeking the protected records has the initial burden of making a good faith showing of a "factual predicate" justifying the intrusion into the personnel records (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], quoting People v Gissendanner, 48 NY2d 543, 550 [1979]).

Claimant has not provided notice of his application to the individuals whose confidential personnel and disciplinary records are sought. Even had claimant provided notice to the named individuals, the Court, after careful review and consideration of the allegations and assertions of the claim and claimant's motion papers, finds that there is no factual predicate set forth in the record to demonstrate that disclosure of the confidential "personnel folder[s]" and disciplinary records of defendant's employees would lead to evidence relevant to resolving the salient issue in this litigation: Whether defendant failed to exercise reasonable care to adequately protect Velez from a foreseeable risk of an assault by his fellow inmate.

That portion of the claimant's motion demanding disclosure of personnel and disciplinary records of named employees of defendant is denied with leave to renew upon proper service of the application on the identified employees and a showing of a factual predicate for disclosure of the named employee's personnel and disciplinary file. In seeking such renewal, claimant is directed to give notice of her application to each named employee of defendant by regular mail at the employee's work address, or, if no longer employed, at his or her last known address, as provided by defendant.

Similarly, claimant offers no proof that inmate Rodriguez was put on notice of claimant's motion to compel production of Rodriguez's inmate medical records. Scott v Smith (90 AD3d 1431, 1432 [3d Dept 2011], lv denied 19 NY3d 803 [2012]), reminds that "[p]rison inmates have the right to have the privacy of their medical information maintained to the extent consistent with the provision of adequate medical care and the safety and good order of the facility (see 9 NYCRR 7651.26[a][7][8]).

Claimant's demand for medical records maintained by defendant with respect to inmate Rodriguez is denied with leave to renew upon proof that inmate Rodriguez has been served with a copy of the renewal motion by regular mail at the inmate's facility address, as provided by defendant.

Claimant further requested the inmate disciplinary records of inmate Jose Rodriguez. The Court finds that these records are clearly relevant to the issues in the claim and defendant is directed to provide claimant with inmate Rodriguez's inmate disciplinary records.

The Court finds that the Public Officers Law 66-a fee of $25.00 per photograph cited by defendant is not applicable to claimant's demand for disclosure here. That provision relates to the inspection by interested persons of state and municipal police accident reports.

Two categories of photographs were sought by claimant. The 206 photographs taken by the New York State Police are contained on two compact discs referenced in the motion papers. Duplicates of the two compact discs are to be provided by defendant to claimant without charge.

As to the 55 photographs attached to claimant's opposition papers (only 52 photographs are actually attached, as pages 27, 30 and 44 are missing), the Court directs that defendant provide the missing photographs to claimant, along with a statement identifying the agency or investigative unit which took the photographs.

Defendant is directed to comply with the terms and directions set forth herein within 45 days of the filing of this Decision and Order.

The materials reviewed in camera by the Court are returned to defendant's attorney, under separate cover, for disclosure as directed in this Decision and Order.

In view of the foregoing, claimant's time to complete discovery and to file a note of issue/certificate of readiness is extended to June 30, 2016.

December 16, 2015

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion, filed January 14, 2015; 2. Affirmation of Ameer Benno, dated January 14, 2015, with annexed exhibits; 3. Affirmation in opposition of G. Lawrence Dillon, dated April 29, 2015, and annexed exhibits; 4. Reply Affirmation of Ameer Benno, dated June 12, 2015; 5. Packets 1 & 2 submitted for in camera review; 6. Claim, filed December 28, 2012.


Summaries of

Williams v. State

New York State Court of Claims
Dec 16, 2015
# 2015-041-076 (N.Y. Ct. Cl. Dec. 16, 2015)
Case details for

Williams v. State

Case Details

Full title:SHIKEMA WILLIAMS, as Administratrix of the Estate of FREDERICK VELEZ v…

Court:New York State Court of Claims

Date published: Dec 16, 2015

Citations

# 2015-041-076 (N.Y. Ct. Cl. Dec. 16, 2015)