Opinion
# 2016-009-007 Claim No. 119431 Motion No. M-85159
03-15-2016
A. H., Individually and as Parent and Natural Guardian of J. C., an Infant v. THE STATE OF NEW YORK
EMERY, CELLI, BRINCKERHOFF & ABADY, LLP BY: Ilann M. Maazel, Esq., Alison Frick, Esq., and Andrew G. Celli, Jr., Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: G. Lawrence Dillon, Esq., and Joseph F. Romani, Esq., Assistant Attorneys General, Of Counsel.
Synopsis
Claimant's motion to compel the defendant to produce certain records was granted, based upon the Court's finding that defendant failed to establish a prima facie entitlement to any exemption.
Case information
| UID: | 2016-009-007 |
| Claimant(s): | A. H., Individually and as Parent and Natural Guardian of J. C., an Infant |
| Claimant short name: | A. H. |
| Footnote (claimant name) : | Because this claim involves a victim of sexual abuse, the caption has been amended to provide claimants with fictitious names to protect their identity. The Chief Clerk is directed to seal the file pursuant to Civil Rights Law 50-B. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119431 |
| Motion number(s): | M-85159 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | EMERY, CELLI, BRINCKERHOFF & ABADY, LLP BY: Ilann M. Maazel, Esq., Alison Frick, Esq., and Andrew G. Celli, Jr., Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: G. Lawrence Dillon, Esq., and Joseph F. Romani, Esq., Assistant Attorneys General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | March 15, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant has brought this motion seeking an order compelling the defendant to produce all documents responsive to claimant's document demands.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Memorandum of Law in Support; Affirmation of Alison Frick, Esq., with Exhibits 1-3
Defendant's Response 4
Reply Memorandum of Law 5
Correspondence from Claimants' Attorneys, dated May 14, 2015, with Exhibits 6
Correspondence from Defendant's Attorney, dated May 19, 2015 7
Correspondence from Claimants' Attorneys, dated May 21, 2015 8
This claim has been brought by A. H., Individually and as Parent and Natural Guardian of J. C., her son. The claim seeks damages against the State based upon allegations of negligent supervision and training of its staff at the New Hartford Individual Residential Alternative (IRA), a residential facility for disabled children owned and operated by the State, and further allegations of negligent failure to care for and protect J. C., at the time a resident at the New Hartford IRA. There is no dispute that J. C., a severely disabled child previously diagnosed with autism and mental retardation, was repeatedly raped and abused by one Stephen DeProspero, an employee of the State employed at the New Hartford IRA.
Since this claim was instituted, the Court has held numerous conferences with counsel for the parties in attempts to resolve discovery disputes, both prior to and after the instant motion was filed. Based upon these conferences, and as evidenced by the motion papers and the supplemental correspondence received from counsel, it appears to the Court that the current discovery dispute is limited to three separate classifications of documents.
Claimants are seeking, and defendant has refused to provide (claiming privilege), the following items: (1) documents pertaining to five allegations of abuse or suspected abuse committed by J. C.'s assailant, Stephen DeProspero; (2) documents pertaining to four allegations of actual or suspected physical or sexual abuse, occurring at the New Hartford IRA from 2004 through June 1, 2009; and (3) notes or transcripts of interviews of individuals (approximately 50) who worked with J. C.'s assailant, Stephen DeProspero, referenced in a New York State Office for People with Developmental Disabilities (OPWDD) document (the Interview Summary) conducted after DeProspero's arrest and removal from the New Hartford IRA.
Defendant has objected to the release of any of these requested documents, contending that they are privileged materials under the "Katherine F. Doctrine" (Katherine F. v State of New York, 94 NY2d 200 [1999]), Education Law § 6527 (3), and Mental Hygiene Law § 29.29.
CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action . . ." It is well settled that this provision is to be "interpreted liberally" so that any relevant information which might lead to relevant evidence should be disclosed (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).
In this particular matter, the information and documents requested by claimants (as set forth above) are specific, and tailored in both scope and time. The Court also finds that the demands certainly are relevant to the issue of the State's negligence, and fall within the parameters of disclosure prescribed by CPLR 3101 (a). Accordingly, the documents must be disclosed, unless they are exempt from disclosure as privileged matter.
With regard to the first two categories (allegations of abuse by DeProspero and allegations of abuse occurring at the New Hartford IRA), defendant's primary objection is that release of this information would reveal the identity of other residents ("consumers") at the facility, violating their right of privacy. Claimants, however, have previously indicated (and continue to consent) that the identity of those residents involved can be redacted, with only initials provided. Defendant's objection to disclosure on this basis, therefore, is unfounded.
Defendant further objects to the disclosure of the requested information (in all three categories), claiming a privilege under Education Law § 6527 (3) and Mental Hygiene Law § 29.29. As set forth in Katherine F., "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."
Case law has established that "[i]t is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes" (Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2d Dept 2004]). To assert the privilege, " '[a] hospital is required, at a minimum, to show that is has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure' " (Kivlehan v Waltner, 36 AD3d 597, 599 [2d Dept 2007], quoting Bush v Dolan, 149 AD2d 799, 800-801 [3d Dept 1989].
In this particular matter, aside from its references to Education Law § 6527 (3) and Matter of Katherine F., 94 NY2d 200, defendant has presented no other affidavit or evidence to establish that these documents are protected from disclosure by the Education Law § 6527 (3) privilege. In other words, defendant has not established that the documents were created by committees specifically established for quality assurance purposes, or that a review procedure was in place. As a result, defendant cannot establish that the documents were created for quality assurance purposes. Furthermore, defendant has not set forth any information whatsoever to suggest that the Interview Summary, in particular, was created as an "Incident Report" pursuant to Mental Hygiene Law § 29.29.
In sum, defendant has failed to meet its burden of establishing that it has a prima facie entitlement to the exemption from disclosure pursuant to Education Law § 6527 (3), and therefore the demanded items and documents must be disclosed.
Accordingly, based upon the foregoing, it is
ORDERED, that the records and documents referenced in this Decision and Order (specifically, the allegations of abuse or suspected abuse by Stephen DeProspero; the prior allegations of actual or suspected physical or sexual abuse at the New Hartford IRA; and the notes of interviews referenced in the Interview Summary) must be provided by the defendant to the claimants within 45 days from the date of filing of this Decision and Order; as consented to by the claimants, the names of other residents referenced in the aforesaid documents shall be redacted to protect their identity.
March 15, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims