Opinion
# 2019-038-609 Claim No. 128629 Motion No. M-94680
11-22-2019
JASON BERRY (15-A-1433) v. THE STATE OF NEW YORK
DEVON M. RADLIN, ESQ. LETITIA JAMES, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Claimant's motion to compel discovery denied. Defendant's response to claimant's April 17 2019 demand rendered the motion with respect to that demand moot. Claimant failed to supply the required factual predicate warranting an in camera review of correction officer's disciplinary records and failed to show that information with respect to prior litigation was material and necessary.
Case information
| UID: | 2019-038-609 |
| Claimant(s): | |
| Claimant short name: | BERRY |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128629 |
| Motion number(s): | M-94680 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DEVON M. RADLIN, ESQ. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 22, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Claimant, who alleges that he is the victim of a sexual assault as defined in article 130 of the Penal Law, waived the confidentiality protections of Civil Rights Law § 50-b in writing (see Civil Rights Law § 50-b [2] [c]).
The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim.
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries he sustained when he was allegedly assaulted by multiple correction officers at Great Meadow Correctional Facility (CF) on July 30, 2015. Claimant now moves to compel defendant to respond to certain discovery demands. Defendant partially opposes the motion.
The claim alleges that on the morning of July 30, 2015, claimant was assaulted by ten correction officers in the A-block stairwell at Great Meadow CF (see Claim No. 128629, ¶¶ 3-4). The claim alleges that claimant then was grabbed by the hair and pulled down the stairwell to the next landing, where he was again assaulted by the ten correction officers (see id.). The claimant alleges that after the second assault, Correction Officer (CO) Jeremy Saunders "pushed his baton stick into claimant's anus until [c]laimant defecated all over himself" (id.). The claim alleges that claimant sustained physical and psychological injuries as a result of the assault and demands $1 million in damages (see id. at ¶¶ 5, 7).
As pertinent to this motion, claimant served defendant with a discovery demand dated December 20, 2018 that sought (1) CO Saunders's disciplinary file, and (2) "[p]aperwork, dispositions, index number, claim number, complaints, and court in which litigation is/was pending in which [CO Saunders] was a named defendant" (Radlin Affirmation, Exhibit 7). Defendant served claimant with a response dated January 22, 2019 objecting to the demand for CO Saunders's disciplinary file as "privileged" and "not subject to disclosure pursuant to the Civil Rights Law § 50-a and Public Officers Law § 96 and § 89" (Krenrich Affirmation in Opposition, Exhibit C). Defendant also objected to the demand for litigation documents as "overly broad, unduly burdensome and not relevant to the claim" and "not subject to disclosure pursuant to the Civil Rights Law § 50-a and Public Officers Law § 96 and § 89" (id.). Claimant thereafter served defendant with a discovery demand dated April 17, 2019 that sought (1) "Great Meadow C.F. Log-Book entries for the Hospital 'Call-Out' on July 30, 2015," (2) "Great Meadow C.F. Log-Book entries for the 'Pass-Book' for July 30, 2015," and (3) "[v]ideo and/or [a]udio of [c]laimant after [the] incident on July 30, 2015" (Radlin Affirmation, Exhibit 3). Defendant did not respond to that demand.
Claimant now moves to compel defendant to respond to the December 20, 2018 and April 17, 2019 discovery demands. Turning first to that portion of claimant's motion to compel defendant to respond to the April 17, 2019 discovery demand (see Radlin Affirmation, ¶¶ 38-49), defendant has responded to the April 17, 2019 demand in its opposition papers by producing documents responsive to the demands for Great Meadow CF log book entries and asserting that defendant does not possess any audio or video recordings of claimant taken on July 30, 2015 (see Krenrich Affirmation in Opposition, ¶¶ 6-7, Exhibit F). Inasmuch as defendant has responded to claimant's April 17, 2019 demand, and claimant has not submitted a reply to defendant's response arguing that it is deficient or otherwise defective, that portion of claimant's motion seeking to compel defendant to respond to the April 17, 2019 demand will be denied as moot (see Stallone v State of New York, UID No. 2019-040-058 [Ct Cl, McCarthy, J., July 15, 2019]; Jones v State of New York, UID No. 2019-038-548 [Ct Cl, DeBow, J., June 19, 2019]).
Defense counsel refers to the April 17, 2019 discovery demand as the April 22, 2019 demand inasmuch as that was the date the demand was received by defendant (see Krenrich Affirmation in Opposition, ¶ 6, Exhibit D).
Defendant's response to claimant's April 17, 2019 demand is erroneously dated January 22, 2019, almost three months prior to the date of the demand. The Court notes that defendant's response to claimant's December 20, 2018 demand was also dated January 22, 2019 and thus is the likely source of the error (see Krenrich Affirmation, Exhibits C and F).
Turning next to that portion of claimant's motion seeking to compel defendant to respond to the December 20, 2018 demand, claimant notes that CO Saunders testified at his deposition that he had been a named defendant in at least three lawsuits and argues that his disciplinary records and any allegations in those lawsuits "whether substantiated or unsubstantiated, could lead to evidence that would be admissible at trial and, thus, are discoverable" and "may lead to witnesses who have evidence which would tend to prove defendants' intent" (Radlin Affirmation, ¶¶ 53-54). Claimant also argues that defendant has failed to make a specific showing of privilege and has failed to properly object to disclosure of these documents, and that the December 22, 2018 demands are "not palpably vague, overbroad or unduly burdensome" but rather "specif[y] the documents to be disclosed with reasonable particularity" (id. at ¶¶ 59-60). Claimant states that to the extent Civil Rights Law § 50-a may apply, an in camera review is required (see id. at ¶ 64).
In opposition, defendant argues that it "is hardly a unique circumstance for" a correction officer to be named in lawsuits and that "there is no correlation between being named in a lawsuit and receiving a disciplinary sanction" (Krenrich Affirmation in Opposition, ¶ 10). Defendant further argues that because the sole cause of action alleged in the claim is one for assault, and claimant has not alleged negligent hiring, training, or supervision, "any past complaints or incidents of misconduct [are] irrelevant" and, at any rate, "prior wrongdoing by an individual is generally not admissible to show that he or she acted in conformity therewith in the matter at issue" (id. at ¶ 11). Finally, defendant argues that an in camera review is not warranted insofar as claimant is seeking these records in the hope of obtaining material that could be used to impeach CO Saunders as a witness (see id.).
Due to an apparent typographical error, there are two sets of paragraphs numbered 9, 10 and 11 in defense counsel's affirmation in opposition. The citation to paragraphs 10 and 11 in this decision refer to the second set of paragraphs 9-11.
To be sure, claimant alleges in his bill of particulars "that defendant failed to train and negligently hired correction officers, specifically [CO Saunders]" (Radlin Affirmation, ¶ 3, Exhibit 2 [Claimant's Verified Bill of Particulars, ¶ 14]). However, it is well settled that a bill of particulars "may add specific statements of fact to a general allegation in the pleading but cannot add or substitute a new theory or cause of action, nor can it change the cause of action set forth in the complaint, for it is not part of the pleadings" (B.&F. Leasing Co. v Ashton Cos., 42 AD2d 652, 653 [3d Dept 1973] [internal citations omitted]; see Montalvo v State of New York, UID No. 2001-018-114 [Ct Cl, Fitzpatrick, J., Dec. 14, 2001] ["Since the Bill of Particulars is not a pleading, it may not be used to state a new cause of action or to provide an essential allegation which was not included in the claim"]). Although a "bill of particulars . . . [that] serve[s] to amplify the conclusory allegations of the [claim] . . . cannot be considered improper" (Rack v Mary Immaculate Hosp., 80 AD2d 830, 830 [2d Dept 1981]), a claimant's "attempt to assert a new cause of action by resort to the bill of particulars is improper" (Webster v Supermarkets Gen/ Corp., 209 AD2d 405, 405 [2d Dept 1994] [emphasis added]). Here, the claim seeks to recover damages "due to [the] assault by" ten correction officers (see Claim No. 128629, ¶ 1), and does not allege that defendant's agents committed negligence. Thus, the only causes of action properly before the Court are the causes of action sounding in the intentional torts of assault and battery that are asserted in the claim.
With respect to claimant's request that defendant disclose CO Saunders's disciplinary records, a correction officer's disciplinary records "are quintessential 'personnel records' protected by Civil Rights Law § 50-a" (Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556, 564 [2018]). Civil Rights Law § 50-a (1) provides that "[a]ll personnel records [of correction officers] used to evaluate performance toward continued employment or promotion . . . shall be considered confidential" and are not discoverable in litigation absent the express written consent of the officer or a court order. A party seeking personnel records that are subject to this statute must first make a "clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a [2]). To meet that threshold requirement, the movant must demonstrate "in good faith . . . some factual predicate which would make it reasonably likely that the file will bear [relevant] fruit and that the quest for its contents is not merely a desperate grasping at a straw" (People v Gissendanner, 48 NY2d 543, 550 [1979]), such that the intrusion into the affected employee's personnel records is warranted (see Tarran v State of New York, 140 AD2d 429, 432 [2d Dept 1988]). This showing "must be viewed liberally because, in the usual case, a party seeking discovery will, of course, not know precisely what pertinent information is within a personnel [or disciplinary] record" (Cox v New York City Hous. Auth., 105 AD2d 663, 664 [1st Dept 1984]).
Notwithstanding that claimant's showing must be viewed liberally, a motion for production of personnel records may be summarily denied without in camera review when the movant's papers fail to satisfy the factual showing required by Gissendanner (see Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 835 [3d Dept 2001], lv denied 96 NY2d 710 [2001]; People v Henry, 242 AD2d 877 [4th Dept 1997], lv denied 91 NY2d 834 [1997]). Where, however, the movant supplies the required factual predicate, the personnel records will be reviewed in camera and the Court will "make a determination as to whether the records are relevant and material in the action" and "[u]pon such a finding . . . shall make those parts of the record found to be relevant and material available to the persons so requesting" (Civil Rights Law § 50-a [3]).
The Court of Appeals has stated that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY 2d 562, 569 [1986] [internal quotation marks omitted]). It is well settled that the "threshold requirement of Civil Rights Law § 50-a (2) is designed to eliminate fishing expeditions of [correction] officers' personnel files for collateral materials to be used for impeachment purposes" (Becker v City of New York, 162 AD2d 488, 489 [2d Dept 1990]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26, 31-32 [1988] [Civil Rights Law § 50-a was intended "to protect (correction) officers from the use of records - including unsubstantiated and irrelevant complaints of misconduct - . . . for purposes of cross-examination by (claimant's) counsel during litigation"]). In general, an "attempt to use document discovery as a means to test whether or not certain unknown documents exist is an impermissible fishing expedition" (Penn Palace Operating v Two Penn Plaza Assoc., 215 AD2d 231, 231 [1st Dept 1995]), and a "generalized request" and "unsupported allegation[s]" are insufficient to "establish any good faith, factual basis supporting [a] request" for the disclosure of a correction officer's personnel records (see People v Darrell, 145 AD3d 1316, 1319 [3d Dept 2016], lv denied 29 NY3d 1125 [2017]).
As an initial matter, inasmuch as the claim alleges causes of action sounding in the intentional torts of assault and battery and does not allege negligent training, supervision, and hiring (see footnote 5, supra), claimant has failed to demonstrate how CO Saunders's disciplinary records are relevant to the prosecution of his claim (see Matter of Brandon, 55 NY2d 206, 210-211 [1982] ["it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion," except to prove motive, intent, absence of mistake or accident, common scheme or plan, or identity]). Although claimant argues that the disciplinary records bear on the issue of intent (see Radlin Affirmation, ¶ 54), proof of similar prior acts would only be admissible in those cases where "the nature of the act is equivocal and a particular intent cannot be inferred" (People v Bagarozy, 132 AD2d 225, 235 [1st Dept 1987]). Here, claimant alleges in the claim and testified at his deposition that he was subjected to a brutal assault and battery, and thus, extrinsic evidence of prior similar acts would not be admissible to prove intent.
Even assuming that disclosure of CO Saunders's personnel records could be deemed relevant to claimant's assault and battery claims, and recognizing that claimant's showing on this motion must be viewed liberally, claimant has failed to support his application for disclosure of CO Saunders's disciplinary file with "facts which show[] a reasonable likelihood that the record would contain relevant and material documents" (Lawrence v City of New York, 118 AD2d 758, 759 [2d Dept 1986]). Claimant's motion for disclosure of those records is supported only by the bare statements that any allegations contained in CO Saunders's disciplinary records may lead to admissible evidence or identify witnesses who could present evidence of "defendants' intent" (Radlin Affirmation, ¶ 54). In support of the request for disclosure of these records, claimant relies exclusively on CO Saunders's deposition testimony that he has been a named defendant in prior lawsuits. However, nowhere in CO Saunders's deposition testimony does he state that he was subjected to the disciplinary process, either in connection with the allegations underlying this claim, or for any other allegations of an assault on an inmate. Indeed, CO Saunders testified during his deposition that he was never reprimanded in connection with the July 30, 2015 incident and that he was never "punished or suspended at [his] job" as a result of the other lawsuits in which he was a named defendant (id., Exhibit 6 [Saunders Deposition Transcript, p. 50, lines 7-8 & p. 53, lines 13-16]).
Notably, claimant's counsel relies exclusively on federal case law rather than New York State law in support of the argument that claimant is entitled to disclosure of CO Saunders's complete disciplinary file (see Radlin Affirmation, ¶¶ 53-54).
Notably, claimant quotes extensively from that portion of CO Saunders's deposition transcript in which he testifies regarding the prior lawsuits in which he was named, but omits his testimony denying that he was punished in connection with any of the lawsuits in which he was named as a defendant (see Radlin Affirmation, ¶ 51). --------
Based on the foregoing, the Court concludes that claimant has failed to present a good faith, factual predicate demonstrating that in camera review of CO Saunders's disciplinary file is warranted. Rather, claimant's showing is entirely speculative and devoid of any factual basis and is, in fact, flatly contradicted by CO Saunders's deposition testimony (see Small v State of New York, UID No. 2005-015-083 [Ct Cl, Collins, J., Apr. 14, 2006] ["Counsel's speculation, conjecture and opinion are not sufficient to meet his burden of establishing the necessary factual predicate required to overcome the confidentiality afforded personnel records of correction officers by Civil Rights Law § 50-a"]). Claimant's motion thus appears to be the "fishing expedition" that Civil Rights Law § 50-a was enacted to prevent, and in camera review of CO Saunders's disciplinary file is not warranted (see Graham v State of New York, 23 Misc 3d 1118[A], 2009 NY Slip Op 50823[U], *3 [Ct Cl 2009] [claimant failed to present an adequate factual predicate for an in camera review of a State Trooper's entire personnel file where claimant stated merely "that personnel records might contain material and necessary information with regard to negligent hiring, supervision and retention claims, and, impliedly, for impeachment purposes"]).
With respect to claimant's demand for documentation related to any prior lawsuits in which CO Saunders was a named defendant, defendant has not shown that those items constitute personnel records used to evaluate CO Saunders's performance and thus has failed to demonstrate that they are subject to Civil Rights Law § 50-a. Nevertheless, although CPLR 3101 (a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action," here, claimant has failed to "demonstrate[] that [the] prior litigation documents may be relevant and, thus, subject to disclosure" (Liquore v Tri-Arc Mfg. Co., 32 AD3d 904, 905 [2d Dept 2006]). As noted above, claimant states merely that the documents related to any prior litigation in which CO Saunders was a named defendant "could lead to evidence that would be admissible at trial" and "may lead to witnesses who have evidence which would tend to prove defendants' intent" (Radlin Affirmation, ¶¶ 53-54). However, as discussed above with respect to claimant's disciplinary history, the existence of prior lawsuits is not relevant evidence to prove intent. In the absence of any showing that records of prior litigation involving CO Saunders are "material and necessary" to the prosecution of his assault and battery claims (CPLR 3101 [a]), it again appears that claimant is engaged in an impermissible fishing expedition, and his motion for disclosure of documents and information related to litigation in which CO Saunders was a named defendant will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-94680 is DENIED.
November 22, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 128629, filed October 4, 2016; 2. Verified Answer, filed March 22, 2016; 3. Notice of Motion, dated September 30, 2019; 4. Affirmation of Devon M. Radlin, Esq., in Support of Motion, dated September 30, 2019, with Exhibits 1-8; 5. Affirmation of Michael T. Krenrich, AAG, in Opposition to Claimant's Motion, dated November 4, 2019, with Exhibits A-F.