Opinion
107257.
Decided on December 7, 2006.
APPEARANCES:For Claimant: DAVID E. THOMAS, ESQ. ASSOCIATES. By: David E. Thomas, Esq.
For Defendant: ELIOT SPITZER, ATTORNEY GENERAL. By: Jeane L. Strickland Smith, Assistant Attorney General.
This is claimant's motion for an order pursuant to Civil Rights Law § 50-a directing defendant to provide the personnel records of a former employee, Bonita Butler, for an in camera inspection to determine if the records contain information relevant to this claim that should be disclosed to claimant.
The court considered the Notice of Motion, Affirmation and Exhibit, defendant's Affirmation in Opposition and Exhibit, the Claim, Answer and Claimant's Bill of Particulars.
The claim arises from a March 9, 2000 incident in which claimant, then 16 years old and a resident of the Goshen Residential Facility, was allegedly assaulted and beaten in his room by other residents. The claim alleges that the attack was "at the direction, permission and/or purposeful facilitation of a Security Officer" employed by defendant. Claimant's bill of particulars identifies the employee as Bonita Butler and alleges, inter alia, that defendant was negligent in hiring her.
In support of the motion, claimant attaches what appears to be the report of a State investigation into the incident finding that Butler intentionally unlocked the doors of the six assailants and let them into claimant's room, that she failed to report the assault and that "[t]here is reasonable suspicion and evidence that YDA III Butler planned and conspired with the residents to carry out the attack on [claimant]" (Exhibit "1" to Notice of Motion, p 4). The report also indicates that the State Police brought criminal charges against Butler arising out of the incident.
In opposition to the motion, defendant points out, correctly, that the protections of Civil Rights Law § 50-a are limited to those categories of employees set forth in the statute, i.e. "police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole" (Civil Rights Law § 50-a). Although defendant argues that, nevertheless, "privacy protection laws require, at minimum, notification and service of the motion papers" on Butler, no such laws are identified or discussed, other than the law which defendant concedes is inapplicable. As is set forth in the one decision defendant cites McKinney v State of New York, 111 Misc 2d 382 (Ct Cl, Weisberg, J., 1981) absent a demonstration of "the existence of any privilege or exemption or any public purpose that would be served by maintaining the confidentiality of the records demanded" ( id., 111 Misc 2d 382, 387), general principles governing disclosure apply.
Butler was served with the motion papers by mail at the last known address provided by defendant. Defendant characterizes this as "substituted service" and maintains that a showing of "due diligence" is required before substituted service can be authorized. Even assuming that Civil Rights Law § 50-a applied, defendant's contention in this regard has been specifically rejected ( Frisillo v State of New York, 185 AD2d 616 [4th Dept 1992]). Since the Clerk of the Court's mailing to Butler advising of the return date of the motion was returned by the Postal Service with the notation "Attempted, Not Known," the court assumes Butler did not receive counsel's mailing either.
Moreover, even if the statute applied, its purpose is "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 Division of the Hearst Corporation v Burns, 67 NY2d 562, 569 quoting Matter of Capital Newspapers Division of the Hearst Corporation v Burns, 109 AD2d 92, 96); thus the statute requires a clear showing of facts sufficient to warrant in camera review, but after such review mandates disclosure of all records found to be relevant and material. Its purpose is to prevent harassment of certain public employees via unwarranted fishing expeditions, not to bar disclosure of relevant material. The papers currently before the court would constitute a clear showing of facts sufficient to warrant review were Butler entitled to the statute's protection.
Accordingly, the motion is granted. Defendant shall deliver the file to the court no later than 10:00 a.m. Friday, December 22, 2006. Claimant's note of issue deadline, as set forth at the October 13, 2006 conference, is extended to February 1, 2007.