Opinion
# 2017-032-010 Claim No. 120152 Motion No. M-86994
03-02-2017
JOSEPH M. HUBBARD v. THE STATE OF NEW YORK
Bosman Law Firm, L.L.C. By: Daniel W. Flynn, Esq., and A.J. Bosman, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: G. Lawrence Dillon, Assistant Attorney General, Of Counsel
Synopsis
Claimant's motion to compel, insofar as it seeks an in camera review of certain employee records, is granted.
Case information
| UID: | 2017-032-010 |
| Claimant(s): | JOSEPH M. HUBBARD |
| Claimant short name: | HUBBARD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120152 |
| Motion number(s): | M-86994 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Bosman Law Firm, L.L.C. By: Daniel W. Flynn, Esq., and A.J. Bosman, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: G. Lawrence Dillon, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings the instant action seeking damages from his employer New York State Office of Mental Health (OMH) on the ground that he was wrongfully passed over for promotion based upon his disability and/or perceived disability of post-traumatic stress disorder (PTSD). Claimant moves this Court for an order compelling defendant to disclose any and all records relating to the promotion or demotion of certain employees at OMH, the performance records and/or reviews of said employees, their time and attendance records, disciplinary and/or counseling records, and any awards and/or commendations received. Defendant opposes the motion on the ground that such records are protected by Public Officers Law § 96.
By Decision and Order dated January 14, 2016, this Court held that the disclosure demands initially served by claimant were overly broad and unduly burdensome, and ordered claimant to serve defendant with more narrow demands regarding the requested records. Claimant then served a revised Second Set of Disclosure Demands, dated June 13, 2016, a copy of which is attached to his Supplemental Reply Affirmation in support of this motion. This Decision and Order addresses the records sought therein.
As a general matter, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101 [a]). "While 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'" (Mora v RGB, Inc., 17 AD3d 849, 851 [3d Dept 2005], quoting CPLR 3101 [a]). To that end, a court "may, on its own initiative or on the motion of a party, issue 'a protective order denying, limiting, conditioning or regulating the use of any disclosure device' so as 'to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts'" (DiCostanzo v Schwed, 146 AD3d 1044, 1045 [3d Dept 2017], quoting CPLR 3103 [a]). Additionally, "[t]he party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant" to the stated cause of action (Marten v Eden Park Health Servs., 250 AD2d 44, 46 [3d Dept 1998]; see DiCostanzo v Schwed, 146 AD3d at 1046).
Article 6-a of the Public Officers Law - known as The Personal Privacy Protection Act - prevents the disclosure of any record or personal identification information absent the request or consent of the affected individual (see Public Officers Law § 91 et seq.). "The Act is intended to prevent the disclosure of documents constituting an unwarranted invasion of privacy arising from sophisticated computer-linked data files which do not serve any legitimate governmental purpose" (Feliciano v State of New York, 175 Misc 2d 671, 672 [Ct Cl 1997] [citation omitted]; see Reale v Kiepper, 204 AD2d 72, 74 [1st Dept 1994], lv denied 84 NY2d 813 [1995]; Spargo v New York State Commission on Government Integrity, 140 AD2d 26, 30 [3d Dept 1988], lv denied 72 NY2d 809 [1988]). As relevant here, Public Officers Law § 96 provides that "[n]o agency may disclose any record or personal information unless such disclosure is . . . to any person pursuant to a court ordered subpoena or other compulsory legal process" (Public Officers Law § 96 [1] [k]).
The gravamen of the instant claim is that, despite "superior performance evaluations, all necessary qualifications, and a stellar work record," claimant has been wrongfully denied job promotion within OMH since 2006. Specifically, claimant states that he was informed by his superior that he "could not handle the 'stress' of a supervisory position" (Claim ¶ 2). Claimant further alleges that, upon information and belief, less qualified employees were promoted over and instead of claimant, and now seeks disclosure of the above-mentioned records relating to the promotion or demotion of said employees. Defendant opposes the disclosure of the employees' files, contending that the information sought is privileged and confidential under Public Officers Law § 96 and, furthermore, claimant has failed to demonstrate that the requested records contain information that is "material and necessary" to his claim (CPLR 3101 [a]). The Court disagrees. To meet his burden of establishing disability discrimination, claimant "must show that (1) []he is a member of a protected class; (2) []he was qualified to hold the position; (3) []he was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). Here, the inference of discrimination arises from claimant's allegations that he was passed over for promotion at OMH due solely to his PTSD, while other, less qualified employees were promoted above and instead of claimant (see Brathwaite v Frankel, 98 AD3d 444, 445 [1st Dept 2012]). Accordingly, the Court orders the requested records to be produced for an in camera review in the manner set forth below. A determination as to whether such records contain information that is "material and necessary" to the claim will be addressed following the in camera review (CPLR 3101 [a]; see Feliciano v State of New York, 175 Misc 2d at 672).
Based upon the foregoing, it is hereby
ORDERED, that claimant's motion (M-86994) is granted to the extent that defendant is directed to provide the Court, for purposes of an in camera inspection, two copies of the employee files for the 22 named individuals in claimant's discovery demand within 30 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 confidential information. Defendant is directed to sequentially number the pages of the record submitted. After reviewing the submission, the Court will issue further direction indicating which, if any, documents or portions thereof, shall be provided to claimant.
March 2, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated July 16, 2015; and Affirmation of A.J. Bosman, Esq., dated July 16, 2015, with Exhibits A through C, and a Memorandum of Law, dated July 16, 2015. 2. Defendant's Reply to Motion to Compel Disclosure, verified by G. Lawrence Dillon, AAG, on July 22, 2015; and Affidavit of Deborah Collver, sworn to on April 30, 2015. 3. Reply Affirmation of Daniel W. Flynn, Esq., dated August 11, 2015, with Exhibit A. 4. Defendant's Supplemental Reply to Claimant's Motion to Compel Disclosure, affirmed by G. Lawrence Dillon, AAG, on September 15, 2016. 5. Supplemental Reply Affirmation, affirmed by Daniel W. Flynn, Esq., on September 23, 2016, with Exhibit A.