Opinion
# 2015-048-175 Claim No. 122255 Motion No. M-85860
03-31-2015
TERRY PERRY v. THE STATE OF NEW YORK
Terry Perry, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
In an action seeking damages for personal injuries sustained as a result of an alleged assault and battery, the Court granted Plaintiff's motion for disclosure of staff disciplinary records.
Case information
| UID: | 2015-048-175 |
| Claimant(s): | TERRY PERRY |
| Claimant short name: | PERRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122255 |
| Motion number(s): | M-85860 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | Terry Perry, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | March 31, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Terry Perry, commenced this action seeking damages for personal injuries sustained as a result of an alleged assault and battery committed on October 2, 2012 by Central New York Psychiatric Center (CNYPC) staff, where he is a patient. Claimant has moved this Court for an order compelling the disclosure of the work records of Nicholas S. Hollenbeck, a secure care treatment aid (SCTA), who was undisputedly involved in the incident with Claimant. Claimant seeks all of SCTA Hollenbeck's records from the commencement of his employment until 2014, when he was allegedly terminated from his position. Defendant opposes Claimant's motion.
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." Accordingly, disclosure is required "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). However, information that is privileged or palpably improper, is not subject to disclosure (see DG&A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 AD3d 1316, 1318 [3d Dept 2010]). It is Claimant's burden initially, as the party seeking disclosure, "to establish a factual predicate with respect to the relevancy of the evidence" (McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [4th Dept 2010]). It is Defendant's burden, as the party challenging disclosure, to establish that the information sought is privileged or immune from disclosure (see Marten v Eden Park Health Servs., 250 AD2d 44, 46-47 [3d Dept 1998]).
In support of his motion, Claimant asserts that the records he seeks will reveal that SCTA Hollenbeck was involved in a number of incidents of assault and battery against other CNYPC residents, and would, thus, establish a pattern of abuse at the CNYPC. In opposition, Defendant argues that information sought is irrelevant in this assault and battery Claim, is otherwise exempt from disclosure under Education Law § 6527 (3) because it is related to quality assurance, or is otherwise exempt pursuant to New York's Mental Hygiene Law, the Public Officers Law, or the Federal Health Insurance Portability Act of 1996.
The parties do not dispute that a Notice to Produce the records at issue was served, and that Defendant objected to the same (see Affirmation of Thomas Trace, Esq., ¶ 4; Reply Affirmation of Terry Perry, ¶ 5). The demand sought "work history of SCTA Hollenbeck as it pertains to any alleged incidents involving residents here at Central New York Psychiatric Center, as well as any disciplinary actions taken toward him in this or any other context. I only seek the allegations(s) proper and do not require any names of residents or staff" (Affidavit of Terry Perry, sworn to on October 7, 2014 [Correspondence from Claimant, dated August 26, 2014]).
"A general rule of evidence, applicable in both civil and criminal cases, is that 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" (Matter of Brandon, 55 NY2d 206, 210-211 [1982]). While the records of unrelated allegations of assault and battery may be relevant and material to causes of action alleging negligent hiring, retention, or supervision, of SCTA Hollenbeck, no such causes of action are alleged in this matter. Rather, Claimant asserts that he is seeking the entire work history of SCTA Hollenbeck in order to demonstrate "motive, intent, abscence [sic] of mistake or accident, and a common scheme or plan" (Reply to Affirmation in Opposition, ¶ 6). While such principles may form the basis for an exception to the general rule, they are not at play in a case such as this, where Claimant alleges the use of excessive force during a "restraint procedure" (Claim, ¶ 3; see Matter of Brandon, 55 NY2d at 211).
Even assuming that the employment records of SCTA Hollenbeck contain substantiated or unsubstantiated allegations of assault or battery unrelated to the October 2, 2012 incident involving Claimant, they are irrelevant and unnecessary to prosecution of the claim (see Kourtalis v City of New York, 191 AD2d 480, 481 [2d Dept 1993]). In contrast, records of any disciplinary action relating to the October 2, 2012 incident involving Claimant and SCTA Hollenbeck are clearly relevant to the prosecution of this Claim.
Although Defendant summarily states that these records are exempt from disclosure by operation of various statutory provisions, Defendant has not made the required showing. Specifically, Defendant has not demonstrated that "it 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] [internal quotation marks and citation omitted]). Similarly, Defendant has made no showing that any records of such disciplinary action contain records protected by operation of the statute. Accordingly, it is hereby
ORDERED that Claimant's Motion No. M-85860 is granted insofar as Defendant is directed to produce to Claimant, within thirty (30) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims, a copy of any disciplinary records relating to the October 2, 2012 incident involving Claimant and SCTA Hollenbeck or, if no such records exist, an affidavit to that effect by the appropriate agency records officer.
March 31, 2015
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed January 16, 2013;
Motion to Compel, filed October 14, 2014;
Affidavit of Terry Perry, sworn to on October 7, 2014, with attachments;
Affirmation of Thomas Trace, Esq., dated November 20, 2014;
Reply to Affirmation in Opposition, dated November 21, 2014.