Shantelle S. v State of New York

[*1] Shantelle S. v State of New York 2006 NY Slip Op 50768(U) [11 Misc 3d 1088(A)] Decided on February 22, 2006 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2006
Ct Cl

Shantelle S., Claimant(s)

against

The State of New York, Defendant(s)



110268



Claimant's attorney:BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP

BY: VERONICA VILLANUEVA, ESQ.

Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: GAIL P. PIERCE SIPONEN, ASSISTANT ATTORNEY GENERAL

Thomas H. Scuccimarra, J.

Claimant alleges that on May 28, 2003, while she was an inmate at Bayview Correctional Facility, she was sexually assaulted by Correction Officer James H., and suffers from severe emotional distress, mental pain and anguish as a result. Mr. H. is no longer employed by the New York State Department of Correctional Services (hereafter DOCS).

Because certain document requests - including Claimant's demand for review of Mr. H.'s personnel file, and any investigatory files and reports generated by the Inspector General's Office - implicated consideration of Civil Rights Law §50-a, the Court directed that Mr. H. be given notice of Claimant's present application in its Interim Decision and Order concerning disclosure, and directed submissions by Mr. H. by December 14, 2005. [See Interim Decision and Order, S. v State of New York, Claim No. 110268, Motion No. M-70538 (Scuccimarra, J., October 21, 2005)]. Through counsel, Mr. H. has now filed an affirmation in opposition to Claimant's requests. Neither Claimant nor Defendant has added anything to their original submissions, and the motion is now deemed fully submitted.

DISCUSSION AND CONCLUSION

Civil Rights Law §50-a provides in pertinent part:

"1.All personnel records, used to evaluate performance toward continued employment or promotion, under the control of . . . a department of correction of individuals employed as correction officers . . . shall be considered confidential and not subject to inspection or review without the express written consent of such . . . correction officer . . . except as may be mandated by lawful court order.

2.Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to [*2]request records for review.

3.If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the records found to be relevant and material available to the persons so requesting . . . "

Claimant's Affirmation states that she served a Request for Production of Documents upon Defendant on or about March 15, 2005. [Affirmation in Support by Veronica Villanueva, Exhibit A]. Part of the request is for the (1) "[p]ersonnel files of Corrections Officer Joshua (sic) H., including, but not limited to, a record of all complaints made and investigated by the New York State Department of Corrections Department of Investigation and/or Internal Affairs Department and/or the Inspector General prior to, and including, the subject incident on or about May 28, 2003; documents reflecting, referring or relating to pre- and post- hire background investigation; training provided to CO H. for the period from CO H.'s hiring through May 28, 2003 supervision provided to CO H. for the period from CO H.'s hiring through May 28, 2003. (2) All documents which relate to the incident which gave rise to this lawsuit including, but not limited to, Department of Correction investigative reports . . . (3) Any and all transcripts, records or documents from an infraction, disciplinary or other hearing concerning CO H. and the incident that is the subject of the claim . . . (4) Copies of all directives, orders, memoranda, policy statements, procedures or guidelines, issued by . . . [DOCS] . . . " [ibid.]. The requests are quite broad overall, and must be read in the context of what causes of action are actually asserted in the claim.

When Defendant responded to the request [Affirmation in Partial Support by Gail P. Pierce Siponen, Exhibit C] it included objections premised upon the statutorily defined privilege in Civil Rights Law §50-a; and perhaps was obliquely referring to the public interest privilege preserved in the common law generally arising when requests for the release of documents through the Freedom of Information Law (FOIL) are made. See Public Officers Law §§87 and 89; Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 (1974); Lowrance v State of New York, 185 AD2d 268 (2d Dept 1992). As noted above, the statutorily defined privilege requires notice to the officer affected and an opportunity to be heard, accomplished by providing him with the opportunity to submit argument concerning release of the information requested.

With regard to the public interest privilege implicated by requests for information concerning investigations, in accordance with Lowrance v State of New York, supra at 268-269, an inmate in a correctional facility is not generally entitled to disclosure of a report developed by the Inspector General's Office in connection with an investigation of allegations against correction officers pursuant to the public interest privilege, which is ". . . applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality . . . (citations omitted)." Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 (1974). The privilege is a [*3]qualified one, applicable depending on whether ". . . the State's interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file (Cirale v 80 Pine St. Corp., supra at 117)." The controlling precedent as stated in Lowrance v State of New York, supra where an inmate seeking access is still incarcerated, is to prohibit such disclosure given the policy considerations behind the creation of the Office of the Inspector General, [See Executive Law §6; 9 NYCRR §§4.103 and 5.39; Lamm v State of New York, Claim No. 99321, Motion No. M-62596, UID #

2001-081-87 (Fitzpatrick, J., May 31, 2001)[FN1] as well as the security interests of a given correctional facility.

Nonetheless, there is at least some directive in the Executive Order prescribing the duties of the Office of the State Inspector General that it prepare and release reports of investigations to the public, with constraints meant to protect the confidentiality of witnesses. [See 9 NYCRR §5.39]. The Court finds that at some point after the investigation is complete, and upon a proper showing, the Claimant may renew her request for in camera review and would likely be entitled to disclosure of those parts of the report indicating that the allegations she made then, and that are the basis of the Claim for damages before this Court, have been found substantiated - or not - by the Inspector General.

In connection with this application, Claimant has referred to the allegations contained in her claim, recited the statute, and referred to the court's obligation to determine after in camera review what may be material and relevant. Mr. H.'s attorney argues that there has been no "clear showing of facts sufficient to warrant the judge to request records for review" [Civil Rights Law §50-a(2)]. As noted by one court considering this first step in considering disclosure, ". . . [Claimant must make] a good faith showing of facts which make it reasonably likely that the file will contain information bearing on the merits of the action, and that [the] request is not merely a desperate grasping at a straw . . . (citations omitted)." Wunsch v City of Rochester, 108 Misc 2d 854, 857 (Sup Ct, Monroe Co. 1981).

Three causes of action ostensibly premised in negligence are asserted in the claim. The first appears to be a variation of vicarious liability, in that Claimant alleges that the correction officer's departure from accepted standards of penological practice renders the State liable. The second cause of action alleges negligent training and supervision of the correction officer, rendering the State liable for the consequences of this failure. Finally, the third cause of action alleges negligent hiring and retention.

Under the doctrine of respondeat superior, an employer may be liable for the tortious acts of its employee if the tortious acts occurred within the scope of employment. Riviello v Waldron, 47 NY2d 297, 302 (1979). What constitutes the scope of employment has been somewhat elastically defined by the Court of Appeals, and depends largely upon the facts of each case. The factors to be examined include: ". . . the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled [*4]out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated . . . (citation omitted)." Riviello v Waldron, supra at 303. ". . . [T]he employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected . . . (citation omitted)," the employer may be vicariously liable. Riviello v Waldron, supra at 304.

Although intentional torts committed in furtherance of the employer's business have been found - albeit rarely - to have been committed in the scope of employment (see e.g. Jones v State of New York, 33 NY2d 275, 279 (1973);[FN2] Sims v Bergamo, 3 NY2d 531 [1957])[FN3], sexual assaults are not the kind of intentional torts that may render the employer liable under the doctrine because they are clearly perpetrated for the employee's own purposes, and are a departure from service to the employer. See Judith M. v Sisters of Charity Hospital, 93 NY2d 932, 933 (1999)[FN4]; Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 {17 AD3d 509} (2d Dept 2005).[FN5] Bowman v State of New York, 10 AD3d 315 (1st Dept 2004).[FN6]

It is unclear whether calling the sexual assault a breach of penological standards of care removes it from the ambit of those cases rejecting such intentional torts as the basis for vicarious liability, but since neither Claimant nor Defendant has advanced any argument concerning the [*5]causes of action asserted as they pertain to discovery, the Court will not reject it out of hand.[FN7]

Negligent supervision requires a showing that the employer knew or should have known - had the supervision been adequate - of the employee's propensity for the type of conduct which injured Claimant. Prentice v State of New York, UID#

2004-009-01, Claim No. 91731, Motion Nos. M-65785, M-65786 (Midey, J., March 30, 2004)[FN8]; Doe v State of New York, UID#

2004-028-512, Claim No. None, Motion No. M-67159 (Sise, J., March 10, 2004)[FN9]; Beasley v State of New York, UID #

2002-016-054, Claim No. 102424, Motion No. M-64929 (Marin, J., June 10, 2002)[FN10]; Jablonski v State of New York, UID #

2001-028-0010, Claim No. 96587 (Sise, J., April 10, 2001)[FN11]. Negligent training requires a showing of some type of specific deficiency in training that led the correction officer to engage in misconduct, here, the sexual assault of the Claimant. Beasley v State of New York, supra , citing to Vippolis v Village of Haverstraw, 768 F2d 40, 44-45 (2d Cir 1985), cert denied, 480 US 916 (1987)[FN12].

Under a negligent retention or hiring theory, the Claimant will also need to establish that the employer knew or should have known of the employee's propensity for the sort of conduct which caused the injury. Detone v Bullit Courier Service, Inc., 140 AD2d 278 (1st Dept 1988), lv denied, 73 NY2d 702 (1988). In a negligent retention cause of action, the negligence of the employer arises from its ". . . having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the . . . retention of his employees." Detone v Bullit Courier Service, Inc., supra at 279.[FN13]

[*6]In reviewing the sworn allegations contained in the claim [FN14], and considering the elements needed to be proven in order to sustain her burden of proof against the State of New York, and in further consideration that this ". . . initial inquiry must be viewed liberally since the party seeking the information will not typically have the precise information regarding what is contained in the personnel file . . . (citation omitted)" [Randall v State of New York, UID#

2003-018-239, Claim No. 100522, Motion No. M-66072 (Fitzpatrick, J., July 15, 2003)], the Court is marginally satisfied that Claimant has established a sufficient basis warranting review of the personnel record of Correction Officer H., in camera, to determine if there is evidence that is material and relevant to the causes of action asserted herein.

Because the New York County District Attorney's Office is currently conducting an investigation that has resulted in charges having been brought against Mr. H. [See Affirmation in Opposition by Raymond L. Colon, Attorney for James H., ¶11], and the Office of the Inspector General, too, is investigating the matter, until some final report has been generated it would seem the files cannot be produced - assuming there were an adequate showing for their production - at this time. The request for wholesale examination of these investigatory files is, therefore, denied.

Accordingly, Claimant's motion is granted to the following extent: within 45 days of the date of filing of this decision and order, the Defendant shall provide to the Court a complete certified copy of the personnel file maintained by the employer including but not limited to any pre-hiring investigation, any prior complaints involving assaultive or sexually assaultive conduct, as well as the disciplinary history of Correction Officer James H., from the date of his employment to and including May 28, 2003, in sealed form, for in camera inspection in accordance with Civil Rights Law §50-a(3). A

ppendices: Footnotes

Footnote 1: Judge Fitzpatrick stated: "The purpose of the office, according to both executive orders, is to investigate complaints in an effort to prevent fraud, abuse, and corruption in State agencies, departments, and divisions."

Footnote 2: The State may be liable for the use of excessive force by its correction officer employees upon inmates in the custody of the New York State Department of Correctional Services under the doctrine of respondeat superior.

Footnote 3: Bartender's assault on plaintiff/customer found to have been in furtherance of his employer's interest rendering employer vicariously liable. Court of Appeals reinstated jury verdict for plaintiff, finding it could not be said that there was no evidence supporting vicarious liability as a matter of law, when viewing the evidence in the light most favorable to the plaintiff. "The perpetration of the assault for either of these purposes - protecting his employer's property from further damage and the maintenance of peace and order therein - would have been pursuant to unexpressed rules and in the performance of duties enjoined upon him by his employment and in the furtherance of his employer's interests." Sims v Bergamo, supra at 535.

Footnote 4: Hospital not vicariously liable for sexual abuse of patient by orderly; summary judgment dismissing this cause of action proper.

Footnote 5: Since the bus driver's acts in sexually abusing and molesting a student passenger were clearly not in furtherance of his employer's business, and thus not committed within the scope of his employment, the bus company and the school district could not be held vicariously liable under the doctrine of respondeat superior. 793 NYS2d 170, 173.

Footnote 6: State not liable for court officer's rape of private security guard, and also not liable if the acts were consensual, since employee clearly not acting within scope of employment but rather for his own purposes. Summary judgment dismissing should have been granted; also dismissed with respect to apparent authority.

Footnote 7: Indeed, the Defendant summarily states "The only viable cause of action is that of negligent hiring and/or retention of Mr. H. As such, the State does not contest the potential relevancy of certain records (as to the element of notice and as to determining the requisite qualified immunity under the Mon/Haddock test) (sic)." [See Affirmation in Partial Support by Gail P. Pierce Siponen, ¶ 4].

Footnote 8: State trooper fabricated fingerprint evidence.

Footnote 9: Staff member raped resident at detention center.

Footnote 10: Off-duty correction officer shot Claimant.

Footnote 11: State park seasonal employees assaulted visitor.

Footnote 12: Village police officer beat plaintiff with excessive force, arrested him on false charges, and initiated a criminal prosecution based upon false charges.

Footnote 13:Thus, in Detone v Bullit Courier Service, Inc., supra a courier employed by defendant rode his bicycle into the plaintiff. Plaintiff reacted by swinging a bag at him. The cyclist then struck plaintiff in the head, knocking him unconscious, and causing him to fall and hit his head on the pavement, suffering severe neurological impairment. The jury dismissed the cause of action against the employer premised on vicarious liability, but found that the employer was directly liable for the negligent hiring and retention of the employee. The Appellate Division then reversed the jury verdict for plaintiff saying: "The evidence before the jury arguably relevant to the issue of . . .[the employer's] negligence in hiring . . . [the courier] indicated that . . . [the courier] had, on two occasions prior to the incident with plaintiff, been either fired or laid off by . . . [the employer]. There was no evidence as to what caused . . .[the employer] to fire . . . [the employee/courier], the only testimony being that had it been something more serious than excessive lateness or absences it would have been noted in . . . [the employer's] records and . . . [the courier] would not have been rehired. Nothing adduced at trial indicated that . . . [the employee] had a history of or propensity for violence, much less was there evidence that . . . [the employer] had any knowledge that its employee might be dangerous." Detone v Bullit Courier Service, Inc., supra at 279. The Court reiterated the rule that an employer may be liable in damages for its employee's tort ". . . against a third party when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm . . . (citations omitted)." [id.].

Footnote 14: Civil Practice Law and Rules §105(u) indicates that ". . . [a] verified pleading' may be utilized as an affidavit whenever the latter is required."