Graham v State of New York

[*1] Graham v State of New York 2009 NY Slip Op 50823(U) [23 Misc 3d 1118(A)] Decided on March 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2009
Ct Cl

Robert Graham, Claimant, v State of New York, Defendant.



113221



Claimant's attorney:FINKELSTEIN & PARTNERS

BY: MARIE DuSAULT, ESQ.

Defendant's attorney:HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL

BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL

Thomas H. Scuccimarra, J.

This claim arises from a motor vehicle accident occurring on January 27, 2005 on the Exit 122 ramp off of Route 17 in the Town of Wallkill, New York. Robert Graham, the claimant herein, alleges that he was traveling in the proper direction on the exit ramp when a State Police vehicle operated by State Trooper William Crowe, traveling in the reverse direction, collided with claimant's car, causing him to sustain serious injuries. The claim alleges the defendant's negligence "in hiring inept, incompetent and unskilled employees," among other acts and omissions. [See Claim Number 113221, ¶16; Verified Bill of Particulars, ¶4].

In its answer, defendant raises general denials, and four defenses, including allegations of contributory negligence, the negligence of others for whom the State is not responsible, claimant's failure to use seatbelts and collateral source indemnification. No defense to the effect that State Trooper Crowe was not acting within the scope of his employment at the time of the accident is raised. A companion case against the trooper was brought in Orange County Supreme Court, with consent discovery proceeding apace in both lawsuits. [*2]

Claimant now moves to compel production of a letter of censure related to State Trooper Crowe, as well as his complete personnel file, originally demanded pursuant to a notice to produce. Defendant opposed production of these items based upon the statutory privilege contained in Civil Rights Law §50-a, and cross-moves for an order striking prejudicial and unnecessary allegations in the claim [Civil Practice Law and Rules §3024(b)] or, alternatively, dismissing any cause of action based on negligent hiring, retention and supervision of employees. Civil Practice Law and Rules §3211(a)(7).

In the affirmation submitted in support of the defendant's cross-motion, the assistant attorney general writes: "The State . . . has admitted that at the time of the accident Trooper Crowe was operating his troop vehicle in the scope of his employment." [Affirmation by J. Gardner Ryan, ¶7]. If the trooper's negligence under whatever standard[FN1] applies is established, and claimant was injured as a result of such negligence, what such an admission compels is the State's liability under the theory of respondeat superior. It also militates against disclosure of privileged information such as the trooper's personnel records because such records are completely irrelevant to whether the trooper himself was negligent.[FN2] As noted in Ashley v City of New York, 7 AD3d 742, 743 (2d Dept 2004):

"Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and the plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention."

To the same effect but stated conversely in Pickering v State of New York, 30 AD3d 393, 394 (2d Dept 2006), the appellate division - while approving the trial court's disclosure of redacted personnel records after in camera review based upon allegations in the claim and the bill of particulars broad enough to include causes of action for negligent hiring and/or negligent training - stated:

"Moreover, at this early stage of the proceedings, and in the absence of a clear concession by the defendant that the officer acted completely within the scope of his employment . . . (citations omitted), the claimants were entitled to plead incompatible theories of recovery in the alternative . . . (citations omitted)." (emphasis added).

In this case, there has been a clear concession by defendant that the officer was acting within the scope of his employment when he backed up the exit ramp on January 27, 2005 and collided with claimant's car. A claim for negligent hiring or retention or supervision is maintainable only if an employee is acting outside the scope of his employment at the time of the [*3]alleged misfeasance.[FN3] Assuming that the allegation that the State was negligent "in hiring inept, incompetent and unskilled employees" is an attempt to state such causes of action, these cannot be maintained in light of the State's concession, and are hereby dismissed. See Perriello v State of New York, UID # 2008-029-044, Claim No. 114495, Motion Nos. M-75110, CM-75348 (Mignano, J., November 3, 2008).

What remains, therefore, is a lawsuit premised upon the State's liability for the negligent or reckless[FN4] operation of the State vehicle by State Trooper Crowe, and what information sought is material and necessary to the prosecution or defense of such a cause of action. Civil Practice Law and Rules §3101. In this regard, it is difficult to see how a wholesale examination of Trooper Crowe's personnel file - even an initial examination in camera - is warranted, under the applicable disclosure standards, and in light of the cause of action extant.

Civil Rights Law § 50-a states in pertinent part the following:

1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police 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 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 record found to be relevant and material available to the persons so requesting.

First, although generally claimant would be required to serve Trooper Crowe with the motion papers, given that the Attorney General's Office has appeared in both lawsuits it would seem that the trooper has been appropriately notified of the pendency of this application. More significantly here, claimant is required to "offer, in good faith *** some factual predicate' for [*4]providing access to the personnel files . . . (citations omitted)" sufficient to warrant even the minimal intrusion of in camera review. Zarn v City of New York, 198 AD2d 220 (2d Dept 1993)[FN5]; see also Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833 (3d Dept 2001), lv denied 96 NY2d 710 (2001)[FN6]. "This threshold requirement is designed to eliminate fishing expeditions into police officers' personnel files for collateral materials to be used for impeachment purposes

. . . (citations omitted)." Zarn v City of New York, supra at 220-221.

Here, claimant refers to Trooper Crowe's deposition [see Affirmation by Marie DuSault, Exhibit I] as supplying "an adequate factual predicate for an in camera review," but does not say how except to indicate that personnel records might contain material and necessary information with regard to negligent hiring, supervision and retention claims, and, impliedly, for impeachment purposes. [See Affirmation in Opposition to Cross-Motion & in Further Support of Claimant's Motion to Compel, ¶3]. As noted, search for impeachment materials alone is prohibited. Zarn v City of New York, supra. While justification for production of the letter of censure referred to in claimant's demand and mentioned in the trooper's deposition as having been reflective of his fault in the accident at issue - although he could not remember the particulars of the letter - appears to have been marginally presented, no predicate for a more wholesale review of Trooper Crowe's personnel file is made out here.

Accordingly, defendant's cross-motion is granted as set forth above, and claimant's motion is denied in part and granted in part to the extent that defendant is directed to produce for the court's in camera review certified copies of the letter of censure referred to by Trooper Crowe in his deposition testimony with regard to this incident, as well as the underlying disciplinary records concerning the letter of censure, within thirty (30) days of the filing of this decision and order. The records so provided shall be certified by the agency providing them, identified, and consecutively paginated for ease of reference. After in camera review, the Court will determine what portions, if any, are subject to disclosure and direct the defendant accordingly.

Appendices: Footnotes

Footnote 1: Recklessness or ordinary negligence. See Vehicle and Traffic Law §1104.

Footnote 2: "The rationale is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training' . . . (citations omitted)." Rossetti v Board of Educ. of Schalmont Central School District, 277 AD2d 668, 670 (3d Dept 2000).

Footnote 3:Or if there is some ambiguity surrounding whether the agent was acting outside the scope of his employment. Thus in Blanco v County of Suffolk, 51 AD3d 700 (2d Dept 2008) there again appears to have been no concession the police officers who allegedly assaulted the plaintiffs were acting within the scope of their employment at the time, although the appellate decision does not make that clear. In the absence of such a concession, whether the police officers had some prior record of the use of excessive force about which the county was aware would be relevant, and a sufficient predicate for in camera review of at least a portion of such personnel records.

Footnote 4: Vehicle and Traffic Law §1104 (e) provides that police vehicles engaged in emergency operations be excused from complying with the general rules of the road except if they proceed with "reckless disregard for the safety of others."

Footnote 5: In context of widow's wrongful death action against the city after suicide death of her husband, no showing made that personnel record or career of police officer who witnessed suicide related to the suicide death.

Footnote 6: Petitioner failed to show how personnel records of officer are relevant to his claims of improper conduct during the petitioner's criminal trial. Any cause of action against the officer or the municipality employing him also time barred.