PICKERING v. STATE (2006)

In related claims, inter alia, to recover damages for personal injuries and wrongful death, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Marin, J.) dated February 9, 2005, as denied its motion for a protective order to the extent of directing it to turn over to the claimants certain redacted documents from the personnel file of a certain New York State police investigator.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The claimants seek to recover damages for the personal injuries and wrongful death of their decedent following an incident in which the decedent allegedly was shot by a New York State police investigator after the vehicle in which she was a passenger was stopped by the police.   The claimants sought disclosure of certain material contained in the personnel file of one of the police investigators pursuant to Civil Rights Law § 50-a.   Following a hearing and additional motion practice, the Court of Claims conducted an in camera review of the personnel file and denied the defendant's motion for a protective order to the extent of directing the disclosure of certain redacted documents relating to the officer's training and performance.

Contrary to the defendant's contention, the Court of Claims properly conducted the in camera review and directed the disclosure of the redacted documents pursuant to Civil Rights Law § 50-a.   The allegations set forth in the claims, as amplified by the bill of particulars (see generally Northway Eng'g v. Felix Indus., 77 N.Y.2d 332, 335, 567 N.Y.S.2d 634, 569 N.E.2d 437;   Valentine v. Armor El. Co., 155 A.D.2d 597, 547 N.Y.S.2d 656), were sufficiently broad to include causes of action sounding in negligent hiring and/or negligent training.   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 (cf. Ashley v. City of New York, 7 A.D.3d 742, 779 N.Y.S.2d 502;  Rossetti v. Board of Educ. of Schalmont Cent. School Dist., 277 A.D.2d 668, 716 N.Y.S.2d 460;  Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 659 N.Y.S.2d 27), the claimants were entitled to plead incompatible theories of recovery in the alternative (see CPLR 3014;  Perkins v. Volpe, 146 A.D.2d 617, 536 N.Y.S.2d 845).   Since the claimants sustained their burden of demonstrating the relevance of the personnel file materials to their causes of action, inter alia, for negligent hiring and/or training, the Court of Claims acted properly (see Civil Rights Law § 50-a;  Spadaro v. Balesteri, 237 A.D.2d 507, 656 N.Y.S.2d 908;  Estate of McConlogue v. County of Nassau, 208 A.D.2d 888, 618 N.Y.S.2d 570;  Becker v. City of New York, 162 A.D.2d 488, 556 N.Y.S.2d 691) and did not frustrate the goal of the statute to curtail fishing expeditions into police personnel files and thereby prevent the release of irrelevant and potentially damaging information (see generally Matter of Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 154-155, 688 N.Y.S.2d 472, 710 N.E.2d 1072;  Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 569, 505 N.Y.S.2d 576, 496 N.E.2d 665;  Flores v. City of New York, 207 A.D.2d 302, 303, 615 N.Y.S.2d 400;  Zarn v. City of New York, 198 A.D.2d 220, 220-221, 603 N.Y.S.2d 503).

The parties' remaining contentions either are without merit or are improperly raised for the first time on appeal.