205 Misc. 478 | New York Court of Claims | 1952
This is an application by the claimant for an order (a) requiring the State of New York by “ John Costello, Clinton W. Areson and such guards or employees as had charge of one Ernest Costley, to appear at a time and place to be fixed in said Order to be examined as an adverse party before trial ’ ’ upon the matters and issues in said notice of motion specifically set forth and which matters and issues claimant claims are material and necessary to his proof; and (b) directing “ the said persons to produce upon said examination all records containing the history and care of the said Ernest Costley and the rules and regulations of said State Institution and all other documents, books or memoranda relating to the matters referred to herein, for the purpose of offering any or all of the aforesaid records and documents in evidence, and for such other and further relief as to the Court may seem just and proper.” It was stipulated upon the argument of this motion that John Costello is now superintendent of the State Agricultural and Industrial School at Industry, and that Clinton W. Areson was superintendent of said school at the times mentioned in the claim, now being employed elsewhere by the State of New York.
The claim alleges among other things that:
‘ ‘ THIRD: This claim is for damages suffered by claimant by reason of the negligence of the State of New York, its officers, agents or employees, arising out of the escape of one Ernest Costley, an inmate of the State Agricultural and Industrial School at Industry, Town of Henrietta, Monroe County, New York, from the said school and the theft by the said Ernest Costley of a car belonging to the claimant and the total destruction of said car in an accident following the pursuit of the said Ernest Costley by the New York State Police.
1 ‘ FOURTH: On or about the 30th day of September, 1950, the said Ernest Costley, being an inmate of the said State Agricultural and Industrial School at Industry, New York, escaped from the said school through the carelessness and negligence of the employees of the said school, who are employees of the State of New York. That the said negligence of the State of New York, its said officers and employees consisted in allowing
“ FIFTH: That the said theft and accident resulting in the complete loss of claimant’s car was caused by the negligence of the State of New York, its officers, agents and employees, in allowing the said Ernest Costley to escape from the said State Agricultural and Industrial School, in failing to properly guard the said Ernest Costley, in failing to apprehend the said Ernest Costley and in recklessly pursuing the said Ernest Costley, while driving claimant’s car, at a speed of approximately ninety miles per hour through a congested and thickly populated area on South Street in the Village of Pittsford, New York, thereby causing the said Ernest Costley to lose control of the car and running into and striking a tree, all of which resulted to the damage of the claimant.”
The State of New York opposes the granting of any examination contending “ that the information and records in the possession of the school with respect to the reason behind the boy’s commitment, the nature of any prior delinquencies, and his personal background and history is confidential and privileged.”
The State agricultural and industrial school at Industry is under the jurisdiction of the Department of Social Welfare of the State of New York. It is an institution owned, maintained, and operated by the State of New York for the care and training of children who shall be legally committed thereto and for their guidance and supervision on release (Social Welfare Law, § 425).
By section 372 of the Social Welfare Law of the State of New York, it is provided in pertinent part that: “ 1. Every court, and every public board, commission, institution, or officer having powers or charged with duties in relation to abandoned, delinquent, destitute, neglected or dependent children who shall receive, accept or commit any child shall provide and keep a record showing:” the matters and data required by paragraphs
Unless there are no questions raised by the matters and issues and by the requested production of records involved in this application as to the matters safeguarded against in said section 372, it is our opinion that claimant must proceed in the first instance under said section to resolve such questions in the manner therein provided before applying to this court for an order providing for an examination before trial uncler section 17 of the Court of Claims Act. We have arrived at the conclusion that there are such questions involved upon this application for the scope and purpose of the examination sought as ascertained from the interrelated and interdependent several matters and issues and from the requested production of records contained in the notice of motion, demonstrate that to be a fact. Upon the papers before us, including the claim, therefore, we are of the opinion that this motion must be denied at this time, without prejudice, and that the claimant must proceed in the first instance under section 372 to resolve such questions before applying to this court for an order providing for an examination before trial. After having followed that procedure and depending upon the outcome thereof, should the need be indicated therefor and should he be so advised, claimant may make a new application to this court for an order providing for an examination before trial, at which time we could pass upon the application free from any question raised by virtue of said section 372. We think that the foregoing disposition of this motion is in
The motion is denied without prejudice, however, to the right of the claimant to make a new application to this court for an order providing for an examination before trial as hereinabove indicated.
Submit order accordingly.