Hodge v. Cnty. of Westchester

• Decision Date: 26 August 2013
• Docket Number: Motion Seq. #2,NYSCEF DOC. NO. 34,INDEX NO. 61572/2012
• Parties: WILLIE B. HODGE, Plaintiff, v. COUNTY OF WESTCHESTER, Defendants.
• Court: New York Supreme Court

2013 NY Slip Op 32774

WILLIE B. HODGE, Plaintiff,
v.
COUNTY OF WESTCHESTER, Defendants.

NYSCEF DOC. NO. 34
INDEX NO. 61572/2012
Motion Seq. #2

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER - COMPLIANCE PART

RECEIVED NYSCEF: August 27, 2013
Dated: August 26, 2013

To commence the statutory time period for appeals as of right [CPLR 5513(a)], you are advised to serve a copy of this order, with notice of entry upon all parties.

DECISION & ORDER

LEFKOWITZ, J.

The following papers were read on this motion by plaintiff for an order pursuant to CPLR 3124 to compel defendant and nonparties Turone Bason and District Attorney of Westchester County to release certain of Bason's criminal, medical and psychiatric records:

Order to Show Cause, Affirmation in Support
Affirmation in Partial Opposition
Affirmation in Partial Opposition (District Attorney)
Affirmations of Service

Upon the foregoing papers and proceedings held on August 26, 2013, the motion is determined as follows:

Plaintiff Willie B. Hodge, while an inmate at the Westchester County Jail, alleges that he was assaulted by another inmate, Turone Bason, on November 7, 2011, while Bason was not restrained. Plaintiff's complaint alleges that Westchester County negligently failed to protect plaintiff from Bason and, by such failure, is liable for plaintiff's injuries and for civil rights violations (see 42 USC § 1983). Plaintiff moved by Order to Show Cause dated July 25, 2013, for an order pursuant to CPLR 3124 compelling defendant, Bason and the District Attorney of Westchester County to release Bason's criminal, medical and psychiatric records. The gravamen of plaintiff's argument is that these records may adduce evidence that defendant knew or should have known of Bason's allegedly heightened propensity to violence. Plaintiff shows proper service on Bason, who has not submitted papers opposing plaintiff's motion.

Westchester County does not oppose so much of plaintiff's application as seeks release of Bason's inmate file from Westchester County Jail pursuant to a so-ordered judicial subpoena pursuant to CPLR 2307, provided that the County first receives either a HIPAA-compliant release from Bason or judicial consent to redact so much of such file as contains privileged medical or psychological information concerning Bason.

Page 2

The District Attorney opposes so much of plaintiff's application as seeks release of Bason's criminal records. The District Attorney notes that Bason has had a number of criminal cases in Westchester County, including an active criminal prosecution for drug-related charges (Docket No. 13-1324, Mount Vernon City Court); two that were sealed pursuant to CPL 720.35; and two others that appear to be unsealed and thus potentially eligible for disclosure (Westchester County SCI 11-1031, Docket No....