Scott v. Nassau County

• Decision Date: 29 July 1964
• Docket Number: D,No. 635,635
• Parties: Jessie SCOTT, an infant over the age of 14 years, by his Father and Natural Guardian Aaron Scott, and Aaron Scott individually, Plaintiffs, v. The COUNTY OF NASSAU and Patrolman George D. Young, Shield efendants.
• Court: New York Supreme Court

Page 135

252 N.Y.S.2d 135

43 Misc.2d 648

Jessie SCOTT, an infant over the age of 14 years, by his

Father and Natural Guardian Aaron Scott, and Aaron

Scott individually, Plaintiffs, v. The COUNTY OF NASSAU and Patrolman George D. Young, Shield

No. 635, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

July 29, 1964.

Mullooly, Mullen & Jeffrey, Freeport, for plaintiffs.

Jack B. Weinstein, County Atty. of Nassau County, Mineola, for defendant.

BERNARD S. MEYER, Justice.

In this action for false arrest and for personal injuries sustained, it is claimed, through the use of excessive force in the making of the arrest plaintiffs move for discovery of any statement mde by the arresting officer to the County Police Department or to the District Attorney. The first trial of the criminal charges against the infant plaintiff resulted in a mistrial and on second trial in a dismissal on grounds of double jeopardy. The County admits that the arresting officer made an official report to his commanding officer with regard to the arrest, but claims that Section 2207 of the County Government Law (Laws of 1936, Chap. 879) exempts the report from disclosure. The answering affidavit does not reveal whether any statement other than the official report referred to was made by the officer either to the Police Department or the District Attorney, nor does it specify reasons for confidentiality in this particular case. The claim is simply that 'it is an official confidential record.'

If it be assumed that it is still the rule under CPLR § 3101 and Rule 3120 that discovery may be had only of documents admissible in evidence (as to which see Maiden v. Aid Carpet Service, Inc., 43 Misc.2d 660, 251 N.Y.S.2d 987; Bloom v. New York City Transit Authority, 20 A.D.2d 687, 246 N.Y.S.2d 414), the report in question would nonetheless be discoverable in litigation not involving a unit of government because admissible as a report made in the regular course of business, Gutin v. Frank Mascali & Sons, Inc., 11 N.Y.2d 97, 226 N.Y.S.2d 434, 181 N.E.2d 449, cf. Brecht v. City of New York, 14 A.D.2d 790, 220 N.Y.S.2d 452 and because it might reasonably contain admissions by the arresting officer, Ciaffone v. Manhattantown, Inc., 20 A.D.2d 641, 246 N.Y.S.2d 298; Cianci v. Board of Education, 18 A.D.2d 930, 238 N.Y.S.2d 547. Is the official nature of the communication sufficient reason for denying to plaintiff the disclosure to which under the CPLR he would otherwise be entitled?

Section 66 of the Public Officers Law 'expresses a strong legislative policy to make available to public inspection and access all records or other papers kept 'in a public office,' at least where secrecy is not enjoined joined by statute or rule.', New York Post Corp. v. Leibowitz, 2 N.Y.2d 677, 686, 163 N.Y.S.2d 409, 415, 143 N.E.2d 256, 260. The policy is further evidenced by the broad definition of 'public records' to be found in Education Law, § 144 and by General Municipal Law, § 51 wich makes 'All * * * papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county * * * public records * * * open * * * to the inspection of any taxpayer.' Under the latter section, a taxpayer suing the city for water damage was held entitled to mandamus directing that the reports of engineers and other city employees relating to the bursting of the water main be made available for his inspection, Matter of Ihrig v. Williams, 181 App.Div. 865, 169 N.Y.S. 273, aff'd 223 N.Y. 670, 119 N.E. 1050; Matter of Brooklyn Bridge Freezing & Cold Storage Co. v. Vurmuhlen, 273 App.Div. 956, 78 N.Y.S.2d 755; but cf. Matter of Lessin v. Board of Education, 215 App.Div. 652, 212 N.Y.S. 856.

Section 2207 of the County Government Law on which the County relies is but another manifestation of the broad policy referred to, for its purpose is to make public records available 'to the inspection of any taxpayer.' True it excepts records of 'the police department, the county attorney's office, or the district attorney's office,' and such an exception was the basis for denying to a litigant against a municipality access to police department records concerning the matter in litigation, Yude v. Cruise, 287 N.Y. 603, 38 N.E.2d 710, aff'g 261 App.Div. 938, 25 N.Y.S.2d 449; see Hale v. City of New York, 251 App.Div. 826, 296 N.Y.S. 443; Matter of Mulry v. Beckmann, 188 Misc. 648, 69 N.Y.S.2d 43, aff'd 272 App.Div. 780, 69 N.Y.S.2d 519, but as to police record such cases were overridden by the legislative policy evinced by the enactment in 1941 of Public Officers Law, § 66-a. That section provides that 'Notwithstanding any incosistent provisions of law, general, special or local, or any limitation contained in the provision of any city charter, all reports and records of any accident, kept or maintained by the * * * police department or force of any county * * * shall be open to inspection of any person having an interest therein * * * even though the state or a municipal corporation or other subdivision thereof may have been involved in the accident * * *.' The court recognizes that application under the statute is by Article 78 proceeding rather than motion in a tort action, Brecht v. City of New York, 14 A.D.2d 790, 220 N.Y.S.2d 452, supra,...