Opinion
# 2016-038-542 Claim No. 125869 Motion No. M-88226
07-08-2016
DARIUSZ BUCZYNSKI v. STATE OF NEW YORK
DARIUSZ BUCZYNSKI, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Claimant's motion to compel responses to his discovery demands granted in part, and defendant is directed to produce the address of the one witness whose address has yet to be disclosed. Claimant's motion to exclude his stepdaughter as a witness due to mental health issues is denied, as claimant's motion does not provide sufficient support for such a request. Claimant's request to seal those parts of his affirmation and the exhibits related to his stepdaughter's mental health is denied, as the motion does not demonstrate good cause therefor. The remainder of claimant's requests on the motion, which are outside the scope of the permission granted on this discovery motion, are denied.
Case information
| UID: | 2016-038-542 |
| Claimant(s): | DARIUSZ BUCZYNSKI |
| Claimant short name: | BUCZYNSKI |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125869 |
| Motion number(s): | M-88226 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DARIUSZ BUCZYNSKI, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 8, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim, filed by claimant pro se, recites facts relating to an extended incident that began in the early hours of January 1, 2015 when claimant, his wife, his adult stepdaughter and other family members attended a party at a restaurant in Stony Creek, New York. As alleged in the claim, claimant and an unidentified man had a verbal disagreement and scuffle that resulted in a laceration to claimant's face. Claimant, his wife, and his stepdaughter departed the premises in their vehicle, but returned when they observed police vehicles heading toward the restaurant. Claimant and his wife exited their car while his stepdaughter remained in the vehicle. The police officers, including State Trooper Ryan Fregoe, conducted an investigation inside the restaurant, after which they requested to speak with claimant's stepdaughter who, the claim alleges, is in "poor mental condition" and did not wish to speak with the police (see Claim No. 125869, at pp. 3-4). A dispute arose between claimant, his wife, and Trooper Fregoe that culminated in claimant's arrest. The claim alleges that claimant sustained a broken left wrist while he was in defendant's custody, and it seeks compensation for claimant's wrist injury including pain and suffering and past and future medical expenses, emotional distress, past and future wages, and the cost of legal representation, as well as "retraction" of the criminal charges that were filed against claimant (see id., at p. 7).
Inasmuch as claimant's motion alleges that his stepdaughter suffers from poor mental health, this Decision and Order does not use her given name in order to protect her privacy at this stage of the proceedings.
Claimant, appearing pro se, and the Assistant Attorney General who is defending the claim called chambers on February 22, 2016 and engaged in a telephone conference call with Nancy Schulman, principal law clerk to the undersigned (see Buczynski "Affirmation," Exhibit E). Claimant objected to the scheduled deposition of his stepdaughter for reasons related to her mental health, and he also asserted that defendant's response to his request for a list of witnesses who gave statements to the State Police was insufficient. When these issues could not be resolved during the conference with chambers staff, claimant was given permission to move for relief "addressed to the issues of his [step]daughter's appearance for deposition and the defendant's response to his request for a witness list" (id.; see 22 NYCRR § 206.8 [b]).
The document that claimant submits in support of his motion is styled as an "affirmation," but he has not demonstrated that he is among the limited class of individuals who are authorized to submit an affirmation in lieu of affidavit (see CPLR 2106).
Claimant now moves for an order compelling responses to his demand for information about witnesses (see Buczynski "Affirmation", ¶¶ 3-9), copies of recordings of claimant's telephone calls to 911 on the date of the incident (see id., ¶¶ 10-12), the disciplinary records of Trooper Fregoe and copies of an unidentified incident report (see id., ¶¶ 13-14, 17-21), and the entirety of a 20-page facsimile transmission dated April 1, 2015 (see id., ¶¶ 15-16). Claimant also seeks a protective order excluding his stepdaughter as a witness due to mental health issues, and an order sealing claimant's Affirmation and the exhibits containing information about his stepdaughter's medical issues (see id., ¶¶ 22-35), as well as an award of costs for the preparation of this motion (id., ¶ 36). Defendant opposes the motion, includes in its exhibits certain items sought in discovery by claimant, and purports to seek affirmative relief.
In addition to responding to claimant's notice of motion, the affirmation of Christina Calabrese, AAG purports to be a "Cross Motion for an Order Unsealing Prior Criminal History of Claimant and Motion to Compel a Response to Defendant's Second Bill of Particulars" (see Calabrese Affirmation). However, counsel's affirmation is not noticed as a motion or cross motion (see CPLR 2215; 22 NYCRR § 202.7 [a]) and it is not before the Court as such. Accordingly, defendant's submission will be treated as only opposition to claimant's motion. The Court notes that although claimant has not submitted any opposing to the purported cross motion, he filed a response to defendant's demand for a second bill of particulars on March 28, 2016.
Claimant asserts that the only witness whose address was provided by defendant was that of Trooper Fregoe, and he complains that the addresses of all of the witnesses to the incident were redacted from police reports (see id., Exhibit A). The 11 individuals listed as "associated persons" on the incident report include claimant, his wife, and his stepdaughter, four other witnesses whose addresses are known to claimant (see Calabrese Affirmation, Exhibit E [Michael Prybylski, James Prybylski, Stuart Strzelczyk, and John Martin]), and three additional witnesses whose addresses are provided in defendant's submission on the motion (see Calabrese Affirmation, ¶ 19 [Denise Martin, Renar Seagal, and Jacob Sauer-Jones]). Defendant asserts that claimant is now in possession of the addresses of all witnesses, but it does not appear that defendant has disclosed the address of Farkhod Umarov, or that claimant is otherwise in possession of it. Accordingly, in the absence of any other objection by defendant, claimant's motion will be granted to the extent that defendant will be directed to produce to claimant Umarov's address.
Claimant contends that his stepdaughter should be excluded as a witness due to mental health issues that, according to claimant, impair her memory and cause her to be an impeachable witness, and because participating as a witness will cause her distress (see Buczynski "Affirmation," ¶¶ 22-31). He states that "[c]laimant, who is involved in the treatment of his [step]daughter, dully [sic] certifies that her involvement in these legal proceedings would put her under high risk of undesired deteriorating of her mental fitness" (id. ¶ 32). Claimant's unsworn submission is lacking in evidentiary values, and even if it were sworn, it does not set forth the nature of claimant's involvement in his stepdaughter's treatment or that he is a medical profession who is qualified to make such a statement. While the exhibits that are submitted by claimant in support of his motion reveal that his stepdaughter has a history of mental health issues, they do not demonstrate that she is incapable of being a witness at this time or that doing so would jeopardize her health. To the extent that she remains hospitalized at the time of her deposition, defendant asserts that it will depose claimant's stepdaughter in the hospital (see Calabrese Affirmation, ¶ 24). Accordingly, claimant's motion for a protective order on behalf of his stepdaughter will be denied.
To the extent that claimant requests that his affirmation and the exhibits that he has submitted relating to his stepdaughter's mental health be sealed, the request is unsupported by any showing of good cause therefor (see 22 NYCRR § 216.1 [a]), and accordingly, it will be denied.
The remainder of claimant's motion - his requests for copies of recordings of 911 calls, the disciplinary records of Trooper Fregoe and copies of an unidentified incident report, and the first four pages of a facsimile transmission - are matters beyond the scope of the conference that was conducted in compliance with 22 NYCRR § 206.8 (b) and are in excess of the permission granted on behalf of the Court as to the subject matter of this motion (see Buczynski "Affirmation", Exhibit E). However, inasmuch as defendant's submission addresses these additional issues, they will be addressed in the interest of judicial economy.
Claimant's request for in camera review of the disciplinary review of Trooper Fregoe's disciplinary record, if any, will be denied. As a threshold matter, claimant has not demonstrated that his request has been served upon Trooper Fregoe as required by Civil Rights Law § 50-a (2) (see Flores v State of New York, UID No. 2014-041-044 [Ct Cl, Milano, J., June 22, 2015]), and this part of claimant's motion will be denied on that basis. Moreover, Civil Rights Law § 50-a provides confidentiality for the personnel records of police officers for the purpose of "protect[ing] the officers from the use of records - including unsubstantiated and irrelevant complaints of misconduct - as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. Servs., 73 NY2d 26, 31-32 [1988]). The party seeking the protected records has the initial burden of demonstrating that there is a legitimate need for the records and that they "are actually relevant to an issue in a pending proceeding" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155 [1999]) by making a good faith showing of a "factual predicate" justifying the intrusion into the personnel records (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], lv denied 96 NY2d 710 [2001]). Here, claimant has offered no facts that demonstrate that Trooper Fregoe's personnel record contains information that would be relevant to this claim.
To the extent that claimant demands production of his 911 calls, defendant asserts that all audio recordings that were in the possession of defendant have been produced to claimant (see Calabrese Affirmation, ¶ 20), and audio recordings are submitted in support of defendant's opposition to the motion (see id, Exhibit G, ¶ 21 [Exhibits S, T]). Claimant has not submitted any reply that would dispute defendant's assertion, and accordingly, defendant will not be directed to produce additional recordings.
Claimant's request in his motion for production of an incident report is lacking in specificity, but appears to seek any incident report relating to the incident that is the basis for this claim (see id. Exhibit D). Numerous reports relating to the incident were produced by defendant in its July 24, 2015 response to claimant's combined demands (see id., Exhibit G [Exhibits A-C]; Exhibit M [Exhibits A, B]). Claimant has not identified any particular incident report that has not been disclosed, and thus, that part of his motion that seeks production of an incident report will be denied.
Claimant's request for sanctions against defendant for failure to comply with discovery demands will be denied and costs for preparation of this motion will not be granted. Nothing on this motion demonstrates that defendant has willfully and contumaciously withheld documents or information that ought to have been produced (see Congleton v United Health Servs. Hosps., 67 AD3d 1148 [3d Dept 2009]).
Accordingly, it is
ORDERED, that claimant's motion is GRANTED IN PART, and defendant is directed to produce the address of Farkhod Umarov, and it is further
ORDERED, that claimant's motion is DENIED in all other respects.
July 8, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 125869, filed March 30, 2015; (2) Verified Answer, filed April 24, 2015; (3) Notice of Motion, dated March 8, 2016; (4) "Affirmation" of Good Faith of Dariusz Buczynski, dated March 8, 2016; (5) "Affirmation" of Dariusz Buczynski, dated March 8, 2016, with Exhibits A-I and 1-9; (6) Affirmation of Christina Calabrese, AAG, in Response to Claimant's Notice of Motion and Cross Motion for an Order Unsealing Prior Criminal History of Claimant and Motion to Compel a Response to Defendant's Second Bill of Particulars, dated March 24, 2016, with Exhibits A-N; (7) Claimant's Verified Answer for a Second Verified Bill of Particulars, filed March 28, 2016.