Opinion
05-11-2017
Castello SMITH, et al., Plaintiffs, v. Patricia WATSON, et al., Defendants–Appellants. The Kings County District Attorney's Office, Nonparty Respondent, New York City Police Department, Nonparty Respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York (C. Briggs Johnson of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York (C. Briggs Johnson of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about June 1, 2016, which denied defendants' motion to compel discovery, unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court to examine, in camera, the requested discovery to ascertain whether it falls under the "public interest" privilege.
Defendants sought production of nonparty respondent New York City Police Department's (NYPD) investigation file, and related documents concerning its investigation into the homicide of plaintiffs' decedent, a security guard employed by defendants. Initially, NYPD was properly provided notice of defendants' motion to compel, as demonstrated by the affirmation of service contained in the record, and because the motion to compel stated the "circumstances or reasons" that their discovery requests were "material and necessary" to defend against plaintiffs' action (see CPLR 3101[a][4] ; Matter of Kapon v. Koch, 23 N.Y.3d 32, 34, 36–38, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] ).
On the merits, the court erred in denying defendants' motion outright because of the prior denials of their requests for the same information under the Freedom of Information Law (FOIL). "CPLR article 31 is not a statute ‘specifically exempt[ing]’ public records from disclosure under FOIL" and "no provision of FOIL bars simultaneous use of both" CPLR 3101 and FOIL to procure discovery (Matter of M. Farbman & Sons v. New York City Health & Hosp. Corp., 62 N.Y.2d 75, 81, 476 N.Y.S.2d 69, 464 N.E.2d 437 [1984] ; see also Cornell Univ. v. City of N.Y. Police Dept., 153 A.D.2d 515, 516, 544 N.Y.S.2d 356 [1st Dept.1989], lv. denied 75 N.Y.2d 707, 554 N.Y.S.2d 476, 553 N.E.2d 1024 [1990] ; cf. Marten v. Eden Park Health Servs., 250 A.D.2d 44, 47, 680 N.Y.S.2d 750 [3d Dept.1998] ).
The "public interest" privilege did not justify the outright denial of defendants' motion, because the court did not engage in the requisite balancing of the public interest in encouraging witnesses to come forward to cooperate in pending criminal investigations against defendants' need for the documents to defend against plaintiffs' claim (see Matter of World Trade Ctr. Litig., 93 N.Y.2d 1, 8, 686 N.Y.S.2d 743, 709 N.E.2d 452 [1999] ; Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 117, 359 N.Y.S.2d 1, 316 N.E.2d 301 [1974] ; Sanchez v. City of New York, 201 A.D.2d 325, 326, 607 N.Y.S.2d 321 [1st Dept.1994] ). Accordingly, we find that remittal to the motion court for in camera review of the requested files is appropriate in this case, to give the court the opportunity to conduct the proper balancing, in the first instance, of the interests of both parties (see Colgate Scaffolding & Equip. Corp. v. York Hunter City Servs., Inc., 14 A.D.3d 345, 787 N.Y.S.2d 305 [1st Dept.2005] ).FRIEDMAN, J.P., MOSKOWITZ, MANZANET–DANIELS, KAPNICK, WEBBER, JJ., concur.