Opinion
Index No. 156354/2022
11-22-2022
Tatiana SOKOLOVA, as proposed guardian of Viacheslav Kargin (a.k.a. "Korgin Viacheslav"), Petitioner, v. CITY OF NEW YORK, Respondent.
Attorney for Plaintiff: Beldock Levine & Hoffman, 99 Park Avenue, 26th Floor, New York, NY 10016 Attorney for Defendant: New York City Law Department, 100 Church Street, New York, NY 10007
Attorney for Plaintiff: Beldock Levine & Hoffman, 99 Park Avenue, 26th Floor, New York, NY 10016
Attorney for Defendant: New York City Law Department, 100 Church Street, New York, NY 10007
Leslie A. Stroth, J. Petitioner Tatiana Sokolova, as proposed guardian of Viacheslav Kargin (a.k.a. Korgin Viacheslav) (petitioner), brings this special proceeding and order to show cause seeking pre-action discovery and an order of preservation. Respondent City of New York (the City) consents to a preservation order for any relevant discovery but opposes the remainder of petitioner's motion.
This proceeding arises out of the City's alleged negligence in its duty to protect Mr. Kargin while he was an inmate held at Rikers Island. According to petitioner, Mr. Kargin was attacked by another inmate on April 12, 2022, causing him to experience a traumatic brain injury. The attack allegedly took place at 7:40 a.m. on Rikers Island in the Anna M. Kross Center (AMKC) housing area, West 17 Lower B Side. Mr. Kargin has been hospitalized since the attack and is partially paralyzed, has limited vocal functions, and is currently re-learning to walk and speak. Petitioner intends to file a lawsuit against the City and others involved in the incident for, inter alia, violations of the Fourth and Fourteenth Amendments to the Constitution as well as for correlating state law negligence claims.
Petitioner now seeks an order requiring the City to preserve and produce the following items:
1) The full names and shield numbers of any New York City Department of Correction (NYCDOC) employees who were on duty in the subject housing area between the hours of 6:30 a.m. and 8:30 a.m on April 12, 2022.
2) The full names and shield numbers of any NYCDOC employees who were on duty in the subject housing area who were present for or responded to the assault on Mr. Kargin.
3) The full names and identification numbers of any NYCDOC, New York City Health and Hospital (NYCHH) employees, and the Russian interpreter(s) who conducted and/or reviewed Mr. Kargin's intake assessments on/about March 25, 2022.
4) The full names and identification numbers of any NYCDOC and/or NYCHH employees who determined housing placement for Mr. Kargin.
5) The full names of any and all Russian interpreter(s) used to communicate with Mr. Kargin during his 2022 incarceration at NYCDOC.
6) Any and all video recordings that capture Mr. Kargin while incarcerated at Rikers Island, particularly for the date of April 12, 2022.
7) Any and all video recordings that capture NYCDOC employees responding or not responding to the attack on Mr. Kargin on April 12, 2022.
8) Any and all documents received by and from the New York State Department of Corrections Division of Parole (NYS DCDP) or the New York City Department of Probation (NYCDP) concerning Mr. Kargin.
9) Any and all medical evaluations and intake documents for Mr. Kargin.
10) Any and all logbook entries.
11) Any and all records maintained by NYCDOC on Mr. Kargin.
12) Any and all materials, media, documents, and/or electronically stored information connected with the decision to house Mr. Kargin in housing area West 17 Lower B Side of AMKC.
13) Any and all investigation records regarding the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate.
14) Any and all disciplinary files and records of NYCDOC personnel in connection with the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate.
15) Any and all materials, media, documents, and/or electronically stored information connected with the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate that was not captured by the above-listed items.
16) The full names of any NYCDOC employees who were suspended in connection with this incident, and their length of the suspension.
17) Justification for returning the employees identified back to work, if they returned to employment.
CPLR 3102 (c) permits court-ordered pre-action discovery "to aid in bringing an action, to preserve information or to aid in arbitration." To establish a prima facie case for pre-action discovery, petitioner must demonstrate that "[s]he has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong." Holzman v. Manhattan & Bronx Surface Tr. Operating Auth. , 271 A.D.2d 346, 347, 707 N.Y.S.2d 159 (1st Dept. 2000). The Appellate Division, First Department has held that,
Pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists[,] and is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong. Generally, the determination of whether a party has demonstrated merit lies in the sound discretion of the trial court. Bishop v. Stevenson Commons Assocs., L.P. , 74 A.D.3d 640, 641, 905 N.Y.S.2d 29 (1st Dept. 2010) (internal quotations and citations omitted).
Moreover, pre-action discovery is not appropriate where the "petitioner has sufficient information to frame [her] complaint," which would include potential defendants. Holzman , 271 A.D.2d at 347, 707 N.Y.S.2d 159 (denying pre-action discovery because the petitioner could identify the defendants as well as the time and place of the accident). Specifically, where the petition demonstrates that petitioner knows the date of the accident, the place of the accident, the individuals or entities involved in the accident, and the alleged cause of the accident, pre-action discovery is not permitted. See In Matter of White v. New York City Tr. Auth. , 198 A.D.3d 557, 152 N.Y.S.3d 811 (1st Dept. 2021).
The limitations of CPLR 3102 (c) are designed to:
...prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party. Where, however, the facts alleged state a cause of action, the protection of a party's affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate. Stewart v. New York City Transit Authority , 112 A.D.2d 939, 940, 492 N.Y.S.2d 459 (2d Dept. 1985), citing Matter of Houlihan–Parnes, Realtors v. Cantor, Fitzgerald & Co. Inc., 58 A.D.2d 629, 395 N.Y.S.2d 684 (2d Dept. 1977).
Additionally, the First Department has held that the Court has broad discretion in assessing the propriety of pre-litigation discovery (see Thomas v. New York City Transit Police Dept, 91 A.D.2d 898, 457 N.Y.S.2d 518 [1st Dept. 1983] ) and has interpreted CPLR 3102 (c) as allowing pre-action discovery not only to frame a complaint or preserve evidence but also to ascertain the identities of prospective defendants (see Holzman , 271 A.D.2d 346, 707 N.Y.S.2d 159 ).
Furthermore, in cases wherein the petitioner seeking pre-action discovery may not recall the events that took place due to the traumatic nature of the incident or the potentially diminished cognitive abilities of petitioner resulting from the incident, existing video footage of the event may be permitted to assist petitioner in framing his or her complaint. See Barillaro v. City of New York, 53 Misc.3d 307, 310, 38 N.Y.S.3d 697 (Sup. Ct., Bronx County 2016) ("While it may be true that no precedent compels this court to require the production [of pre-action discovery], no precedent compels this court to deny the application either"), citing Uddin v. New York City Tr. Auth. , 27 A.D.3d 265, 810 N.Y.S.2d 198 (1st Dept. 2006), Holzman v. Manhattan and Bronx Surface Transit Operating Authority , 271 A.D.2d 346, 707 N.Y.S.2d 159 (1st Dept. 2000), Thomas v. New York City Transit Police Dept. , 91 A.D.2d 898, 457 N.Y.S.2d 518 (1st Dept. 1983).
Petitioner argues that, as proposed guardian of Mr. Kargin, she is entitled to pre-action discovery so that she may frame her complaint and identify additional defendants and witnesses. She asserts that pre-action discovery is especially necessary here, because the real party in interest (Mr. Kargin) is unable to communicate any information about what happened. Since the attack, Mr. Kargin has limited vocal functions, is re-learning how to speak, is partially paralyzed, and is essentially unable to communicate.
In opposition, the City maintains that petitioner has all of the requisite information needed to draft a sufficient complaint. Further, as to additional defendants, the City asserts that petitioner can use "John Doe" in her complaint to sue unknown parties and move to amend at a later date following discovery. The City also argues that identifying witnesses is not necessary to frame the complaint and that public policy dictates the denial of motions such as these, which are unduly cumbersome to the City.
Here, petitioner is at an extreme disadvantage in bringing the intended action, because she was not present on the date and time of the alleged accident and Mr. Kargin, who is the victim of the alleged attack, cannot communicate to petitioner what occurred. While it is true that petitioner can identify the entity that employs potential individual defendants (NYCDOC), she cannot identify the particular individuals involved. Identifying prospective defendants is one of the primary reasons for allowing pre-action discovery (see Holzman, 271 A.D.2d 346, 707 N.Y.S.2d 159 ) and, without any additional information, petitioner would be unable to identify the parties involved.
The City argues that petitioner can use "John Doe" and "Jane Doe" in substitution for the actual names of potential individual defendants. However, the Court finds that this will create an unnecessary burden for plaintiff as well as a delay in adjudicating the case, conflicting with the objectives of judicial economy. Moreover, identifying potential individual defendants may aid in petitioner's ability to intelligibly articulate the alleged negligence or the claimed violations of state and federal statutes, given that Mr. Kargin cannot speak, and will eliminate the otherwise inevitable need for petitioner to amend her complaint with specific names post-discovery.
Furthermore, the purpose of limitations on CPLR 3102 (c) is to prevent parties from commencing litigation based on mere suspicion or to gather information in order to determine if a claim exists. See Stewart v. New York City Transit Authority , 112 A.D.2d 939, 492 N.Y.S.2d 459 (2d Dept. 1985). Such is not the case here. Petitioner has made her prima facie case for pre-action discovery and demonstrated the merits of the action. The City has not denied that the subject incident occurred or that Mr. Kargin suffered injuries from same. Therefore, granting petitioner certain pre-action discovery in this matter would not conflict with the purpose of the statute. The facts alleged show that the intended action is not devoid of merit, and petitioner is not merely "fishing" for claims (see Bishop, 74 A.D.3d at 641, 905 N.Y.S.2d 29 ), but rather seeking clarity about who was involved in the incident since Mr. Kargin is unable to communicate this information. The video of the alleged incident as well as the names of employees involved will aid petitioner in commencing the intended action.
While the City maintains that petitioner's request is unduly burdensome, when the facts alleged state a cause of action, the primary consideration for the Court is no longer the protection of an opposing party's affairs. See Stewart v. New York City Transit Authority , 112 A.D.2d 939, 492 N.Y.S.2d 459 (2d Dept. 1985). In this particular situation, where the complainant is unable to speak or report any of the details of the subject incident, certain pre-action discovery is warranted. Given the broad discretion courts have in granting pre-action discovery, this Court finds that the specific circumstances of this matter necessitate a somewhat greater degree of pre-action discovery than matters in which parties do not face the same difficulties in identifying potential individual defendants.
Therefore, petitioner's order to show cause is granted to the extent of ordering the City to produce the following items as numbered by petitioner in her order to show cause:
(1) The full names and shield numbers of NYCDOC employees who were on duty at the subject housing area between the hours of 6:30 a.m. and 8:30 a.m. on April, 12, 2022;
(2) The full names and shield numbers of any NYCDOC employees who were on duty in the subject housing area who were present for or responded to the assault on Mr. Kargin;
(6) Any and all video recordings that capture Mr. Kargin, particularly for the date of April 12, 2022;
(7) Any and all video recordings that capture NYCDOC employees responding or not responding to the attack on Mr. Kargin on April 12, 2022;
(13) Any and all investigation records regarding the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate;
(15) Any and all materials, media, documents, and/or electronically stored information connected with the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate that was not captured by the above-listed items; and
(16) The full names of any NYCDOC employees who were suspended in connection with this incident, and their length of the suspension.
Petitioner's request for an order requiring the City to produce the remaining items listed above is denied. The Court finds that these remaining items are unnecessary for the framing of petitioner's complaint and will serve to aid in prosecuting the action, not commencing it. Upon commencing the intended action, petitioner will be able to obtain further disclosure through the normal course of litigation and may move this Court to amend its pleadings as necessary. With respect to petitioner's request to order the City to produce an affidavit indicating to whom the instant preservation order is delivered, petitioner offers no legal basis to grant such relief at this time. However, should the ordered items not be provided, petitioner may renew this request.
As noted above, the City has no objection to petitioner's request for preservation of relevant evidence for potential litigation. The Court deems items numbered one through 17, listed above, as relevant and material to this matter. Therefore, without opposition by the City, items numbered 3, 4, 5, 8, 9, 10, 11, 12, 14, and 17 listed by petitioner in her order to show cause shall be preserved by the City.
Accordingly, it is
ADJUDGED that the petition and order to show cause seeking pre-action discovery is granted to the following extent:
It is ORDERED that the City shall produce, within 30 days of the date of this order, the following items as numbered in petitioner's order to show cause: (1) the full names and shield numbers of any New York City Department of Correction (NYCDOC) employees who were on duty in the subject housing area between the hours of 6:30 a.m. and 8:30 a.m.; (2) the full names and shield numbers of any NYCDOC employees who were on duty in the subject housing area who were present for or responded to the assault on Mr. Kargin; (6) any and all video recordings that capture Mr. Kargin, particularly for the date of April 12, 2022, including but not limited to video recording from 6:30 a.m. to 8:30 a.m. during which Mr. Kargin was attacked by another inmate; (7) any and all video recordings that capture NYCDOC employees responding or not responding to the attack on Mr. Kargin on April 12, 2022; (13) any and all investigation records regarding the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate; (15) any and all materials, media, documents, and/or electronically stored information connected with the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate that was not captured by the above-listed items; and (16) the full names of any NYCDOC employees who were suspended in connection with this incident, and their length of the suspension.
ORDERED that, without opposition, the City shall preserve and shall not transfer, sell, destroy, throw away, or otherwise tamper with the following items as numbered in petitioner's order to show cause: (3) the full names and identification numbers of any NYCDOC, New York City Health and Hospital (NYCHH) employees, and the Russian interpreter(s) who conducted and/or reviewed Mr. Kargin's intake assessments on/about March 25, 2022; (4) the full names and identification numbers of any NYCDOC and/or NYCHH employees who determined housing placement for Mr. Kargin; (5) full names of any and all Russian interpreter(s) used to communicate with Mr. Kargin during his 2022 incarceration at NYCDOC; (8) any and all documents received the New York State Department of Corrections Division of Parole (NYS DCDP) or the New York City Department of Probation (NYCDP) concerning Mr. Kargin; (9) any and all medical evaluations and intake documents for Mr. Kargin; (10) any and all logbook entries; (11) any and all records maintained by NYCDOC on Mr. Kargin; (12) any and all materials, media, documents, and/or electronically stored information connected with the decision to house Mr. Kargin in housing area West 17 Lower B Side of AMKC; (14) any and all disciplinary files and records of NYCDOC personnel in connection with the April 12, 2022 incident in which Mr. Kargin was attacked by another inmate; and (17) justification for returning the employees identified back to work, if they returned to employment. The City shall take all necessary measures to preserve and prevent the deletion and/or overwriting of all video, audio, still images, and electronically stored information listed in same; and it is further
ORDERED that, without opposition, the City shall preserve and shall not transfer, erase, delete, allow to be automatically erased, transferred or deleted, tamper or otherwise alter or interfere with any information or data, electronically stored or otherwise, concerning the items of evidence listed in petitioner's order to show cause.
This constitutes the decision and order of the Court.