Opinion
13668/98.
Decided December 20, 2007.
Plaintiffs were represented by Steven D. Perlmutter, Esq. of the Berkman Law Office, PLLC. Defendants Rinaldo Galgano, and 631 Reno Enterprises, individually and d/b/a Culture Club, were represented by Matthew Charles Baron, Esq. of Bivona Cohen, P.C. Defendants the City of New York and New York City Police Department were represented by Stacey L. Katz, Esq. of the Corporation Counsel of the City of New York. Defendants Daniel Reefer and P.O. Daniel Reefer were represented by John W. Burns, Esq. of Worth, Longworth London, LLP.
There is no dispute that, in the early morning hours of February 17, 1997, two brothers, Daron Burch and James Burch, Jr., were shot by defendant Daniel Reefer at commercial premises called "Culture Club," located at 649 Utica Avenue, Brooklyn. Defendant Reefer was on that date a police officer with defendant New York City Police Department, but was off-duty at the time and place of the shootings. The plaintiffs are Daron Burch and Frances Burch, as Administratrix of the Estate of James Burch, Jr. In addition to Daniel Reefer and the Police Department, the City of New York is named as a defendant (referred to collectively with the Police Department as "the City"), as are Rinaldo Galgano and 631 Reno Enterprises, "individually and d/b/a Culture Club" (referred to collectively as the "Culture Club Defendants".)
The pending motions are primarily addressed to Defendants' attempts to obtain pre-trial testimony from a non-party, Sergeant Keith Fairlie, who was present at the scene of the shootings. Plaintiffs seek to preclude the City "and/or any other defendant from calling the said Sergeant Fairlie as a witness upon the trial of this action" (Order to Show Cause dated October 10, 2007), and seek additional disclosure from the City. The Culture Club Defendants ask that the City's Answer be striken. The predicate for both motions is a history of disclosure demands and orders that, unfortunately, none of the parties fully sets forth, and that is not entirely clear from the papers.
It appears that the earliest disclosure order concerning Sergeant Fairlie is an order of the Hon. Martin M. Solomon dated May 6, 2005, in which the City was ordered to produce Sergeant Fairlie, as well as Police Officers Bruce Parkins and Akeeta Brown, for examination within 60 days after the order. Their testimony was limited, however. Prior to the shootings, earlier in the morning hours, the Burch brothers had been refused entry to Culture Club, and the police had attended. Testimony was limited in the first instance to that earlier incident.
On July 15, 2005, Justice Solomon again ordered the depositions of Sergeant Fairlie and Officers Parkins and Brown, to be held within 60 days, with the same limitation in the first instance on the scope of the testimony, and "to the extent" the officers "are still w/in NYPD employment."
The depositions of Officers Parkins and Brown were held on September 9, 2005, but Plaintiffs were informed that Sergeant Fairlie was no longer employed by the NYPD, and could not be produced. ( See Attorney's Affirmation, Exhibit A to Affirmation in Support of Order to Show Cause [no page or paragraph numbers appear].)
Plaintiffs then moved for further depositions of Officers Parkins and Brown (as permitted by Justice Solomon's May 6 and July 15, 2005 orders), and for additional disclosure including "the last known address of Sgt. Keith Fairlie inasmuch as it has been averred that Sgt. Keith Fairlie is no longer employed by the New York City Police Department." (Notice of Motion dated January 5, 2006.) In an order dated May 19, 2006, Justice Solomon denied the motion to the extent it sought the further depositions of Officers Parkins and Brown, and adjourned the motion to June 23, 2006 to the extent that it sought additional discovery.
None of the parties advises the Court as to the disposition of the balance of Plaintiffs' motion for additional discovery. From all that appears, nothing happened until March 2, 2007 when, at a compliance conference, this Court ordered the City "to produce Sgt. Fairlie for a deposition within 60 days"; and to provide the "memo books" of Officers Parkins and Brown, and to produce the "shooting team captain's report to extent it exists," also within 60 days. This Court's order dated April 24, 2007 extended the City's time to comply with the March 2 order.
With a "Response to Court Orders, Dated March 2, 2007 and April 24, 2007," the City complied with the orders to the extent that they required production of the memo books and the "shooting team captain's report." As to Sergeant Fairlie, the City advised, apparently for the first time, that he "retired from the NYPD on 1/3/03," and provided his last known address. The City maintains that "upon discovery that Sgt. Fairlie retired from the NYPD, the City promptly provided Sgt. Fairlie's date of retirement, and last known address." (Affirmation in Opposition, ¶ 41.) But, as appears above, the City told Plaintiffs' counsel in early September 2005 that Sergeant Fairlie was no longer employed by the NYPD, and Plaintiffs sought his last known address in January 2006.
In short, although Justice Solomon ordered the City on May 6, 2005 to produce Sergeant Fairlie, the City did not represent in writing that he had retired, and did not provide his last known address, until more than two years later. Neither Plaintiffs nor the Culture Club Defendants particularize any prejudice that may have resulted from the delay.
Plaintiffs reacted by serving a Judicial Subpoena dated June 21, 2007 addressed to "Sgt. Keith Fairlie" at the address provided by the City, requiring him to appear to give testimony on August 23 and to bring certain specified books and records. The subpoena was purportedly served pursuant to CPLR 308 (4), with affixation and mailing apparently taking place on July 21, 2007. The copy of the Judicial Subpoena provided to the Court does not contain the stamp of the clerk, and it is not accompanied by any other evidence of filing, which is required in order to make service complete. ( See CPLR 308.) The City, however, does not contest service.
Plaintiffs also served on the City and other Defendants a Notice to Take Deposition Upon Oral Examination of Defendant dated June 21, 2007, which purported to notice "the testimony upon oral examination, of defendant, Sgt. Keith Fairlie." But Sergeant Fairlie is not a defendant. The Culture Club Defendants maintain that they served a "Cross-Notice to Take Deposition Upon Oral Examination for Sgt. Fairlie," which also required his attendance on August 23, 2007. (Affirmation of Good faith, ¶ 2.) But the Culture Club Defendants do not provide a copy of the Cross-Notice, and it cannot, therefore, provide a basis for an order under either CPLR 3124 or CPLR 3126.
Putting aside for the moment the additional disclosure sought by Plaintiffs, they seek preclusion of Sergeant Fairlie's testimony at trial on behalf of any Defendant. The Culture Club Defendants oppose Plaintiffs' motion, arguing that there is no basis for precluding their calling Sergeant Fairlie as a witness at trial. These Defendants go further than Plaintiffs as to the City by asking that its Answer be striken, and that they be given judgment against the City on their cross-claim. The City opposes both motions, contending that it has fully complied with all disclosure orders to the extent it can be legally required to do so. Defendant Reefer appeared by counsel on the return date, but has not submitted papers in support of, or opposition to, either motion.
As a general proposition, and subject to special circumstances ( see Schrager v R.H. Macy Co., Inc., 149 AD2d 331, 331-32 [1st Dept 1989]; Rugby Excavators, Inc. v Juliano, 40 AD2d 1024, 1025 [2nd Dept 1972]), a party "may not be examined through persons who were not in [its] employ at the time the order directing such examination[ ] was made or notice therefor was served." ( See McCormick v Mars Assoc., Inc., 25 AD2d 433, 434 [2nd Dept 1966]; see also McGowan v Eastman, 271 NY 195, 198; Vogel v Benwil Industries, Inc., 267 AD2d 232, 233 [2nd Dept 1999]; Mohammad v 919 Park Place Owners Corp., 245 AD2d 351, 352 [2nd Dept 1997]; Sparacino v City of New York, 85 AD2d 688, 689 [2nd Dept 1981]; Schwartz v Brooklyn Queens Tr. Corp., 260 AD 947, 947 [2nd Dept 1940].) The CPLR distinguishes between disclosure by a party, "or the officer, director, member, agent or employee of a party" ( see CPLR 3101 [a] [1]; see also CPLR 3106 [b] ["officer, director, member or employee of a party"], and disclosure by "any other person" ( see CPLR 3101 [a] [4].)
Interestingly, in prescribing penalties for noncompliance with disclosure obligations, the CPLR adds "or otherwise under a party's control" to "officer director, member, employee or agent of a party" ( see CPLR 3126), and the control concept has found its way into appellate opinions addressing a party's obligation to produce a former employee for examination. ( See Schneider v Melmarkets, Inc., 289 AD2d 470, 471 [2nd Dept 2001]; Wheeler v New York City Transit Authority, 270 AD2d 104, 104 [1st Dept 2000]; Thomas v Queens Transit Corp., 59 AD2d 620, 621 [2nd Dept 1977]; see also Those Certain Underwriters at Lloyds London v Occidental Gems, Inc., 41 AD3d 362, 364 [1st Dept 2007].)
In one opinion, where the plaintiff had sought sanctions for the defendant's failure to produce an identified person who was "no longer an officer, director or employee," the appellate court held that, "absent any evidence that [the person] is within the control of defendant corporation," the lower court property denied the application for sanctions, but granted the plaintiff leave to renew "upon a showing that [the person] is under the control of defendant." ( See Two Clinton Square Corp., v Computerized Recovery Sys., Inc., 63 AD2d 853, 853 [4th Dept 1978].)
Here, there is no basis for requiring that the City "prove[ ] that it no longer has any control or influence over" Sergeant Fairlie. ( See Doomes v Best Transit Corp., 303 AD2d 322, 322-23 [1st Dept 2003].) Neither Plaintiffs nor the Culture Club Defendants point to any fact or circumstance (for example, a continuing pension) that would suggest such control or influence, sufficient to require the City to make a showing, or at least warrant disclosure addressed to the issue. Neither Plaintiffs nor the Culture Club Defendants dispute the City's assertion that it was first requested to produce Sergeant Fairlie in December 2004, and they were informed that Sergeant Fairlie was no longer in the City's employ in September 2005. A request for disclosure addressed to the continuing relationship between the City and Sergeant Fairlie, which has not been made, would now come too late.
On this record, there is no basis for penalizing the City for failing to produce Sergeant Fairlie for examination, even to the limited extent of precluding his testimony at trial as requested by Plaintiffs. ( See Ludwigsen v American Transport Lines, Inc., 242 AD2d 523, 524 [2nd Dept 1997].) Neither Plaintiffs nor the Culture Club Defendants have moved for a warrant directing that Sergeant Fairlie be brought to court ( see id., at 524-25 [Altman, J., concurring]), assuming proper and completed service of the subpoena. And, as noted above, neither has shown any prejudice from the City's unexcused tardiness in providing Sergeant Fairlie's last unknown address.
The motion of the Culture Club Defendants must, therefore, be denied. Although their suggestion that spoliation concepts and caselaw ( see, generally, Ortega v City of New York, 9 NY3d 69, 76) may be applicable where an employee with special knowledge about a claim becomes unavailable, they make no showing, factual or legal, that the City acted wrongfully or even negligently in connection with Sergeant Fairlie's retirement. It is particularly important to note that Sergeant Fairlie retired on January 3, 2003, approximately two years before the first request for his production.
The Plaintiffs' motion must also be denied, both as to a penalty for the City's failure to produce Sergeant Fairlie for examination, and as to the additional disclosure sought. As to the additional disclosure, the request is not supported by any prior order, or any Article 31 notice or demand. (This Court's March 2, 2007 order required production of the memo books of Officers Parkins and Brown only.) Moreover, a compliance conference order dated July 31, 2007 states, "Discovery is complete except for the deposition of Sgt. Keith Fairlie which has been scheduled."
The Court will, nonetheless, permit Plaintiffs to serve a notice on the City pursuant to CPLR 3120 (a) for discovery and inspection of Sergeant Fairlie's police activity log, commonly known as a "memo book" ( see Matter of Gould v New York City Police Dept., 89 NY2d 267, 272-73.) The City makes several arguments against an order requiring that it produce the memo book:
"I[t] is the City's understanding that Sergeants do not maintain memo books, and, additionally, even if Sgt. Fairlie maintained a memo book on the date of the incident, his memo book is his personal property. As Sgt. Fairlie is retired, the City is unable to get his memo book." (Affirmation in Opposition, ¶ 46.)
First, the Court of Appeals has already rejected the "personal property" contention in holding that, "[s]ubject to any applicable exemption and upon payment of the appropriate fee . . ., the activity logs are agency records available under the provisions of [the Freedom of Information Law.]" ( See Matter of Gould v New York City Police Dept., 89 NY2d at 278-79.) "[T]he Police Department issues activity logs to all its officers, who are required to maintain these memo books in the course of their regular duties and to store the completed books in their lockers; the officers are obliged to surrender the activity logs to superiors for inspection upon request; and the contents of the logs are meticulously prescribed by departmental regulation." ( Id., at 278.) Memo book entries have been subject to judicial order requiring disclosure. ( See Rodriguez v City of New York, 222 AD2d 317, 317 [1st Dept 1995].)
If, of course, officers with the rank of sergeant do not maintain memo books, the City cannot be required to produce them, but it will take more than the City's "understanding," as revealed by counsel, to establish that. Given the nature of the logs, as described by the Court of Appeals, it will not necessarily be enough for the City to say that Sergeant Fairlie is retired, particularly since he retired six years after the subject shootings. One would expect that the City would have preserved evidence relating to the shooting of two civilians, as to one fatal. But these questions need not be addressed on these motions.
The Plaintiffs' motion is granted to the extent that, within 30 days after the date of this order, Plaintiffs may serve upon the City a notice pursuant to CPLR 3120 (a), calling for the discovery and inspection of Sergeant Fairlie's memo book, and is otherwise denied.
The motion of the Culture Club Defendants is denied.