Opinion
19055/2013
06-06-2016
Jabbar A. Campbell, Plaintiff, v. The City of New York, THE NEW YORK CITY POLICE DEPARTMENT, JUAN MORENO, MICHAEL MCMANUS, "JAMES" KEOUGH, first name fictitious, intended being that of police officer, "JOE" KELLER, first name fictitious, intended being that of police officer and "JOHN" GRIFFITH, first name being fictitious, indeed being that of police officer, Defendants.
Subin & Associates Attorney for Plaintiff By: Eric D. Subin, Esq. 150 Broadway, 23rd Floor New York, New York 10038 Zachary W. Carter Corporation Counsel of the City of New York Attorney for DefendantsBy: Carolyn A. McMenemy, Esq. 350 Jay Street, 8th Floor Brooklyn, New York 11201
Subin & Associates Attorney for Plaintiff By: Eric D. Subin, Esq. 150 Broadway, 23rd Floor New York, New York 10038 Zachary W. Carter Corporation Counsel of the City of New York Attorney for DefendantsBy: Carolyn A. McMenemy, Esq. 350 Jay Street, 8th Floor Brooklyn, New York 11201 Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 1, 4 Opposing Affidavits (Affirmations) 2, 5 Reply Affidavits (Affirmations) 3, 6 Other Papers
Introduction
Plaintiff, Jabbar Campbell, moves by notice of motion, sequence number six, for an order (1) pursuant to CPLR § 3032(b) amending the complaint to reflect the previously unknown actual names of the defendant police officers; (2) pursuant to CPLR § 3126 striking defendants' answer for their willful and contumacious violation of multiple court orders due to their failure to appear for court ordered depositions; (3) or in the alternative an order pursuant to CPLR § 2126 determining liability against the defendants and in favor of plaintiff; (4) pursuant CPLR § 2126 precluding defendants' medical experts from testifying at the time of trial due to defendants failure to exchange the medical reports of their examining doctors; (5) sanctioning the defendants for their deliberate misrepresentation and deliberate withholding of material evidence and discovery; and (6) for such other and further relief as this Court may deem just, proper and equitable. Defendants, the City of New York and the New York City Police Department (NYPD) (collectively, the City), oppose this application.
The City cross-moves for an order (1) pursuant to CPLR § 2304 to quash plaintiff's subpoena duces tecum dated January 20, 2016; and (2) for such other and further relief as this Court deems just and proper. Plaintiff opposes this application
The City does not oppose plaintiff's application to amend the caption and verified complaint to reflect the name "Officer Eugene Keeler" (see Defendants' Opposition).
Background
Plaintiff alleges that on January 13, 2013, he was hosting a gay pride party when NYPD officers unlawfully entered his home, obstructed video camera feeds, beat him, stated homophobic slurs and arrested him. Plaintiff further alleges that officers from the NYPD thereafter staked out his home. On March 3, 2013, the NYPD again entered plaintiff's home; plaintiff was not present at that time, but his roommate, Ron Dante Gilmore, was home. Plaintiff avers that the NYPD initially denied involvement in the March 1, 2013, incident, and only after the Internal Affairs Bureau (IAB) conducted an investigation, did the NYPD acknowledge their presence on March 1, 2013.
On October 28, 2013, plaintiff commenced this action for false arrest, negligent hiring, retention and training, assault, battery, malicious prosecution and punitive damages against the individual officers. Plaintiff's roommate, Ron Dante Gilmore, commenced an action in federal court. In both of these actions the respective plaintiffs are represented by the same law firm.
This matter has an extensive litigation history. Plaintiff's contention is that the City repeatedly failed to comply with court orders for discovery. Specifically, the City failed to produce the IAB and Civilian Complaint Review Board (CCRB) records for the alleged incidents on January 13, 2013, and March 1, 2013, failed to produce the individually named defendants for deposition and failed to exchange the medical reports of their examining doctors.
CCRB , IAB & Depositions of the Officers
The preliminary conference order dated November 3, 2014, scheduled the depositions of the officers for March 2, 2015, and March 11, 2015. This order also directed the exchange of the IAB and CCRB records for the January 13, 2013, and March 1, 2013, incidents within 90 days. None of the documents were exchanged and the defendants were not deposed.
The compliance conference order signed by the Hon. Martin Schneier on April 7, 2015, rescheduled the defendants' depositions for July 8, 2015, and July 14, 2015. Further, the IAB and CCRB records were to be produced within 30 days of that order. The City again failed to produce the IAB and CCRB records.
Plaintiff filed his first motion to strike on June 4, 2015. On June 24, 2015, and in resolution of the motion, the Hon. Martin Schneier issued an order which stated that the IAB and CCRB records for the January 13th and March 1st incidents, shall be produced by July 7, 2015. The order also stated, in part that "[t]he City represents that the IAB & CCRB files were already provided to plaintiff's office for the case in federal court titled Gilmore, Ron Dante Docket No. 14CV00252".
Defendants' counsel stated in her affidavit in opposition herein that on July 2, 2015, the City wrote to plaintiff regarding the outstanding records, and served the IAB and CCRB records related to the January 13th incident. Although plaintiff contends that as of July 7, 2015, he did not receive these records, this is the last time that the request appears to have been made. In this July 2, 2015 letter, defendants' counsel, Ms. Sarah Prager, stated that, " . . . the City's search for an IAB investigation file and a CCRB file for the alleged incident that occurred on 3/1/13 yielded zero results." This is quite curious given that the June 24, 2015, court order referenced that these records were exchanged in the federal litigation.
Plaintiff annexed email communications indicating his good faith effort to resolve the outstanding discovery over a period of time. On July 7, 2015, plaintiff sent an email to defendant's counsel stating,
This email was sent to Assistant Corporation Counsel Michael Parsa who indicated that he is assigned to Part 7 and inasmuch as plaintiff's case is assigned to Part 22 plaintiff should contact an attorney in Part 22. Mr. Parsa also provided the names of counsel assigned to Part 22.
I still haven't received the complete IAB and CCRB records relating to my client for the incidents that occurred on 1/13/13 and 3/1/13. Our offices were in court to resolve my motion to strike your answer based on your failure to produce . . . You were ordered by the Court at that time to produce . . . the records today. I am sure you are aware that the first deposition of the police officer/defendants . . . is scheduled to begin tomorrow. I will not be able to go forward with your clients' deposition in the event that you do not provide me with the court ordered documents by today. . . (Plaintiff's Motion, Exhibit F)
Defendants counsel, Mr. Michael Parsa, responded stating " I have no involvement with this case beyond conducting plaintiff's EBT. Also, another [Assistant Corporation Counsel] handled that motion. Please contact her as she is the appropriate individual to assist in resolving this discovery issue" (Plaintiff's Motion, Exhibit F).
Plaintiff filed a second motion to strike on July 16, 2015. In the interim, a compliance conference order by the Hon. Martin Schneier dated August 11, 2015, resolved plaintiff's second motion to strike. This order scheduled the depositions of the officers for November 19, 2015, and December 1, 2015. The order is silent as to the CCRB and IAB records.
On September 8, 2015, plaintiff sent another email to defendants' counsel, Ms. Prager, stating "I am willing to waive deposing your clients in the subject matter in the event we can stipulate that the depositions already conducted in the tangential [federal litigation] matter can be used as if they have been conducted during the ordinary course of discovery in the instant matter. I have attached a proposed stipulation to this email for your review" (Plaintiff's Motion, Exhibit N). There is no response to this email.
On October 20, 2015, plaintiff's counsel sent letters by certified mail to Corporation Counsel at 100 Church Street, New York, New York and 350 Jay Street, Brooklyn, New York confirming the location and time of the November 19, 2015 and December 1, 2105 depositions and their intent to video the deposition ( see Plaintiff Motion, Exhibit I). Plaintiff states that the defendants refused to appear for the court ordered deposition on November 19, 2015. The transcript dated December 1, 2015, the last court ordered deposition date, reiterates that the defendants' counsel "busted" the November 19, 2015 court ordered deposition "citing the reason solely that they were not prepared to go forward". Defendants' are silent as to this issue. Defendant Michael McManus appeared for the court ordered deposition on December 1, 2015. Pursuant to the brief deposition record made on that date, defendant's counsel indicated a refusal to proceed with this deposition since counsel was only recently in receipt of a 354 page transcript of McManus' deposition in the federal litigation. Plaintiff's counsel stated that the transcripts from the federal litigation were first mailed to defendant "on November 23, which was the day before Thanksgiving". Defendant's counsel further stated that "I have not had an opportunity to review the transcript, nor has my client, and therefore, we will be busting today's deposition so that Officer McManus and my office can have an opportunity to review the transcript". Defendants' counsel stipulated to pay the "bust fee for the court reporter because it was being cancelled at our request; however, we will not stipulate to pay the bust fee for the videographer . . ." Plaintiff objected stating that the deposition transcripts were exchanged in the federal litigation on October 26, 2015, and that this deposition was court ordered.
As an aside, November 23, 2015, was a Monday, but that being said, plaintiff's affidavit of service states that the transcript were mailed on November 24, 2015 which was the Tuesday before Thanksgiving.
Plaintiff stated in the December 1, 2015, transcript that the federal deposition transcripts were exchanged in August, but plaintiff's Exhibit L is a letter dated October 26, 2015, which indicates the exchange of the federal litigation transcripts in that action.
At the time the instant motion was made, the depositions of defendants Moreno, Keough and Keller remained outstanding. Defendants' counsel, Carolyn McMenemy, stated that upon receipt of the within motion, she requested the files from IAB and CCRB related to the March 1, 2013 incident. The IAB file was annexed, in part, to the opposition and counsel stated that the remainder was mailed. Counsel stated at oral argument that the CCRB documents for the incident on March 1, 2013 were mailed to plaintiff on the very morning of oral argument. As of the date of oral argument, based on defendants' counsel's representation, all of the outstanding IAB and CCRB files were exchanged.
Medical Reports
Plaintiff appeared for defendant's demand for physical examinations. On June 2, 2015, plaintiff was examined by a neurologist, Dr. Elizabeth Ortof and on June 11, 2015, plaintiff was examined by an orthopedist. The preliminary conference order at page 2 section IV (b) entitled "Physical Examinations" indicates that "[a] copy of the physician's report shall be furnished to plaintiff(s) within 60 days after the examination". Plaintiff's application states that defendant has yet to exchange these reports. Defendant, in opposition states that the reports have since been exchanged on March 8, 2016. Procedural Background
On February 19, 2016, defendants' counsel sought an adjournment of this motion. The adjournment was granted and a briefing scheduled was ordered. At that time, plaintiff's counsel presented this Court with a subpoena for the entire CCRB history for the police officers who are named defendants in this action. This Court ordered that the subpoenaed records be produced for an in camera inspection. Defendant, having reserved the right, now cross-moves to quash the subpoena.
Contentions
Plaintiff contends that defendants' answer should be stricken for its willful and contumacious refusal to appear for depositions in contravention of multiple court orders. Plaintiff also contends that defendants should be precluded from calling either of their medical experts at trial inasmuch as the defendants have failed to timely exchange the expert medical reports. Plaintiff further seeks sanctions for the defendants' "intentional misrepresentations made during the discovery phase of this subject incident".
Defendants contend that plaintiff's motion to strike should be denied since "the City is in substantial compliance with all of the court-ordered discovery". Counsel further states that since the case was transferred to counsel, "in a show of good faith, while this motion was pending, the City produced Sergeant Juan Moreno for a deposition. Plaintiff's counsel deposed Sgt. Moreno for approximately six hours on February 9, 2016. [Counsel] also offered several available dates for the deposition of Officer McManus, and remains willing and able to produce the remaining named defendants" (see Defendants' Opposition).
Discussion
Amend the Caption
Plaintiff, through investigation, determined the actual names of the officers believed to be necessary parties to the action. Plaintiff now seeks to amend the caption and the complaint to reflect the actual names of the defendant police officers, specifically to change: (1) "James" Keough to Brian Kehoe; (2) "Joe" Keller to Eugene Keller; and (3) to remove the name "John" Griffin, since plaintiff does not believe that an officer named Griffin was involved in the incident.
Defendants do not oppose that portion of plaintiff's motion to amend the caption and complaint to reflect the name of Officer Eugene Keller. However, defendants' papers are silent as to the amendment related to Officer Brian Kehoe and the deletion of John Griffin. Defendants request that Officer Keller be served at his actual place of business in accordance with CPLR 308.
CPLR section 1024, entitled "Unknown parties" states that
A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.
CPLR section 1024 requires that all proceedings must be in the defendant's true name from the point in time when it is ascertained. Plaintiff, through due diligence learned the names for the officers and now seeks to amend the caption to properly reflect their true names. Accordingly, plaintiff's application is granted, unopposed.
Strike the Answer and Sanctions
Plaintiff moves pursuant to CPLR section 3126 to strike the City's answer, or in the alternative for an order pursuant to CPLR section 2126 determining liability against defendants, for their willful and contumacious violation of multiple court orders and failure to appear for court ordered depositions. This Court recognizes that "[a]ctions should be resolved on the merits wherever possible. However, the striking of a pleading may be an appropriate sanction where there is a clear showing that the failure to comply with discovery demands is willful or contumacious." (Flynn v. City of New York, 101 AD3d 803, 955 N.Y.S.2d 637 [2 Dept., 2012] [internal citations omitted]).
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.(Brandenburg v. County of Rockland Sewer Dist. #1, 127 AD3d 680, 6 N.Y.S.3d 570 [2 Dept., 2015] [internal citations omitted]; see Lazar, Sanders, Thaler & Associates, LLP v. Lazar, 131 AD3d 1133, 16 N.Y.S.3d 326 [2 Dept., 2015]; see also Ozeri v. Ozeri, 135 AD3d 838, 23 N.Y.S.3d 363 [2 Dept., 2016]; JPMorgan Chase Bank, N.A. v. New York State Dept. of Motor Vehicles, 119 AD3d 903, 990 N.Y.S.2d 577 [2 Dept., 2014]; Flynn v. City of New York, 101 AD3d 803, supra; see also Montemurro v. Memorial Sloan—Kettering Cancer Ctr., 94 AD3d 1066, 942 N.Y.S.2d 623 [2 Dept., 2012]; Quinones v. Long Island Jewish Medical Center, 90 AD3d 632, 933 N.Y.S.2d 907 [2 Dept., 2011]; Byam v. City of New York, 68 AD3d 798, 890 N.Y.S.2d 612 [2 Dept., 2009]).
The Court of Appeals has repeatedly held that "dilatory actions by attorneys that unjustifiably delay the course of litigation—including delays in conducting discovery, delays in filing summary judgment motions or delays in proceeding to trial through the filing of a note of issue—cannot be overlooked" (Cadichon v. Facelle, 18 NY3d 230, 242-43, 961 N.E.2d 623 [2011, Graffeo J., dissenting], citing Gibbs v. Barnabas Hosp., 16 NY3d 74, 917 N.Y.S.2d 68 [2010]; see Brill v. City of New York, 2 NY3d 648, 81 N.Y.S.2d 261 [2004]; see also Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 786 N.Y.S.2d 379 [2004]). "The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent" (Gibbs v. St. Barnabas Hosp., 16 NY3d 74, supra). "[I]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (id., quoting Kihl v. Pfeffer, 94 NY2d 118, 700 N.Y.S.2d 87 [1999]).
In this case, in violation of multiple court orders, the City (1) failed to exchange and made intentional misrepresentations regarding the existence of CCRB and IAB files during the discovery phase of the litigation; and (2) repeatedly failed to produce the officers for depositions. With respect to the IAB and CCRB records, it appears that as of the date of oral argument, the City exchanged all outstanding records. The IAB and CCRB records for the January 13th incident were exchanged on July 2, 2015. At issue here, the IAB records for the March 1st incident were annexed to the City's affirmation in opposition (see Defendants' Opposition, Exhibit A). Further, defendants' counsel stated that "I personally requested the CCRB file for the March 1, 2013 incident . . . . It will be exchanged promptly upon receipt, subject to redactions of privileged or confidential information such as social security numbers." (see Defendants' Opposition at ¶ 6). Counsel for the City stated at oral argument that she mailed the CCRB records for the March 1st incident to plaintiff that very morning. However, prior to counsel's response to the instant motion, the City violated multiple court orders with respect to these records, beginning from the preliminary conference order, dated November 3, 2014, and continuing to January 8, 2016, the date that this third motion to strike was filed.
Not only did the City ignore at least four court orders, but they changed their position regarding disclosure of the CCRB and IAB records multiple times throughout the discovery portion of this litigation. This Court is astounded at the City's one time denial of the existence of the March 1, 2013 IAB and CCRB records. Especially considering that this denial was made after it was represented that the file was previously exchanged in the federal litigation wherein the City was a named defendant, as reflected in the June 24, 2015 order. That being said, the defendants now acknowledge the existence of such a file, and have produced the records.
With respect to the depositions, defendants failed to produce the individually named police officers in direct contradiction of multiple court orders. The preliminary conference order, dated November 3, 2014, specifically set a time frame for the parties to be deposed; plaintiff was deposed in a timely manner. However, to date only one of the three individually named officers was deposed. This is in spite of two subsequent compliance conference orders and two motions to strike, not including the instant application. The one police officer who was deposed on February 9, 2016, only occurred, as the defendant terms it, "as a show of good faith" after the filing of this third motion to strike was filed on January 19, 2016.
In opposition, defendants only addressed the very last court ordered deposition date, December 1, 2015, wherein the defendants appeared but refused to go forward. Defendant stated that "on the Friday before the December 1, 2015, deposition, the City received four CD's from Plaintiff's counsel via mail. These CD's contained party statements from each of the named officer, totaling at least 20 hours of testimony taken by plaintiff's counsel in the summer of 2015, in a related federal action handled by the Special Federal Litigation division of the [New York City] Law Department. Because of this exchange, the City refused to go forward with depositions until the testimony could be reviewed" (Defendants' Opposition at ¶ 4). No depositions occurred until after plaintiff brought this third motion to strike. Thereafter, "as a show of good faith", on February 9, 2016, Sergeant Juan Morena was deposed.
Based on the foregoing, there appears to be a pattern of willful failure to respond to discovery demands or comply with disclosure orders (see Holand v. Cascino, 122 AD3d 575, 996 N.Y.S.2d 135 [2 Dept., 2014]; see also De Leo v. State-Whitehall Co., 126 AD3d 750, 5 N.Y.S.3d 277 [2 Dept., 2015]; JPMorgan Chase Bank, N.A. v. New York State Dept. of Motor Vehs., 119 AD3d 903, 990 N.Y.S.2d 577 [2 Dept., 2014]). Defendants' willful and contumacious conduct can be inferred from their repeated failures to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose.
"Compliance requires not only a timely response, but a good-faith effort to provide a meaningful response" (Arpino v. F.J.F. & Sons Elec. Co., 102 AD3d 201, 207, 959 N.Y.S.2d 74 [2 Dept., 2012], citing Kihl v. Pfeffer, 94 NY2d 118, 700 N.Y.S.2d 87 [1999]). Counsel for the City advised the court at oral argument that she is the new handling attorney on this matter. Although current counsel has demonstrated a good faith effort to comply with the court's orders, and has provided all outstanding records by the date of oral argument to this motion, the City remains responsible for their prior dilatory behavior.
Further, the depositions were ordered in five separate court orders and the deadlines for each have passed. Although multiple adjournments of a party's deposition are generally not grounds for dismissal, in this case, there were not multiple adjournments. Multiple court orders were simply not followed. Moreover, the defendants only offer an excuse for failing to proceed with the very last deposition date, December 1, 2015, even though plaintiff's counsel confirmed the depositions (see Almonte v. Pichardo, 105 AD3d 687, 962 N.Y.S.2d 650 [2 Dept., 2013] ["Furthermore, the defendants failed to demonstrate a reasonable excuse for the corporate defendant's failure to appear for a court-ordered deposition"]). This court rejects defendants' excuse proffered at the deposition on December 1, 2015. It was not for defendants to determine whether it was reasonable to proceed — the deposition was court ordered. In the event that defendants believed that they were unable to proceed, an application to the court would have been the more prudent action.
In consideration of the above facts and the period of time that discovery has been pending, plaintiff's motion pursuant to CPLR 3126 to strike the defendants' answer is granted to the extent that the defendants are precluded from offering any evidence on the issue of liability at the trial of this matter unless the remaining individually named police officers are produced for deposition within 45 days of the date of this order. The willful, deliberate, and contumacious character of the defendants conduct may be inferred from its repeated failures, without an adequate excuse, to comply with the preliminary conference order, plaintiff's discovery demands, two compliance conference orders and two court orders after plaintiff's motions to strike since the preliminary conference on November 3, 2014 (see Richards v. RP Stellar Riverton, LLC, 136 AD3d 101125 N.Y.S.3d 346 [2 Dept., 2016]; see also Gutman v. Cabrera, 121 AD3d 1042, 995 N.Y.S.2d 180 [2 Dept., 2014]; Lazar, Sanders, Thaler & Assoc., LLP v. Lazar, 131 AD3d 1133, supra; Estaba v. Quow, 101 AD3d 940, 941, 956 N.Y.S.2d 143 [2 Dept., 2012]; Flynn v. City of New York, 101 AD3d 803, supra).
Preclude
22 NYCRR 202.17, entitled "Exchange of medical reports in personal injury and wrongful death actions", states, in part that,
Except where the court otherwise directs, in all actions in which recovery is sought for personal injuries . . ., physical examinations and the exchange of medical information shall be governed by the provisions hereinafter set forth.
. . .
(c) Copies of the reports of the medical providers making examinations pursuant to this section shall be served on all other parties within 45 days after completion of the examination. . .
. . .
(h) Unless an order to the contrary is made, or unless the judge presiding at the trial in the interests of justice and upon a showing of good cause shall hold otherwise . . . nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule.
. . .
(j) Any party may move to compel compliance or to be relieved from compliance with this rule or any provision thereof, . . . . All motions under this rule may be made on affidavits of attorneys, shall be made on notice, and shall be granted or denied on such terms as to costs, calendar position and dates of compliance with any provision of this rule as the court in its discretion shall direct.
The preliminary conference order dated November 3, 2014, states, in part, that
IV. Physical Examination:The court, in the preliminary conference order, "otherwise directed" and extended the time by which defendants were to provide copies of the reports of the examining medical providers, from 45 days to 60 days after completion of the examination. In the case at bar, examinations by defendants medical experts occurred on June 2, 2015, and June 11, 2015. Defendants' counsel stated in its opposition that the medical reports were exchanged on March 8, 2016 (see Defendants' Opposition ¶ 6 and Exhibit B). This Court notes that the exchange occurred more than one month after plaintiff filed this application on January 19, 2016.
(a) A physical examination of the plaintiff shall be scheduled within 60 days after completion of plaintiff's examination before trial.
(b) A copy of the physician's report shall be furnished to plaintiff(s) within 60 days after the examination.
Plaintiff's motion to preclude expert reports and testimony based on defendants failure to exchange the reports is denied (see generally Colon v. Bell, 137 AD3d 1067, 26 N.Y.S.3d 879 [2 Dept., 2016]; see also Chudinova v. Kleyner, 130 AD3d 859, 860, 14 N.Y.S.3d 126 [2 Dept., 2015]; Abreu v. Metropolitan Transp. Auth., 117 AD3d 972, 974, 986 N.Y.S.2d 557 [2 Dept., 2014]). Contrary to plaintiff's contention, there is no evidence that any delay in the City defendants' disclosure of their expert's reports was intentional, willful or prejudicial to the plaintiff. Inasmuch as the note of issue is not filed and the reports have since been exchanged, albeit late, plaintiff's application is denied.
Quash the Subpoena
Plaintiff presented a subpoena on February 19, 2016, at the Court's motion calendar. This Court entered an order stating that all CCRB records related to the named police officers shall be produced on March 29, 2016, for an in camera inspection. The City now cross-moves to quash the subpoena. The City contends that "plaintiff is simply using the subpoena as an improper means to gain discovery" (Notice of Cross-Motion, p1 at 1).
The Appellate Division, Second Department recently held in Hackshaw v. Mercy Medical Center that
CPLR 3101(a) provides, in pertinent part, that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." "The words material and necessary' as used in section 3101 must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Mater of Kapon v. Koch, 23 NY3d 32, 38 [internal quotation marks omitted]; see Gould v. Decolator, 131 AD3d 445, 447). "However, unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (Diaz v. City of New York, 117 AD3d at 777; see CPLR 3103[a]; Berkowitz v 29 Woodmere Blvd. Owners', Inc., 135 AD3d 798, 799). "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Berkowitz v 29 Woodmere Blvd. Owners', Inc., 135 AD3d at 799 [internal quotation marks omitted]; see
Gould v. Decolator, 131 AD3d at 447).(Hackshaw v. Mercy Medical Center, — AD3d ?, — N.Y.S.3d ?, 2016 WL 2726557 [2 Dept., 2016]; see Bianchi v. Galster Management Corp., 131 AD3d 558, 15 N.Y.S.3d 189 [2 Dept., 2015]).
The Court of Appeals in Kapon v. Koch, held that
"An application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious' ... or where the information sought is utterly irrelevant to any proper inquiry'" It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances.(Kapon v. Koch, 23 NY3d 32, 11 N.E.3d 709, 988 N.Y.S.2d 559 [2014] [internal citations omitted]).
Although the nonparty bears the initial burden of proof on a motion to quash, section 3101(a)(4)'s notice requirement nonetheless obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, "the circumstances or reasons such disclosure is sought or required." The subpoenaing party must include that information in the notice in the first instance lest it be subject to a challenge for facial insufficiency. Contrary to petitioners' contention, however, the subpoenaing party's notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party, but, rather, was meant to apprise a stranger to the litigation the "circumstances or reasons" why the requested disclosure was sought or required.
In the instant matter, the City has not met its burden to demonstrate that the information sought by the subpoena is "utterly irrelevant to any proper inquiry" or that plaintiff's likelihood of recovering any "legitimate" information from these records is futile (see id.). Based upon the nature of the inquiry in the instant case, the CCRB and IAB history for the named officers, the subpoenas are certainly within the realm of relevant and proper.
Furthermore, all CCRB records for the named officers were produced for in camera inspection pursuant to this Court's order on February 19, 2016. Given the City's previous failures to turn over records in the course of discovery in the instant case, this Court, in its discretion, does not wish to further delay this discovery process, and deems it appropriate for these records to be produced for an in camera inspection. In the spirit of CPLR 3101, there shall be full disclosure of all matters material and necessary in the prosecution or defense of this action, as "[t]his provision is to be liberally interpreted in favor of disclosure" (Zheng v. Bermeo, 114 AD3d 743, 980 N.Y.S.2d 541 [2 Dept., 2014], citing Melworm v. Encompass Indem. Co., 112 AD3d 794, 977 N.Y.S.2d 321 [2 Dept., 2013]). Accordingly, this Court, after an in camera inspection, will direct disclosure of those relevant, material and non-privileged records contained within the officers' IAB and CCRB history (see McFarlane v. County of Suffolk, 79 AD3d 706, 912 N.Y.S.2d 297 [2 Dept., 2010]; Blanco v. County of Suffolk, 51 AD3d 700, 858 N.Y.S.2d 314 [2 Dept., 2008]).
Conclusion
Plaintiff's motion (sequence 6) to amend the caption to P.O. Brian Kehoe, P.O. Eugene Keller and to delete "John" Griffin is granted, without opposition. Plaintiff shall serve Officers Eugene Keller and Brian Kehoe in accordance with CPLR section 308.
Plaintiff's application to strike the answer is granted to the extent that the City is precluded from offering any evidence on the issue of liability at the trial of this matter unless they produce the remaining individually named police officers for deposition within 45 days of the date of this order. Plaintiff's application to preclude the defendant's doctors from testifying is denied.
Defendant's cross-motion (sequence 7) to quash the subpoena is granted to the extent that the requested material shall be the subject of an in camera review.
The foregoing constitutes the decision and order of this Court. E N T E R: __________________ Hon. Lara J. Genovesi J.S.C.