Opinion
104401/07.
Decided March 1, 2011.
Upon the foregoing papers, plaintiff's motion to compel discovery is granted to the extent provided herein.
This is an action for personal injuries allegedly sustained by the infant plaintiff (hereinafter "plaintiff"), who was assaulted by several students and forced to fight with another on December 15, 2006 while still enrolled at Curtis High School on Staten Island ( see Minutes of 50-h Hearing of Youssouf Cherif, pp 6-17). As a result, plaintiff seeks to impose liability on defendants the City of New York and the New York City Department of Education (collectively, hereinafter the "City") on the ground, inter alia, of negligent supervision.
In the present application, plaintiff seeks to compel (1) a further deposition of "Assistant Principal Peter Gambardella" and (2) a response to his post-deposition Demands for Discovery dated November 3, 2008 and March 19, 2010. When Mr. Gambardella appeared for his deposition on January 14, 2010, the attorney for the City, inter alia, refused to allow this witness to answer certain questions. Specifically, plaintiff seeks to compel Mr. Gambardella to be produced for a further deposition in order to obtain answers to the following questions, which the City's attorney claimed were either palpably improper and irrelevant, or prohibited under the so-called "Buckley Amendment":
Q. When you were a teacher in the phys-ed department 1998 to 1999, did you have any sort of knowledge that there was gang activity in the school? (EBT of Peter Gambardella, p 76)
***
Q: To your knowledge, back in 2006, do you know which gangs were at Curtis High School? ( id. at 80)
***
Q: For disciplinary purposes based on what you just told me, if a student [who] has[. . .] classroom management issues that gets referred to your office and the information is kept in the dean's records, none of the computer databases on that kids [sic] would ever get that information, would it?
A: No.
Q: Would that activity be considered unreported for purposes of the safety committee meetings? ( id. at 84)
***
Q: Did Youssouf ever tell yourself or [Sergeant] Cappa when you guys were together talking to him, at that time, who he thought had beat him up? ( id. at 140)
***
Q: Did your office ever interview [student] Tyrell Benjamin regarding this incident? ( id. at 148)
***
Q: Have you ever spoken to Tyrell Benjamin for any reason before December 16, 2006?
A: Yes.
Q: Had the basis for the conversation been in a disciplinary reason? ( id. at 157)
With respect to plaintiff's post-deposition discovery demands, while it appears that the City has responded to several of the requests, the demands pertaining to Terrell Benjamin's disciplinary record prior to the incident date of December 15, 2006 remain outstanding ( see Plaintiff's Exhibit "N", item 4). Moreover, there is an outstanding request for the "Dean's Records at Curtis High School for complaints made about Terrell Benjamin" which, Mr. Gambardella testified, were memorialized "in the Dean's Report kept in the filing cabinet for the period of September 2006 through December 31, 2006" ( id. at 17; EBT of Peter Gambardella, p 83).
Moreover, there are outstanding requests to obtain copies of plaintiff's own school records, as well as demands to obtain "reports generated as a result of incidents involving violent behavior at Curtis High School for the period of September 2006 through December 15, 2006" ( see Plaintiff's Exhibit "N", items 10, 21).
While not insurers of its students' safety, schools are under a legal duty to adequately supervise the students in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ( see Doe v. Department of Educ of City of New York , 54 AD3d 352, 353 [2nd Dept 2008]). To establish a breach of the duty to provide adequate supervision in a case, like this, involving injuries inflicted by the acts of fellow students, a plaintiff must show that the school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injuries and that the third-party acts could reasonably have been anticipated ( id.). On the discovery issues, evidence is relevant and admissible if it has any tendency in reason to prove the existence of any material fact, i.e., if it makes determination of the action more probable than it would be without the evidence ( id.).
School disciplinary records such as those sought by plaintiff ordinarily are not the subject of privilege, and are usually discoverable once their relevancy and materiality to the action have been established ( see Graham v. West Babylon Union Free School Dist, 262 AD2d 605 [2nd Dept 1999]; Moores v. City of Newburgh School Dist, 213 AD2d 527 [2nd Dept 1995]).
Here, it is the Court's opinion that plaintiff's written discovery demands are probative with respect to the issue of whether the alleged attack was foreseeable ( see Doe v. Department of Educ of City of New York, 54 AD3d at 353-354). Nor are they remote in time from the underlying incident ( see Cruz v. Brentwood Union Free School Dist , 71 AD3d 945 [2nd Dept 2010]; Rodriguez v. City of New York 48 AD3d 539 [2nd Dept 2008]). Moreover, records of the disciplinary actions and proceedings against students are clearly relevant to the demonstration of knowledge on the part of school authorities that incidents such as those purportedly experienced by plaintiff may reasonably be anticipated.
As for the so-called "Buckley Amendment", it is well settled that the Family Educational and Privacy Rights Act ( 20 USC § 1232g) was intended to protect records relating to an individual student's performance, and does not apply to records compiled in an effort to maintain the physical security and safety of an institution ( see Culbert v. City of New York, 254 AD2d 385 [2nd Dept 1998]). Nevertheless, since reports of prior violent incidents may also include information which is confidential or protected by the Buckley Amendment, the preferred course is that those reports be examined by the Court in camera so that any confidential matter can be redacted prior to disclosure.
To the extent that defendants' may claim that no such records or reports exist or cannot be located, the City shall provide an affidavit from a person with knowledge setting forth the parameters and results of his or her search.
Turning to the balance of plaintiff's motion, Part 221 of the Uniform Rules for the Conduct of Depositions provides, in relevant part, that "[a] deponent shall answer all questions at a deposition except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person" ( 22 NYCRR 221.2). Here, with the exception of the single question relating to gang activity at Curtis High School for the period 1998 to 1999, i.e., seven to eight years prior to the incident at bar, none of the questions which the City's witness was instructed not to answer fall within the protection of Rule 221.2 or CPLR 3115 (see 22 NYCRR 221.1[a]). Accordingly, all of the remaining questions are to be answered by defendants' witness at a further deposition to be held within 60 days of the service of a copy of this Decision and Order upon them, with notice of entry.
To the extent that the City has not already done so, it shall complete all outstanding discovery as herein provided; submit such documents as it may deem privileged or confidential to the Court for in camera inspection; and/or serve and file any affidavit attesting to the absence of such records and reports in the manner aforesaid within the same 60 days.
This constitutes the Decision and Order of the Court.