Opinion
29294/2007.
Decided September 30, 2008.
ORDERED that this motion by defendant for an Order, pursuant to CPLR 3124 and 3126, dismissing plaintiff's complaint for failure to comply with notices for discovery, including but not limited to, Demands for Authorizations, or compelling plaintiff to comply with these discovery demands by a date certain, is hereby DENIED in its entirety for the reasons set forth hereinafter.
PLTF'S/PET'S ATTORNEY: LAW OFFICES OF EDWARD VILINSKY, BROOKLYN, NEW YORK.
DEFT'S/RESP ATTORNEY: MULHOLLAND, MINION ROE, WILLISTON PARK, NEW YORK.
This action arises from an incident that occurred on October 31, 2006, within the lunchroom of Rocky Point High School, in Rocky Point, New York. The infant plaintiff, while a student of the school, was allegedly assaulted by another student as he was eating lunch.
Defendant has now filed the instant application to dismiss plaintiff's complaint for failure to comply with defendant's notices for discovery, including Demands for Authorizations. In the alternative, defendant seeks an Order compelling plaintiff to comply with these discovery demands by a date certain.
On or about November 15, 2007, defendant served a Verified Answer and Combined Demands upon plaintiff, including a Notice for Discovery and Inspection seeking authorizations to obtain the infant plaintiff's records from the Suffolk County Department of Probation, the infant plaintiff's records from Hope for Youth, and the infant plaintiff's records from the facility where he was incarcerated in February of 2007.
Thereafter, on or about April 9, 2008, defendant served upon plaintiff a Notice for Discovery and Inspection seeking to obtain a copy of the sworn statement made to the police by the infant plaintiff in connection with the criminal proceeding against Michael Verasano as a result of the subject incident. Also on or about that date, a Demand for Authorizations was served to obtain the infant plaintiff's records from CVS Pharmacy.
Defendant alleges that plaintiff has failed to completely respond to the foregoing discovery demands, and has failed to respond to correspondence seeking plaintiff's compliance therewith. As such, defendant filed the instant application to dismiss plaintiff's complaint, or to compel plaintiff to respond to defendant's demands by a date certain.
In opposition, plaintiff objects to the disclosure of the infant plaintiff's records from the Suffolk County Department of Probation, the infant plaintiff's records from Hope for Youth, and the infant plaintiff's records from the facility where he was incarcerated in February of 2007, as neither material nor relevant to the subject incident. Plaintiff argues that the incident report prepared by an eyewitness indicates that the infant plaintiff did not engage in any physical activity before or after the subject incident. Although plaintiff has not moved for a protective Order with respect to these records, plaintiff urges the Court to issue a protective Order, sua sponte, to prevent defendant from obtaining such disclosure. Further, plaintiff alleges that a response to defendant's demands of April 9, 2008 was served on or about June 3, 2008, including an authorization enabling defendant to obtain the infant plaintiff's records from CVS Pharmacy.
In reply, defendant argues that the records are relevant in this personal injury action to the infant plaintiff's claims, his credibility, and the derivative claims of the infant plaintiff's father.
CPLR 3126 provides that a court may, in its discretion, impose a wide range of penalties upon a party which either: (a) refuses to obey an order for disclosure; or (b) willfully fails to disclose information which the court finds ought to have been disclosed (CPLR 3126). The penalties proposed by the statute include: (1) deciding the disputed issue in favor of the prejudiced party; (2) precluding the disobedient party from producing evidence at trial on the disputed issue; or (3) either striking the pleadings of the disobedient party, or staying the proceedings until the ordered discovery is produced, or rendering a default judgment against the disobedient party (CPLR 3126). It is appropriate to strike a party's pleading where there is a clear showing that its failure to comply with discovery demands is wilful, contumacious, or in bad faith ( see Denoyelles v Gallagher , 40 AD3d 1027; Fellin v Sahgal, 268 AD2d 456; Harris v City of New York, 211 AD2d 663). Generally, "willfulness" is inferred from a party's repeated failure to respond to demands and/or to comply with disclosure orders, coupled with inadequate excuses for its defaults ( see Siegman v Rosen, 270 AD2d 14; DiDomenico v C S Aeromatik Supplies, Inc., 252 AD2d 41; Frias v Fortini, 240 AD2d 467).
Here, the Court finds that plaintiff's alleged failure to completely respond to defendant's discovery demands was not wilful or contumacious. As such, it would be inappropriate to strike the complaint at this juncture.
Accordingly, that branch of the instant application to dismiss plaintiff's complaint, is hereby DENIED.
As discussed, plaintiff had neither objected to, nor moved for a protective Order with respect to these records. The failure of plaintiff to move for a protective order, pursuant to CPLR 3122, within twenty (20) days after service of the notice of discovery and inspection forecloses all inquiry concerning the propriety of the demands, except as to demands seeking privileged matter under CPLR 3101, or demands that are palpably improper ( see CPLR 3122, 3101; Anonymous v High School for Envtl. Studies , 32 AD3d 353 [1st Dept 2006]; Holness v. Chrysler Corp., 220 AD2d 721 [2d Dept 1995]; Alaten Co. Inc. v Solil Management Corp., 181 AD2d 466 [1st Dept 1992]). Moreover, "New York has long favored open and far-reaching pretrial discovery" ( DiMichel v South Buffalo Ry. Co., 80 NY2d 184, cert denied sub nom Poole v Consolidated Rail Corp., 510 US 816), and "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101 [a]; Northway Eng'g v Felix Indus., 77 NY2d 332).
The Court does not find the demands for the records of the Suffolk County Department of Probation, the records from Hope for Youth, and the records from the facility where the infant plaintiff was incarcerated in February of 2007, to be palpably improper. However, notwithstanding the foregoing, this application to compel must be DENIED. There are certain statutory schemes that seal and/or prevent the disclosure and use of some or all of the records sought herein ( see Family Ct Act § 166 ["records of any proceeding in the family court shall not be open to indiscriminate public inspection"]; Family Ct Act § 375.1 [records of a delinquency proceeding against a respondent that terminated in favor of such respondent shall be sealed]; Family Ct Act § 375.2 [permits the sealing of records upon motion if a proceeding resulted in a finding of delinquency]; Family Ct Act § 381.2 [a finding of juvenile delinquency against a respondent may not be used against him or her or his or her interest in any other proceeding]; Criminal Procedure Law § 160.50 [permits the sealing of criminal records upon motion where the proceeding terminated in a respondent's favor]; see also Matter of K.B., 2005 NY Slip Op 52083[U] [Fam Ct, Nassau County 2005]; In re David H., 124 Misc 2d 190 [Fam Ct, Bronx County 1984]).
Neither party has addressed the foregoing statutes, and plaintiff has not informed the Court as to the circumstances or dispositions that gave rise to the records sought herein. Accordingly, on this record, the Court cannot grant a motion to compel these records absent a formal application for such relief made pursuant to the applicable statute.
The foregoing constitutes the decision and Order of the Court.