Opinion
902825-20
01-06-2021
Michael HARMON, Plaintiff, v. DIOCESE OF ALBANY and St. Catherine's Center for Children, Defendants.
Mallory C. Allen, Esq., Pfau Cochran Vertetis Amala PLLC, 31 Hudson Yards, 11th Floor, New York, NY 10001-2170, for Plaintiff. Michael L. Costello, Esq., Tobin and Dempf, LLP, 515 Broadway, Albany, NY 12207, for Defendants.
Mallory C. Allen, Esq., Pfau Cochran Vertetis Amala PLLC, 31 Hudson Yards, 11th Floor, New York, NY 10001-2170, for Plaintiff.
Michael L. Costello, Esq., Tobin and Dempf, LLP, 515 Broadway, Albany, NY 12207, for Defendants.
L. Michael Mackey, J.
In this action brought pursuant to the New York State Child Victims Act plaintiff moves for an order compelling the defendants to provide complete responses to his Notice to Produce. Defendants oppose and cross-move for a protective order.
On February 14, 2019 New York State enacted the Child Victims Act which, inter alia , (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10[f] ); (2) extended the time within which civil actions based upon such criminal conduct may be brought to the victim's 55th birthday (see CPLR 208[b] ); and (3) opened a one-year (later extended to two-year) window reviving civil actions on which the statute of limitations had already run (even in cases that were litigated and dismissed on limitations grounds), effective August 14, 2019 (see CPLR 214-g ).
BACKGROUND
Plaintiff alleges that over a period of several years, starting in 1980 when he was 11 years old, he was sexually molested on multiple occasions by Father Edward Pratt, a Roman Catholic priest employed by defendant Diocese of Albany (the "Diocese"). He claims that the abuse occurred at the St. Catherine's Center in Albany (the "Home"), a children's group home owned and operated by the defendants. Plaintiff alleges that, while he was residing at the Home, the defendants failed to take reasonable steps to protect him from Father Pratt, whom they knew or should have known had a history of sexually abusing children. Plaintiff asserts causes of action for negligence and intentional infliction of emotional distress against both defendants who, other than admitting their corporate status and that Father Pratt was an ordained priest of the Diocese, deny all allegations and assert 21 affirmative defenses. The parties are at odds over several discovery issues, some of which were resolved at oral argument and the remainder of which are addressed below.
Oral argument was held on December 8, 2020; references to the record thereof are denoted herein as "Transcript."
STANDARD FOR DISCLOSURE
"New York has long favored open and far-reaching pretrial discovery" ( DiMichel v. South Buffalo Ry. Co. , 80 NY2d 184, 193 [1992] ). " CPLR 3101 broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action. A trial court, however, has broad discretion in supervising disclosure and may, on its own initiative or on the motion of a party, issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" ( DiCostanzo v. Schwed , 146 AD3d 1044, 1045 [3rd Dept 2017] [internal quotation marks and citations omitted] ). "The words 'material and necessary' are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial [I]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense" ( Allen v. Crowell-Collier Publ. Co ., 21 NY2d 403, 406-407 [1968] [internal quotation marks and citation omitted] ). In determining whether information sought is material and necessary, it is proper for the court to consider issues raised by the assertion of affirmative defenses (see Matter of Saratoga Prop. Devs, LLC v. Assessor of City Saratoga Springs , 62 AD3d 1107 [3rd Dept 2009] ).
FATHER PRATT'S PERSONNEL FILE
Plaintiff asserts that the Diocese, in response to his demand for disclosure of Father Pratt's personnel file, improperly withheld certain records under claim of privilege. The Diocese has provided a privilege log and submitted the records to the court for in camera review.
At oral argument plaintiff's counsel withdrew her request for a more detailed privilege log and also consented that documents described as the "Kelly Record" and the "Kennedy Record," which had been misfiled, be removed from Father Pratt's file and put back where they belong (Transcript p. 66).
First, the Diocese has withheld a "Memo" and a "Report", claiming attorney-client privilege. "[T]he CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery ( CPLR 3101 [b] ); attorney's work product, also absolutely immune ( CPLR 3101 [c] ); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means ( CPLR 3101 [d] [2] ) [T]he burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity" ( Spectrum Sys. Intl. Corp. v. Chemical Bank , 78 NY2d 371, 376 — 377 [1991] [citations omitted] ).
Both the Memo and the Report were prepared by a private investigator, reflecting his interviews of Father Pratt regarding alleged acts of sexual impropriety, and of a man who claimed that Father Pratt molested him in a closet at his junior high school sometime in the mid-1970s. The Report also contains a list of six people who have made "allegations against Edward Pratt" (Pratt File p. 420). Because none of those documents contain any communication between attorney and client, privilege does not apply to them. Nor are they immune from disclosure as attorney work product, since they were not created by counsel (see Lamitie v. Emerson Elec. Co-White Rodgers Div. , 208 AD2d 1081 [3rd Dept 1994] and Kinge v. State of New York , 302 AD2d 667 [3rd Dept 2003] ). However, at least parts of the Memo and the Report appear to constitute material prepared for litigation, which is "conditionally immune" ( Puntoriero v. Johnson , 115 AD2d 229 [4th Dept 1985] ), but subject to disclosure if it cannot be duplicated without undue hardship (see Yasnogordsky v. City of New York , 281 AD2d 541 [2nd Dept 2001] ). Here, there is no way that plaintiff could duplicate the list of people who have made allegations against Father Pratt without knowing the names, so it must be disclosed. Plaintiff may, however, be able to obtain a statement from the man who claimed that Father Pratt molested him in a school closet, so the Diocese may withhold that document and disclose the man's name and last known address and telephone number. Similarly, the plaintiff may be able to duplicate the investigator's report of his interview of Father Pratt, so that document may also be withheld. Plaintiff may seek disclosure of those statements if he is unable to obtain statements of his own without undue hardship.
Next, the Diocese seeks to withhold certain documents under claim of physician-patient privilege. That material consists largely of correspondence between Bishop Howard J. Hubbard (the "Bishop") and Philip Dodgson, Ph.D., of the Southdown Institute ("Southdown"), concerning Father Pratt's sexual "acting out" with approximately 8 to 10 adolescent boys, whether and under what circumstances it might be appropriate for him to resume his ministry, and his risk of recidivism. There are no clinical records in the file, but it does contain correspondence from Southdown about scheduling and transportation/accommodations, as well as a document authored by Father Pratt concerning his "reflections" on his time at Southdown. Nothing in the file or in defendants' motion papers details how Dr. Dodgson's report to the Bishop came about, but defendants' counsel explained at oral argument that the Bishop, upon receiving a complaint concerning Father Pratt, would have required him to undergo evaluation at Southdown. Counsel stated that "what happens is once engaged by the Diocese the relationship is between the Diocese and the physician or psychologist (emphasis supplied) and then the clergyman assents to being evaluated and having the result submitted or produced to his Bishop" (Transcript pp. 13-14). Counsel explained that it was then up to the Bishop to make "the ultimate decision with respect to suitability of ministry" (Transcript p. 14).
The courts in New York are divided over whether an employee waives privilege as to a medical record by providing it to his employer. In Friel v. Papa , 87 AD3d 1108 (2nd Dept 2011) the court found that there was no waiver therein because the authorization signed by the employee, used by his employer to obtain the records, had been very narrowly drawn. The Third Department, however, has adopted a different rule. In State of New York v. General Elec. Co. , 201 AD2d 802 (3rd Dept 1994) the court held that medical information provided to a patient's employer for use in making employee management decisions is not privileged. Likewise, in People v. Hitchman , 70 AD2d 695, 696 (3rd Dept 1979) the court held that "defendant's submission to his supervisor of the doctor's statement, executed at defendant's request and containing a diagnosis of his condition, constituted a voluntary disclosure which destroyed the privilege." A similar standard was applied by the First Department in Matter of Farrow v. Allen , 194 AD2d 40, 44 (1st Dept 1993), where the court held that "once a patient puts the information into the hands of a third party who is completely unconnected to his or her treatment and who is not subject to any privilege, it can no longer be considered a confidence and the privilege must be deemed to have been waived." Likewise, in People v. Martinez , 22 AD3d 318 (1st Dept 2005) the court stated that "[o]nce defendant waived that privilege for a particular purpose, the privilege was destroyed for all purposes, regardless of whether defendant had intended to limit his waiver."
Although some courts in other states have adopted a rule similar to that in Friel (see, for example, Roman Catholic Diocese of Jackson v. Morrison , 905 So.2d 1213 [Supreme Court of Mississippi 2005] and In re Fortieth Statewide Investigating Grand Jury , 220 A.3d 558 [Supreme Court of Pennsylvania 2019] ), the weight of authority holds otherwise. In C.J.C v. Corporation of Catholic Bishop of Yakima , 138 Wash.2d 699, 718 (Supreme Court of Washington 1999) the court held that a priest's mental health evaluations, required by and disclosed to the Diocese by which he was employed, were not privileged because they did not "originate in the confidence that they [would] not be disclosed." (citations omitted). Likewise, in In re The Clergy Cases I v. Franciscan Friars of California, Inc. , 188 Cal.App.4th 1224, 1240 (Cal. Ct. of Appeal, Second District, Division 8 2010) the court held that the psychotherapist-patient privilege did not preclude disclosure of individual Friars' psychotherapy reports because "voluntary disclosure of these records to the Franciscans for purposes that were not reasonably necessary for diagnosis and treatment operated as a waiver of the privilege irrespective of what the Franciscans may have told the Friars." Similar results were reached in Ford v. Law , 2002 WL 32139028 (Superior Court of Massachusetts 2002), John Doe No. 13 v. Diocese of Orlando , 2011 WL 506-1952 (Circuit Court of Florida, Ninth Judicial Circuit 2011) and Niemann v. Cooley , 93 Ohio App.3d 81 (Ohio App. 1st Dist. 1994) (disapproved of for other reasons in Walters v. Enrichment Center of Wishing Well, Inc ., 78 Ohio St.3d. 118 [Supreme Court of Ohio 1997] ).
A party asserting privilege has the burden of establishing it (see Koump v. Smith , 25 NY2d 287 [1969] ) and the Diocese has failed to meet that burden with respect to the material in Father Pratt's file. Applying the rule set forth by the Third Department, which is binding on this court, the court finds that Father Pratt waived any privilege as to Dr. Dodgson's report by consenting to its release to the Bishop, for his use and consideration in deciding whether Father Pratt was fit to resume his ministry. Moreover, even if the rule adopted in Friel were applied, the court would still order disclosure of the report because, unlike in Friel , the defendants here have failed to establish that the authorization under which Dr. Dodgson communicated with the Bishop was limited in any way. Indeed, based on counsel's representation at oral argument that Dr. Dodgson's relationship was with the Diocese, not Father Pratt, the very opposite appears to have been the case (see Bazakos v. Lewis , 12 NY3d 631 [2009], where the court held that a physician conducting an independent medical examination has only a "limited relationship" with the examinee, consisting of the duty to "perform the examination in a manner not to cause physical harm" [ id . at 635 ; citation and internal quotation omitted] ). Finally, even if Dr. Dodgson's report were privileged at one time, that privilege appears to have been destroyed by the Diocese's disclosure of the same to the New York State Attorney General for use in a civil investigation of clergy sexual abuse (Transcript, p. 11) (see Baliva v. State Farm Mut. Auto. Ins. Co ., 275 AD2d 1030, 1031 [4th Dept 2000] "Disclosure of a privileged document generally waives that privilege unless the [party asserting privilege] intended to retain confidentiality of the printed document and took reasonable steps to prevent its disclosure").
As to all other material in the file there is nothing to demonstrate that it was ever privileged but, even if it had been, that privilege was waived by Father Pratt's providing it to the Bishop, for his use in making employment and assignment decisions. Accordingly, the documents in Father Pratt's file that have been withheld under the claim of physician-patient privilege must be disclosed.
FILES OF OTHER PRIESTS WHO HAVE CREDIBLY BEEN ACCUSED OF CHILD SEXUAL ABUSE
Plaintiff seeks the personnel files of 48 former priests whose names are on the Diocese's list of "Clergy Credibly Accused [of sexual misconduct with a minor] While Serving in the Diocese of Albany" (the "List"), arguing that disclosure of those files is likely to reveal evidence relevant to this action. The defendants counter that the files of other priests are completely irrelevant to plaintiff's claims and that producing them would result in "trials within a trial regarding the unrelated allegations and would be manifestly prejudicial to defendants" (defendants' Memo of Law, p. 10). They also argue that producing the files would be burdensome, would violate the privacy rights of both alleged victims and alleged perpetrators, and would result in disclosure of privileged information.
At oral argument plaintiff's counsel narrowed a broader demand to just the files of those priests on the List (NYSCEF Doc. 14; Transcript pp. 37-38).
Many of the defendants' concerns are misplaced and others can be addressed by the issuance of a protective order. Protecting the privacy interests of alleged perpetrators is not an issue, since their identities have already been made public by the Diocese through publication of the List and any allegedly privileged material in their files can be safeguarded by service of a privilege log and in camera review by the court. Also, the argument that disclosure of the requested files will result in "trials within a trial" is unpersuasive, since this decision is limited to what must be disclosed, not what will be allowed into evidence at trial. The defendants will have every opportunity to make motions in limine and objections at the time of trial, but discovery is "broader than what may be admissible on trial" ( White v. Martins , 100 AD2d 805 [1st Dept 1984] ; see also Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulance , 226 AD2d 175 [1st Dept 1996] ). The privacy interests of alleged victims can be protected by redacting their names and any identifying information. What that leaves, then, is the defendants' argument that disclosure of the files would be unduly burdensome, which is a legitimate concern and one that the court must weigh against plaintiff's need for the information. Plaintiff argues that the files are relevant (or reasonably calculated to lead to the discovery of relevant information) for several reasons, which are discussed below.
Defendants' Fourteenth Affirmative Defense/Expert Witnesses
In their Fourteenth Affirmative Defense the defendants allege that their actions "were in conformity with professional best practices and with the available knowledge in the community and met applicable standards at the time." Defendants' counsel explained at oral argument that he intends to call two expert witnesses concerning this issue, who will testify as to how child sexual abuse allegations against priests were customarily handled at the time of plaintiffs' alleged abuse (Transcript p. 43). Plaintiff argues that he needs the files for cross-examination of those experts, a point that the defendants' counsel appears to concede as meritorious at pages 45-46 of the Transcript:
THE COURT: All right. So essentially the expert will then be testifying that in this case your client acted appropriately given the available knowledge at the time? MR. COSTELLO: That's a fair assumption. THE COURT: And you don't think it's fair that the plaintiff should be allowed to cross-examine that expert regarding what happened in other -- concerning other cases of abuse predating this, specifically in this Diocese, to challenge that opinion? MR. COSTELLO: Well, that would be a way to challenge the expert and the expert would have to address that. But I don't see this as
"The issues framed by the pleadings determine the scope of discovery in a particular action" ( Mavroudis v. State Wide Ins. Co. , 102 AD2d 864 [2nd Dept 1984] ). Here, by asserting in an affirmative defense that their actions were appropriate given "the available knowledge in the community," the defendants have made what they knew about sexual abuse within the Diocese central to the case and fair game for disclosure (see Matter of Saratoga Prop. Devs, LLC v. Assessor of City Saratoga Springs , 62 AD3d 1107 [3rd Dept 2009] ). Certainly, without that information plaintiff would be at an enormous disadvantage in challenging the defendants' experts or presenting expert testimony of his own on that issue. To allow the defendants to base their defense on what they knew about the clergy sexual abuse problem, but at the same time withhold that information from plaintiff, would be fundamentally unfair and highly prejudicial to plaintiff.
Counsel for the defendants suggested at oral argument that plaintiff could find out how abuse allegations were handled in the Diocese by simply taking the Bishop's deposition (Transcript p. 52). The importance of having full disclosure before undertaking depositions, however, can be seen by comparing statements made by a spokesman for the Diocese, as reported in the New York Times on June 29, 2002, with documents in Father Pratt's file. In the article, the spokesman is reported to have said that the allegations of abuse by Father Pratt had only been reported in "recent weeks" (NYSCEF Doc. 15), but documents in the file show that they had been known for years before that. The court is not ascribing ill-motive to the spokesman — perhaps he misspoke, maybe he had been misinformed, or he might have been misquoted. Regardless, this underscores how indispensable full disclosure is to the truth-finding process. See , generally , People v. Giuca , 33 NY3d 462 (2019).
Defendants' Duty In Loco Parentis
The crux of the defendants' argument seems to be that the only evidence plaintiff is entitled to discover is any documentation showing that they had actual notice of Father Pratt's proclivities prior to the abuse alleged herein. Plaintiff submits that his discovery rights are not so limited, especially given that his alleged abuse occurred while he was living at the Home and, thus, was in the defendants' care, custody and control. Among other things, plaintiff argues that prior notice of Father Pratt's proclivities is not even an essential element of his case.
A party to whom physical custody of a child is entrusted has a duty in loco parentis to protect him from harm (see Santer v. Board of Educ. of East Meadow Union Free School Dist. , 23 NY3d 251 [2014] ) and where the "duty to supervise is mandatory, notice is not an issue" ( Coon v. Board of Educ. of City of NY , 160 AD2d 403 [1st Dept 1990] ). Rather, if the potential danger to the child "can be reasonably foreseen and prevented by adequate supervision," then the child's custodian may be held liable for his assault, notwithstanding the fact that it lacked notice of prior dangerous conduct by the alleged assailant ( Garcia v. City of New York , 222 AD2d 192, 196 [1st Dept 1996] ). Whether a school is liable for a student's assault "cannot be resolved without reference to the history, if any, of violence at the school, for while a school is not an insurer of student safety, it will be held liable in damages for a foreseeable injury proximately related to the absence of supervision" ( Logan v. City of New York , 148 AD2d 167, 172 [1st Dept 1989; citation and internal quotation omitted]; see also N.K. v. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints , 175 Wash. App. 517 [Court of Appeals of Washington 2013] ). Although the defendants herein were not insurers of plaintiff's safety, they did have a duty in loco parentis to protect him from foreseeable harm and the history, if any, of sexual assault on minors at the Home is relevant to whether they met that duty. Certainly, plaintiff is entitled to discovery on that issue.
Constructive Notice/Pattern and Practice
Citing Hutchison ex rel. Hutchison v. Luddy , 763 A.2d 826 (Superior Court of Pennsylvania 2000) (remanded on other grounds at 582 Pa. 114 [2005] ), plaintiff argues that what the defendants knew about prior cases of child sexual abuse in the Diocese is relevant to whether it had constructive notice of Father Pratt's proclivities. "Whether [the assailant] was the first known priest-pedophile with whom [the defendants] had experience is clearly relevant to a determination of whether they ‘should have known’ about his improper conduct at some point prior to [plaintiff's] unfortunate experiences. Clearly an individual or organization which has been exposed to and has had some experience in dealing with a particular situation may better be able to recognize a subsequent, similar situation" ( id . at 845 ). Plaintiff also asserts that the personnel files are relevant to demonstrate the defendants' practice of retaining priests credibly accused of child sexual abuse. Generally, evidence of a party's habitual conduct is inadmissible to infer that they acted in a similar manner at the time of the event at issue (see Ferrer v. Harris , 55 NY2d 285 [1982], amended on other grounds at 56 NY2d 737 [1982] ). However, "where the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion" ( Halloran v. Virginia Chems. , 41 NY2d 386, 392 [1977] ). Indeed, "proof of a business, professional or other institutional practice or custom [is admissible] as probative evidence that the practice or custom was or would have been followed under the same set of circumstances on a specific occasion" ( Soltis v. State , 188 AD2d 201, 203 [3rd Dept 1993] ; see also New York Pattern Jury Instructions 1:71 [Circumstantial Evidence — Habit] and Bench Book for Trial Judges — New York, 2020 Edition, p. 282). Whether the files plaintiff seeks will lead to evidence that is admissible on the issues of constructive notice or pattern and practice is not the question before the court. Rather, as the Court of Appeals has made clear, discovery should be allowed "if there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination" ( Allen v. Crowell-Collier Publ. Co ., 21 NY2d 403, 407 [1968] [internal quotation marks and citation omitted] ).
Balancing Plaintiff's Need for the Files Against the Burden on Defendants
Although the defendants have made no demonstration that disclosure of the files will prejudice their defense, they have shown that it is potentially burdensome. That is a legitimate concern and one that the court must balance against plaintiffs' need for disclosure (see DiCostanzo v. Schwed, supra ). Retrieving, reviewing, redacting, and copying nearly 50 files is certainly no small task and not one that the court should impose lightly. However, it must be noted that much of that work has already been done, as the Diocese has previously disclosed those same files to the Attorney General's office, for use in its civil investigation of clergy sexual abuse (see Transcript pp. 11 and 50). And the number of files pales in comparison to what some other courts have ordered disclosed in child sex abuse cases (see, for example, T.S. v. Boy Scouts of America , 157 Wash.2d 417 [Supreme Court of Washington 2006] where the court affirmed a lower court order requiring disclosure of all "Ineligible Volunteer" files, estimated to number between 2,000 and 10,000). Further, it is not insignificant that the defendants themselves opened the door to discovery of what they knew about the clergy sex abuse problem by basing their defense, at least in part, on "the available knowledge in the community." Weighing all of this, and because plaintiff has demonstrated that "the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination" (Allen, supra , at 407), the court orders disclosure of the files, subject to the following limitations:
1) The names of alleged victims, and any information that would identify them, shall be redacted;
2) Only files containing a reference to possible misbehavior occurring before 1985, when plaintiff alleges his abuse ended, need be disclosed; and
3) Defendants may withhold any allegedly privileged material, serve a privilege log, and submit that material to the court for in camera review.
This limitation shall not apply to the alleged victims identified in Father Pratt's file.
INDEPENDENT MEDIATION ASSISTANCE PROGRAM RECORDS
Plaintiff also requests certain records concerning the Diocese's Independent Mediation Assistance Program ("IMAP"). As explained by defendants' counsel, IMAP is a program initiated by Bishop Hubbard in 2004 that allowed victims of time-barred claims to file complaints, for evaluation and investigation if warranted, and then possible mediation (Transcript p. 20). Per counsel, the program resulted in the settlement of approximately 50 claims (Transcript p. 22). The IMAP records sought by plaintiff fall into three categories: 1) records of any claim filed by plaintiff; 2) records of any other complaints filed against Father Pratt, regardless of when the abuse is alleged to have occurred; and 3) records of complaints filed against other priests, where the underlying events occurred prior to Father Pratt's alleged abuse of plaintiff. At oral argument defendants' counsel agreed to provide all records concerning any IMAP complaint filed by plaintiff as well as any other IMAP records involving Father Pratt, so long as the underlying events occurred prior to plaintiff's claimed abuse (Transcript pp. 23 and 27). Beyond that, the defendants oppose plaintiff's demand on the ground that the information sought is irrelevant.
Plaintiff claims that he was abused over several years; references to events that occurred "prior" thereto include anything that transpired before plaintiff's abuse is alleged to have ended.
Plaintiff asserts that he is entitled to all IMAP records concerning Father Pratt, arguing that the defendants' blanket denial of his abuse allegations renders those records discoverable. At oral argument plaintiff's counsel made the point that "if there are numerous complaints after Mr. Harmon's abuse that show that [Father Pratt] continued to abuse children at St. Catherine's in the same manner [t]hat makes it a whole lot more likely that plaintiff is being truthful and so that is critical evidence when the defendant is disputing that this abuse ever even occurred" (Transcript p. 30). The defendants counter that they have every right to deny plaintiff's abuse allegations, that their doing so should have no impact on what is discoverable, and that the information plaintiff seeks is irrelevant.
The defendants are certainly within their rights to answer the complaint with a general denial. Pleadings, however, have consequences, one of which is that they frame the issues and determine the scope of discovery (see Mavroudis v. State Wide Ins. Co., supra ). A central issue in this case is whether Father Pratt in fact molested plaintiff and plaintiff is entitled to discover evidence that is probative on that issue. "Although not subject to precise categorization, evidence of other similar acts will be admitted if it tends to establish a common scheme or plan" ( Matter of Brandon's Estate , 55 NY2d 206, 211 [1982] [citing People v. Molineux , 168 NY 264 ] ). Indeed, such evidence has been allowed to prove sexual assault allegations (see, for example, People v. D'Andrea 187 AD2d 753-754 [3rd Dept 1992] "[W]e reject defendant's contention that County Court erred in allowing another [witness] to testify at trial about an encounter she had with defendant the jury was properly permitted to consider the evidence as probative of either defendant's intent or common scheme or plan" and People v. Paige , 289 AD2d 872, 874 [3rd Dept 2001] "[E]ach of the three victims testified that defendant had used alcohol and drugs in perpetrating the crimes against them. His statements, therefore, provided valuable background information, probative of his common plan to use these substances in the commission of his crimes"). Because plaintiff has shown that Father Pratt's IMAP records are sought in good faith for possible use at trial, and since the defendants have failed to demonstrate that they would in any way be prejudiced by their disclosure, the court grants plaintiff's motion to compel their production.
As to the IMAP records concerning other priests the court finds that they are also discoverable, for the reasons set forth above regarding personnel files. This disclosure is subject to the following limitations:
1. The names of alleged victims, and any information that would identify them, shall be redacted;
2. Only files containing a reference to possible misbehavior occurring before 1985, when plaintiff alleges his abuse ended, need be disclosed; and
3. Defendants may withhold any allegedly privileged material, serve a privilege log, and submit that material to the court for in camera review.
MISCELLANEOUS ISSUES
Several miscellaneous issues, including production of plaintiff's residence records for the time he lived at the Home, disclosure of items such as yearbooks, and the formatting of the defendants' discovery responses, were addressed in the motion papers and resolved, at least in part, at oral argument (see Transcript pp. 56-65). Rather than sift through what may remain, the court directs counsel to confer with each other in a good faith attempt to resolve any lingering issues and contact the court for a conference if they are unable to reach agreement.
Accordingly, it is
ORDERED that plaintiff's motion and defendants' cross-motion are both granted in part and denied in part, as hereinabove set forth.