Opinion
Index No. 524975/2022
06-02-2023
J.H., an infant by his mother and natural guardian, Christina Murray, and Christina Murray, Individually, Plaintiffs, v. The City of New York, New York City Department of Education, and Brooklyn Prospect Charter School, Defendants.
For plaintiff: Argenis Steven Gonzalez Esq. of Raldiris & Gonzalez, PLLC For defendant Brooklyn Prospect Charter School: Laura A. Endrizzi Esq., Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Esqs.
Unpublished Opinion
For plaintiff: Argenis Steven Gonzalez Esq. of Raldiris & Gonzalez, PLLC
For defendant Brooklyn Prospect Charter School: Laura A. Endrizzi Esq., Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Esqs.
Patria Frias-Colón, J.
Recitation, as required by CPLR §§2219 and/or 3212, of Papers consider on Review of Motion: Papers NYSCEF Doc. #s:
Plaintiffs' Order to Show Cause 1, 6, 9, 11
Defendant Brooklyn Prospect Charter School's Opposition to Protective Order and Dismissal of Affirmative Defense Number 6 2, 12
Upon the aforementioned papers and after oral argument on March 1, 2023, pursuant to CPLR § 3103(a), the Decision and Order on the Plaintiffs' Order to Show Cause ("OSC") seeking to prohibit Defendants from deposing or examining infant Plaintiff per General Municipal Law ("GML") § 50-h, that Defendants only be allowed one joint 50-h hearing of Plaintiff Christina Murray, and dismissal of Defendant Brooklyn Prospect Charter School's ("Brooklyn Charter") Sixth Affirmative Defense pursuant to CPLR § 3211(b), is as follows:
For the reasons explained below, the Plaintiffs' OSC is DENIED in part, to the extent that the Defendants will not be prohibited from deposing the infant Plaintiff. The Plaintiffs' OSC is GRANTED, in part, i.e., to the extent that the Defendants will schedule a joint deposition of the infant Plaintiff, and that the deposition of Plaintiff/Guardian will be a joint deposition by the Defendants as well.
PROCEDURAL HISTORY
By summons and complaint filed on August 26, 2022, Plaintiffs sought recovery for an alleged sexual assault committed on infant Plaintiff J.H. by another student on September 20, 2021 at Defendant Brooklyn Prospect Charter School ("Brooklyn Charter"). On September 9, 2022, Defendant Brooklyn Charter filed its answer, including as its Sixth Affirmative Defense that the complaint must be dismissed because Plaintiffs did not comply with provisions of the GML. On December 12, 2022, the Court (Landicino, J.) signed Plaintiffs' OSC, returnable to this Court on March 1, 2023.
POSITION OF THE PARTIES
Plaintiffs claim Defendants should be prohibited from deposing infant Plaintiff because the New York Child Victim's Act ("CVA") and CPLR § 214-g eliminated the Defendants' right to a GML § 50-h hearing. Accordingly, Defendant Brooklyn Charter's Six Affirmative Defense is inapplicable to this case and must be denied.
Plaintiffs cite several cases in support of their argument that CPLR § 3103(a) authorizes the Court to issue a protective order limiting, denying or otherwise conditioning or regulating disclosure to prevent unreasonable annoyance, embarrassment or other prejudice to anyone while at the same time addressing the competing interests of the parties and the truth-finding goal of discovery. Plaintiffs further assert that the CVA, as restated in GML § 50-e(8)(b), eliminated the Notice of Claim ("NOC") filing requirement in cases where a claimant is an infant who has suffered a sexual assault under article 130 of the New York Penal Law ("PL"). While the Plaintiffs in the instant case acknowledge they filed a NOC "in an overabundance of caution", they claim that since a NOC is no longer a condition precedent for a sexual offense-related tort claim against a municipality, "the defendants should have no right to conduct the examination" especially since a deposition could be intimidating and embarrassing and "the infant claimant here would undoubtedly suffer further psychological injury." Plaintiffs argue Defendants would not be prejudiced by an order precluding a 50-h hearing of the infant Plaintiff because Plaintiff's mother can testify at her own 50-h hearing to the facts and circumstances surrounding the negligent supervision claim and because Defendants should be able to utilize the recorded interview of the infant Plaintiff made by the assigned police detective to the same effect as a 50-h hearing, although Plaintiffs concede that they have neither heard the interview nor obtained a copy of said interview. Plaintiffs further move this Court to grant Defendants permission to conduct a joint 50-h hearing, as opposed to the separate examinations currently scheduled, on grounds that separate hearings would unnecessarily duplicate what is already a broad and comprehensive method of obtaining disclosure.
NYSCEF Doc. 9 at 5-6.
NYSCEF Doc. 9 at 6.
Defendant Brooklyn Charter argues that Plaintiffs failed to provide details that would support Plaintiffs' assertion that PL Article 130 was implicated so that Plaintiffs' could attempt to meet their burden of showing that exceptional circumstances existed here such that pre-trial preclusion of infant Plaintiff's examination would be warranted. Defendant Brooklyn Charter avers that such preclusion could only be accomplished after a hearing by this Court.
NYSCEF Doc. 12 at 2.
Id.
Defendants New York City and the New York City Department of Education take no position on Plaintiff's OSC.
DISCUSSION
In the ordinary course, compliance with a municipality's demand for a GML § 50-h examination is a condition precedent to commencing an action against a municipality. A.R. v. Urrutia, 212 A.D.3d 670, 671 (2nd Dep't 2023); Jeffrey T.C. v. Grand Is. Cent. Sch. Dist., 196 A.D.3d 1117, 1118 (4th Dep't 2021). Generally, for a protective order to be issued limiting or otherwise preventing an examination before trial (EBT), the party seeking such an order must make a factual showing that the party being deposed would be subjected to unreasonable annoyance, expense, disadvantage or other prejudice. See, e.g., Nunez v. Peikarian, 208 A.D.3d 670, 671 (2nd Dep't 2022); C.B. v. Park Ave. Pub. Sch., 172 A.D.3d 980, 981 (2nd Dep't 2019). In the context of a 50-h proceeding, this Court needs evidence of "exceptional circumstance [that] would excuse [] noncompliance." Simon v. Bellmore-Merrick Cent. High Sch. Dist., 133 A.D.3d 557, 558 (1st Dep't 2015); see C.B. v. Park Ave. Pub. Sch., 172 A.D.3d at 982.
The parties cite C.B. v. Park Ave. Pub. Sch. to support their respective positions regarding whether exceptional circumstances exist to warrant preclusion of infant Plaintiff's 50-h hearing. In C.B., an infant kindergartener was sexually assaulted by another student in the bathroom. There, plaintiffs refused to produce infant C.B. for the 50-h deposition and sought a protective order prohibiting it, supporting its application with an affidavit of the infant's treating psychologist. The Appellate Division affirmed the trial court's denial of the protective order, finding that "although the plaintiffs' submissions established that the infant plaintiff suffered trauma as a result of the incident, the record does not support a finding of extreme incapacity or psychological injury so as to excuse the infant from submitting to a 50-h examination or, at this juncture, from testifying at an examination before trial."
Id.
Id.
Id. at 982.
In the instant matter, Plaintiffs did not support their application with a professional's affidavit, nor provide other documentation to justify a protective order, and even if they did, as was the case in C.B., such an affidavit was insufficient to precipitate a protective order. In MB v. Islip Sch. Dist., the Court held that "only where a claimant's extreme incapacity has been shown have courts made exceptions to the General Municipal Law's examination provision." The Court found that the unilateral and subjective assessment of plaintiffs and their attorneys that MB would not be able to meaningfully participate in a 50-h examination does not "demonstrate extreme incapacity on the part of MB to excuse compliance with General Municipal Law 50-h."
2015 U.S. Dist. Lexis 77916 (EDNY 2015) at 41.
Id.
Here, the Court concludes that Plaintiffs have made an insufficient showing to justify this Court's issuance of an Order precluding an examination of infant Plaintiff pursuant to GML § 50-h. As such, Defendant Brooklyn Charter's Sixth Affirmative Defense will not be dismissed.
Regarding Plaintiff's application seeking that the 50-h examination of Plaintiff Christina Murray be conducted jointly by Defendants (see NYSCEF Doc. # 11 at 7), since no opposition to said request was filed, this application is granted. Likewise the 50-h hearing of infant Plaintiff is to be conducted by Defendants together. More specifically, the depositions of both the infant Plaintiff and adult Plaintiff need not be conducted on the same date, but must be conducted by Defendants jointly on whatever date(s) is confirmed for each. Such consolidation is in the interest of judicial economy and to avoid undue expense and inconvenience to witnesses and counsel. Cf. CPLR § 602(a) ("the court may make such other orders concerning proceedings as may tend to avoid unnecessary costs or delay."); Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 40 Misc.3d 1216 (A) (Sup. Ct., NY County 2013, Edmead, J.) (consolidation of three cases, where no depositions have yet been taken, would allow witnesses, parties and non-party subpoena recipients to only have to be deposed once).
Accordingly, Plaintiffs' motion is DENIED, in part, and GRANTED, in part. A copy of this Decision and Order with Notice Of Entry shall be served upon all parties to the consolidated action by Plaintiff within (30) days of its entry.
This constitutes the Decision and Order of this Court.