Opinion

Cruz v. City of New York

  • 2024 NY Slip Op 31529(U)
Court
New York Supreme Court, New York County
Filed
Apr 30, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.9%

The opinion

Cruz v City of New York

2024 NY Slip Op 31529(U)

April 30, 2024

Supreme Court, New York County

Docket Number: Index No. 158098/2021

Judge: Hasa A. Kingo

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 158098/2021

NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/30/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. HASA A. KINGO PART 05M

Justice

----------------------------------------------------------------- ----------------X INDEX NO. 158098/2021

DAVID CRUZ,

MOTION DATE 01/16/2024

Plaintiff,

MOTION SEQ. NO. 002

- V -

CITY OF NEW YORK, INDIVIDUAL DEFENDANTS JOHN

AND JANE DOES, MUHAMMAD AMIR, PATRICK

CHERRY, MAYKO MATOS, JOHN OCONNELL, GUSTAVO DECISION + ORDER ON

MONTESDEOCA, KYONG KIM, ANTHONY MORALES, MOTION

VICTOR LEE, MARTA MENDEZ

Defendant.

------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 44, 45, 46, 47, 48,

49,50,51,52,53,54,55,56,65,66,67,69, 70, 72, 73, 74, 75, 76, 77, 78, 79

were read on this motion to/for DISCOVERY

With the instant motion, Plaintiff David Cruz ("Plaintiff') moves for an order compelling

Defendant the City of New York ("City") to produce all outstanding discovery, including all

discovery required by the Case Scheduling Order ("CSO") and all discovery responsive to

Plaintiffs First Notice of Discovery and Inspection ("D&I"), within 30 days. In the alternative,

Plaintiff seeks an order striking the City's answer for failing to comply with discovery. The City

opposes Plaintiffs motion, and cross-moves for a protective order with respect to some of the

discovery sought by Plaintiffs D&I.

Generally, the test for disclosure pursuant to CPLR §3101 is whether the information

sought is material and necessary. The test is one of relevance, usefulness and reason (Allen v

Cromwell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). CPLR §3 IOI(a) requires full disclosure

of all evidence material and necessary to the prosecution or defense of an action, regardless of the

burden of proof (Weber v Ryder TRS, Inc., 49 AD3d 865,866 [2d Dept 2008]). The terms "material

and necessary" in this statute "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"' (Matter of Kapon v. Koch, 23 NY3d 32, 38 [2014], quoting

Allen, 21 NY2d at 406, supra). To that end, CPLR §3126 authorizes the imposition of disclosure

sanctions, including the striking of a pleading, for a party's failure to comply with court-ordered

discovery, especially where there is a clear showing that the party's conduct is willful,

contumacious or manifests bad faith (see Irizarry v Ashar Realty Corp., 14 AD3d 323 [1st Dept.

2005]; Katz v Dream Trans, Inc., 11 AD3d 412 [1st Dept. 2004]; Frye v City of New York, 228

AD2d 182 [1st Dept. 1996]). But where, as here, a party has provided generally appropriate

responses to requested discovery, the striking of a pleading is inapplicable. Finally, pursuant to

158098/2021 CRUZ, DAVID vs. CITY OF NEW YORK ET AL Page 1 of4

Motion No. 002

1 of 4

[* 1]

[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 158098/2021

NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/30/2024

CPLR §3124 this court can, in its discretion, compel disclosure of information that a party fails to

adequately respond to.

Here, Plaintiff submits that the City's responses to discovery sought have been wholly

inadequate and that Plaintiff has made ample efforts to confer with the City in good faith, including

four in-person conferences at the DCM Part, three stipulations extending deadlines, and further

conferral efforts by email when deadlines were not met. When these efforts failed, Plaintiff

highlights that Plaintiff obtained approval from this court to proceed by motion. The CSO

discovery constitutes basic disclosures essential to a reasonable investigation of Plaintiff's claims:

e.g. identification of witnesses, relevant video evidence, and contemporaneous documentary

evidence. The D&I is likewise targeted to seek evidence relevant to Plaintiff's claims. For

example, the requests seek contemporaneous video and documentary evidence of the alleged

conduct, e.g., Requests 3, 5, & 6, relating to NYSCEF No. 38. The City does not dispute the

relevance of the aforesaid records. In the absence of opposition, the City will, therefore, be directed

to provide responses to Plaintiff's requests for discovery that remains outstanding and unanswered.

To the extent that the City asserts that it cannot locate records that are presumed to be within its

purview, the City shall provide an affidavit from a person with knowledge indicating affirmative

steps that were undertaken to locate responsive documents, and the basis for the City's belief that

the records either do not exist or are no longer in the possession of the City and its companion

agencies. The City should further recognize that no response to Plaintiff's demands that the City

has previously no responded to will not be acceptable to the court, and may result in this court

finding that the City has failed to comply with its discovery obligations.

To the extent that Plaintiff is requesting body camera footage, audio recordings, and a

supplemental response from the City regarding witnesses and potential officers present on body

camera footage that have not previously been identified, Plaintiff has adequately shown that

knowledge and information regarding the existence of these relevant items is entirely within

possession of the City. Moreover, the City cites to no authority that supports the imposition of such

a duty upon Plaintiff, in contravention of disclosure directed by CPLR §3101 (i), nor does the City

invoke the exception pursuant to Public Officers Law § 87. Moreover, the Court of Appeals has

specifically held that a plaintiff need not submit to a deposition before disclosure of relevant video

recordings (Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383, 389-90 [2003]). As such, any

relevant recordings, body camera footage, or audio recordings in the possession of the City are

discoverable. Relevant materials, in this instance, include those which depict Plaintiff during his

interaction with members of the NYPD on June 1, 2020.

Notwithstanding, the court notes that the gravamen of the City's opposition and cross-

motion is tailored to Plaintiff's requests for disciplinary and personnel records for the defendant

officers in his D&I, demands number 9 and 10. The court is in agreement with the City's contention

that Plaintiff's blanket requests for disciplinary and personnel records are palpably improper,

vague, overbroad, and unduly burdensome to the extent each demand fails to specify the

documents to be disclosed with reasonable particularity. Indeed, Plaintiff's demand for unredacted

personnel files including the names, addresses, social security numbers, and other private

information of the individually named officers is denied because this information is not

discoverable and would constitute an unwarranted invasion of personal privacy under Public

Officers Law § 89. Furthermore, the City correctly underscores that Plaintiff is seeking information

158098/2021 CRUZ, DAVID vs. CITY OF NEW YORK ET AL Page 2 of 4

Motion No. 002

2 of 4

[* 2]

[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 158098/2021

NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/30/2024

concerning allegations of misconduct that were not like the allegations herein, or false statements,

and thus are not relevant or reasonably calculated to lead to the discovery of admissible evidence

(see In re World Trade Center Bombing Litigation, 93 NY2d 1, 8 [1999]).

Nevertheless, Internal Affairs Bureau ("IAB") records, records of the Civilian Complaint

Review Board, and disciplinary records and complaints that contain information relevant to

Plaintiff's claims are discoverable (Chavez v City of New York, 33 Misc 3d 1214(A), *4 [Sup Ct,

NY County 2011], aff'd, 99 AD3d 614, 615 [1st Dept 2012]; (Rodriguez v The City of New York,

2016 NY Slip Op 30484 [U] [Sup Ct, NY County 2016]). To the extent that these documents

reference prior complaints or disciplinary actions taken against the officers, they are discoverable

as well (id. at 5). These records are discoverable even if the officers were acting within the scope

of their employment (Chavez v City of New York, 99 AD3d 614, 615 [1st Dept 2012]). As such,

the City's cross-motion is granted to the extent that Plaintiff is narrowly entitled to prior

disciplinary records for the named defendant police officers, including items similar to Plaintiff's

instant allegations for a period of ten ( 10) years prior to and including the date of incident, subject

to the appropriate redactions of privileged information including but not limited to, personal

identifying information ("PII"). More specifically, the court limits disclosure to a period of ten

( 10) years prior to and including the date of the incident and only for items similar to Plaintiff's

federal allegations of excessive force, deliberate indifference, excessive detention, denial of due

process, unlawful search, harassment and intimidation, failure to intervene, and Plaintiff's state

claims of assault and battery, intentional infliction of emotional distress, negligence, false

imprisonment, excessive force, unlawful seizure, and unlawful search. Additionally, Plaintiff shall

sign a confidentiality stipulation to prevent misuse of the confidential materials Plaintiff has

demanded, including but not limited to the blanket requests for the named defendants' personnel

and disciplinary records.

The court has considered Plaintiff's arguments describing the City's cross-motion as

procedurally improper, and finds them unavailing. Based on the foregoing, it is hereby

ORDERED that, pursuant to CPLR §3124 that, within thirty ( 60) days of the service of a

copy of this order with notice of entry upon Defendant the City of New York (and no later than

June 21, 2024), Defendant City ofNew York shall produce to Plaintiff(i) all Documents and other

Discovery called for by the Case Scheduling Order in this action (NYSCEF No. 14), (ii) all

Documents and other Discovery requested in Plaintiff's First Notice of Discovery and Inspection

to the extent described herein, and subject to appropriate redactions of privileged information; and

it is further

ORDERED that, pursuant to CPLR §3126, Defendant the City of New York's failure to

provide the discovery outlined may result in the striking of Defendant the City of New York's

answer, unless the City of New York has fully and thoroughly complied with the above order

pursuant to CPLR §3124; and it is further

ORDERED that to the extent that the City asserts that it cannot locate records that are

presumed to be within its purview, the City shall provide an affidavit from a person with

knowledge no later than June 21, 2024 indicating affirmative steps that were undertaken to locate

responsive documents, and the basis for the City's belief that the records either do not exist or are

158098/2021 CRUZ, DAVID vs. CITY OF NEW YORK ET AL Page 3 of 4

Motion No. 002

3 of 4

[* 3]

!FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 PM! INDEX NO. 158098/2021

NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/30/2024

no longer in the possession of the City and its companion agencies. The City should further

recognize that no response to Plaintiffs demands that the City has previously no responded to will

not be acceptable to the court, and may result in this court finding that the City has failed to comply

with its discovery obligations; and it is further

ORDERED that the parties shall appear in the Differentiated Case Management Part, 80

Centre Street, Room 103, New York NY, 10013, on June 25, 2024 at 2:00 PM to ensure

compliance with this court's decision and order.

This constitutes the decision and order of the court.

4/30/2024

DATE HASAA. KIN

~

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

158098/2021 CRUZ, DAVID vs. CITY OF NEW YORK ET AL Page4 of 4

Motion No. 002

4 of 4

[* 4]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.