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
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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.
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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
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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
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[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 158098/2021
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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
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!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
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Motion No. 002
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