Opinion
5219N Index 118182/09
12-14-2017
John DOE, Plaintiff–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Defendants–Respondents.
Sekendiz Law Firm P.C., New York (Ismail S. Sekendiz of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondents.
Sekendiz Law Firm P.C., New York (Ismail S. Sekendiz of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondents.
Friedman, J.P., Kahn, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered April 27, 2016, which, to the extent appealed from as limited by the briefs, partially denied plaintiff's motion to compel certain discovery, unanimously affirmed, without costs.
In this action, plaintiff, a former New York City Police Officer seeks to recover damages arising from alleged harassment on the job due to his sexual orientation. Plaintiff demanded a further deposition of one of his coworkers, a police officer, and disclosure of the disciplinary files of that officer and another employee of the police department.
Supreme Court providently exercised its discretion in denying plaintiff's requests for additional discovery (see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker , 1 A.D.3d 223, 224, 767 N.Y.S.2d 228 [1st Dept. 2003] ). During discovery, plaintiff's counsel battered the witness, a nonparty female officer, with questions that were so "grossly irrelevant" and "improper" that they were not required to be answered ( White v. Martins , 100 A.D.2d 805, 805, 474 N.Y.S.2d 733 [1st Dept. 1984] ).
The police officer's disciplinary files are protected by Civil Rights Law § 50–a (and see Espady v. City of New York , 40 A.D.3d 475, 476, 839 N.Y.S.2d 4 [1st Dept. 2007] ), and plaintiff failed to provide a clear showing of facts sufficient to warrant even an in camera review of those records (see id. ; see also Flores v. City of New York , 207 A.D.2d 302, 303, 615 N.Y.S.2d 400 [1st Dept. 1994] ; Civil Rights Law § 50–a[2] ).
Discovery of the disciplinary file of the other police department employee was not warranted, as she was not similarly situated with plaintiff and thus is not comparable for the purpose of showing discrimination (see Carryl v. MacKay Shields, LLC , 93 A.D.3d 589, 590, 941 N.Y.S.2d 116 [1st Dept. 2012] ; Beckles v. Kingsbrook Jewish Med. Ctr. , 36 A.D.3d 733, 734, 830 N.Y.S.2d 203 [2d Dept. 2007] )