Opinion
771000/10E.
Decided October 21, 2010.
This decision and order presumes familiarity with all prior decisions, orders and case management orders issued in this matter. It is one, in a series, of decisions and orders, some conducted on the record with a court reporter in the presence of the parties, related to in camera review of documents. The court will not, yet again, describe the alleged incident and the parties.
I. The Municipal Defendants' Privilege Log
On August 20, 2010, the court issued rulings on a number of the documents listed in a privilege log submitted by the City of New York, DOB, Patricia J. Lancaster, and Robert LiMandri ("City"). The court reserved its decision with respect to those documents which were part of the Department of Investigation's file and allowed the City to submit a brief addressing the pertinent privileges (Doc. 482, at 20-22), which it did (Doc. 426).
The City's letter dated September 7, 2010 (Doc. 426) states that "the City submitted for in-camera review witness statements generated by the [NYPD] and the [DOI]." To the extent the City is referring to documents bearing Bates stamps NYC26721 through NYC26830, the court has already issued rulings on those documents at the August 20, 2010 conference (Doc. 482). If those documents have not yet been furnished to the wrongful death plaintiffs, the City is directed to do so by October 29, 2010.
Unless otherwise indicated, references are to the E-filing document number of the master index number 771000/10.
As to the documents at issue, the City's privilege log invokes five privileges: (1) attorney-client privilege; (2) "attorney client work product;" (3) deliberative process privilege; (4) public interest privilege; and (5) law enforcement privilege. The scope and propriety of each of these privileges are discussed first. Their applicability to the documents at issue is examined thereafter.
A. The Privileges Asserted
1. Attorney-Client Privilege
The attorney-client privilege protects confidential communications between an attorney and a client made "in the course of professional employment for the purpose of obtaining legal advice" ( Veras Inv. Partners, LLC v Akin Gump Strauss Hauer Feld LLP , 52 AD3d 370 , 372 [1st Dept 2008]; see CPLR 4503). "[F]or the privilege to apply, the communication from attorney to client must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.' The communication itself must be primarily or predominantly of a legal character" ( Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377-378, quoting Rossi v Blue Cross Blue Shield, 73 NY2d 588, 593).
This privilege applies to confidential communications between a corporation, as the client, and that corporation's counsel and extends beyond corporate directors and officers and applies to lower-echelon corporate employees ( see Niesig v Team I, 76 NY2d 363, 371; Rossi v Blue Cross Blue Shield, 73 NY2d at 591-592). Corporations are analogous to government agencies for the purpose of determining the applicability of the attorney-client privilege ( see Matter of Morgan v New York State Dept. of Envtl. Conservation , 9 AD3d 586 , 587 [3d Dept 2004]; American Auto. Plan v Corcoran, 166 AD2d 215, 215 [1st Dept 1990]; Radovic v City of New York, 168 Misc 2d 58, 60 [Sup Ct, New York County 1996]).
Still, this is a qualified privilege "the invocation of which should be cautiously observed to ensure that its application is consistent with its purpose[;] the burden of proving each element of the privilege rests upon the party asserting it" ( Matter of Priest v Hennessy, 51 NY2d 62, 68-69). The attorney-client privilege is waived when the communication is not kept confidential, such as when a copy of the documentary communication is sent to a third party ( see Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 AD3d at 587-588). For example, a "memorandum . . . while written to counsel by [an agency's] employee [that] contains only factual information gained through an investigatory interview with a third party" is not privileged ( id. at 588). Even if a communication is found privileged, it "does not immunize the underlying factual information" ( Niesig v Team, 76 NY2d at 372). "[A]n investigative report does not become privileged merely because it was sent to an attorney. Nor is such a report privileged merely because an investigation was conducted by an attorney" ( Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 379). "Finally, even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure" ( Matter of Priest v Hennessy, 51 NY2d at 69; see Matter of Jacqueline F., 47 NY2d 215).
2. Attorney-Client Work Product
There is no so-called "attorney-client work product" privilege. Nevertheless, the court will afford the City the benefit of construing this assertion as an invocation of the attorney work product privilege, which is entirely distinct, despite the fact that the City did not assert the attorney work product privilege as such ( see CPLR 3101 [c]).
See Coiro v Fed Cap Custodial Serv., Inc., 5 Misc 3d 1002(A), *1 n 1 (Sup Ct, NY County 2004) ("The attorney-client communication privilege is separate and distinct from the attorney work product privilege, and . . . counsel appears to have conflated the two into one objection, attorney-client work product.'").
"The work product of an attorney shall not be obtainable" (CPLR 3101 [c]). This privilege is absolute ( see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 376). It "applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy" ( Brooklyn Union Gas Co. v American Home Assur. Co. , 23 AD3d 190 , 190-191 [1st Dept 2005]; see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 376). However, the underlying "data received by the attorney from others while investigating in behalf of the client" is not privileged (Siegel NY Prac § 347, at 557-558 [4th ed]).
Attorney work product must not be confused or conflated with material prepared in anticipation of litigation or trial under CPLR 3101 (d) (2). The latter is a distinct privilege and has not been invoked here ( see People v Kozlowski , 11 NY3d 223 , 244-245 [distinguishing the privileges], rearg denied 11 NY3d 904, cert denied sub nom Kozlowski v New York, 129 S Ct 2775).
3. Deliberative Process Privilege
The City's privilege log also asserts the "deliberative process privilege." While the Court of Appeals has often used the phrase "deliberative process" to describe the inter-agency/intra-agency exemptions of the Freedom of Information Law ("FOIL"), the Court has never created nor recognized a generalized "deliberative process privilege" ( see Public Officers Law § 87 [g] [i]-[iii]; Matter of New York Times Co. v City of NY Fire Dept. , 4 NY3d 477 , 487-488; Matter of Gould v New York City Police Dept., 89 NY2d 267, 276-277; Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 ["While the term inter-agency materials' is not defined under the FOIL statute, New York's courts have construed this term to mean deliberative material,' i.e., communications exchanged for discussion purposes not constituting final policy decisions"]; accord Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [1985 per curiam]).
The Appellate Division, First Department, made this much clear in Matter of Tuck-It-Away Assoc., L.P. v Empire State Dev. Corp. , 54 AD3d 154 (1st Dept 2008), affd 13 NY3d 882 (2009), where the Court devoted a lengthy discussion to the breadth of the "deliberative process privilege" under FOIL. This court recognizes the existence of some cases which all too casually mention the "deliberate process privilege" and purport to apply it outside the context of a FOIL proceeding (Siegel, NY Prac § 346, at 556 [4th ed]; see generally Imwinkelried, The New Wigmore, A Treatise on Evidence § 7.7, at 1335 [2d ed] [questioning the existence of such a privilege under federal common law]; King v Cole, 121 FRD 180, 188-189 [ED NY 1988] [describing the "deliberative' privilege" as the "self-critical analysis'" privilege]. However, privileges simply do not exist in the absence of either constitutional or statutory authority, or, when created as a matter of jurisprudence. Here, the so-called "deliberative process privilege" could only find its genesis in the common law, but neither the Court of Appeals' case law nor that of the First Department can be construed having created a distinct "deliberate process privilege" outside the context of a FOIL proceeding assessing the inter-agency/intra-agency exemptions, which is not applicable here. 4. Public Interest Privilege
The existence of the deliberative process privilege under federal common law is not applicable here and is itself questionable, probably deriving from the English "Crown privilege" which applied to parliamentary deliberations and state secrets ( see Office of Government Commerce v Information Commissioner, [2008] EWHC 737 [Admin] [UK]; see generally Weaver Jones, The Deliberative Process Privilege, 54 Mo L Rev 279 n 24 [1989]). Instructive, however, is a comparison between FOIL and the Freedom of Information Act ("FOIA") because the United States Supreme Court has clearly and repeatedly explained that "FOIA was not intended to supplant or replace the rules of discovery" ( John Doe Agency v John Doe Corp., 493 US 146, 153 [1989]; see Chamber of Comm. v Legal Aid Society of Alameda County, 423 US 1309, 1310 [1975] ["Freedom of Information Act creates no privileges"]; Assoc. for Women in Science v Califano, 566 F2d 339, 342 [DC Cir 1977] ["FOIA neither expands nor contracts existing privileges, nor does it create any new privileges"]).
The public interest privilege protects "confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged" ( Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8). The privilege's evolving nomenclature is but one factor that has contributed to the obscurity of its origins ( compare People v Walsh, 262 NY 140, 150 [1933] [recognizing a privilege regarding "matter, the publication of which would be prejudicial to the public interest."] with 1 Mottla, New York Evidence § 394, at 367-368 [2d ed] [describing the privilege as "Matters Privileged by Public Policy"] and 8 Wigmore, Evidence §§ 2374- 2378, at 761-808 [McNaughton rev 1961]) [explaining that "a distinct privilege [is] recognized today for official information' . . . where it is declared expressly by statute."]; see also King v Cole, 121 FRD 180, 188-189 [EDNY 1988] [discussing the "official information" privilege]; Note, New York's Freedom of Information Law, Disclosure Under the CPLR, and the Common-Law Privilege for Official Information: Conflict and Confusion Over "the People's Right to Know", 33 Syracuse L Rev 615 [1982]). Notwithstanding this, the Court of Appeals expressly and unambiguously recognized its existence in Cirale v 80 Pine St. Corp., 35 NY2d 113 (1974) and has continued to do so ( see Brady v Ottaway Newspapers, 63 NY2d 1031, 1031).
To assess the merits of the public interest privilege, this court's function is to weigh "plaintiffs' interest in obtaining disclosure [with] defendants' interest in preserving the confidentiality of this material" ( Espady v City of New York , 40 AD3d 475 , 476-477 [1st Dept 2007]; see Matter of Langert v Tenney, 5 AD2d 586, 588 [1st Dept 1958] [framing the issue as "whether the public interest is better served by disclosure or by keeping the seal of confidence"]). The court must assess plaintiffs' need for the information "against the government's duty to inquire into and ascertain the facts of a serious accident for the purposes of taking steps to prevent similar occurrences in the future" ( Cirale v 80 Pine St. Corp., 35 NY2d at 118). 5. Law Enforcement Privilege
The murkiness of the public interest privilege is exceeded only by that of the "law enforcement privilege" ( see Siegel, NY Prac § 346, at 556 [4th ed]). While FOIL "mandates all agencies to make records available to the public" ( Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270, 272), Public Officers Law § 87 (2) (e) exempts such records if they "are compiled for law enforcement purposes and which, if disclosed, would" do one of four things — either "interfere with law enforcement investigations or judicial proceedings; ii. deprive a person of a right to a fair trial or impartial adjudication; iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures." As discussed supra, however, an exemption under FOIL is distinct from a privilege.
In support of its invocation of the law enforcement privilege, the City relies on a number of federal and New York cases ( see Matter of Department of Investigation, 856 F2d 481, 484 [2d Cir 1988]; Otterson v National RR Passenger Corp., 228 FRD 205, 207 [SDNY 2005]; Borchers v Commercial Union Assur. Co., 874 F Supp 78, 80 [SDNY 1995]; Espady v City of New York , 40 AD3d 475 [1st Dept 2007]; Colgate Scaffolding Equip. Corp. v York Hunter City Servs., Inc. , 14 AD3d 345, 346-347 [1st Dept 2005]; Pendleton v City of New York , 21 Misc 3d 1141 [A] [Sup Ct, Kings County 2008]).
The federal cases are entirely unpersuasive and not controlling. The pedigree of the federal cases all eventually trace back to Matter of Department of Investigation and Black v Sheraton Corporation of America, 564 F2d 531, 541-42 (DC Cir 1977). In Otterson, for example, the only authority cited in the discussion of the "law enforcement or investigatory privilege" was Matter of Department of Investigation ( 228 FRD at 207). In Borchers, the authorities relied upon were Matter of Department of Investigation, US v Davis, 131 FRD 391, 395 (SD NY 1990), and Raphael v Aetna Cas. and Sur. Co., 744 F Supp 71 (SD NY 1990). However, both Davis and Raphael also relied chiefly on Matter of Department of Investigation ( see US v Davis, 131 FRD at 395; Raphael v Aetna Cas. and Sur. Co., 744 F Supp at 74).
Black v Sheraton Corporation of America, 564 F2d 531, 541-42 (DC Cir 1977) is discussed infra, which discussion also applies to the Davis and Raphael reliance upon Black.
After careful consideration, the court is not persuaded that Matter of Department of Investigation correctly states New York State law for several reasons. First, it relied on Friedman v Bache Halsey Stuart Shields, Inc., 738 F2d 1336 (DC Cir 1984), Black, FOIL, and FOIA to reason that "the law enforcement privilege . . . has been recognized in the absence of a statutory foundation, and . . . is largely incorporated into the various state and federal freedom of information acts" ( Matter of Department of Investigation, 856 F2d at 483-484). As discussed supra, this court declines to construe an exemption under FOIL or FOIA as the codification of a privilege that may or may not have existed at common law. The United States Supreme Court has admonished courts against doing this (see John Doe Agency v John Doe Corp., 493 US at 153; Chamber of Comm. v Legal Aid Society of Alameda County, 423 US at 1310). Thus, the precedential value of Matter of Department of Investigation is only as venerable, if at all, as the extent to which it relies on Friedman or Black. Friedman itself, however, relied chiefly on Black ( see Friedman v Bache Halsey Stuart Shields, Inc., 738 F2d at 1341).
The Friedman court was also relying on Black ( see Friedman v Bache Halsey Stuart Shields, Inc., 738 F2d at 1341).
The second reason why Matter of Department of Investigation is not persuasive is because this court declines to adopt the approach employed by the Black court. In contrast to the Black court, this court cannot "feel justified in drawing broadly on various executive privilege decisions and precedents, without exact refinement, for discerning a sound approach that will adjust the needs of both the judicial process and the executive branch" ( id. at 542). Principled adjudication calls for more than reliance on such amorphous standards as "pragmatic adjustment to needs of sound government" ( id.). This reasoning is, at best, contrived. Accordingly, Black is not persuasive and neither, therefore, is its progeny — Matter of Department of Investigation.
This faulty reasoning was recently repeated by Matter of the City of New York, 607 F3d 923 (2d Cir 2010). In discussing the law enforcement privilege, the Second Circuit claimed that "it developed at common law from executive privilege, has been largely incorporated into both New York state [citing FOIL] and federal [citing FOIA] statutory law." To the extent that the Second Circuit was opining on the landscape of New York law, this court is neither bound nor persuaded. Just as the United States Supreme Court has explicitly stated that the "Freedom of Information Act creates no privileges,"( Chamber of Comm. v Legal Aid Society of Alameda County, 423 US at 1310), this court finds that FOIL creates no law enforcement privilege. Dicta repeated is dicta nonetheless. This court declines to construe a FOIL exemption as a codification of a common law privilege. Neither does this court interpret Colgate as doing so.
Next, the court will examine the New York cases relied upon by the City. In Espady v City of New York , 40 AD3d 475 , 477 (1st Dept 2007), the Appellate Division, First Department referenced the law enforcement privilege without discussing its contours. In doing so, the only authority referenced was Colgate. The Colgate Court cited to Matter of Department of Investigation and Borchers, neither of which are persuasive for the reasons discussed supra. Nor can Colgate fairly be construed as creating a privilege that does not otherwise exist under New York statutory law or common law. This is consistent with the numerous Court of Appeals decisions which repeatedly distinguish disclosure sought pursuant to CPLR Article 31 from records available to the public under FOIL ( see Matter of M. Farbman Sons v New York City Health Hosps. Corp., 62 NY2d 75, 81-82; see also Matter of Harper v Angiolillo, 89 NY2d 761, 767; Matter of John P. v Whalen, 54 NY2d 89, 98; Matter of Murphy v New York State Educ. Dept., Off. of Professional Discipline, 148 AD2d 160, 164 [1st Dept 1989]; Burke v Yudelson, 51 AD2d 673 [4th Dept 1976]). If such a privilege otherwise exists at common law, the City has neglected to point to authority for same.
Compare, for example, Cirale v 80 Pine St. Corp., 35 NY2d at 113 where there can be no question that the Court of Appeals was recognizing and applying the public interest privilege.
The final case relied upon by the City, Pendleton v City of New York , 21 Misc 3d 1141(A) (Sup Ct, Kings County 2008), is misplaced. Pendleton never mentioned, let alone applied, a "law enforcement privilege."
B. Application of the Privileges to Documents
The privilege log does not list any document bearing Bates stamp DOI000001. Accordingly, no privilege has been asserted for the document, which is relevant.
The City invokes the law enforcement and public interest privilege for documents bearing Bates stamps DOI000002 through DOI000055. Because the City has not established the propriety of the law enforcement privilege as is its burden, this court will only consider whether these documents are privileged under the public interest privilege.
Like many of the documents here, DOI000002 is an employee's memorandum which is not "a communication between public officers[ nor] to [a] public officer[]" as demonstrated by the face of the memo which indicates the recipient as "Case File" ( see Matter of World Trade Ctr. Bombing Litig., 93 NY2d at 8). DOI 000003 through DOI000055 are attachments associated with the substance of the memo, none of which are privileged, but all of which are relevant.
DOI000056 is an email correspondence from Erin Schultz to Byron Biggerstaff, Edward Zinser, John Kantor, Michael Carroll, and Sadie Lopez. The privilege log incorrectly identifies Kantor as the author and Biggerstaff and Zinser as the sole recipients. It appears that the portion of the privilege log describing DOI000056 is actually mistakenly describing DOI000057. Nevertheless, DOI000056 and DOI000057 are privileged under the attorney-client privilege.
DOI000058 through DOI00067 are relevant and this court is not persuaded that the public interest privilege is applicable. Regardless, the court finds that the public interest would actually be fostered by disclosure.
DOI000068 through DOI000070 are repeats of DOI000065 through DOI000067. The privilege log incorrectly lists June 2 as the documents' date — it is actually June 3, 2008.
DOI000071 through DOI000072 are mislabeled on the privilege log. Amanda Ogborne is the author, not Erin Schultz.
DOI000073 through DOI000075 are emails from Kim Ryan to several other investigators and Kantor, who is listed as counsel. The only privilege that may be applicable is the attorney-client privilege. However, it is unclear from the correspondence whether the communications were made for the purpose of obtaining legal advice. Moreover, for the privilege to apply, "[t]he communication itself must be primarily or predominantly of a legal character," which these emails are not ( Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377-378). Even if the City had met its burden of demonstrating that "the technical requirements of the privilege [we]re satisfied," here, "strong public policy requires disclosure" ( Matter of Priest v Hennessy, 51 NY2d at 69; see Matter of Jacqueline F., 47 NY2d 215).
DOI000076 through DOI000098 are relevant and this court is not persuaded that the public interest privilege is applicable. Regardless, the court finds that the public interest would actually be fostered by disclosure.
DOI000099 is a repeat of DOI000098.
DOI000100 through DOI000110 are relevant and this court is not persuaded that the public interest privilege is applicable. Regardless, the court finds that the public interest would actually be fostered by disclosure.
DOI000111 is relevant and this court is not persuaded that the public interest privilege is applicable. Regardless, the court finds that the public interest would actually be fostered by disclosure. For the reasons discussed in Point I.A.3, supra, the deliberative process privilege is not applicable.
DOI000112 through DOI000126 are relevant and this court is not persuaded that the public interest privilege is applicable. Regardless, the court finds that the public interest would actually be fostered by disclosure.
No privilege was asserted for DOI000127, which is relevant.
DOI000128 through DOI000129 are relevant and not privileged.
While the City has not pointed to "specific support" tending to demonstrate harm or threat of harm to any of the witnesses identified in the documents below, this court will nevertheless require the wrongful death plaintiffs to hold the documents in the strictest of confidence to ensure that this disclosure could not result in "danger to a confidential informant" ( see Colgate Scaffolding Equip. Corp. v York Hunter City Servs., Inc. , 14 AD3d 345 , 346 [1st Dept 2005]).
Accordingly, the City is directed to furnish the wrongful death plaintiffs with redacted versions of documents bearing Bates stamps DOI000001 through DOI000055, and DOI000058 through DOI000129 (redacting only social security numbers, NYS ID numbers, tax ID numbers, employee ID numbers, and telephone numbers) by November 3, 2010.
II. Item numbers 9 and 10 of the Wrongful Death Plaintiffs' Notice for Discovery and Inspection (Doc. 48).
At a compliance conference held on August 20, 2010 (Doc. 482), this court issued rulings on the record on items 1 through 14 of the wrongful death plaintiffs' first notice for discovery and inspection. Item 9 sought "the personnel records including applications, qualifications, C.V.'s, certifications, performance reviews/evaluations and letters of resignation, if applicable [for] Michael Carbone, Bethany Klein, Patricia Lancaster, Robert Li[M]andri, Ashraf Omron, Erin Fisher, Randy Gordon, and Abdur Rashid" (Doc. 48). Item number 10 sought a number of documents pertaining to Michael Carbone.
As to item 9, the first response served by the City stated,
"City of New York objects to this demand as it seeks material protected by any applicable privilege, including but not limited to the attorney-client privilege, the work-product immunity, deliberative process privilege, Civil Rights Law, General Municipal Law, law enforcement privilege, public interest privilege, or an other applicable privileges(s) or immunities. City of New York objects to the [d]iscovery [d]emands to the extent they seek information relating to matters currently under investigation by the municipal authorities, including, but not limited to the Department of Buildings, FDNY, and the New York City Police Department. Defendants object to this demand as overly broad, irrelevant, and not calculated to lead to admissible evidence based on the allegations made in the plaintiff's complaint. Defendants also object to the extent that a party seeking discovery cannot compel the creation of an otherwise nonexistent writing. Jonassen v. A.M.F., Inc., 104 AD2d 484 (1984)" (Doc. 84).
The City asserted language nearly identical to this as the response to approximately 17 of the demands, including item 10 (Doc. 84). At the compliance conference, the City asserted some of those objections again and the court agreed to conduct an in camera review of the documents responsive to items 9 and 10 and directed the City to furnish the court with those documents and any pertinent privilege log by September 7, 2010 (Doc. 482, at 64-72). On September 7, 2010, the City uploaded a letter onto the E-filing system explaining its position on the personnel records (Doc. 426). That letter, along with the hard copies of the actual documents were delivered, by hand, to the court on September 9, 2010. Other than that letter, no privilege log was submitted. In pertinent part, the letter states, "The City reasserts its privilege claim, and its argument that the personnel records of these individuals are irrelevant to any claim brought by the plaintiffs' as they do not claim that any of these individuals were working outside the scope of their employment with the [DOB]. Further, the disclosure of these files are not material and necessary to any viable cause of action against the City, or any party." (Doc. 426). On September 10, 2010, the City served a first supplemental response to the demands which, as to items 9 and 10, stated "The demand for personnel records is subject to [c]ourt decision" (Doc. 438).
The Sinanaj complaint alleges six causes of action: (1) negligence (Doc. 156 ¶¶ 421-539, 580-586); (2) for "personal injuries, conscious pain and suffering, emotional distress, pre and post impact terrors" (Doc. 156 ¶¶ 540-544); (3) wrongful death (Doc. 156 ¶¶ 545-550); (4) various Labor Law violations (Doc. 156 ¶¶ 551-573); (5) negligent hiring, retention, supervision, and training (Doc. 156 ¶¶ 574-579); and (6) punitive and exemplary damages (Doc. 156 ¶¶ 587-597).
By order dated April 2, 2010, this court dismissed plaintiff Sinanaj's fifth cause action in its entirety because res ipsa loquitor is not an independent cause of action and paragraphs 580 through 586 of the verified complaint were deemed incorporated into the first cause of action.
The Leo complaint alleges four causes of action: (1) negligence, gross negligence, and wanton disregard for human life and the public safety (Doc. 139 ¶¶ 98-184, 244-250); (2) violations of Labor Law §§ 200, 240, 241, and 241 (6) (Doc. 139 ¶¶ 185-212); (3) breach of express warranty (Doc. 139 ¶¶ 213-238); (4) breach of implied warranty (Doc.139 ¶¶ 239-243).
By order dated April 2, 2010, this court dismissed plaintiff Leo's fifth cause action in its entirety because res ipsa loquitor is not an independent cause of action and paragraphs 244 through 250 of the verified complaint were deemed incorporated into the first cause of action.
The City objected to disclosure of the personnel files of the DOB employees on the ground that the causes of action, as alleged against most of the municipal defendants are, allegedly, not viable. That issue is not presently before the court. It would be an abuse of the discretion afforded to this court to sua sponte dismiss either the Leo action or the Sinanaj action; nor will this court issue an advisory opinion on the viability of a cause of action until a motion to dismiss is properly before it ( see Purvi Enters., LLC v City of New York , 62 AD3d 508 , 508 [1st Dept 2009]; Jones v Maples, 286 AD2d 639, 639 [1st Dept 2001], lv dismissed 97 NY2d 716). Accordingly, the City's arguments regarding relevancy to the extant complaints, which may or may not ultimately be dismissed in whole or in part, are unpersuasive as are the arguments regarding the deliberative process and law enforcement privileges. Nor are the remaining objections persuasive. For example, Civil Rights Law § 50-a is not applicable because neither Michael Carbone, Bethany Klein, Ashraf Omron, Patricia Lancaster, Robert LiMandri, Erin Fisher, Randy Gordon, nor Abdur Rashid are "police officers, firefighters [or] correction officers."
The court must assume that the City was referring to Civil Rights Law § 50-a because the City's initial objection listed "Civil Rights Law" but did not list any particular section (Doc. 84). To the extent that the City was attempting to invoke some other section, it has "insufficiently identifi[ied the] privilege" (Doc. 413) instead "leaving that task to Supreme Court," a practice that this court and the Court of Appeals have admonished is not the court's function ( see Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; see also CPLR 3122 [a], 3133 [a] [the "reasons for [an] objection [to a disclosure demand] shall be stated with reasonable particularity"). For this same reason, the City's assertion of "General Municipal Law" is also insufficiently particular ( see Blank v Schafrann, 180 AD2d 886, 887 [3d Dept 1992] ["Their prolix nature verges on harassment and they are patently burdensome."]).
III. James F. Lomma's Fireman's Fund Insurance Policy
On August 25, 2010, a compliance conference was held on the record to address disclosure disputes between the wrongful death plaintiffs and the group of defendants including New York Crane Equipment Corp. and James F. Lomma. Item 16 of the wrongful death plaintiffs' notice for discovery and inspection sought "a complete copy of each and every insurance policy issued to/for James F. Lomma, New York Crane Equipment Corp., Lomma Trucking Rigging, J/F/ Lomma Inc., T.E.S. Inc., sued herein as TES, Inc., J F Lomma Trucking Rigging JF Lomma Rigging and Specialized Services for the period of 2000 to present" (Doc. 200 ¶ 16). Counsel for James F. Lomma objected to producing his Fireman's Fund insurance policy arguing, among other things, that it is beyond the scope of CPLR 3101 (f).The parties were directed to furnish the court with a copy of the policy for an in camera inspection to determine whether this policy could constitute "any insurance agreement under which any person carrying on an insurance business may be liable" (CPLR 3101 [f]). The court has also considered the arguments set forth by the subsequent letters addressing this issue (Doc. 478; Doc. 485; Doc. 495). The court cannot declare, as a matter of law, that there is no clause within the subject policy under which James F. Lomma, an individually named defendant for whom this court has already denied a motion to dismiss ( see Leo v City of New York, Sup Ct, NY County, Apr. 2, 2010, index No. 117294/08; Doc. 245), "may be liable." Whether the wrongful death plaintiffs may recover pursuant to the terms of the policy remains to be seen, but they are, nevertheless, entitled to it. Nor does this court see how such disclosure would "unduly embarrass and harass Mr. Lomma" as counsel suggests (Doc 485). Accordingly, it is
ORDERED that James F. Lomma shall furnish the Fireman's Fund insurance policy to the wrongful death plaintiffs by November 3, 2010; and it is further
ORDERED that the City of New York shall furnish the wrongful death plaintiffs with redacted versions of the documents bearing Bates stamps DOI000001 through DOI000055, and DOI000058 through DOI000129; and it is further
ORDERED that the City of New York shall furnish the wrongful death plaintiffs with redacted versions of the documents bearing Bates stamps:
(1) NYCPF1054 through NYCPF1418 and NYCPF2039 through 2309 (Michael Carbone's file);
(2) The documents submitted for in camera review which are not Bates stamped but are within the bundle entitled "Michael Carbone 50-K Petition and supporting documents; Opposition + City Records; Reply + Supporting exhibits";
(3) NYCPF1420 through NYCPF1526 and NYCPF 2018 through NYCPF2038 (Bethany Klein's file);
(4) NYCPF1527 through NYCPF1634 (Mohammed A. Rashid's file);
(5) NYCPF1635 throughNYCPF1719 (Ashraf Omran's file);
(6) NYCPF1720 through NYCPF1781 (Robert LiMandri's file);
(7) NYCPF1782 through NYCPF1859 (Randi Gordon's file);
(8) NYCPF1860 throughNYCPF1930 (Erin Fisher's file); and
(9) NYCPF1931 through NYCPF2017 (Patricia Lancaster's file); and it is further
ORDERED that the above-mentioned documents shall be redacted so as not to divulge social security numbers, NYS ID numbers, tax ID numbers, employee ID numbers, nor telephone numbers; and it is further
ORDERED that the wrongful death plaintiffs shall hold the documents in the strictest of confidence, and shall not copy, share, disseminate, nor distribute any of these documents to any entity other than those directly involved in the 91st Street Crane Collapse Litigation; and it is further
ORDERED that the City shall furnish the above-mentioned documents to the wrongful death plaintiffs by November 3, 2010.
This constitutes the decision and order of the court.