| Henderson-Jones v City of New York |
| 2011 NY Slip Op 06327 [87 AD3d 498] |
| August 25, 2011 |
| Appellate Division, First Department |
| Mia Henderson-Jones, Individually and as Parent and NaturalGuardian of Enaijah Jones, an Infant, Appellant, v City of New York et al., Respondents, et al.,Defendants. Cyrus R. Vance, Jr., District Attorney, New York County, NonpartyRespondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Andrew S. Wellin of counsel), formunicipal respondents. Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for nonpartyrespondent.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered June 1, 2010, whichdenied plaintiff's motion to strike the answer of defendants City of New York and CommissionerKelly for failure to comply with discovery orders, unanimously reversed, on the facts, withoutcosts, the motion granted and the answer stricken, and the matter remanded for entry of a defaultjudgment and an inquest on damages. Order, same court (Saliann Scarpulla, J.), enteredDecember 1, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiff'smotion to strike the defendants' answers for failure to comply with discovery orders only to theextent of ordering defendants to produce certain supplemental responses within 30 days, anddenied plaintiff's motion for leave to amend the complaint to substitute Sergeant John Van Ordenas party defendant for officer No. 3 and to compel New York County Assistant District AttorneyPatricia Bailey to appear for deposition, unanimously modified, on the law and the facts, to grantthe motion for leave to amend the complaint to substitute Sergeant John Van Orden as partydefendant for officer No. 3, and the appeal therefrom otherwise dismissed, without costs, asacademic.
Plaintiff alleges that on October 27, 2005, 10 police officers entered her home without asearch warrant, arrested her and took her to the precinct, where she was subjected to a stripsearch. She was then transferred to the Manhattan Detention Complex, where she wasstrip-searched again and held for 30 hours. On October 28, 2005, the Manhattan DistrictAttorney's [*2]Office decided not to prosecute plaintiff.
Plaintiff was able to partially identify only two of the officers involved in her arrest. One wasthe arresting officer, whose last name she remembered as Sierra and whose shield number shenoticed and remembered. The other was a female officer, whose name she did not identify butwhose shield number she noticed and remembered.
Plaintiff timely served a notice of claim, and sought to ascertain the identity of all of theofficers involved in the search and arrest by requesting information from the New York CityPolice Department and the District Attorney's Office pursuant to the Freedom of InformationLaw. However, she received no information in response. On October 13, 2006, she commencedthis action. The case caption named Sierra by his last name and shield number and the femaleofficer by shield number only. The seven other defendants were named as "those individuals whoaccompanied Detective Sierra into plaintiffs' apartment and participated in the illegal actshereinafter alleged."
Shortly after commencing the action, plaintiff served her first notice for discovery andinspection, which sought, inter alia, the identity of all police officers involved in her arrest anddetention. Plaintiff also provided defendants with an authorization, so-ordered by the court onJanuary 31, 2007, for disclosure of all records "relating to the investigation leading up to [her]arrest, . . . including the names and addresses of the involved detectives and policeofficers." At the same time, the court granted plaintiff an extension of the time provided byCPLR 306-b to identify and serve the unidentified defendants. On April 6, 2007, the courtgranted plaintiff's motion pursuant to CPLR 308 (4) for leave to effectuate service of processupon the unknown police officers by serving the Police Commissioner and Corporation Counsel.
Also in April 2007, a preliminary conference was conducted that resulted in an orderdirecting defendants to disclose, inter alia, the criminal complaint, the follow-up report, the arrestreport, memo book entries for the incident in question, the on-line booking sheet, and a patrolguide. In response to the discovery notice and the preliminary conference order, defendantsprovided only the name of the female officer, Sergeant Wendy Gomez-Smith, a one page arrestreport, and an illegible copy of the court detention pen record for the Manhattan DetentionComplex.
In August 2007, plaintiff moved for default judgments against the unknown officers,Detective Sierra and Sergeant Gomez-Smith, and for an order striking defendants' answer forfailure to provide discovery. On October 19, 2007, preceding oral argument on the motion,plaintiff served a second notice for discovery and inspection seeking the names of all officersassigned to the Manhattan Gang Squad on October 27, 2005, and copies of their memo bookentries of October 27-29, 2005. On the return date of the motion, defendants provided threeaffidavits related to the motion to compel. One was by Sierra, now retired, who stated that all ofplaintiff's arrest and detention documents had been kept by him in a folder, which he had left inhis old desk. Another affidavit was by Gomez-Smith, who attested that she was currentlyassigned to the Manhattan North Investigations Unit. She stated that she went to her old GangSquad office, searched "old desks, lockers, and the drawers where each of us kept our arrestpaperwork," but could not locate Sierra's folder on plaintiff or her own memo book for that timeperiod.
The court granted plaintiff's motion for a default judgment against the unknown policeofficers, but denied the motion as to Detective Sierra, and compelled plaintiff to accept hisanswer nunc pro tunc. (Plaintiff agreed to accept the answer of Gomez-Smith.) The court noted[*3]that persons identified later could be substituted by any party,and that those substituted persons could move to vacate the default. As to the discovery issues,the court expressed skepticism that the documents that defendants had produced represented acomplete response to plaintiff's request, but suggested that plaintiff depose Sierra and revisit thediscovery dispute at a later date, if necessary.
The deposition of Sierra was scheduled for December 11, 2007, but he failed to appear. Healso failed to appear at the deposition rescheduled for two weeks later. When Sierra finallyappeared on January 9, 2008, he identified Sergeant John Van Orden as the supervisor of thesearch at plaintiff's home.
On March 5, 2008, defendants served a response to the October 19, 2007 preliminaryconference order. They objected to providing the names of the officers assigned to the GangSquad and their memo books, on the grounds that the demand was overbroad, protected by lawenforcement privilege, and irrelevant, since there was no showing that all the officers assigned tothe Manhattan Gang Squad were involved in plaintiff's arrest and detention.
Also on March 5, 2008, a compliance conference was held, at which the court directeddefendants to "identify the name, rank, & badge numbers of all NYPD personnel whoresponded to and otherwise participated in the arrest of Mia Henderson-Jones and EnglebertJones . . . If said person is not disclosed to plaintiff's counsel within 25 days ofentry of this order, the defendants shall be precluded from calling that individual at trial." Thecourt directed the production of Sierra for his continued deposition, and ordered thatGomez-Smith and Sergeant Van Orden be deposed as well.
Neither Van Orden, at his deposition, nor Sierra, at his continued deposition, could recall theidentity of any other officers present that evening. They also gave conflicting reports of whofound the marijuana, where the officer was when he observed it, and whether the marijuana wasin the living room or a bedroom. Van Orden did not have specific recall of most of the eventsconcerning the search warrant and its execution, but testified that he had a memo book for thatevening at work and would make it available.
On August 11, 2008, plaintiff served a third notice for discovery and inspection, makingspecific reference to Van Orden's testimony, seeking, inter alia, any paperwork concerning herarrest and roll call and sign in sheets for the Gang Squad.
At a January 23, 2009 compliance conference, a so-ordered stipulation was executed statingthat "[plaintiff] will move or subpoena for deposition of New York County DA's office, PatriciaBailey, Chief of Special Litigation Bureau, regarding basis for decision not to prosecuteplaintiff." The stipulation also stated that plaintiff would move to enforce compliance with hernotices for discovery and inspection and to substitute Van Orden for one of the unidentifieddefendants.
In May 2009, defendants still not having disclosed the names of all of the officers, plaintiffmoved, pursuant to CPLR 3126 (3), for an order striking their answer for willfully andcontumaciously failing to comply with prior orders and notices. Plaintiff also moved, pursuant toCPLR 1021 and 1024, to substitute Van Orden as a party in lieu of unknown officer No. 3, andfor an order compelling Assistant District Attorney Patricia Bailey to appear for a deposition andproduce records. Finally, the motion sought to compel the District Attorney's office to produceBailey for a deposition. Defendants disputed that they had acted willfully and contumaciously,contending that they had diligently attempted to provide documentation regarding plaintiff'sarrest and brief detention. As for the substitution request, defendants maintained that Van Orden[*4]had never been served, and thus the court lacked jurisdictionover him. They further argued that the fact that plaintiff waited a year and a half before movingto substitute should bar the substitution. The District Attorney's Office also opposed the motion,on the grounds that plaintiff had failed to show special circumstances warranting disclosure froma nonparty, that, in any event, the District Attorney's Office had not been able to locate adocument explaining why it declined to prosecute, and that even if it could find such a document,there was a substantial probability that the document would be privileged.
The court declined to impose a sanction. It found that the sanction of striking a pleading wasunwarranted, since plaintiff had not shown that defendants had acted willfully. To the contrary,the court found that they had "substantially complied" with their discovery obligations, and thattheir responses concerning the precinct command log, and Sierra's folder, were sufficient. Thecourt struck plaintiff's request for copies of all memo book entries for the date in question for allon-duty officers as overbroad, irrelevant and privileged.
The court, however, found the affidavit by Sergeant Gomez-Smith concerning her search forSierra's folder and memo books inadequate, since it did not mention a specific search for theDD-5's. Finally, finding their objections inadequate, the court directed defendants to provide thenames, ranks and badge numbers of the officers that participated in the arrest and detention, "orprovide an affidavit by a person with knowledge as to the nature and scope of the search whichfailed to uncover any responsive documents" within 30 days of the order.
As to plaintiff's motion to substitute Van Orden, the court found that jurisdiction was neverobtained over Van Orden, because the service upon an unnamed officer at One Police Plaza wasinsufficient to give Van Orden notice. Moreover, the court found that more than a year hadelapsed since plaintiff learned Van Orden's name on January 9, 2008, and that Van Orden hadbeen prejudiced by plaintiff's delay in substituting his name, particularly since a default judgmenthad been entered against him on November 11, 2007. Finally, the court denied any relief againstthe District Attorney's Office, stating that plaintiff was required to serve a subpoena before shewas entitled to information from a nonparty.
In response to the court's order, defendants provided plaintiff with five separate affidavits,two of which are relevant on this appeal. One was by Lieutenant Sean Frey of the ManhattanGang Squad, who indicated that he searched "in and around retired Detective Sierra's formerdesk, as well as in file cabinets," but could not locate any DD-5's (complaint follow-ups), chainof custody reports, TAC plans or any other documentation of plaintiff's arrest. Van Orden averredin his own affidavit that he searched all of his former desks and lockers but could not find hisactivity log (or memo book), although he had testified earlier to having kept it.
In February 2010, plaintiff moved again to strike defendants' answer for failure to provide thediscovery required in the first discovery order, as well as the long-outstanding demand for thenames of the police officers present when plaintiff was arrested. Plaintiff argued that theaffidavits that defendants had provided either were identical to affidavits submitted earlier inconnection with the case, which were deemed insufficient under the prior order, or failed todemonstrate that a meaningful and genuine search had been made. Plaintiff also submitted anaffidavit, and supplemental affidavit, by a former police officer who had experience with theNYPD's Civilian Complaint Bureau. The former officer opined that many of the documentssought, such as the DD-5, the online booking worksheet, and the arrest supplemental reports,were kept in secondary locations, and thus the lost Sierra folder was not dispositive as to whetherdefendants could find the records. The expert further opined that a search should be [*5]made of records kept by the Support Service Bureau at One PolicePlaza, where closed case and arrest files could be accessed. He was of the overall opinion that thesearches conducted by defendants were extremely limited and that their averments that they knewof "no other places" where the documents would be "lack[ed] integrity."
In opposition, defendants argued that they had been complying with all discovery orders andthat many of the documents sought by plaintiff had been lost, were unavailable, or did not exist.As to plaintiff's expert's opinion that they had not conducted a good faith search, defendantsargued that "the City is not required to search in every location that Plaintiff's 'expert'speculates documents could be . . . Lt. Frey searched in the only places heknows where the case/arrest file would be kept."
By order entered on June 1, 2010, the court stated, "Upon the foregoing papers, it is orderedthat this motion to strike defendant's answer is denied."
"[I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR3126 for failure to comply with a discovery order . . . is appropriate only where themoving party conclusively demonstrates that the non-disclosure was willful, contumacious or dueto bad faith" (McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1995]).Willful and contumacious behavior can be inferred by a failure to comply with court orders, inthe absence of adequate excuses (see Johnson v City of New York, 188 AD2d 302[1992]; Nunez v City of New York,37 AD3d 434 [2007]). A party that permits discovery to "trickl[e] in . . . [witha] cavalier attitude . . . should not escape adverse consequence" (Figdor v City of New York, 33 AD3d560, 561 [2006]).
As drastic as the penalty of striking an answer is, it serves the important function of deterringobstreperous litigation behavior. Indeed, the Court of Appeals recently made the followingobservation: "As this Court has repeatedly emphasized, our court system is dependent on allparties engaged in litigation abiding by the rules of proper practice. The failure to comply withdeadlines not only impairs the efficient functioning of the courts and the adjudication of claims,but it places jurists unnecessarily in the position of having to order enforcement remedies torespond to the delinquent conduct of members of the bar, often to the detriment of the litigantsthey represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of theCivil Practice Law and Rules and a culture in which cases can linger for years without resolution.Furthermore, those lawyers who engage their best efforts to comply with practice rules are alsoeffectively penalized because they must somehow explain to their clients why they cannot securetimely responses from recalcitrant adversaries, which leads to the erosion of their attorney-clientrelationships as well. For these reasons, it is important to adhere to the position we declared adecade ago that if the credibility of court orders and the integrity of our judicial system are to bemaintained, a litigant cannot ignore court orders with impunity" (Gibbs v St. Barnabas Hosp., 16 NY3d74, 81 [2010] [internal quotation marks, brackets, and citations omitted]).[*6]
Defendants' behavior in this matter clearly implicates thevalues articulated in Gibbs. Plaintiff was required to serve three discovery notices ondefendants to determine the identities of the officers who executed the warrant, and to this daydefendants have not complied. The information sought is simple and straightforward, and, mostimportantly, easily discoverable. The discovery demands were made in addition to a FOILrequest and the furnishing of an authorization designed to lessen defendants' burden in searchingfor the appropriate names. Moreover, defendants were ordered by the court, on no fewer thanthree occasions, to produce documents containing the officers' names or to reveal the namesoutright. To the extent defendants made any effort to divulge the names of the officers whoexecuted the search warrant, they made the effort only because plaintiff pressed the issue. It is notunreasonable to deduce from this record that had plaintiff not sought enforcement of unequivocalcourt orders requiring the production of the officers' names, defendants, to this day, would nothave provided even the scant information that they eventually provided. Moreover, defendantsfailed to demonstrate that they even attempted to comply with their discovery obligations. Anaffidavit regarding the unavailability of documents that are the subject of a discovery order mustdocument a thorough search conducted in good faith. It should include details such as "where thesubject records were likely to be kept, what efforts, if any, were made to preserve them, whethersuch records were routinely destroyed, [and] whether a search [was] conducted in every locationwhere the records were likely to be found" (Jackson v City of New York, 185 AD2d 768,770 [1992]).
Here, the affidavits submitted by defendants reveal that the efforts that defendants maintainthey took to ascertain the names of the officers were so unimaginative and lacking in diligencethat it is hard to characterize them as anything other than willfully designed to thwart plaintiff.Searching old desks and lockers is woefully insufficient. As demonstrated by the unchallengedaffidavit by plaintiff's expert, the Police Department is a sophisticated bureaucracy with a systemfor collecting and storing information concerning arrests and prisoner processing that is notlimited to the furniture and notebooks assigned to the officers involved. Indeed, defendants didnot even attempt to explain why it would have been futile to search the areas and databasessuggested by plaintiff's expert. They addressed the expert's opinion only to the extent ofimpugning his qualifications.
Defendants' argument that plaintiff's request for the documents containing the names of all50 of the Gang Squad officers was overbroad reveals a disdain for the numerous court ordersissued in this case. From the early stages of the litigation, defendants were directed, in absoluteterms, to disclose the names of the officers involved in the execution of the warrant on plaintiff'sapartment. Thus, the format of plaintiff's initial requests for the information is irrelevant.Defendants could have appealed from the orders, but they did not. That they continue to argue,even now, that plaintiff asked for the documents in an imprecise manner confirms their outrightdisdain for the court's authority to supervise discovery.
As to the substitution of Sergeant Van Orden, plaintiff demonstrated that she made a diligentinquiry to identify the names of the officers involved before commencing this action (seeCPLR 1024; Goldberg v Boatmax://,Inc., 41 AD3d 255 [2007]). She served the unidentified officers by an alternative meansof service authorized by the court pursuant to CPLR 308 (5) (see Harkness v Doe, 261AD2d 846 [1999]). Thus, she should have been permitted to substitute Van Orden as adefendant. We reject defendants' position that plaintiff waited too long to move to substitute VanOrden; the substitution was "deemed" effective when plaintiff learned of Van Orden's identity(CPLR 1024; see Woodburn Ct. Assoc. I v Wingate Mgt. Co., 243 AD2d 1043, [*7]1045 [1997]).
Finally, plaintiff's appeal from the denial of her motion to compel discovery from theManhattan District Attorney's Office has been rendered academic by our striking of defendants'answer. Concur—Mazzarelli, J.P., Sweeney, DeGrasse, Richter and Manzanet-Daniels, JJ.