| Friel v Papa |
| 2011 NY Slip Op 06822 [87 AD3d 1108] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Connell Friel et al., Appellants, v Charles E. Papa et al.,Respondents. |
—[*1] Patrick F. Adams, P.C., Bay Shore, N.Y. (Charles J. Adams, Frank Cali, and Gary A.Pagliarello of counsel), for respondents Charles E. Papa, St. Louis de Montfort R.C. Church,Margaret Judge, individually and as Assistant Director of Religious Education of St. Louis deMontfort R.C. Church, and Kathleen Sweeney, individually and as Assistant Director ofReligious Education of St. Louis de Montfort R.C. Church. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Kriton A.Pantelidis of counsel), for respondents Diocese of Rockville Centre and William J. Murphy,individually and as Bishop and Administrator of the Diocese of Rockville Centre.
In an action, inter alia, to recover damages for defamation and the unlawful termination ofemployment in violation of Labor Law § 740, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), datedMarch 2, 2010, as denied their motion pursuant to CPLR 3124 to compel the defendant WilliamMurphy to answer certain questions at his deposition and to produce his correspondence andother written communications with the Vatican regarding the defendant Charles E. Papa andpursuant to CPLR 2221 for leave to renew their motion to compel the defendants to producecertain medical records of the defendant Charles E. Papa, which had been determined in an orderdated July 26, 2006.
Ordered that the notice of appeal from so much of the order dated March 2, 2010, as deniedthat branch of the plaintiffs' motion which was pursuant to CPLR 3124 to compel the defendantWilliam Murphy to answer certain questions at his deposition is deemed to be an application forleave to appeal (see CPLR 5701 [c]), and leave to appeal from that portion of the order isgranted; and it is further,
Ordered that the order dated March 2, 2010, is modified, on the facts, and in the exercise ofdiscretion, by deleting the provision thereof denying that branch of the plaintiffs' motion whichwas pursuant to CPLR 3124 to compel the defendant William Murphy to produce hiscorrespondence and other written communications with the Vatican regarding the defendantCharles E. Papa; as so modified, the order dated March 2, 2010, is affirmed insofar as appealedfrom, without costs or disbursements, and the matter is remitted to the Supreme Court, NassauCounty, for an in camera review of the correspondence and other written communications of thedefendant William Murphy with the Vatican regarding the plaintiffs' allegations in this actionagainst the defendant [*2]Charles E. Papa, a determination as towhether those documents are privileged within the meaning of CPLR 4505, and a newdetermination thereafter of that branch of the plaintiffs' motion which was to compel disclosureof that correspondence and those communications.
In February 2000 the Reverend Charles E. Papa hired the plaintiff Connell Friel as thebusiness manager of the St. Louis de Montfort R.C. Church in Sound Beach (hereinafter theChurch). The Church falls within the jurisdiction of the Diocese of Rockville Centre (hereinafterthe Diocese) and is administered by Bishop William Murphy. In December 2002 Friel learnedthat Papa had accessed numerous pornographic Web sites on Papa's parish computer, some ofwhich allegedly included sexual images of young boys. Friel eventually reported this informationto the supervisor of the Diocese's Office for the Protection of Children, who relayed theinformation to Murphy. In addition, the information from Friel was reported to the DistrictAttorney of Suffolk County, who referred the matter to the Suffolk County Police Department,which determined that there was no criminal conduct.
In January 2003 Papa took a leave of absence from the Church to receive psychological andspiritual counseling at the St. John Vianney Center in Pennsylvania (hereinafter St. John). AfterMurphy reviewed Papa's medical records from St. John, he reinstated him as the pastor of theChurch on June 11, 2003. On July 31, 2003, Papa fired Friel as the business manager of theChurch.
In March 2004 Friel and his wife, Laura Friel, commenced this action against Murphy, Papa,the Diocese, the Church, and two members of the Church staff. The subsequent verifiedcomplaint, dated June 7, 2004, alleged that the defendants: (1) libeled and slandered Friel,injuring his good name, reputation, and livelihood; (2) wrongfully terminated Friel's employmentin violation of Labor Law § 740 (commonly known as the "whistleblowers' law"); and (3)caused Laura Friel to suffer emotional distress and the loss of her husband's companionship andfinancial support.
This is the third appeal to this Court in this action, all of which involve discovery matters (see Friel v Papa, 36 AD3d 754[2007]; Friel v Papa, 56 AD3d607 [2008]). The scope of discovery in a civil action is governed by CPLR 3101 (a), whichprovides, in relevant part, that "[t]here shall be full disclosure of all matter material and necessaryin the prosecution or defense of an action, regardless of the burden of proof." The phrase"material and necessary" should be "interpreted liberally to require disclosure, upon request, ofany facts bearing on the controversy which will assist preparation for trial by sharpening theissues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen vCrowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In other words, the requestedinformation must be " 'sufficiently related to the issues in litigation to make the effort to obtain itin preparation for trial reasonable' " (id. at 406-407, quoting Weinstein-Korn-Miller, NYCiv Prac ¶ 3101.07 [1st ed]).
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe plaintiffs' motion which was to compel Murphy to appear for an additional deposition toanswer questions about his prior practices in response to allegations of sexual misconduct bypriests under his supervision as the Vicar General and the Bishop of the Archdiocese of Boston.Although the disclosure provisions of the CPLR should be liberally construed, the scope ofpermissible discovery is not unlimited, and the Supreme Court is invested with broad discretionto supervise discovery (see Auerbach vKlein, 30 AD3d 451 [2006]; NBT Bancorp v Fleet/Norstar Fin. Group, 192AD2d 1032 [1993]). Moreover, although, at trial, issues relating to credibility arising fromMurphy's tenure in the Archdiocese of Boston may be raised within the discretion of the trialcourt, the Supreme Court's determination here to curtail the scope of questioning in this area athis deposition should not be disturbed on appeal (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP,52 AD3d 370 [2008]; Bakmezian v St. Luke's Hosp., 259 AD2d 455 [1999];Mattocks v White Motor Corp., 258 AD2d 628 [1999]).
Similarly, the Supreme Court properly denied that branch of the plaintiffs' motion which waspursuant to CPLR 2221 for leave to renew their motion to compel the disclosure of Papa'smedical records from St. John. Contrary to the plaintiffs' contention, Papa did not waive thephysician-patient privilege set forth in CPLR 4504 by allowing his supervisor, Murphy, to review[*3]his confidential medical records for the limited purpose ofdetermining whether Papa could resume his duties as a pastor. Furthermore, Papa only executedan authorization which strictly limited the disclosure of his medical information to certainindividuals for a limited period of time and purpose. This authorization cannot be construed as ablanket release to any and all persons who seek access to the patient's treatment records (seeHenry v Lewis, 102 AD2d 430, 437 [1984]). In short, the alleged "new fact[ ]" that Murphyreviewed Papa's medical records does not warrant a change in the original determination that thedocuments were protected from disclosure by the physician-patient privilege (see Williams v Nassau County Med.Ctr., 37 AD3d 594 [2007]).
Since the requested correspondence and other written communications between Murphy andthe Vatican regarding the plaintiffs' allegations against Papa are sufficiently related to the issuesin controversy, this matter must be remitted to the Supreme Court, Nassau County, for an incamera review of that correspondence and those written communications, a determination as towhether those documents are privileged, and a new determination thereafter on that branch of theplaintiffs' motion which was to compel disclosure of those documents. Skelos, J.P., Eng, Austinand Miller, JJ., concur.