Clarke v. The City of New York et al - Document 42

Court Description: OPINION. Defendant's application for a protective order as to Bones, 0'Hanlon, Andreoli, Casey, Defeo and Mieles is granted. Finally, as to the two witnesses, Retired Detective Venero and Officer Coumbouris, for whom defendant has not provi ded affidavits, there is no basis for a protective order. Accordingly, defendant's application for a protective order precluding plaintiff from calling Retired Detective Venero and Officer Coumbouris is denied, without prejudice to renewal. (Signed by Magistrate Judge Henry B. Pitman on 9/7/2012) Copies Sent By Chambers. (rjm)
    Download PDF UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------ ------------------ ---------X MONI QUE CLARKE, 10 Civ. 6330 Plaintiff, (HBP) againstOPINION DET. JOSEPH CASTRO, Defendant. -- -----X PITMAN, United States Magistrate Judge: Defendant Detective Joseph Castro's application dated August 31, 2012 for a protective order precluding plaintiff from calling six non-party witnesses - Sergeant Angel Bones, Detective Brian O'Hanlon, Detective Eric Andreoli, Detective Sean Casey, Retired Detective Francine Defeo and Retired Detective Raymond Mieles -- is granted. Defendant's request for a protective order as to two other non-party witnesses, Retired Detective Tanya Venero and Police Officer Nicholas Coumbouris, is denied, without prejudice. Bones, O'Hanlon, Andreoli, Casey, Defeo and Mieles have submitted affidavits in which each attests that he or she has no independent recollection the circumstances surrounding plaintiff's arrest or of her arrest it f. They also attest that when shown a photograph of plaintiff t that they did not recognize her and did not remember her arrest. Federal Rule of Evidence 401 provides that "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Testimony from Bones t O'Hanlon l Andreoli t CaseYt Defeo and Mieles that each has no memory of the events in issue does not make either plaintiff's or defendant's version of the facts any more or less probable. Rather l these witnesses' lack of recollection has no impact on the case and will neither corroborate nor contradict plaintiff or defendant. In other words t these witnesses will not be able to provide any testimony that would inform t supportt or refute either plaintiff's or defendant's version of events because they have no independent recollection one way or the other. AccordinglYt defendant's application for a protective order as to Bones I O'Hanlon l Andreoli t CaseYI Defeo and Mieles is granted. FinallYI as to the two witnesses Venero and Officer Coumbouris provided affidavits Accordingly I l l l Retired Detective for whom defendant has not there is no basis for a protective order. defendant's application for a protective order 2 precluding plaintiff from calling Retired Detective Venero and Officer Coumbouris is denied, without prejudice to renewal. Dated: New York, New York September 7/ 2012 SO ORDERED HENRY PI MAN United States Magistrate Judge Copies Transmitted To: Alexandra Corsi, Esq. Philip Frank, Esq. Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 Joshua P. Fitch, Esq. Cohen & Fitch LLP 225 Broadway Suite 2700 New York, New York 10007 3