Wander v St. John's Univ.

[*1] Wander v St. John's Univ. 2011 NY Slip Op 52545(U) Decided on January 21, 2011 Supreme Court, Kings County Knipel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 21, 2011
Supreme Court, Kings County

Lawrence Wander and John Manna,, Plaintiffs,

against

St. John's University, Peter J. Tobin College of Business, Donald Harrington, Richard Highfield, and Charles M.A. Clark, Defendants. St. John's University, Counterclaim - Plaintiff, Lawrence Wander, John Manna, and Midlantic Association of Not For Profit Organizations, Inc. and The God of All Life Reformed Catholic Church, Counterclaim - Defendants.



34854/07



Attorneys for Plaintiffs

Daniel J. Kaiser, Esq.

Attorneys for Plaintiffs/Counterclaim Defendants

111 Broadway - 18th Fl.

New York, NY 10006

(212) 338-9100

Attorneys for Defendants

Brian D. Solomon, Esq.

Attorney for Counterclaim Defendant Midlantic Association

of Not-for-Profit Organizations, Inc.

182 Rose Avenue

Staten Island, NY 10306

(718) 698-1287

Roy P. Salins, Esq.

Vedder Price P.C.

Attorneys for Defendant

St. John's University and Defendants

Peter J. Tobin College of Business, Donald

Harrington, Richard Highfield and

Charles M.A. Clark

1633 Broadway - 47th Fl.

New York, NY 10019

(212) 407-7700

Lawrence S. Knipel, J.

The following papers numbered 1 to 18

read on these motions and cross motions:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2,3 4, 5-6, 7-8, 9-10, 11

Opposing Affidavits (Affirmations)12, 13, 14, 15, 16

Reply Affidavits (Affirmations)17, 18

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers: (1) plaintiffs Lawrence Wander (Wander) and John Manna (Manna) move, by Order to Show Cause, for an order directing non-party witness [*2]Reverand John H. McKenna (McKenna), a tenured professor at St. John's University (SJU), to answer questions that he was previously instructed not to answer by McKenna's counsel at a deposition; (2) Counterclaim-defendant Midlantic Association of Not For Profit Organizations, Inc. (Midlantic) cross-moves for an order directing that, after the conclusion of his deposition by plaintiff, McKenna be subject to previously reserved cross-examination and continued deposition by Midlantic; (3) plaintiffs also move for an order, pursuant to CPLR 3124 and 3126, compelling defendants (and counterclaim plaintiffs) SJU, Peter J. Tobin College of Business, Donald Harrington, Richard Highfield, and Charles M. A. Clark (defendants hereinafter referred to as "St. John's") to produce all documents responsive to plaintiffs' discovery demands and to fully answer plaintiffs' interrogatories; (4) St. John's cross-moves for an order compelling plaintiffs to produce similar discovery; (5) non-party movants Eddie Yakubovich (Yakubovich) and Larysa Kurylo (Kurylo) move to quash a subpoena ad testificandum and duces tecum served upon Self-Reliance New York Federal Credit Union and HSBC Bank USA, N.A.; and alternatively, for a protective order.

Plaintiffs, formerly two tenured professors at SJU, commenced this action against St. John's alleging age discrimination, retaliation and breach of contract.[FN1] St. John's counterclaims against plaintiffs and counterclaim-defendants Midlantic, and Midlantic's purported distributor, the God of All Life Reform Catholic Church (GOAL), alleging that Midlantic and GOAL are "sham alter-ego" entities controlled by plaintiffs for academic and financial purposes, and which the plaintiffs perpetrated fraud against St. John's. Midlantic counterclaims against St. John's, asserting that St. John's maliciously and illegally interfered with Midlantic's business relationships.

Plaintiffs' and Midlantic's Motions Concerning Deposition(s) of Non-Party Witness McKenna

Plaintiffs move for an order directing non-party witness McKenna, who served on the Committee on Hearing and Deciding Charges against a Faculty Member (the "Committee") when it voted for termination of tenured Professors Manna and Wander, to appear for another deposition to answer questions that McKenna's counsel instructed him not to answer. [FN2] Specifically, plaintiffs move for an order directing McKenna to answer questions pertaining to the deliberations of the Committee in voting to terminate the tenured employment of plaintiffs. Plaintiffs argue that, at McKenna's May 18, 2010 deposition (the deposition), McKenna's counsel, Michael Keane Esq. (Keane), specifically instructed McKenna not to answer questions regarding said deliberations of [*3]the Committee.[FN3] They contend that the questions posed to McKenna are central and critical to plaintiffs' legal contention that their terminations were not legitimate but rather the product of discrimination and retaliation. According to plaintiffs, the Committee did not engage in a good faith weighing of the evidence before them, and did not exercise independent judgment in terminating the plaintiffs. Instead, plaintiffs maintain that the Committee refused to admit testimony from crucial witnesses on behalf of plaintiffs, as well as relevant discovery. Further, plaintiffs argue that, at the Committee hearing, St. John's general counsel, Joseph Oliva (Oliva), manipulated evidence that impacted the Committee's decision making.[FN4] Accordingly, plaintiffs argue that the testimony is critical to their contention that plaintiffs' terminations were the product of discrimination and retaliation.

Similarly, Midlantic cross-moves for an order directing that, after the conclusion of the deposition of McKenna by plaintiffs, McKenna be subject to a previously reserved cross-examination and continued deposition by counsel for Midlantic. Midlantic also seeks an order directing McKenna to answer all questions propounded to him concerning the deliberations by the Committee with respect St. John's terminations of plaintiffs.

St. John's, and Keane, who serves as counsel for the Committee, including McKenna, respectively oppose plaintiffs' order to show cause and Midlantic's cross-motion, arguing that the deliberations of SJU's disciplinary hearing committee are privileged and confidential. They maintain that plaintiffs' questions at McKenna's deposition "invade the privacy of the back-and-forth deliberations" in which the Committee engaged as a SJU statutory body. In support, the parties contend that confidential deliberations and communications conducted between the committee members are protected underboth federal and state law. St. John's and Keane cite to Gray v Bd. of Higher Educ., City of New York, (692 F.2d 901 [1982]), in which the Supreme Court upheld the application of a balancing test - which weighs plaintiff's need for disclosure to establish a discrimination claim versus the school committee's interest in maintaining the confidentiality of the decision-making process. McKenna also compares the privilege for peer review deliberations in an educational setting to New York State Education Law § 6527(3), wherein New York State's legislature created a privilege for [*4]deliberations of quality assurance committees of health care institutions. St. John's and Keane contend that Committee deliberations are kept strictly confidential, and that any divulgence of such discussions would detrimentally impact the harmony between faculty members and administration. In addition, St. John's maintains that the Committee provided sufficient and succinct information to plaintiffs concerning the reasons for their discharge in the 5-page decision issued to the plaintiffs.

In reply, plaintiffs maintain that there is no federal peer review privilege, and cite to Univ. of Pennsylvania v Equal Empl. Opportunity Commn. (493 US 182 [1990]) and Jaffe v Redmond, 518 US 1 [1996]). Plaintiffs also argue that New York State Education Law § 6527(3) is inapposite here, where the New York State legislature did not create a privilege for university peer review deliberations. According to plaintiffs, the Committee's deliberations are necessary for plaintiffs to establish that the Committee was not independent. Specifically, plaintiffs contend that the Committee denied plaintiffs the right to present documents and material witnesses, refused to consider material evidence in good faith, and that SJU subsequently terminated plaintiffs without evidence. According to plaintiffs, close relationships, conflicts of interest and improper influence of Committee members abound in the record of the disciplinary hearings.[FN5] Lastly, plaintiffs request discovery of the Committee's deliberations and conclusions to establish how Oliva "corrupted" the Committee's decision and its decision-making.

The Court finds that the Committee's deliberations are not privileged under federal, or state law. In Pennsylvania, the Supreme Court explicitly held that neither a common law privilege nor a First Amendment right of academic freedom precludes the disclosure of confidential peer review materials (493 U.S. at 189). While the Supreme Court found that confidential peer review proceedings at universities and colleges are important, it declined to establish a privilege protecting the disclosure of such proceedings for the purpose of "ferreting out" discrimination (Id. at 193). Moreover with respect to state law, there is also no explicit qualified privilege for university peer review disciplinary committee materials.[FN6]The Court notes that, post-Pennsylvania, some courts in this Circuit have applied and/or cited to the balancing test set forth in Gray for peer review materials (e.g., Black v New York Univ. Med. Ctr., 1996 WL 294310 [1996]).[FN7] [*5]Specifically, the Gray balancing test determines the existence of privilege in any given case based upon on a balancing between the importance of privacy and the evidentiary need for disclosure. Even if this Court applied the balancing test set forth in Gray, the Court's disposition of the matter would nevertheless be identical for the reasons expressed as follows.

The Court recognizes the sensitive nature of such material. However, plaintiffs have demonstrated the relevance of the Committee's deliberations, as such disclosure permits plaintiffs a fair opportunity to uncover evidence necessary to establishing a prima facie case of discrimination. Plaintiffs' need for said disclosure is compelling, given their contentions that the Committee's Decision "rubber-stamped" SJU's fraud charges and that the defendants connived with SJU's Hearing Committee" to preclude both (1) necessary testimony from faculty and other witnesses with personal knowledge of the facts and (2) necessary documentary evidence establishing that no fraud occurred.[FN8] According to plaintiffs, the Committee never considered material evidence in the record in good faith, and that SJU terminated plaintiffs upon a lack of certain evidence which the Committee knowingly excluded. Plaintiffs also allege that there were significant conflicts of interest and improper influence of Committee members during the disciplinary hearings. The Committee's deliberations are also relevant in light of the fact that St. John's defenses to plaintiffs' claims include the contention that the Committee was neutral and carefully weighed the evidence of the disciplinary charges against plaintiffs. Accordingly, McKenna is instructed to answer questions at his deposition regarding the Committee's deliberations in making its determination with respect to plaintiffs' termination at his deposition.

Plaintiffs' and St. John's Respective Motions to Compel

Plaintiffs moves for an order, pursuant to CPLR 3124 and 3126, compelling disclosure of documents from St John's concerning SJU's policies on promotion and tenure, self- publishing publications, ownership, and academic fraud. Plaintiffs' discovery requests fall into the following general categories of document requests (hereinafter "DR"): (1) SJU's hiring, tenure, promotion, termination, and disciplinary proceedings, including such proceedings with respect to plaintiffs (DR 12-14, 51-53, 76, 85); (2) SJU's policies, procedures, standards and practices related to faculty publications [*6]and self publishing (DR 15-33, 26-29, 35-43, 62, 68-72, 86); (3) documents evidencing plaintiffs' self-publishing or association with Midlantic or its distributors, and whether plaintiffs sold or requested students to purchase Midlantic course materials (DR 34, 54-60, 73-75); (4) documents concerning students' evaluation of plaintiffs' reputation and performance (DR 44-50); (5) documents concerning St. John's alleged discriminatory practices (DR 7-8, 61, 77-80, 82-84); and (6) documents concerning information regarding relevant witnesses identified by St. John's in their charges, investigation and hearing (DR 64-67). Plaintiffs also contend that St. John's responses to DR 51, 53-54, and 72 and 76 are deficient. Lastly, plaintiffs move to compel full responses to Interrogatories (hereinafter "I.") numbered 1-3, 4-6, 8-12, 18, 20-22, and 25.

In opposition, St. John's objects to the document demands and interrogatories as overbroad, unduly burdensome and/or vague and ambiguous, and irrelevant. St. John's also moves for an order, pursuant to CPLR 3124 and 3126, compelling plaintiffs to produce documents responsive to St. John's DR numbers: 2-5, 11, 25, 27-28, 30-33, 38, 42, 44-45, and 50. The documents generally concern (1) Plaintiff's fraudulent interests in other entities; (2) Midlantic as the publisher of plaintiffs' work; (3) plaintiffs' discrimination claims, such as documents provided to the EEOC, plaintiffs' publishing, and documents concerning damages, and documents relating to plaintiffs' legal history. In addition, St. John's moves for an order compelling plaintiffs to provide full responses to I. numbers 2, 3, 4, and 8-11.[FN9] Further, St. John's contends that, although plaintiffs stated that they would provide documents with respect to DR 2, 12, 16, 18-24, 35, and 53, plaintiffs have yet to provide said documents to St. John's.

The court has discretion in controlling discovery (Saratoga Harness Racing, Inc. v Roemer, 274 AD2d 887 [2000]). While discovery should be liberal, the information sought must be material and necessary and meet a test of usefulness and reason" (Manley v New York City Hous. Auth., 190 AD2d 600 [1993][internal quotation marks and internal citation omitted]). The "material and necessary" requirement is liberally construed to require disclosure where the matter sought will assist in trial preparation by sharpening the issues and reducing delay (see Andon v 302-304 Mott St. Assocs., 94 NY2d 746 [2000], citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]).

The court is constrained to deny both plaintiffs' and St. John's motions to compel, as a number of their respective discovery requests are overbroad, burdensome, potentially irrelevant, and may be construed as palpably improper (see Velez v South Nine Realty Corp., 32 AD3d 1017, 1019 [2006]; Shapiro v Central General Hosp., Inc., 171 AD2d 786, 787 [1991]). Some discovery sought are material and relevant to the plaintiffs' [*7]claims; however, others are overbroad and burdensome in scope (see generally Haszinger v Praver, 12 AD3d 485, 485 [2004]). A party is not required to comply with overly broad "blunderbuss" demands (see Abbadessa v Sprint, 291 AD2d 363 [2002]; Konrad v 136 East 64th St. Corp., 209 AD2d 228 [1994]). In addition, it is not the court's role to attempt to prune the proper from the objectionable (see generally Haszinger v Praver, 12 AD3d 485 [2004]). If the parties desire to press for production of these materials, they are required to focus on the material issues of the case and recast the requests in a reasonable manner. Accordingly, the court is constrained to deny both plaintiffs' and St. John's respective motions to compel on the ground that the demands, as presently formulated, are improper.

Motion by Non-Party Witnesses Kurylo to Quash St. John's Subpoena

Non-party witness Larysa Kurylo (Kurylo) moves (1) for an order dismissing St. John's pretrial subpoena ad testificandum and duces tecum (the subpoena); and (2) for a protective order quashing or limiting discovery against her. She argues that the subpoena is defective, and that St. John's allegations in support of the subpoena are unsworn and unsupported by a witness with personal knowledge of the facts. Kurylo also contends that the requested discovery was not warranted at the time her motion was served because defendants had deposed only one witness, and because St. John's had not yet deposed numerous other scheduled witnesses known to have the personal knowledge of GOAL. According to her affidavit, Kurylo has limited knowledge of GOAL's dealings with Midlantic.[FN10] In support of her motion, Kurylo attaches the affidavit of Yakubovich, who avers that he is the founder of GOAL, managed its distribution operations, and believes that Kurylo has limited knowledge of GOAL's dealings with Midlantic. In addition, Kurylo seeks a protective order because Oliva has allegedly threatened and attempted to intimidate her during discovery.

St. John's contends that the subpoena is not defective, as Kurylo was personally served with the subpoena at her place of work, and subsequently sent the witness fee by Federal Express Overnight Delivery, which she received and signed for. St. John's also argues that Kurylo is indisputably an agent for both Midlantic and GOAL and possesses information concerning GOAL's business as a distributor of Midlantic's materials that is not obtainable from other sources. St. John's asserts that Kurylo's affidavit bolsters their contention that she has information unobtainable from other sources, because Kurylo, among other things, avers that she had significant involvement with GOAL in the United States and the Ukraine. St. John's maintains that Kurylo has admitted to involvement with GOAL, and that she is credited with writing a book for Midlantic (under an alias). St. John's also notes that Kurylo's affidavit concedes that she helped GOAL "distribute Midlantic books by making copies and phone calls, sending mail and similar work related [*8]to the distribution of the books."

St. John's additionally contends that Kurylo attempted to secret her close dealings with both GOAL and Midlantic by adopting an alias. St. John's maintains that, with respect to GOAL: (1) Kurylo's work telephone number at the City Law Department is the known number associated with GOAL; (2) the AOL Screen Name "goalny5" was registered by Kurylo, and GOALNY5@aol.com was GOAL's e-mail address, which was registered by Kurylo as part of the AOL screen name application. St. John's maintains that, with respect to Midlantic, documents obtained from Melbourne IT, the information technology company that registered Midlantic's domain name "midpubs.com," state that "Laryssa Svidrak" applied for the domain name, which St. John's believes to be the same person as Larysa Kurylo.[FN11]

CPLR 3101[a] provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101[a]). Courts interpret "material and necessary" liberally so as to require disclosure of facts "bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Col., 21 NY2d 403 [1968]). A disclosure request directed to a non-party implicates additional considerations for those regulating discovery from a party. At issue is whether the circumstances and reasons proffered by Midlantic are sufficient to withstand Kurylo's motion.

A party's inability to obtain the requested disclosure from his or her adversary or from independent sources is a significant factor in determining the propriety of discovery from a non-party (Kooper v Kooper, 74 AD3d 6 [2010]). A motion to quash is properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the non-party (see Moran v McCarthy, Safrath and Carbone, P.C., 31 AD3d 726 [2006]). Generally, non-parties should not be burdened with subpoenas for lawsuits in which they have no stake or interest unless the particular circumstances of the case require their involvement.

The Court finds that St. John's has made a sufficient showing of the circumstances warranting discovery from Kurylo, and that Kurylo has failed to show that the disclosure sought cannot be obtained from sources other than herself. St. John's has adequately demonstrated that the information sought from Kurylo, whom they allege served as an agent for both GOAL and Midlantic, cannot be found in the documents to be provided by, or during the prospective depositions of, the other scheduled witnesses. St. John's [*9]indicates that Kurylo has special knowledge of material information concerning Goal and Midlantic and is in a unique position to know the business relationship and dealings between the two entities. Further, Kurylo's own affidavit supports St. John's position that Kurylo has unique knowledge of both GOAL and Midlantic because she states that she was involved with GOAL in both the United States and the Ukraine, and that Yakubovich, who served as the Managing Editor of Midlantic, "began the Church." Kurylo's motion to quash the subpoena and for a protective order is thus denied.

Motion by Non-party Movants Kurylo and Yakubovich's to Quash Subpoenas

Kurylo and Yakubovich move to quash SJU's subpoenas duces tecum served on Self-Reliance New York Federal Credit Union (the Self-Reliance subpoena), and HSBC Bank USA, N.A. (the HSBC subpoena) dated June 17, 2010, on the grounds that the subpoenas are jurisdictionally defective and untimely served.[FN12] In the alternative, Kurylo and Yakubovich move for a protective order, pursuant to CPLR 3103(b), quashing or limiting the subpoenas upon the grounds that they are not relevant or germane, are overly broad, and are intended to harass the non-parties about whom the improper information is sought.

Kurylo and Yakubovich state that they were unaware of the two subpoenas previously issued by St. John's, and of Midlantic's previous motion to quash said subpoenas. According to Kurylo and Yakubovich, Midlantic previously moved to quash the earlier, broader subpoenas, and they note that Midlantic did not have standing, interest, perspective or authority to argue or advocate on behalf of the non-party movants or GOAL.

In moving to quash the June 17, 2010 modified subpoenas served on HSBC and Self- Reliance, Kurylo and Yakubovich contend that (1) St. John's subpoenas are jurisdictionally defective under CPLR 3120, and (2) St. John's failed to serve or send a copy or notice thereof to either of the non-party movants or to any of the other non-parties affected by the subpoenas.[FN13] Kurylo and Yakubovich also argue that the subpoenas are premature, as no parties with conclusive knowledge concerning whether plaintiffs created, controlled, self-published or profited from Midlantic or GOAL have been deposed as of the date of the present motion. In addition, Kurylo and Yakubovich maintain that the subpoenas are overly broad, they seek sensitive, personal and confidential financial information of GOAL and its supporters, and are irrelevant to the issues herein. Specifically, they argue that such discovery would be an intrusive and [*10]unjustifiable invasion of a non-party's private and confidential relationship with a religious organization of their choice, and would subject the non-parties, who were involved only in the religious activities of GOAL, to harassment and retaliation by St. John's counsel. Kurylo and Yakubovich also maintain that nonparties' personal income or their activities with GOAL or Midlantic, have no probative value as to whether plaintiffs created, controlled, self-published or profited from GOAL or Midlantic. They contend that the affidavits of Kurylo and Yakubovich have already answered the key questions establishing that the GOAL payments to them are irrelevant to the issues herein, as they have paid no money to plaintiffs and know nothing about plaintiffs' activities with GOAL or Midlantic.

In the alternative, Kurylo and Yakubovich request that the Court limit St. John's subpoenas to produce only documents that are related to the financial and business dealings (1) Midlantic and plaintiffs; (2) GOAL and plaintiffs; (3) Midlantic and GOAL; and GOAL and St. John's students and faculty. Kurylo and Yakubovich also seek to exclude all documents related to the religious activities of GOAL or the non-party witness' religious beliefs. Lastly, Kurylo and Yakubovich note that GOAL is a non-party herein who deserves the protections appropriate for non-parties. Kurylo and Yakubovich maintain that the foregoing restrictions would strike the appropriate balance of providing to St. John's all information material and necessary to its fraud allegations, while preventing needless intrusion into the religious activities of GOAL and the private lives of GOAL parishioners, supporters and associates.

In opposition, St. John's contends that Kurylo and Yakubovich may not seek to relitigate the precise discovery issues that this Court previously decided on September 8, 2008.[FN14] They also argue that Kurylo is Midlantic's agent, and thus may not reinitiate the same discovery motion as Midlantic on the same basis. According to St. John's, the subpoenas seek documents that will reveal the identity of persons who acted on behalf of Midlantic and GOAL, including establishing the entities' respective bank accounts, and disclose the transactions between and among the plaintiffs, their agents, Midlantic, and GOAL. According to St. John's, Midlantic previously presented arguments in its prior motion that are identical to the very arguments presented by Kurylo and Yakubovich.

The Court finds that St. John's has demonstrated that the information is relevant and material to their counterclaims for alleged fraud in connection with Midlantic and GOAL, and that the disclosure sought is material and necessary. St. John's has set forth circumstances or reasons why disclosure is sought from Self Reliance and HSBC (see Kooper, 74 AD3d 6 [2010]; Kondratick v Orthodox Church in Am., 73 AD3d 708 [2010]). The subpoenas are sufficiently limited in scope so as to protect the privacy of third parties, because they (1) request only names and contact information of persons with significant authority and/or control in relation to these accounts, and (2) limit copies of all checks, which, like negotiable instruments, are not [*11]confidential, to "relevant payees" in amounts above $1,000. Contrary to the non-parties' arguments, the subpoenas are also limited in accordance with privacy considerations, and do not seek documents or information of a religious nature. Further, the Court's previous order provides for redaction of the documents to "prevent disclosure of the names and personal information of individuals who are not, and never were, officers, director, owners, and/or agents of Midlantic." In sum, the information sought is relevant, and the subpoenas remain unopposed by Self Reliance and HSBC. Accordingly, the motion by Kurylov and Yakubovich is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:For a full recitation of the facts, the court refers to prior Decisions and Orders.

Footnote 2:Plaintiffs also request an order directing other non-party witnesses who served on the Committee, and will be deposed, to answer said questions.

Footnote 3:The Committee specifically determined that with respect to Manna, he should be dismissed from SJU. With respect to Wander, the Committee reached a divided decision, with four members recommending his dismissal, and one member suggesting that SJU continue Wander's employment, but that Wander surrender his tenure, and submit himself to probation.

Footnote 4:For example, plaintiffs allege that Oliva (1) falsely ascribed statements to Andrij Szul (the alleged co-author, with Manna, of a Midlantic article) in the written charges; (2) attempted to intimidate Kurylo when interviewing her; and (3) impeded Stanley Lawson (Lawson), a former professor, from providing exculpatory evidence at the hearing.

Footnote 5:For example, plaintiffs note that McKenna had a personal relationship with St. John's President, Rev. Donald J. Harrington, who referred charges against plaintiffs to the Committee.

Footnote 6:St. John's is correct in noting that New York State Education Law § 6527(3) creates a privilege for the deliberations of Quality Assurance Committees with respect to health care institutions. However, the statute is irrelevant to the present facts.

Footnote 7:Courts in this Circuit have not been uniform in their approaches to said disclosure, and have followed either Pennsylvania or Gray (see Weinstock v Columbia Univ., 1996 WL 294310 [1996]).

Footnote 8:Plaintiffs cite to: transcripts of Nunzio Mannino (an independent restauranteur); John Dobbins (SJU's Dean and Department Chair); Frank Covino (SJU's book store operator); Stanley Lawson (member of SJU's Personnel Committee; Andrij Szul (SJU's Adjunct Professor); Richard Highfield (former Dean of SJU); and Charles Clark (former Dean of SJU). Plaintiffs also cite to the statements of Sreedhar Kavil (SJU's Department Chairman); Lawrence Wander (Professor); James Smith (Midlantic's Vice President); and of Ed Pries (a book store operator).

Footnote 9:I. No. 10 seeks identification of any employees from whom Manna has sought employment in the past ten years. However, in their motion papers St. John's now indicates that they have been entitled to said information since October 7, 2008, when Manna's employment with SJU was terminated.

Footnote 10:Kurylo's affidavit indicates that she lacks personal knowledge of the relationship between (1) plaintiffs and GOAL or Midlantic, and (2) GOAL and Midlantic.

Footnote 11:Specifically, St. John's states that (1) Svidrak's addresses on the Melbourne documents is the same address used to register the GOAL e-mail address, and the telephone number for Svidrak is the same number for Kurylo reflected on the AOL document; and (2) the Federal Express package containing the witness fee check sent to Kurylo at her home that is the subject of this motion was signed by a "M. Svidrak."

Footnote 12:St. John's subpoenas contained modifications ordered by the Court on September 9, 2008, and affirmed by the Second Department on November 2009. Neither plaintiffs nor Midlantic move to quash these subpoenas.

Footnote 13:According to Kurylo and Yakubovich, the June 17, 2010 subpoenas were made returnable on or before June 30, 2010, a period of no more than 13 days.

Footnote 14:The Appellate Division subsequently affirmed the Court's said decision and order on November 17, 2009.