Hill v CVS Pharmacy, Inc.

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Hill v CVS Pharmacy, Inc. 2012 NY Slip Op 30679(U) March 19, 2012 Supreme Court, New York County Docket Number: 108282/10 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] 7 I FILED I MAR 20.2012 [* 2] 8UPFtEMECOURT OF THE STATE OF NEW YORK COUNTY OF NEWYORK: IAS PART O I Jam03 Hill, Plalntiff, - Index No.:108282/10 Mot. Ssq. #002 -against- Ptwmnt: lion, Judlth J. G h h e CVS PharmacyJnc. et. al. J.S.C. Defendants. Hon. Gische, J,: Pursuant to CPLR 221 g(A) the following numbered papers w8m conaIdered by the court in connection with this motion: F I...L D E PAPERS NUMBERED ........................................ 1 N/M, RFW affirm., Afflm. Of@, exhlbfts........................ YDS affirm., exhibits........................................................................................................ 2 RFW affirm....................................................................... w2 3= . ( , 2 .......................... 3 YDS reply........................................................................................................................ 4 Upon the foregoing papers the deckdon ancJ%##G#&%rt% IS FFlC as kllows: Plalntiff moves for an order compelling dofendant to mpond to his Further Demand for Discovery and Inspection dated September l g , 2011 ("9/19/11 D & I"). Defendants oppose the motion. The underlying complalnt alleges that On January 11 I 2010, whlle plalntiff was lawfully In a certain CVS store, he was fabsly imprisoned by defendants. In the 9/19/11 D & I, plalntlff requested information pertaining to the ethnic make-up of individuals stopped andlor detalned by store security under the suspicion of shoplifting for the SIXmonth perlud prior to the date of the alleged occurrence. Plaintiff also sought the names and addresses of all people who were stopped. Although t b mmplaint does not allege any dlscrfmlnatlon, plnlntjff is seeking this informationt o Page 1 of 4 . [* 3] determine whether, when defendant stopped him without muse, they were Improperly profiling him. Defendants deny that plaintiff was improparly stopped. In addition they objected to produdng the information requested a8 being "vague, ambiguous, Overly broad, unduly burdensome, not relevant and not likely to lead to the discovery of relevant Infomatlon." This motion to compel production ensued. The court rejects out of hand defendante' argument that this motion should be denled because the affidavit of g d f a k , requlred as a prerequisite to any discovery motion, is not in proper form. It was dear from the conferences the court held on thls CBSB and the argument on the rnotlon, that the parties had Wed to the resolve the underlying issues, but reachd an impasse. Likewise the court rejects plalnt ¬Ff'a argument that all objections were waived by defendants. Defendants claim that they do not POWXIS any records or information cancerning the ethnic@ of indMduals stopped or detained by store security. NotwlthsEandlng thls clalm, whkh would render i& n of the request moot, It Is not stated in the original response to the 9/19/11 D & I,which is not sworn to by any defendant, with or without knowledge. While the statement b made in a supplemental response, 8 e w d only after this motion was brought, the supplemental mponse is not sworn to by anyone with knowledge. On thb motlon, only the attorney makes such 8 statement. Defendants also argue that b e w m thie case does not involver false arrest or racial proflling, any such Information would be frrelevant. Defendants further claim that any records they retain regarding the names and addmssbs of other people who we detained by security would be lnvaerive of those r persons' privacy. Page 2 of 4 [* 4] Defendants contention, that this case does not involve false arrest, is just wrong. The Rrst cause of actlon in the complaint dearly seeks radrsss based on a claim of false arrest- So too, the court rejects the clalm that radal profiling is not an issue in this caw. While the issue is not expreasly plead, information regarding whether defendants engage In a practice of racial profillng in connection with detaining persons in their stores who are under suspiclon of shoplifting is relevant to the legality ofthe particular detention of plaintiff. Moreover, such information would be pecullarly whin defendants' own knowledge. A request for information regarding a pattern or practlcs, that is othenvise Ilrnited a8 to tlma, nature and geography, I approprlate. See:NQ&I& s Sod& V, Ganaralq, 176 AD2d I34 (1" dept. I sal). While the court finds that plalndi'f would be entitled to information regarding complaints of radal profiling and other ethnlc Information maintained by defendants t regarding the persona etopped under suspicion of shop lifting a thslr stores, the names and a d d m w s of all persons actually stopped ia not sufficiently llmlted in scope as to be discoverable. s Defendants' claim, that I has no documents indicating the racial identity of the persons stopped would, i trua, mnder thls whob dlscumslon moot. However, on this f motion, defendant has not established the absence of such documents. Accordingly, the defendants shall search agaln for the requested records and, thereafter, produce for deposition a person with knawledge about the defendants' m r d keeping practices. In this way, pjaintlff c8n Inquire and obtaln sworn statements about defendants' record keeping practices and procedures in oonnnction,withsacurity stops made at their stores. Such wifnerss shall also bring to the deposition far produdon each and every Page3of 4 [* 5] blank form or document used to record any and all information regarding stops made by security personnel for the six months preceding plalntfffs stop. Such witness shall be produced withtn Thirty (30) Days following the date o this order. If the deposMon f ylelda any further basis, plainttff may renew this motion. Accordingly, the motion is granted only to the extent indicated heroin. Mher than thls deposltlon, tt appears that discovery has been completed. This matter is set down for a trial certification conference on May 10,2012 at 9 3 0 a.m. The Note o Issue is due May 11,2012. No further notices wlll be sent. Any requested f relief not otherwise granted herein is denied. Thh constltutea the dedsion and order of the court. Dated: New York, NY March 19,2012 SO ORDERED: Pagn4of 4

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