Calhoun v County of Suffolk

Annotate this Case

Download PDF

Calhoun v County of Suffolk 2012 NY Slip Op 33137(U) December 28, 2012 Sup Ct, Suffolk County Docket Number: 8577/2009 Judge: Joseph Farneti 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] INDEX NO. 857712009 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - I.A.S. TERM, PART 37 SUFFOLK COUNTY PRESENT: HON. JOSEPH FARNETI Acting Justice Supreme Court BRIAN CALHOUN as administrator of the Estate of WILLIAM S. CALHOUN, deceased, ORIG. RETURN DATE: MARCH 21, 2012 FINAL SUBMISSION DATE: APRIL 19,2012 MTN. SEQ. #: 003 (002) MOTION: MG Plaintiff, -againstCOUNTY OF SUFFOLK, COUNTY OF NASSAU, RICHARD MAIR, ELRAC INC. and CAROLYN J I MENEZ, Defendants. PLTF'SIPET'S A T O R N EY: SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C. 1140 FRANKLIN AVENUE - SUITE 200 GARDEN CITY, NEW YORK 11530 516-742-0707 ATTORNEY FOR DEFENDANT COUNTY OF SUFFOLK: DENNIS M. COHEN, ESQ. SUFFOLK COUNTY ATTORNEY BY: SUSAN A. FLYNN, ESQ. ASSISTANT COUNTY ATTORNEY H. LEE DENNISON BUILDING 100 VETERANS MEMORIAL HIGHWAY P.O. BOX 6100 HAUPPAUGE, NEW YORK 11788-0099 631-853-4049 ATORNEY FOR DEFENDANT RICHARD MAIR: CARMAN, CALLAHAN & INGHAM, ILLP 266 MAIN STREET FARMINGDALE, NEW YORK 11735 516-249-3450 ATTORNEY FOR DEFENDANT COUNTY OF NASSAU: LORNA B. GOODMAN, ESQ. NASSAU COUNTY ATTORNEY ONE WEST STREET MINEOLA, NEW YORK 11501 [* 2] CALHOUN v. COUNTY OF SUFFOLK, ET AL. lNDEX NO. 8577/2009 ATTORNEY FOR DEFENDANT ELRAC. INC.: BRAND, GLICK & BRAND, P.C. 600 OLD COUNTRY ROAD - SUITE 440 GARDEN CITY, NEW YORK 11530 FARNETI, J. PAGE 2 ATTORNEY FOR DEFENDANT CAROLYN JI MENEZ: LAW OFFICES OF ANDREA G. SAWYERS 3 HUNTINGTON QUADRANGLE - SUITE 102s P.O. BOX 9028 MELVILLE, NEW YORK 11747 Upon the following papers numbered 1 to 7 read on this motion FOR AN IN CAMERA INSPECTION Notice of Motion and supporting papers 1-3 ; Affirmation in Opposition and supporting papers 7 ; it is, 4, 5 ; Affirmation in Support 6 ; Reply Affirmation ORDERED that this motion by plaintiff, BRIAN CALHOUN as administrator of the Estate of WILLIAM S. CALHOUN, deceased ( plaintiff), for an Order: (1) pursuant to Civil Rights Law § 50-a, granting plaintiff an in camera review by the Court of the Internal Affairs file of defendant, COUNTY OF SUFFOLK ( County ), including, but not limited to, the Internal Affairs report, all documents utilized for the preparation and drafting of said report, including, but not limited to, notes, letters, reports, interviews, pictures, videotapes, audiotapes, records, opinions, and conclusions of the County pertaining to the high-speed police chase that occurred on December 28, 2006, and that is the subject matter of this action, and thereafter, granting plaintiff disclosure of same; (2) pursuant to Civil Rights Law § 50-a, granting plaintiff an in camera review by the Court of the investigation file of Suffolk County Police Captain Paul Ryan, including, but not limited to, his report, all documents utilized for the preparation and drafting of said report, including, but not limited to, notes, letters, reports, interviews, pictures, videotapes, audiotapes, records, opinions and conclusions of Suffolk County Police Captain Paul Ryan, pertaining to the high-speed police chase that occurred on December 28, 2006, and that is the subject matter of this action, and thereafter, granting plaintiff disclosure of same; and (3) pursuant to CPLR 3106 (c), granting plaintiff leave to depose defendant, RICHARD MAlR ( Mair ), at Collins Correctional Facility, Coxsackie, New York, on a date and time negotiated with Collins Correctional Facility and the parties herein, [* 3] CALHOUN v. COUNTY OF SUFFOLK, ET AL. INDEX NO. 8577/2009 FARNETI, J. PAGE 3 is hereby GRANTED as set forth hereinafter. The Court has received an affirmation in opposition to this application from the County, and an affirmation in support from Mair. This action arises from high-speed police chase that occurred on December 28,2006, when members of the Suffolk County Police Department pursued Mair after he fled the scene while being questioned by Police Officer Richard Tofano. Mair apparently lost control of his vehicle during the chase and crashed into plaintiffs home, thereby allegedly causing the death of plaintiffs decedent, WILLIAM S. CALHOUN, while he was on his living room couch. Plaintiff has now filed the instant application for the relief described hereinabove, alleging that he served the County with a Notice for Discovery and Inspection dated July 25, 201 1, seeking, among other things, the Internal Affairs investigation file of the subject incident, as well as the investigation file of Suffolk County Police Captain Paul Ryan. By letter response dated October 24, 201 1, the County denied the aforementioned demands, arguing that the materials sought are confidential pursuant to Civil Rights Law § 50-a, and may only be disclosed by Court Order after an in camera review. Initially, this Court is mindful that CPLR 3101 (a) provides for disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof (CPLR 3101 [a]). Although CPLR 3101 favors liberal disclosure, such disclosure must be material and necessary to the prosecution or defense of the action (CPLR 3101; Gill v Mancino, 8 AD3d 340 [2004]; DeStrange v Lind, 277 AD2d 344 [2000]). If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 407 [ I 9681). Moreover, New York has long favored open and far-reaching pretrial 9921, cert denied discovery (DiMichel v South Buffalo Ry. Co., 80 NY2d 184 [I sub nom Poole v Consolidated Rail Corp., 510 US 816 [1993]), and [tlhere shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof (CPLR 3101 [a]; Northway Eng g v Felix lndus., 77 NY2d 332 [1991]). Further, Civil Rights Law § 50-a provides that the personnel records of police officers used to evaluate performance toward continued employment or promotion shall be considered confidential and not subject to inspection or review [* 4] CALHOUN v. COUNTY OF SUFFOLK, ET AL. INDEX NO. 8577/2009 FARPdETI, J. PAGE 4 without the express written consent of such police officer except as may be mandated by lawful court order (see Civil Rights Law § 50-a; McBride v City of Rochester, 17 AD3d 1065 [2005]). Civil Rights Law 9 50-a was enacted to limit access to personnel records by criminal defense counsel, who used the contents; of the records to embarrass officers during cross-examination (see e.g. 35 N. Y. City Police Officers v City of New York, 34 AD3d 392 [2006]). The party seeking disclosure of such records must offer in good faith . . . some factual predicate for providing access to the personnel files so as to warrant an in camera review (Zarn v City of New York, 198 AD2d 220 [19931; see also Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833 [2001]; Taran v Sfafe of New York, 140 AD2d 429 [1988]). This threshold requirement is designed to eliminate fishing expeditions into police officers personnel files for collateral materials to be used for impeachment purposes (Zarn v City of New York, 198 AD2d at 220-221). With respect to disclosure of the records sought by plaintiff, the Court finds that plaintiff has provided a good faith factual predicate for the disclosure of such records, to wit: the deposition testimony of three Suffolk County Police Officers indicating that Internal Affairs and Captain Paul Ryan conducted investigations into the accident, which may contain information that is relevant and material to plaintiffs allegation of negligence against the County (see Blanco v County of Suffolk, 51 AD3d 700 [2008]; Evans v Murphy, 34 AD3d 417 [2006]; Pickering v State of New York, 30 AD3d 393 [2006]; Flores v City of New York, 207 AD2d 302 [ I 9941; Spadaro v Balesferi, 237 AD2d 507 [ I 9971). Finally, CPLR 3106 (c) governs the depositions of prisoners. That section provides that [tlhe deposition of a person confined under legal process may be taken only by leave of the court (CPLR 3106 [c]). Here, counsel for Maiir indicates that he has no opposition to producing his client for a deposition at the correctional facility where he is incarcerated. In view of the foregoing, this motion is GRANTED as follows: (1) the County shall produce to the Court, for an in camera inspection, the Internal Affairs file, as well as the investigation file of Suffolk County Police Captain Paul Ryan, pertaining to the high-speed police chase that occurred on December 28, 2006, within thirty (30) days of the date of service upon the County of the instant Order with notice of entry (see Blanco v County of Suffolk, 51 AD3d 700, supra); and ( 2 ) the deposition of Mair shall be conducted at the Collins Correctional Facility, pursuant to CPLR 3106 (c), on a date to be agreed upon by the parties and with the consent and permission of the regulating authorities at the aforesaid [* 5] FARNETI, J. CALHOUN v. COUNTY OF SUFFOLK, ET AL. INDEX NO. 8577/2009 PAGE: 5 Facility, but in no event shall the deposition be conducted beyond March 31, 2013. A copy of this Order shall be presented to the proper authorities at the Facility, along with full identifying names of all individuals expected to attend the deposition, including all attorneys and court reporters, at least two weeks prior to the agreed-upon deposition date, for the purpose of allowing said deposition to be properly held pursuant to the rules and regulations of the Facility. The foregoing constitutes the decision and Order of the Court. Dated: December 28,2012 JOSEPH FARNETI Acting Justice Supreme Court FINAL DISPOSITION X NON-FINAL DISPOSITION

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.