K.M. v Mobley
Annotate this CaseDecided on April 5, 2016
Supreme Court, Kings County
K.M., an infant by his mother and natural guardian, DANA MOBLEY and DANA MOBLEY, Individually, Plaintiff(s),
against
Burlinda Mobley, MERCYFIRST, C.B. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, and NEW YORK CITY HUMAN RESOURCES ADMINISTRATION DEPARTMENT OF SOCIAL SERVICES, Defendant(s).
3220/14
Attorney for Plaintiff
Steve Z. Gokberk, Esq.
Salenger Sack Kimmel & Bavaro
180 Froehlich Farm Boulevard
Woodbury, New York 11797
(516) 677-0100
Attorney(s) for Defendants
Wesley C. Glass, Esq.
1500 Lakeland Avenue
Bohemia, New York 11716
(631) 360-7333
Attorney for Mercyfirst, The City of New York, New
York City Department of Health and Mental Hygiene,
New York City Administration for Children's Services and
New York City Human Resources Administration
Department of Social Services
800 3rd Avenue 9th Floor
New York, New York 10022
(212) 599-5799
New York State Department of Juvenile Justice
Legal Department — Derek Jackson, Esq.
52 Washington Street, Suite 207S
Rensselear, New York 12144
(518) 473-8411
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the plaintiffs, filed on October 10, 2015, with the Kings County Clerk's Office (hereinafter KCCO) for an order: (1) pursuant to CPLR 2307 for the Court to sign a judicial subpoena duces tecum to be served upon the New York City Police Department (hereinafter NYPD) for the deposition of Police Detective Fong and the release of any investigation documentation, to be submitted to this Court for in camera review; (2) pursuant to CPLR 3124, compelling defendants Mercyfirst, The City of New York, New York City Department of Health and Mental Hygiene, New York City Administration For Children's Services, and New York City Human Resources Administration Department of Social Services (hereinafter jointly referred to as the City Defendants) to respond to plaintiffs' demands for discovery and inspection and to produce discovery responses, claimed to be confidential, for an in camera inspection, within thirty (30) days from the date of this order; (3) pursuant to CPLR 3126, striking the City Defendants' answer and prohibiting them from offering evidence in support of their position at the time of trial; (4) an Order pursuant to CPLR 306-b granting plaintiffs a further extension of time to serve the summons and complaint upon the defendant C.B.
Notice of Motion
Affirmation in Support
Affirmation of Good Faith
Exhibits A-O
Partial Opposition
Exhibit A
Reply Affirmation
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant Burlinda Mobley (hereinafter Mobley), filed on November 17, 2015, with the KCCO for, an order: (1) pursuant to CPLR 2307 for the Court to sign a judicial subpoena duces tecum to be served upon the NYPD for the deposition of Police Detective Fong and the release of the investigation documentation, to be submitted to this Court for in camera review; (2) pursuant to CPLR 3124, compelling The City Defendants to respond to plaintiffs demands for discovery and inspection and to produce discovery responses, claimed to be confidential, for in camera inspection, within thirty (30) days from the date of this Order; (3) CPLR 306-b granting Mobley an extension of time to serve her answer with cross-claims upon C.B.
Affirmation of Good Faith
Affirmation in Support
Exhibit A
Partial Opposition
Exhibit A
Reply Affirmation
BACKGROUND
The background is set forth in K.M. v Mobley, 44 Misc 3d 1225(A), 2014 NY Slip Op. 51337(U) [Sup Ct, Kings County 2014].
LAW AND APPLICATION
The motion and cross motion seek identical relief except for that portion of plaintiffs' motion which seeks discovery sanctions pursuant to CPLR 3126. Accordingly, the requests for identical relief will be analyzed jointly. The plaintiffs and defendant Mobley will be referred to jointly as "the movants" when the motion and cross motion seek the same relief.
The movants seek the City Defendants to produce additional documents, responses to the plaintiffs' disclosure demands and discovery from non-parties. CPLR 3101 (a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Material and necessary information is that which is required to be disclosed because it bears upon the controversy at issue and will assist the requesting party in preparing for trial (see M.C. v Sylvia Marsh Equities, Inc., 103 AD3d 676 [2nd Dept 2013] citing Allen v Crowell—Collier Publ. Co., 21 NY2d 403, 406 (1968); Kooper v Kooper, 74 AD3d 6, 10 [2nd Dept 2010). Courts are to interpret discovery requests liberally in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 (1998) Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566 [2nd Dept 2012]; Riverside Capital Advisors v First Secured Capital Corp., 292 AD2d 515, 515 [2nd Dept 2002]).
Each discovery request will be dealt with separately.
Judicial Subpoena Duces Tecum
Movants seek the Court to order a judicial subpoena duces tecum and to permit the [*2]subpoena to be served upon the NYPD, a non-party, for the deposition of Police Detective Fong and the release of the investigation documentation, to be submitted to this Court for in camera review. The movants assert that the NYPD performed an investigation of the subject occurrence. The movants seek the contents of the investigation, including any official reports, as well as the disposition of any criminal action that may have remained confidential. The movants assert that the contents of this discovery will likely contain information that is material and relevant to establishing liability and locating the defendant C.B. or his guardians for service. The NYPD was served with the instant motion. There is no opposition to this portion of the motions.
The movants have established that the documents and discovery sought is material and relevant to the action. Accordingly, this portion of the motion is granted. The plaintiff submitted subpoenas with the motion papers. The subpoenas do not comply with the movants request to be released for an in camera review. The movants are directed to submit to the Clerk in Park 52 room 556 a revised subpoena to be so ordered that complies with the request on or before April 29, 2016.
Compelling the City Defendants to Respond to Plaintiffs' Discovery Requests
The movants also seek an order pursuant to CPLR 3124, compelling the City Defendants to respond to plaintiffs' demands for discovery and inspection and to produce discovery responses, claimed to be confidential, for in camera inspection, within thirty (30) days from the date of this Order.
It is undisputed that the City Defendants have responded to the outstanding requests of the plaintiffs except for the foster care records of C.B. The City Defendants claim that producing certain documents without a court order will violate Social Services Law 372. It should be noted that the City Defendants did not seek a protective order.
A foster care agency is required by Social Services Law § 372 (1) to provide and keep an extensive record of any child whom it receives, accepts, or commits. Such records are confidential and subject to the provisions of CPLR article 31 (see Social Services Law § 372 [3]). Upon an application by a parent, relative, legal guardian, or authorized agency, the court may order disclosure of "such extracts from the record relating to such child as the court may deem proper" (Llorente v City of New York, 38 AD3d 617 [2nd Dept 2007] citing Social Services Law § 372 [3]; see Matter of Wise v Battistoni, 208 AD2d 755, 756 [2nd Dept 1994]; Krueger v Louise Wise Servs., 143 AD2d 641, 642 [2nd Dept 1988]). An applicant seeking disclosure bears the burden of convincing the court that disclosure of the information sought would be proper, and disclosure should be accompanied by adequate safeguards to limit as much as possible the unnecessary loss of confidentiality (see Sam v Sanders, 80 AD2d 758 [1st Dept 1981], affd 55 NY2d 1008 [1982]; Matter of Carla L., 45 AD2d 375, 382 [1st Dept 1974]).
The City Defendants do not dispute that they are under an obligation to maintain such records. However, the City Defendants object to producing the records on the basis that they are presumed confidential due to the sensitive nature of their content.
Once a movant establishes that disclosure of the material is proper then the court should take precautions to maintain confidentiality of records by marking the record for identification, and, in the presence of the parties, identify the records without divulging content or breaching confidentiality so that the foster care agency may seek a protective order pursuant to CPLR 3103 [*3](Llorente v City of New York, 38 AD3d 617 [2nd Dept 2007] citing Wheeler v Commissioner of Social Servs. of City of NY, 233 AD2d 4, 13 [2nd Dept 1997]).
The movants allege that the records are important to establish liability and also to discover were the defendant C.B. may be located in order to effectuate service of the summons and complaint. The arguments of movants are compelling. The City Defendants are the only entities that possess this particular information and documentation which may establish liability on behalf of the defendants. Furthermore, the information sought from the City Defendants is likely to be the only source which contains information as to the whereabouts of the defendant C.B.
Accordingly, the portion of the motions pursuant to CPLR 3124, compelling the City Defendants to respond to plaintiffs demands for discovery and inspection and to produce discovery responses, claimed to be confidential, for in camera inspection, within thirty (30) days from the date of this Order is granted. The City Defendants are directed to prepare an index which identifies the documents and the reason for the privilege. Defendants are also to submit the corresponding documents to Part 52 in a sealed envelope with the instant decision annexed to the outside of the envelope on or before May 10, 2016 for an in camera inspection. The parties are then directed to appear on May 31, 2016 for the Court to render a determination as whether each document is privileged, confidential or discoverable.
Striking the City Defendants Answer and Precluding the City Defendants from Offering Evidence at Trial
The plaintiffs move pursuant to CPLR 3126 to strike the City Defendants' answer and to preclude them from offering evidence at trial for failing to respond to discovery requests. Mobely did not seek this relief. CPLR 3126 (2) provides for preclusion in instances of willful disclosure violations. As stated:
If any party ... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: ... 2). an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined ...
As there is no allegation that the defendants failed to comply with a court order or willfully failed to disclose information, preclusion is not warranted. In fact, as discussed above, the defendants have responded to the defendants requests, but with objections. Additionally, as the defendants are compelled to respond to the plaintiffs' remaining requests under this Court's supervision, preclusion at this point would be inappropriate. In conclusion, plaintiffs' motion to preclude the defendants pursuant to CPLR 3126 (2) is denied.
Extending Time to Serve Bullock pursuant to CPLR 306-b
Movants seek an additional extension of time to serve the defendant C.B. The plaintiff seeks an extension to serve the summons and complaint. Mobley seeks an extension to serve her answer with cross claims. The plaintiff previously sought the same relief by order to show cause [*4]filed on April 16, 2014. By decision and order dated August 29, 2014, this Court granted the plaintiffs' motion for an extension of time to serve the defendant C.B. The plaintiffs allege that during the extension of time to serve C.B. they have diligently searched for his whereabouts but have been unsuccessful in locating the defendant. Mobley asserts that she also moved previously for an extension of time to serve but her motion was denied for failing to annex a good faith affirmation in violation of 22 NYCRR 202.7.
An action is commenced by filing a summons and complaint (CPLR 304 [a]). Service of the summons and complaint shall be made within one hundred twenty days after the commencement of the action (CPLR 306-b). If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service (Wilson v City of New York, 118 AD3d 983, 984 [2nd Dept 2014]).
CPLR 3012(a) provides that if a defendant has not appeared in the action then any subsequent pleading must be served upon it in the same manner as a summons and complaint. However, if the party has already appeared, a pleading can be served in the manner provided for service of papers generally. Papers may be served upon a party through their attorney of record via regular mail. This is the method through which interlocutory papers, all litigation papers beyond initial service of process, are served. (see CPLR 2103). Accordingly, Mobely's cross claim must be served in the manner of a summons and complaint as C.B has not yet appeared in the action (See CPLR 3012, Conners, Practice Commentaries, 7B C3012:7 Serving Cross—Claim on Non—Appearing Defendant).
Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Bumpus v New York City Transit Authority, 66 AD3d 26 at 31 [2nd Dept 2009]). Good cause will not exist where a plaintiff fails to make any effort, or at least a reasonably diligent effort, at service (Id. at 32, citing Valentin v Zaltsman, 39 AD3d 852 [2nd Dept 2007]). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (Id. at 32, citing Greco v Renegades, Inc., 307 AD2d 711, 712 [4th Dept 2003]).
The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (Id. at 32, citing Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]). The interest of justice standard is broader than the good cause standard, as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (Id. citing, Mead v Singleman, 24 AD3d 1142, 1144 [3rd Dept 2005]).
In the instant matter, the summons and verified complaint was filed with the Kings County Clerk's office on March 4, 2014. The plaintiffs allege that C.B. cannot be located and that it is, therefore, necessary to seek the Court's permission to effectuate service upon him, utilizing an expedient service method and an enlargement of time to do so.
The plaintiff has established that they have made diligent efforts to locate the defendant and that in the interest of justice the time for service should be extended. Mobley has not engaged in any efforts to locate the defendant C.B. Mobley relied upon the efforts of the plaintiff in locating C.B. Plaintiffs' efforts have been extensive and Mobley's reliance upon them was [*5]justified.
Accordingly, plaintiffs' and Mobely's time to serve C.B. is extended to September 30, 2016.
CONCLUSION
Plaintiffs' motion pursuant to CPLR 2307 for the Court to sign a judicial subpoena duces tecum to be served upon the New York City Police Department for the deposition of Police Detective Fong and the release of any investigation documentation, to be submitted to this Court for in camera review is granted.
Plaintiffs' motion pursuant to CPLR 3124, compelling defendants Mercyfirst, The City of New York, New York City Department of Health and Mental Hygiene, New York City Administration For Children's Services, and New York City Human Resources Administration Department of Social Services to respond to plaintiffs' demands for discovery and inspection and to produce discovery responses, claimed to be confidential, for an in camera inspection, within thirty (30) days from the date of this order is granted to the extent ordered above.
Plaintiffs' motion pursuant to CPLR 3126, striking the answer of Mercyfirst, The City of New York, New York City Department of Health and Mental Hygiene, New York City Administration For Children's Services, and New York City Human Resources Administration Department of Social Services and prohibiting them from offering evidence in support of their position at the time of trial is denied.
Plaintiffs' motion for an Order pursuant to CPLR 306-b granting plaintiffs a further extension of time to serve the summons and complaint upon the defendant C.B. is granted. Plaintiff time to serve C.B. with the summons and complaint is extended until October 14, 2016.
Mobely's motion pursuant to CPLR 2307 for the Court to sign a judicial subpoena duces tecum to be served upon the New York City Police Department for the deposition of Police Detective Fong and the release of any investigation documentation, to be submitted to this Court for in camera review is granted.
Mobely's motion pursuant to CPLR 3124, compelling defendants Mercyfirst, The City of New York, New York City Department of Health and Mental Hygiene, New York City Administration For Children's Services, and New York City Human Resources Administration Department of Social Services to respond to plaintiffs' demands for discovery and inspection and to produce discovery responses, claimed to be confidential, for an in camera inspection, within thirty (30) days from the date of this order is granted to the extent ordered above
Mobely's motion for an Order pursuant to CPLR 306-b granting her an extension of time to serve her answer with cross claims upon the defendant C.B. is granted. Mobley's time to serve C.B. with the answer with cross claims is extended until October 31, 2016.
The foregoing constitutes the decision and order of this Court.
Enter:April 5, 2016 J.S.C.
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.
