Gotlin v City of New York

[*1] Gotlin v City of New York 2010 NY Slip Op 50169(U) [26 Misc 3d 1218(A)] Decided on February 2, 2010 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2010
Supreme Court, Kings County

Gary D. Gotlin, RICHMOND COUNTY PUBLIC ADMINISTRATOR, ADMINISTRATOR OF THE ESTATE OF HAILEY GONZALEZ, DECEASED, Plaintiffs,

against

City of New York, NEW YORK CITY ADMINISTRATION OF CHILDREN'S SERVICES, MARIA CRUZ, CAMILLE CAPERS, MARGOT BUTLER, GILLIAN SALNAVE, DAVID STEPHENS, STEVE MARCUS, JAMES PALMER, BELKYS MARQUEZ, ESTHER RODRIGUEZ, SHANTOYA HIGGINS, CHIOMA KAGHA, JONTARR JOHNSON, GENELL MCCORD, ANDREW BLAKE, JOSEE GARCON, JUDY ENWRIGHT, and ESTELLE MCINTOSH, Defendants.



30151/08



The plaintiff is represented by Emery Celli Brinckerhoff & Abady, LLP., by Eric

Hecker, Esq., of counsel, the defendants are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Kimberly Lennard, Esq., of counsel.

Robert J. Miller, J.

This action arises out of the wrongful death of Hailey Gonzalez, an infant, in August 2007 while under the supervision of the New York City Administration for Children's Services (ACS). It is alleged by plaintiff that Hailey Gonzalez was killed by Edwin Garcia, the companion of her mother, and that ACS, which was charged under a Brooklyn Family Court order with supervising the child's home "had a mountain of evidence confirming that Hailey's mother repeatedly placed herself and her children in extremely dangerous domestic violence situations." The individual defendants are either caseworkers or supervisors employed by ACS and it is alleged that they "played a substantial role in the events that led to Hailey's death" and were "grossly negligent."

The City of New York and the individual defendants (collectively the City) they represent now move for a protective order with respect to certain outstanding discovery demands served by plaintiff and the City also moves for an order of preclusion for plaintiff's alleged failure to respond to the City's demand for a bill of particulars.

The plaintiff moves to compel the defendants to produce documents that plaintiff claims [*2]the City has failed to produce.

Plaintiff served a document demand dated February 25, 2009. The City responded in part and seeks a protective order with respect to certain categories of documents called for in the demand. The City has asserted the public interest privilege and sought a protective order with respect to the production of documents generated by the Accountability Review Panel (ARP), a unit within ACS.

The supervisor of the ARP, Fredda J. Monn, Esq., in an affidavit set forth the role of the ARP within ACS as follows:

ARP is an multi-disciplinary advisory body that reviews

child fatalities in New York City families previously known

to its child welfare system. It provides a forum in which reviews

of investigations, casework practice, social services and programs

as well as identification of case specific and/or system issues can

be freely discussed. The reviews involve close examination of the

family history of each case and of ACS's role in that history. ARP

makes recommendations to improve child protective practices in

ACS as well as other service systems based on its findings in each

case. The purpose of these reviews is to identify problem areas and

recommend corrective action where needed, provide better support

and more effective services to the City's families and children in need

and thus reduce the number of child fatalities.

The Court of Appeals in In re World Trade Center Bombing Litigation, 93 NY2d 1 [1999] set forth the principles guiding a Court in determinating the applicability of the public interest privilege as follows:

Contrary to the sweeping assertions of the respective

parties, the privilege is neither absolute as the PA

wishes, nor is it so easily evaded as plaintiffs' categorical

incantations would effect.... Whether the privilege attaches

in a particular setting is a fact-specific determination for a

fact-discretion weighing court, operating in camera, if necessary.

The public interest, and what adds up to sufficient potential

harm to it, are necessarily and inherently flexible concepts....

Entitlement to the privilege requires, therefore, that an agency

claiming some special governmental-public interest "cone of silence"

demonstrate the specific public interest that would be jeopardized

by an otherwise customary exchange of information. After all, the

public interest correspondingly encompasses societal interests in

redressing private wrongs, like those alleged by plaintiffs, and

allows for the fair adjudication of private litigation.... These

competing objectives bespeak the weighing and proportionality of

redress and access to public, though confidential, information . However

"[o]nce it is shown that disclosure would be more harmful to the [*3]

interests of the government than [nondisclosure would be to]

the interest of the party seeking the information, the overall public

interest on balance would then be better served by nondisclosure."

The City submitted documents generated by the ARP review into the death of Hailey Gonzalez

(Exhibit C, Bate stamped No.'s A001-A039).

Plaintiff's counsel, Eric Hecker, Esq., set forth at oral argument plaintiff's view of the scope of the Court's review when analyzing the application of the privilege as follows:

"The case law is clear. There are two Court of Appeals cases

that speak to this privilege. The Ceralli (ph.) case and the World

Trade Center case. Both of them acknowledge expressly that a plaintiff

in a case like this has a strong interest in exposing the truth and in

pursuing a damage claim. Those are hardly irrelevant interest. In fact,

the Court expressly recognizes they are heavy interest and weigh heavily

on one end of the balance. On the other end is this issue recognized in the Martinay case, [sic] should this Court choose to follow this which is the issue

of taking corrective action. And, I would just ask your Honor to consider

when doing the in camera review, whether on the one hand this is thesituation

in which ACS has said, Mea culpa. We did wrong. We want to fix this. Here are the actions we're going to take to make sure this doesn't happen in the future.'

In which case, I can understand the argument that weights heavily the other way. Because you don't want to chill and discourage that process.

If, on the other hand, they said, We didn't think we did anything wrong,' or they don't specifically recommend corrective actions, that could help going forward, then I would submit to you that the public interest very heavily weights in favor of exposing that so we can all see that not only did this girl die but they didn't do anything about it."

The Court conducted an in camera review of the ARP report which consisted of a 39 page submission and concludes that the public interest privilege precludes production.

The public interest is served by the candid self-analysis that ARP conducted. The report is a document which outlines chronologically the details and history of the involvement of ACS case workers with the family of the deceased starting with the mother's history as a child under their care starting in 1998 and includes the history of their involvement with the deceased child's siblings. Eight pages are devoted to recommendations and suggestions for corrective actions by ACS. The Panels's recommendations for best case practices and protocols to guide staff in managing cases and assessing young parents, their children and future risk to their children is the central purpose for each of the comprehensive twenty-three recommendations included in the report. The Court concludes that disclosure would be more harmful to the interests of government (insuring the future self study by ACS) than non-disclosure would be to the interest of the party seeking disclosure. (Martin A. v Gross, 194

AD2d 195 [1st Dept 1993]). [*4]

The next category of documents in dispute is the production of the "disciplinary, medical, psychological, employment and personnel files" for the individual defendants and other City employees involved with Hailey Gonzalez.

On May 28, 2009, the City filed a response objecting to this demand as follows:

Response: Objection.

This demand is overly broad, unduly burdensome, and not

reasonably calculated to lead to the discovery of admissible

evidence. In addition, plaintiff is not entitled to medical,

psychiatric, or psychological information without a properly

executed authorization under Health Insurance Portability and

Accountability Act of 1996 and New York law and disclosure

of this information would violate the privacy rights of these

individuals. Further, documents relating the Family and Medical

Leave Act are confidential pursuant to 29 CFR 825,500(g). In

addition, as defendant City does not deny that any of the answering

defendants were acting within the scope of their employment, there

is no negligent hiring, training, or retention claim under Karoon.

Thus, the records are irrelevant. However, the City will produce the

personnel records of the named defendants for an in camera review.

The files were never submitted for an in camera review in spite of the City's statement that it would do so.The City now argues that this Court's October 30, 2009 decision dismissing plaintiff's 42 USC § 1983 claim provides the City with a new basis to seek a protective order.

This argument does not explain why the City (contrary to its May 28, 2009 declaration) did not produce the documents for an in camera review over the five month period prior to the October 30, 2009 decision. (The original demand for the documents was made on February 25, 2009.)

As such, the Court directs the City to produce the complete personnel records for an in camera review with a privilege log.The Court will consider at the time of the review, the City's privilege

objections previously set forth in its May 28, 2009 response including its objection based on Karoon v NYCTA, 659 NY2d 27 [1st Dept 1997]).

The next category of records is the request for production of the foster care records of non-parties Marlene Medina, Edwin Garcia and Manuel Gonzalez.

At oral argument, plaintiff withdrew the request for the records of Mr. Garcia and Mr. Gonzalez.

The request for the foster care records of Ms. Medina is denied. Plaintiff may renew said request

after service upon Ms. Medina of the request giving her the opportunity to object or alternatively to consent to the release of her foster care records.

The Court has conducted an in camera review of the documents submitted by the City on January 8, 2010. The City is directed to produce documents bate stamped #'s 488-491. All other submitted documents are privileged and shall not be produced.

With respect to the City's motion to preclude plaintiff from offering any evidence at the [*5]trial of the action for an alleged failure of the plaintiff to respond to the City's "Combined Demand for Verified Bill of Particulars & Discovery (Combined Demand) dated January 23, 2009, the motion is denied.

The Combined Demand consists of 2 ½ pages of one question with numerous unnumbered sub requests which is designated as a "Demand for Verified Bill of Particulars". The Combined Demand also includes 42 demands under the heading of "Demand for Discovery & Inspection".

With respect to the Bill of Particulars portion of the Combined Demand, it appears to be largely pasted together from other forms and, as such, has little relationship to the complaint in this action. Plaintiff has responded to this purported demand. The Court does not express an opinion as to the adequacy or lack thereof of the response to the largely improper and irrelevant Demand for a Verified

Bill of Particulars.

The City shall have leave to serve a proper Demand for a Bill of Particulars within 30 days of service of this order with Notice of Entry.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

February 2, 2010