Minsky v Allstate Idem. Co.
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Minsky v Allstate Idem. Co. 2012 NY Slip Op 30416(U) February 6, 2012 Supreme Court, Nassau County Docket Number: 007302-07 Judge: Vito M. DeStefano 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] SUPREME COURT - ST ATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice TRIAL/IAS, PART 19 NASSAU COUNTY ANDREA MINSKY, Decision and Order MOTION SUBMITTED: Plaintiff, December 1, 2011 -against- MOTION SEQUENCE:04 INDEX NO. 007302- ALLSTATE INDEMNITY COMPANY, Defendant. The following papers and the attachments and exhibits thereto have been read on this motion: Notice of Motion Affirmation in Opposition Affrmation in Opposition Affirmation in Reply Introduction In this action for breach of contract (and, apparently, for bad faith denial of an insurance subpoena directing the claim), the plaintiff moves , pursuant to CPLR 2307, for issuace of a 109- 04664 and investigation New York City Police Deparment to produce: " Complaint # 2005by Internal Affairs or other such duly constituted investigatory body as investigated upon the D" to Motion: Subpoena). complaint of Andrea Minsky regarding such complaint" (Exhibit " [* 2] Background In her complaint , the plaintiff alleges that on May 7 , 2005 , she was the owner of a homeowner/renter s insurance policy issued by defendant Allstate Insurance Company Allstate ); on that date , plaintiff claims that jewelry was stolen from her residence. Upon presenting her claim to Allstate for reimbursement , however , it was denied because of alleged inconsistencies and misrepresentations According to the plaintiffs attorney, Allstate s denial was based on a police report issued in connection with the alleged burglar of her residence , which she asserts contaned false information. Plaintiffs counsel notes that his client " indicated that she dated the (responding?) police offcer , briefly, and then broke off the relationship before receiving the police report of her claim , and that the report was false. "1 The report indicates that the plaintiff reported the alleged burglar on May 7, 2005 , two days after it occured , that she made the report at the precinct , and that she reported drnking alcohol until 4:30 a. m. before the alleged burglar. The narative of the report states the following: states items were in her home before she went to bed. After waking up, CN' statements were listed items were missing. Det. Mattews interviewed. CN stated she needed report for inconsistent when answering repeated questions. insurance claim. Compls demeanor and responses to questions suggests she may be emotionally unstable. Complt did however state that she had been drinking as late as 4:30 also stated CN hrs the night before and that she is not sure where she placed her jewelry. that she waited several days to report this incident because she was searching her residence. Complt does not want an investigation to be conducted. At T/P/O CN Plaintiff s counsel states that afer viewing the above report, plaintiff requested an investigation of the report itself (Affrmation in Support of Motion at p. l). Counsel states, somewhat confsingly, that " I was advised that the Detective involved has retired , has his pension, and there is nothing in the report which would cause any issue (of a confidential natue). The police offcer involved , who dated Plaintiff, has been promoted to Detective at Internal Affairs * * * If the conclusion is that no one knows how the report was written or who wrote the report, that would suffce for ths case. " Finally, plaintiffs counsel asserts that the information sought " is material and necessar for the prosecution of this case and to seek to overcome the defense of fraud" (Affirmation in Support of Motion at pp. 3). Allstate does not oppose the motion but mentions that Donald Hoehl , a detective with the Plaintiffs counsel does not specifically identify the officer/detective plaintiff allegedly dated. [* 3] testfied tht pr , was deposed by the plaintiff. He be respnded the police reor New York City police Deparent did not result of a theft rert th he plainti to plaitiffs residene as a social relatonsbip with the tht be never engaed in a complaied of by the plaitiff, and that Detective Matthews prepared the report. He also stated that he was unaware of an Internal Affairs investigation regarding his conduct. the Deparment opposes the motion arguing thatthus, Counsel for the New York City police s pesonnel fie, and, is report reueste is par of the offce Afais investgary necessar to obtan Inte Inte Affais confidential. Counsel asserts that the plaintiffexonerte the the burden failed to meet offcer-mea tht the rert, which, in any event, disclosu of proper. Counsel adds that the plaintiff had s conduct to be lawfl and determined the offcer Civilan Complaint Revew Board, whch then initily made a complaint to the New York City Affairs Unit. "It would follow that Plaintiff s Internal 2). forwarded the information to the NYPD' (Affrmatio in Oppositio at p. should obtain a copy of her initial complaint through CCRB" The Court' s Determination Civil Rights Law 50-a requires that: 1. All personnel records used to evaluate performance , under the toward continued employment or promotio control of any police agency * * * shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, , correction offcer or firefighter , firefighter/paramedic corrections and peace officer within the deparent of community supervision except as may be mandated by lawfl cour order. the judge must review 2. Prior to issuing such cour order paries the opportity all such requests and give interested to be heard. No such order shall issue without a clear warant the judge to request showing of facts suffcient to records for review. 3. If, afer such hearing, the judge concludes there is a suffcient basis he shall sign an order requiring that the [* 4] personnel records in question be sealed and sent directly to him. He shall then review the fie and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the cour shall make those pars of the record found to be relevant and material available to the persons so requesting. In Dunnigan v Waverly Police Dept. (279 AD2d 833 (3d Dept 2001)), the cour stated that: The legislative purose (behind the statute) was to prevent disclosure of officers ' personnel records except when a legitimate need for them has been demonstrated sufciently to obtain a cour order * * * " . Thus, the initial burden is on the par seeking the subject records to demonstrate " good faith, ' some factual predicate ' waranting the intrsion This theshold requirement into the personnel records is designed to eliminate fishing expeditions into police officers ' personnel fies for collateral materials to be used for impeachment puroses * We agree with Supreme Cour that (Officer) Derrg is a necessar par to this proceeding inasmuch as Civil Rights 50-a(2) specifically provides that , in reviewing Law requests for disclosure of police personnel records, the cour shall " give interested paries the opportity to be heard" and Derrig stads to be inequitably affected by any judgment rendered in the proceeding (see , CPLR 1001 (a)). In any event , even if Derrig had been joined in this proceeding, petitioner has not satisfied his burden of establishing entitlement to disclosure of the requested records (internal citations omitted). At bar , a review of the submitted papers indicates that Officer Hoehl was not served with (Dunnigan the instant motion. The failure to serve the officer is fatal to the plaintiffs application 9 Misc3d 1111(A) (Supreme Cour New Kelly, v Waverly Police Department, supra; Crowe .. [* 5] York County 2005); cf Wong v State, 19 Misc3d 1122(A) (Ct Claims 2008)). by the In any event , even assuming that the offcer had been served, the submissions 2 and which attempt to overcome the Civil plaintiffthat can properly be considered by the COur, Rights Law restrictions on disclosure of the Internal Affairs report, are conclusory and counsel that the police report concernng the insuffcient. Other than the vague allegation by , the initial alleged burglar was false and that it resulted in Allstate s denial of plaintiffs claim papers contain no explanation as to why the Internal Affairs report-apparently resulting in an is necessar for the prosecution of the plaintiff s claim. exoneration of the offcer- Accordingly, it is hereby ordered that the motion is denied. This constitutes the decision and order of the cour. Dated: Febru 6 , 2012 ENTERED FEB 09 2012 NASSAU COUNTY COUTY CLI OfFICE are improperly raised for The Reply Affirmation of Plaintiffs counsel contains allegations that Glissen (see Yiechieli the first time therein , and which , therefore , cannot be considered by the court Affrmation asserts that in the Chemical Co., Inc. 40 AD3d 988 (2d Dept 2007)). For example, the Reply started to report concerning the alleged burglary "Detective Miler changed what Detective Hoehl had Moreover , the Reply Affrmation references a telephone call to the pA). write " (Reply Affirmation at Internal Affairs Bureau by the plaintiff concerning her accusation of a neighbor for the burglary, her deposition testimony in regard to her accusation and contains additional complaint reports against the neighbor , none of which was discussed or contained in the initial moving papers.
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