Ruiz v. City of New York

125 A.D.2d 661, 510 N.Y.S.2d 16, 1986 N.Y. App. Div. LEXIS 62939

Opinion

— In an action, inter alia, to recover damages for negligence, false arrest and malicious prosecution, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lerner, J.), dated February 19, 1986, which denied their motion to compel the District Attorney of Queens County, a nonparty, to produce a copy of an official case file in the underlying criminal action brought against the plaintiff Julio Ruiz.

Ordered that the order is affirmed, without costs or disbursements.

The plaintiffs sought to inspect the case file maintained by the Queens County District Attorney in a criminal action brought against the plaintiff Julio Ruiz. The instant civil proceeding seeks to recover damages for alleged physical injuries suffered by Julio Ruiz at the hands of the police as he was being arrested for the crimes charged in the criminal action. The Supreme Court denied the motion on the ground that the plaintiffs failed to specify with sufficient particularity the items sought to be discovered. We affirm, although for different reasons.

There is no proof in the record that the District Attorney of Queens County was properly served with the notice of motion "in the same manner as a summons” (CPLR 3120 [b]). Thus, the plaintiffs have failed to meet the jurisdictional requirements of CPLR 3120 for seeking discovery and inspection against a nonparty.

We note that the District Attorney has made the file sought by the plaintiffs available to their adversary in the instant matter. Accordingly, the plaintiffs if they be so advised should proceed against the Corporation Counsel of the City of New York for the production of the District Attorney’s file. Thompson, J. P., Brown, Eiber and Kunzeman, JJ., concur.