Smith v. City of New York

2024 NY Slip Op 34385(U)

Opinion

Smith v City of New York 2024 NY Slip Op 34385(U) December 16, 2024 Supreme Court, New York County Docket Number: Index No. 154064/2020 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 154064/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/17/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 01M Justice ---------------------------- ---------------------------X INDEX NO. 154064/2020 ELIJAH SMITH, MOTION DATE 06/03/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

CITY OF NEW YORK, BOARD OF EDUCATION OF THE CITY OF NEW YORK, DEPARTMENT OF EDUCATION OF DECISION + ORDER ON THE CITY OF NEW YORK MOTION

Defendant. ------------------------------------- ------------------------------------- --X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,41, 42, 43,44,45,46,47, 48,49, 50, 51, 52, 53, 54, 55. 56, 57, 58, 59,60, 61,62, 63,64,65,66,68,69 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS

Upon the foregoing documents and for the reasons set forth below, the Court denies the

motion by the defendants, the City of New York and the Board/Department of Education of the

City of New York ("Defendants"), to quash two subpoenas duces tecum served by the plaintiff,

Elijah Smith (""Plaintiff'); grants Plaintiff's cross-motion to compel Defendants to comply with

the two subpoenas or, alternatively, to compel Defendants to provide a Jackson affidavit; denies

Plaintiffs cross-motion to strike Defendants' answer; and denies without prejudice to renew

Plaintiffs cross-motion to compel the depositions of four witnesses.

I. Defendants' Motion to Quash Subpoenas & Plaintiffs Related Cross-Motion

Defendants' motion to quash Plaintiff's two subpoenas is denied because Defendants

have not shown that the subpoenas are futile or improper. As such, Plaintiffs cross-motion to

compel Defendants to comply with the subpoenas or, alternatively, to compel Defendants to

provide a Jackson affidavit is granted.

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Courts apply a two-step, burden-shifting framework to a motion to quash a subpoena. See

Matter of Kapon v Koch, 23 NY3d 32, 34, 38-39 (2014). The party moving to quash the

subpoena must first show that '"the futility of the process to uncover anything legitimate is

inevitable or obvious'" or that "the information sought is 'utterly irrelevant to any proper

inquiry."' Id at 38, quoting Anheuser-Busch, Inc. v Ahrams, 71 NY2d 327, 331-332 (1988). If

and only if the movant meets this initial burden, "the subpoenaing party must then establish that

the discovery sought is 'material and necessary' to the prosecution or defense of an action, i.e.,

that it is relevant." Id. at 34, 38-39.

Here, Defendants have not shown that Plaintiffs subpoenas are futile or improper.

Defendants claim that Plaintiff's subpoenas are futile because Defendants have provided all

authorized, relevant documents. See Reply Affirmation in Support, dated June 20, 2024, ~ 14;

see also Affirmation in Support, dated June 3, 2024 ("OSC") ~~ 7, 10. But the evidence in the

record belies Defendants' claim for two reasons. First, Defendants have ignored, among other

things, Plaintiffs request for Department of Education ("DOE") training and response manuals

to deal with bullying, fighting, and gang activity. 1 Compare OSC, Exh. C, Plaintiff's so-ordered

subpoenas, dated May 15, 2024 ("Plaintiff's So-Ordered Subpoenas") with OSC, Exh. D,

Response to Supplemental Demands, dated December 22, 2023.

Second, Defendants' reliance on the Buckley Amendment (20 USC§ 1232g), to argue

that they are not authorized to provide certain subpoenaed information relating to Plaintiffs

alleged assailants, is misplaced. See OSC ,i,i 7, 10-12. As relevant, the Buckley Amendment

prevents the DOE from "releasing[] ... personally identifiable information ['PII'] in education

1 It would be incredible to believe that these manuals do not exist. If this is Defendants' position, Defendants must provide a Jackson affidavit, indicating that their search for records has "been a thorough one or ... ha[s] been conducted in a good faith effort to provide the[] necessary records to [P]laintiff.'' Jackson v City of New York, 185 AD2d 768, 770 (I st Dep't 1992).

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records other than directory information, ... unless[] ... such information is furnished in

compliance with ... any lawfully issued subpoena, upon condition that parents and the students

are notified of all such ... subpoenas in advance of ... compliance." 20 USC§ 1232g(b)(2)(B)

(emphasis added). In this case, Plaintiff has a lawfully issued subpoena for the requested

information. See Plaintiffs So-Ordered Subpoenas at 1-7. Thus, the Buckley Amendment does

not bar release of information so long as Defendants notify Plaintiffs alleged assailants and their

parents of the subpoenas before releasing any information. 2 Thus, Defendants have not shown

that Plaintiffs subpoenas are futile.

Likewise, Defendants have not shown that Plaintiffs subpoenas are improper. It is true,

as Defendants argue, that, "[g]enerally, a subpoena duces tecum may not be used for the purpose

of discovery or to ascertain the existence of evidence." Matter of Terry D., 81 NY2d 1042, 1044

(1993); see also OSC ~ 6 (arguing that Plaintiff should seek the subpoenaed information in "the

normal course of discovery"). Even so, Plaintiffs subpoenas are proper because they seek "to

compel the production of specific documents that are relevant and material to facts at issue in"

this case. Id at 1044, quoting Matter ofConstantine v Leto, 157 AD2d 376,378 (3d Dep't 1990)

(internal quotation marks omitted). Broadly, Plaintiff requests Defendants' documentation of

various incidents leading up to the attack on Plaintiff on April 5, 2019, as well as DOE training

and response manuals to deal with such incidents generally. See generally Plaintiffs So-Ordered

Subpoenas. Such information speaks to Defendants' notice, negligence, and role in causing

Plaintiffs injuries. See Affirmation in Opposition to Motion to Quash and in Support of

2 In addition, Defendants argue that the case scheduling order requires motion practice for the release of other students' Pll. See OSC ,-; 13. That is not what the scheduling order says. The scheduling order requires motion practice in DOE cases, as here, if the"[ e]xtent and nature of the redaction" of certain "privileged infonnation" is "questioned."' See Case Scheduling Order, filed Sept. 29, 2022, at 4. Defendants• argument presumes three things: (I) that Pll has been released, (2) that portions of the released PII have been redacted; and (3) that the redactions are being questioned. None is true here. As such, Defendants' argument is misplaced. 154064/2020 SMITH, ELIJAH vs. CITY OF NEW YORK Page 3 of 7 Motion No. 001

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Plaintiffs Cross-Motion to Enforce Subpoenas, Compel Discovery and/or Strike Defendant's

[sic] Answer ("Opposition") 1125 39, 42-43 , 46-47.

Thus, since Defendants have failed to show the "futility " or "utter[] irrelevan[ce] to any

proper inquiry" of Plaintiffs subpoenas, Matter of Kapon, 23 NY3d at 38, quoting Abrams, 71

NY2d at 331 -332 (internal quotation marks omitted), Defendants ' motion to quash Plaintiffs

subpoenas must be denied. 3 Within 30 days of this decision and order, Plaintiff shall serve

Defendants with a list of outstanding subpoenaed requests. Within 90 days of receiving

Plaintiffs list, Defendants shall provide Plaintiff with the req uested records or, if Defendants

claim that they do not have such records, with a Jackson affidavit as to those records. Failure to

comply with this Court order may result in the striking of Defendants' answer.

II. Plaintiffs Cross-Motion to Strike Defendants' Answer

Plaintiffs cross-motion to strike Defendants' answer is denied as Defendants' behavior

does not rise to the extraordinary level required to strike pleadings.

A court may penalize any party who "wilfully fails to disclose infonnation which the

court finds ought to have been disclosed," including by striking the party 's pleadings. See

CPLR § 3126(3). But striking a party's pleadings, including a defendant's answer, is a "drastic

Even if Defenda nts had made a fac ial showing of futility or im propri ety or irrelevance, the Court would stil l deny Defendants' motion to quas h the subpoenas, as Plaintiff would have satisfied hi s sh ifted burden under Mauer of Kapon to show that the subpoenas seek relevant information. That is because th e subpoenaed information would "assist preparation for trial by sharpening the issues" of Defendants' noti ce, neg ligence, and role in caus ing Plain tiffs injuries. Id. , quoting Allen v Crowell-Collier Pub!. Co., 21 NY2d 403 , 406 (1968) (internal quotation marks omined). Defendants counter that "Plain tiffs request for ·any and all records' is clearly vag ue and overbroad" (and thus, seemingly, that the request is inelevant). See OSC ~ 8. But use of the language "any and all," like " [u]se of the language ' incl uding but not limited to,' .. . does not render the subpoena overbroad [if] the request for information is reasonabl y precise." Kozel v Kozel, I 45 AD3d 530, 531 (1st Dep' t 20 16). Further, a "subpoena is not rendered invalid mere ly because it requires production of a substantial number of documents." Am. Dental Co-op., Inc. v Allorney Gen. of State of NY, 127 AD2d 274 , 282-283 (I st Dep 't 1987). The " [r]elevancy, .. . not [the] quantity ," of the documents requested "is the test of th e validity of a subpoena." id. at 283, quoting Minuteman Research, inc. v Lefkowitz, 69 Misc 2d 330, 33 1 (Sup Ct, NY County 1972) (internal quotation marks om itted). Plaintiffs requests- for specific records from specific entities, re lating to specific indi viduals or spec ifi c polici es, within specific time fra mes- are reasonab ly prec ise and relevant, even if voluminous. See, e.g. , Plainti ffs So-Ordered Subpoenas at 1-6. 154064/2020 SMITH , ELIJAH vs. CITY OF NEW YORK Page 4 of 7 Motion No. 001

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remedy." Harry Winston, Inc. v Eclipse Jewelry, Corp., 215 AD3d 421,423 (1st Dep't 2023);

see also CEMD El. Corp. v }..fetrotech LLC I, 141 AD3d 451, 453 (1st Dep't 2016) ("Striking a

party's pleadings is a drastic sanction[] .... "). Striking is appropriate "only upon a clear showing

that the party's conduct was willful and contumacious,'' CEMD El. Corp., 141 AD3d at 453, and

"in bad faith" and without "a reasonable excuse." Crooke v Bonofacio, 14 7 AD3d 510, 510 (1st

Dep't 2017).

Here, Plaintiff argues that Defendants have not provided a reasonable excuse for their

months-long discovery delay. See Opposition ,i 52. Plaintiff does not allege, however, that

Defendants' behavior is contumacious or in bad faith. See id. And the Court does not find that

Defendants' behavior rises to such levels, as would be needed to warrant the drastic remedy of

striking their answer. Thus, Plaintiffs cross-motion to strike Defendants' answer must be denied.

III. Plaintiffs Cross-Motion to Compel the Depositions of Four Witnesses

Plaintiffs cross-motion to compel the depositions of four witnesses is denied without

prejudice to renew in Part 5, before the Honorable Hasa Kingo, the judge presiding over the

instant action.

To depose a witness who is a non-party or the representative of a party, the party seeking

the deposition must first subpoena the witness. See CPLR § 3106(b ). Then, if the subpoenaed

party '"fails to ... comply with" the subpoena, "the party seeking [the deposition] may move to

compel compliance." Id § 3124.

Here, Plaintiff cross-moves to compel the depositions of four witnesses, "Dean Flores,

Dean Walker, and Assistant Principal Rosado ... , as well as one 'A. Cabral,' who is identified in

a report issued by Dean Flores." Opposition~~ 18-19, 53-54. Plaintiff alleges that the witnesses

have information that is important to this case. Id That the four witnesses, all seemingly school

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officials, may have important information is not dispositive, however. What is dispositive is that

Plaintiff has not shown, as a threshold matter, that he has subpoenaed the witnesses, as required

under CPLR § 3106(b ). A fortiori, Plaintiff has not shown that the witnesses have not complied

with any subpoenas, so as to warrant a motion to compel compliance under CPLR § 3124.

Without both showings, Plaintiffs cross-motion to compel the witnesses' depositions is

premature. Thus, Plaintiffs cross-motion is denied without prejudice to renew in Part 5 before

Judge Kingo, subject to Judge Kingo's Part Rules.

Accordingly, it is

ORDERED that Defendants' motion to quash Plaintiffs subpoenas is denied in its

entirety; and it is further

ORDERED that Plaintiffs cross-motion to compel Defendants to comply with the two

subpoenas or, alternatively, to compel Defendants to provide a Jackson affidavit is granted as

detailed above; and it is further

ORDERED that Plaintiffs cross-motion to strike Defendants' answer is denied in its

entirety; and it is further

ORDERED that Plaintiffs cross-motion to compel the depositions of four witnesses is

denied without prejudice to renew before the Honorable Hasa Kingo in Part 5, subject to Judge

Kingo's Part Rules; and it is further

ORDERED that within 30 days of entry Plaintiff shall serve all parties with a copy of this

Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.

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12/16/2024 DATE ADAM SILVERA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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