Harmon v. Diocese of Albany

• Decision Date: 21 April 2022
• Docket Number: 532970, 533033
• Citation: 204 A.D.3d 1270,167 N.Y.S.3d 601
• Parties: Michael HARMON, Respondent, v. DIOCESE OF ALBANY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1270

167 N.Y.S.3d 601

Michael HARMON, Respondent,

v.DIOCESE OF ALBANY et al., Appellants.

532970, 533033

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 9, 2022

Decided and Entered: April 21, 2022

Tobin and Dempf, LLP, Albany (Michael L. Costello of counsel) and Phelan, Phelan & Danek LLP, Albany (Timothy S. Brennan of counsel), for appellants.

Marsh Law Firm PLLC, New York City(James R. Marsh of counsel) and Pfau Cochran Vertetis Amala PLLC, New York City(Mallory C. Allen of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Colangelo and Fisher, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeals from an order and a corrected order of the Supreme Court(Mackey, J.), entered January 4, 2021 and January 6, 2021 in Albany County, which, among other things, partially granted plaintiff's motion to compel discovery.

Plaintiff commenced this action in March 2020 pursuant to the Child Victims Act(seeCPLR 214–g[hereinafter CVA]) for injuries sustained as a result of alleged sexual abuse committed by Edward Pratt while he was employed as a priest by defendant Diocese of Albany (hereinafter the Diocese).¹Plaintiff alleges that from 1980 to 1985, when plaintiff was 11 to 15 years old, Pratt sexually abused him while he was living at defendant St. Catherine's Center for Children, a children's group home, and that the Diocese had knowledge of this abuse and was complicit in its continuance.As relevant here, Pratt's name is included on a list – maintained by the Diocese – of priests credibly accused of sexual misconduct with a minor while serving as a priest for the Diocese.Plaintiff's complaint asserts causes of action for negligence and intentional infliction of emotional distress against both defendants.Following joinder of issue, plaintiff noticed certain records for production, including Pratt's personnel file, the files of the other credibly accused priests and certain records concerning the Diocese's Independent Mediation Assistance Program (hereinafter IMAP).Thereafter, plaintiff moved to compel production of documents and records alleged to have been improperly withheld.Defendants cross-moved for a protective order (seeCPLR 3103[a], [b] ) seeking to preclude further document production and responses to plaintiff's notice to produce.

By order and corrected order entered January 4, 2021 and January 6, 2021, respectively, Supreme Court granted plaintiff's motion with respect to Pratt's personnel file to the extent of ordering disclosure of a memo and a report, as well as correspondence between Bishop Howard Hubbard and a psychologist, to whom Pratt had been referred by the Bishop.In doing so, the court rejected defendants’ assertion that the materials were privileged or otherwise exempt from discovery.The court ordered disclosure of the files of the priests credibly accused of sexual abuse and the IMAP records, subject to certain redactions and other limitations.Defendants appeal from the order and the corrected order.²

" CPLR 3101 mandates full disclosure of all matter material and necessary in the prosecution or defense of an action"( Melfe v. Roman Catholic Diocese of Albany, N.Y.,196 A.D.3d 811, 813, 151 N.Y.S.3d 233[2021][internal quotation marks and citations omitted];seeDiCostanzo v. Schwed,146 A.D.3d 1044, 1045, 45 N.Y.S.3d 625[2017] )."The words, material and necessary, are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial"( Galasso v. Cobleskill Stone Prods., Inc.,169 A.D.3d 1344, 1345, 95 N.Y.S.3d 376[2019][internal quotation marks and citations omitted];seeHayes v. Bette & Cring, LLC,135 A.D.3d 1058, 1059, 22 N.Y.S.3d 680[2016] )."[I]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense"( Allen v. Crowell–Collier Publ. Co.,21 N.Y.2d 403, 406–407, 288 N.Y.S.2d 449, 235 N.E.2d 430[1968][internal quotation marks and citation omitted]).In addition, the court may take into account issues raised by the assertion of affirmative defenses (seeMatter of Saratoga Prop. Devs., LLC v. Assessor of City of Saratoga Springs,62 A.D.3d 1107, 1109, 879 N.Y.S.2d 234[2009] ).The party seeking discovery bears the burden of proving that the discovery request is reasonably calculated to yield material and necessary information (seeCatlyn & Derzee, Inc. v. Amedore Land Devs., LLC,166 A.D.3d 1137, 1141, 87 N.Y.S.3d 661[2018] )."[T]he burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity"( Spectrum Sys. Intl. Corp. v. Chemical Bank,78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055[1991][citations omitted])."A trial court, however, has broad discretion in supervising disclosure and may, on its own initiative or on the motion of a party, issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts"( DiCostanzo v. Schwed,146 A.D.3d at 1045, 45 N.Y.S.3d 625[2017][internal quotation marks and citations omitted]).Further, "its determinations will not be disturbed in the absence of a clear abuse of discretion"( Gold v. Mountain Lake Pub. Telecom.,124 A.D.3d 1050, 1051, 1 N.Y.S.3d 495[2015][internal quotation marks and citations omitted];seeDiv–Com, Inc. v. Tousignant,116 A.D.3d 1118, 1119, 984 N.Y.S.2d 182[2014] ).

Defendants contend that Supreme Court erred in directing them to disclose certain information from Pratt's personnel file, namely, a "[m]emo" and a "[r]eport," as well as correspondence between the Bishop and a psychologist it retained to determine, among other things, the appropriateness of Pratt's resumption of his ministry and his risk of recidivism.Defendants claim that disclosure of the memo and the report is protected by attorney-client privilege, and that disclosure of the psychologist's correspondence is protected by physician-patient privilege.CPLR 3101"establishes three categories of protected materials ...: privileged matter, absolutely immune from discovery ( CPLR 3101[b] ); attorney's work product, also absolutely immune ( CPLR 3101[c] ); and trial preparation materials [( CPLR 3101[d][2] )], which are subject to disclosure only on a showing of substantial need and undue hardship"( Forman v. Henkin,30 N.Y.3d 656, 661–662, 70 N.Y.S.3d 157, 93 N.E.3d 882[2018][internal quotation marks and citation omitted]).As an initial matter, we note that Supreme Court reviewed a privilege log and conducted an in camera inspection of the documents in question that were submitted by the Diocese prior to its ruling.The memo and the report were prepared by a private investigator and reflect the investigator's interviews with Pratt, regarding alleged sexual abuse, and with a man who claimed that Pratt had abused him in a closet at his junior high school in the 1970s.The report also contains a list of six alleged victims who made allegations against Pratt.None of these documents contains attorney-client communication or were created by counsel so as to constitute attorney work product.The list of the six alleged victims and only the name, last known address and phone number of the man allegedly abused in a school closet were properly subject to disclosure pursuant to the provision of CPLR 3101(d)(2), which permits disclosure of material prepared for litigation where the plaintiff has substantial need for it and is unable to obtain its substantial equivalent (seeYasnogordsky v. City of New York,281 A.D.2d 541, 541, 722 N.Y.S.2d 248[2001];Rochford v. Long Is. R.R. Co.,273 A.D.2d 291, 292, 710 N.Y.S.2d 84[2000] ).In connection with disclosure of this information, as defendants"failed to establish that the withheld documents were prepared solely in anticipation of litigation, the burden did not shift to plaintiff to demonstrate an undue hardship justifying disclosure"( Cascade Bldrs. Corp. v. Rugar,154 A.D.3d 1152, 1155, 63 N.Y.S.3d 543[2017];seeCPLR 3101[d][2] ).

As Supreme Court correctly found, Pratt waived any privilege with respect to the psychologist's report by consenting to its release to the Bishop, and defendants failed to establish that the authorization under which the psychologist communicated with the Bishop was limited in any way.Moreover, defendants represented to Supreme Court during oral argument that the Diocese engaged the services of the psychologist to evaluate Pratt's suitability to return to the ministry, stating that "once engaged by the Diocese[,] the relationship is between the Diocese and the physician or psychologist and then the clergyman assents to being evaluated having the result submitted or produced to his Bishop."We find that argument unavailing.The report from the psychologist was directly addressed to the...