Henderson–jones v. the City of N.Y.

• Decision Date: 25 August 2011
• Citation: 2011 N.Y. Slip Op. 06327,928 N.Y.S.2d 536,87 A.D.3d 498
• Parties: Mia HENDERSON–JONES, etc., Plaintiff–Appellant,v.The CITY OF NEW YORK, et al., Defendants–Respondents,Police Officer and/or Detectives, etc., Defendants,Cyrus R. Vance, Jr., District Attorney, New York County, Nonparty Respondent.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 498

928 N.Y.S.2d 536

2011 N.Y. Slip Op. 06327

Mia HENDERSON–JONES, etc., Plaintiff–Appellant,

v.The CITY OF NEW YORK, et al., Defendants–Respondents,Police Officer and/or Detectives, etc., Defendants,Cyrus R. Vance, Jr., District Attorney, New York County, Nonparty Respondent.

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

Aug. 25, 2011.

Lowell D. Willinger, New York (Warren J. Willinger of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Andrew S. Wellin of counsel), for municipal respondents.Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for nonparty respondent.MAZZARELLI, J.P., SWEENEY, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered June 1, 2010, which denied plaintiff's motion to strike the answer of defendants City of New York and Commissioner Kelly for failure to comply with discovery orders, unanimously reversed, on the facts, without costs, the motion granted and the answer stricken, and the matter remanded for entry of a default judgment and an inquest on damages. Order, same court (Saliann Scarpulla, J.), entered December 1, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to strike the defendants' answers for failure to comply with discovery orders only to the extent of ordering defendants to produce certain supplemental responses within 30 days, and denied plaintiff's motion for leave to amend the complaint to substitute Sergeant John Van Orden as party defendant for officer # 3 and to compel New York County Assistant District Attorney Patricia Bailey to appear for deposition, unanimously modified, on the law and the facts, to grant the motion for leave to amend the complaint to substitute Sergeant John Van Orden as party defendant for officer # 3, and the appeal therefrom otherwise dismissed, without costs, as academic.

Plaintiff alleges that on October 27, 2005, 10 police officers entered her home without a search warrant, arrested her and took her to the precinct, where she was subjected to a strip search. She was then transferred to the Manhattan Detention Complex, where she was strip-searched again and held for 30 hours. On October 28, 2005, the Manhattan District Attorney's Office decided not to prosecute plaintiff.

Plaintiff was able to partially identify only two of the officers involved in her arrest. One was the arresting officer, whose last name she remembered as Sierra and whose shield number she noticed and remembered. The other was a female officer, whose name she did not identify but whose shield number she noticed and remembered.

Plaintiff timely served a notice of claim, and sought to ascertain the identity of all of the officers involved in the search and arrest by requesting information from the New York City Police Department and the District Attorney's Office pursuant to the Freedom of Information Law. However, she received no information in response. On October 13, 2006, she commenced this action. The case caption named Sierra by his last name and shield number and the female officer by shield number only. The seven other defendants were named as “those individuals who accompanied Detective Sierra into plaintiffs' apartment and participated in the illegal acts hereinafter alleged.”

Shortly after commencing the action, plaintiff served her first notice for discovery and inspection, which sought, inter alia, the identity of all police officers involved in her arrest and detention. Plaintiff also provided defendants with an authorization, so-ordered by the court on January 31, 2007, for disclosure of all records “relating to the investigation leading up to [her] arrest, ... including the names and addresses of the involved detectives and police officers.” At the same time, the court granted plaintiff an extension of the time provided by CPLR 306–b to identify and serve the unidentified defendants. On April 6, 2007, the court granted plaintiff's motion pursuant to CPLR 308(4) for leave to effectuate service of process upon the unknown police officers by serving the Police Commissioner and Corporation Counsel.

Also in April 2007, a preliminary conference was conducted that resulted in an order directing defendants to disclose, inter alia, the criminal complaint, the follow-up report, the arrest report, memo book entries for the incident in question, the on-line booking sheet, and a patrol guide. In response to the discovery notice and the preliminary conference order, defendants provided only the name of the female officer, Sergeant Wendy Gomez–Smith, a one page arrest report, and an illegible copy of the court detention pen record for the Manhattan Detention Complex.

In August 2007, plaintiff moved for default judgments against the unknown officers, Detective Sierra and Sergeant Gomez–Smith, and for an order striking defendants' answer for failure to provide discovery. On October 19, 2007, preceding oral argument on the motion, plaintiff served a second notice for discovery and inspection seeking the names of all officers assigned to the Manhattan Gang Squad on October 27, 2005, and copies of their memo book entries of October 27–29, 2005. On the return date of the motion, defendants provided three affidavits related to the motion to compel. One was by Sierra, now retired, who stated that all of plaintiff's arrest and detention documents had been kept by him in a folder, which he had left in his old desk. Another affidavit was by Gomez–Smith, who attested that she was currently assigned to the Manhattan North Investigations Unit. She stated that she went to her old Gang Squad office, searched “old desks, lockers, and the drawers where each of us kept our arrest paperwork,” but could not locate Sierra's folder on plaintiff or her own memo book for that time period.

The court granted plaintiff's motion for a default judgment against the unknown police officers, but denied the motion as to Detective Sierra, and compelled plaintiff to accept his answer nunc pro tunc. (Plaintiff agreed to accept the answer of Gomez–Smith.) The court noted that persons identified later could be substituted by any party, and that those substituted persons could move to vacate the default. As to the discovery issues, the court expressed skepticism that the documents that defendants had produced represented a complete response to plaintiff's request, but suggested that plaintiff depose Sierra and revisit the discovery dispute at a later date, if necessary.

The deposition of Sierra was scheduled for December 11, 2007, but he failed to appear. He also failed to appear at the deposition rescheduled for two weeks later. When Sierra finally appeared on January 9, 2008, he identified Sergeant John Van Orden as the supervisor of the search at plaintiff's home.

On March 5, 2008, defendants served a response to the October 19, 2007 preliminary conference order. They objected to providing the names of the officers assigned to the Gang Squad and their memo books, on the grounds that the demand was overbroad, protected by law enforcement privilege, and irrelevant, since there was no showing that all the officers assigned to the Manhattan Gang Squad were involved in plaintiff's arrest and detention.

Also on March 5, 2008, a compliance conference was held, at which the court directed defendants to “identify the name, rank, & badge numbers of all NYPD personnel who responded to and otherwise participated in the arrest of Mia Henderson–Jones and Englebert Jones ... If said person is not disclosed to plaintiff's counsel within 25 days of entry of this order, the defendants shall be precluded from calling that individual at trial (emphasis in original).” The court directed the production of Sierra for his continued deposition, and ordered that Gomez–Smith and Sergeant Van Orden be deposed as well.

Neither Van Orden, at his deposition, nor Sierra, at his continued deposition, could recall the identity of any other officers present that evening. They also gave conflicting reports of who found the marijuana, where the officer was when he observed it, and whether the marijuana was in the living room or a bedroom. Van Orden did not have specific recall of most of the events concerning the search warrant and its execution, but testified that he had a memo book for that evening at work and would make it available.

On August 11, 2008, plaintiff served a third notice for discovery and inspection, making specific reference to Van Orden's testimony, seeking, inter alia, any paperwork concerning her arrest and roll call and sign in sheets for the Gang Squad.

At a January 23, 2009 compliance conference, a so-ordered stipulation was executed stating that “[plaintiff] will move or subpoena for deposition of New York County DA's office, Patricia Bailey, Chief of Special Litigation Bureau, regarding basis for decision not to prosecute plaintiff.” The stipulation also stated that plaintiff would move to enforce compliance with her notices for discovery and inspection and to substitute Van Orden for one of the unidentified defendants.

In May 2009, defendants still not having disclosed the names of all of the officers, plaintiff moved, pursuant to CPLR 3126(3), for an order striking their answer for willfully and contumaciously failing to comply with prior orders and notices. Plaintiff also moved, pursuant to CPLR 1021 and 1024, to substitute Van Orden as a party in lieu of unknown officer # 3, and for an order compelling Assistant District Attorney Patricia Bailey to appear for a deposition and produce records. Finally, the motion sought to compel the District Attorney's office to produce Bailey for a deposition. Defendants disputed that they had acted willfully and contumaciously, contending that they had diligently attempted to provide documentation regarding plaintiff's arrest and brief detention. As for the substitution...