Hurrell-Harring v. State

• Decision Date: 19 December 2013
• Citation: 2013 N.Y. Slip Op. 08504,977 N.Y.S.2d 449,112 A.D.3d 1217
• Parties: Kimberly HURRELL–HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v. STATE of New York et al., Defendants, and County of Suffolk, Respondent.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1217

977 N.Y.S.2d 449

2013 N.Y. Slip Op. 08504

Kimberly HURRELL–HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Appellants,

v. STATE of New York et al., Defendants,andCounty of Suffolk, Respondent.

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

Dec. 19, 2013.

Schulte Roth Zabel, LLP, New York City (Kristie M. Blase of counsel), and New York Civil Liberties Union Foundation, New York City, for appellants.

Dennis M. Brown, County Attorney, Hauppauge (John R. Petrowski of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, SPAIN and EGAN JR., JJ.

PETERS, P.J.

Appeals (1) from that part of an order of the Supreme Court (Devine, J.), entered December 16, 2012 in Albany County, which denied plaintiffs' motion to compel certain discovery from defendant County of Suffolk, and (2) from that part of an order of said court, entered January 30, 2013 in Albany County, which denied plaintiffs' motion to renew.

The underlying facts of this class action lawsuit challenging the adequacy of defendant State of New York's public defense system are fully documented in our prior decisions (81 A.D.3d 69, 914 N.Y.S.2d 367 [2011], 75 A.D.3d 667, 905 N.Y.S.2d 334 [2010], 66 A.D.3d 84, 883 N.Y.S.2d 349 [2009], mod.15 N.Y.3d 8, 904 N.Y.S.2d 296, 930 N.E.2d 217 [2010] ).¹ Following extensive discovery, plaintiffs moved to compel defendant County of Suffolk (hereinafter defendant), among others, to provide complete responses to their discovery requests and to produce knowledgeable witnesses in response to their deposition notices. Supreme Court, noting that defendant had attested to having produced all relevant and material documents in its possession and that depositions had been scheduled for several of its representatives, denied plaintiffs' motion as it pertained to defendant. Shortly after that order was entered, depositions were conducted of three witnesses produced by defendant in response to plaintiffs' demands. Plaintiffs thereafter moved for leave to renew their motion, arguing that information acquired during the depositions indicated that defendant had not fully complied with their discovery requests and that the witnesses produced were not knowledgeable about several topics set forth in the deposition notices. Supreme Court ordered defendant to provide certain limited budgetary and contractual documents identified by plaintiffs in their moving papers, but otherwise denied the motion. Plaintiffs appeal from those parts of both orders as denied their motions.

Supreme Court did not err in denying plaintiffs' motion to compel as it pertained to defendant. Plaintiffs' initial discovery demands requested that defendant produce all documents concerning contracts related to its provision of publicly funded legal representation, the funding and resources available to prosecution and public defense services, and the monitoring, oversight and supervision of the public defense system. They also subsequently sought all documents in defendant's possession, custody or control related to the four named plaintiffs prosecuted within the county. Defendant produced certain responsive documents, stated that it did not possess information responsive to several of plaintiffs' other requests and, in opposition to the motion, counsel affirmed that defendant had complied with its disclosure obligations. There was no evidence presented on the motion that defendant had access to or was withholding any of the requested documents. Under these circumstances, we cannot say that Supreme Court abused its broad discretion in determining that defendant had complied, to the extent possible, with plaintiffs' document demands ( see Matter of Scaccia,66 A.D.3d 1247, 1250, 891 N.Y.S.2d 484 [2009] ).

We do find, however, that Supreme Court erred in denying plaintiffs' motion to renew in certain respects. To be entitled to renewal, plaintiffs were required to provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier ( seeCPLR 2221[e][2], [3]; Webber v. Scarano–Osika, 94 A.D.3d 1304, 1305, 943 N.Y.S.2d 240 [2012]; Premo v. Rosa, 93 A.D.3d 919, 920, 940 N.Y.S.2d 199 [2012] ). “While we generally decline to disturb the decision to grant or deny a motion to renew, we will do so if there was an abuse of discretion” (M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 84 A.D.3d 1470, 1472, 923 N.Y.S.2d 226 [2011] [internal quotation marks and citation omitted]; see Premo v. Rosa, 93 A.D.3d at 920, 940 N.Y.S.2d 199; First Union National Bank v. Williams, 45 A.D.3d 1029, 1030, 845 N.Y.S.2d 189 [2007] ).

In support of the motion to renew, plaintiffs proffered, among other things, portions of the deposition testimony of three witnesses produced by defendant subsequent to Supreme Court's denial of plaintiffs' motion to compel. Testimony adduced from these witnesses revealed the existence of several categories of responsive documents in defendant's possession that were not produced. Connie Corso, defendant's Budget Director, referred to a number of budget documents relating to defendant's provision of indigent legal representation, including (1) annual call letters soliciting budget requests from county agencies, (2) data from defendant's budget computer system, (3) budget modification requests submitted by the Legal Aid Society of Suffolk County, Inc., and (4) policies and procedures used by the office of defendant'scomptroller to determine which expenses are eligible for reimbursement from defendant. Furthermore, Mark McCarthy, a records officer from defendant's Sheriff's Office, testified to the existence of a log book recording attorney visits with incarcerated clients,² as well as inmate records contained in a computer database maintained by the Sheriff's Office. Notably, McCarthy stated that he was never asked to pull records for the present lawsuit, nor was he aware of anyone else in his office having been asked to search for documents responsive to plaintiffs' requests.

These newly discovered facts would have changed the prior determination denying in its entirety plaintiffs' motion to compel as it related to defendant. Because such documentation was requested by plaintiffs in their discovery demands and is material and relevant to their claims attacking the adequacy of indigent legal representation in the five counties at issue, it was subject to disclosure ( seeCPLR 3101[a]; Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 80 A.D.3d 199, 200, 912 N.Y.S.2d 798 [2010]; Davis v. Cornerstone Tel. Co., LLC, 78 A.D.3d 1263, 1264, 910 N.Y.S.2d 254 [2010] ). Furthermore, these facts could not have been provided on the prior motion to compel given that the depositions had not yet occurred ( see M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 84 A.D.3d at 1472, 923 N.Y.S.2d 226; Seifts v. Markle, 211 A.D.2d 848, 849, 620 N.Y.S.2d 620 [1995] ). Thus, to the extent set forth above, plaintiffs were entitled to renewal of their motion to compel defendant to conduct a diligent search for and provide complete responses to their document requests.³

Renewal of that part of plaintiffs' motion which sought the production of knowledgeable witnesses should have, to a large extent, also been granted. “While a municipality, in the...