Levin v. City of Rochester

• Decision Date: 31 March 2022
• Docket Number: 533917
• Citation: 203 A.D.3d 1540,166 N.Y.S.3d 292
• Parties: Craig S. LEVIN et al., Respondents, v. CITY OF ROCHESTER et al., Appellants.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1540

166 N.Y.S.3d 292

Craig S. LEVIN et al., Respondents,

v.CITY OF ROCHESTER et al., Appellants.

533917

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

Calendar Date: February 10, 2022

Decided and Entered: March 31, 2022

Linda Kingsley, CorporationCounsel, Rochester (Christopher S. Noone of counsel), for appellants.

Phillips Lytle LLP, Buffalo (Craig A. Leslie of counsel), for respondents.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal (transferred to this Court by order of the Appellate Division, Fourth Department) from an order of the Supreme Court(Ciaccio, J.), entered July 20, 2021 in Monroe County, which partially granted plaintiffs’ motion to, among other things, compel certain discovery.

This negligence action was commenced in 2019 to recover for injuries sustained by plaintiffCraig S. Levin, and his spouse, derivatively, when he was struck by a garbage truck owned by defendantCity of Rochester and operated by two City employees, including defendantVincent Paolotto, who was driving the truck.Following joinder of issue, plaintiffs sought production of, among other materials, Paolotto's employment records – specifically, any materials concerning (1) prior accidents that occurred in the course of his duties, (2) actual or contemplated prior disciplinary action, (3) actual or contemplated disciplinary action upon or following the subject accident, including termination, (4) background checks, (5) criminal records and (6) records of substance use or testing.Several months later, plaintiffs submitted a second notice to produce seeking, among other things, any materials concerning employment-related grievances filed with the City by Paolotto, including those related to any actual or contemplated disciplinary action.

Defendants then moved to vacate both notices to produce as overbroad.By order entered March 2020, Supreme Court partially granted that motion.The court initially concluded that plaintiffs largely sought information that was material and necessary for the prosecution of this action, such as truck maintenance records, materials generated at or shortly after the accident and "records of any kind generated by a postaccident investigation, including those associated with disciplinary proceedings."The court, however, struck demand number two in plaintiffs’ first notice to produce, which generally sought Paolotto's employment records, finding the request for an entire personnel file to be predicated upon a theory of negligent hiring – a claim that is not asserted by and is unavailable to plaintiffs due to the City's admission that its employees were operating within the scope of their employment at the time of the accident.

During one of the depositions that followed, it was revealed that, following an investigation of the accident, Paolotto's employment with the City was terminated and he was sent a letter that provided the basis for his termination.Plaintiffs made repeated requests for that letter, but defendants declined to provide it, believing it to be protected from disclosure by Supreme Court's March 2020 order.Plaintiffs in turn filed a motion to compel its production.Defendants opposed, and Supreme Court, in a short form order entered July 2021, ordered the City to produce the termination letter.Defendants appeal.¹We affirm.

CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action"(seeCalcagno v. Graziano,200 A.D.3d 1248, 1250, 160 N.Y.S.3d 135[2021];Melfe v. Roman Catholic Diocese of Albany, N.Y.,196 A.D.3d 811, 813, 151 N.Y.S.3d 233[2021] )."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 by sharpening the issues and reducing delay and prolixity," and the test must be "one of usefulness and reason"( Allen v. Crowell–Collier Publ. Co. , 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430[1968];seeForman v. Henkin,30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882[2018] ).

Initially, although Supreme Court purported to vacate demand number two in plaintiffs’ first notice to produce, which did generally seek employment records for Paolotto, earlier in its March 2020 order, the court correctly concluded that "records of any kind generated by a postaccident investigation, including those associated with disciplinary proceedings," were clearly material.In our view, by striking the subject demand, the court was merely agreeing with defendants that disclosure of Paolotto's entire personnel file should be precluded, as that category of evidence was irrelevant to this ordinary negligence action.Plaintiffs’ request for materials concerning disciplinary action taken by the City following its investigation of the subject accident was notably one item amidst the multi-part demand for Paolotto's employment records, and, in light of the court's express findings regarding same, it is clear that the court did not intend to preclude materials like the termination letter.This was in line with the principle that written reports arising from postaccident investigations that were prepared in the regular course of business are generally discoverable (seeCPLR 3101[g];Hewitt v. Palmer Veterinary Clinic, PC,145 A.D.3d 1415, 1415, 45 N.Y.S.3d 605[2016];Friend v. SDTC–The Center for Discovery, Inc.,13 A.D.3d 827, 829, 787 N.Y.S.2d 163[2004];Merrick v. Niagara Mohawk Power Corp.,144 A.D.2d 878, 878–879, 534 N.Y.S.2d 592[1988];Pataki v. Kiseda,80 A.D.2d 100, 103–105, 437 N.Y.S.2d 692[1981], lvs dismissed54 N.Y.2d 606, 831, 443 N.Y.S.2d 1029, 427 N.E.2d 514, 1981 WL 182802[1981]).Thus, pursuant to the March 2020 order, which defendants did not challenge or appeal from, defendants were required to disclose the termination letter, and Supreme Court's short form order merely conforms its directive to its decisional language (seeBenjamin v. Yeroushalmi,178 A.D.3d 654, 656, 113 N.Y.S.3d 733[2019];Matter ofSpring v. County of Monroe, 141 A.D.3d 1151, 1152–1153, 36 N.Y.S.3d 330[2016];Moldofsky v. Moldofsky,43 A.D.3d 1011, 1012, 842 N.Y.S.2d 505[2007];Matter ofRokitka v. Bauer, 219 A.D.2d 834, 835, 632 N.Y.S.2d 50[1995] ).

Even if Supreme Court had initially intended to preclude the disclosure of postaccident materials like the letter of termination, the letter was plainly material and necessary after depositions were had.As noted, it was revealed during depositions that, following an investigation, Paolotto's employment with the City was terminated as a result of the subject incident and that the City sent him a letter that provided the basis for his termination.The witnesses who were deposed offered competing insights into that basis.One believed that Paolotto must have been terminated for "gross negligence" as none of the other grounds for immediate termination in the applicable standards of conduct were relevant to the subject accident.Another believed that Paolotto was...