        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

164
CA 16-00079
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


ACEA MOSEY, AS ADMINISTRATOR OF THE ESTATE OF
LAURA CUMMINGS, DECEASED, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered March 25, 2015. The order granted in part the
motion of defendant for a protective order, and granted the cross
motion of plaintiff for leave to renew her motion to strike
defendant’s answer and, upon renewal, adhered to its prior
determination.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of defendant’s
motion for a protective order related to the documents specified in
the first ordering paragraph and ordering those documents to be
disclosed to plaintiff within 40 days of service of entry of this
order upon defendant, and as modified the order is affirmed without
costs.

     Memorandum: As noted in a prior appeal, plaintiff commenced this
action seeking damages resulting from the wrongful death of Laura
Cummings (decedent) in 2010 (Mosey v County of Erie, 117 AD3d 1381).
After Supreme Court denied plaintiff’s CPLR 3126 motion seeking to
strike the answer of defendant, County of Erie (County), and granted
the County’s motion to dismiss the complaint, we modified the order by
reinstating four causes of action (id. at 1382). Following remittal
to the court, the County filed a motion for a protective order related
to approximately 673 documents that had been received by the County’s
attorney following the filing of the prior motions. The County
contended that those documents were privileged and thus not subject to
disclosure. Plaintiff opposed the motion and cross-moved for leave to
renew her motion to strike the County’s answer, seeking, again, to
strike the County’s answer for its alleged “repeated refusal to
comply” with the court’s May 2011 order directing the County to
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                                                         CA 16-00079

produce documents responsive to plaintiff’s first notice to produce.
In appeal No. 1, plaintiff appeals from the order that denied the
County’s motion in part and granted it in part by ordering disclosure
of most of the allegedly privileged documents, and granted plaintiff’s
cross motion for leave to renew and, on renewal, denied plaintiff’s
requested relief of striking the answer.

     Meanwhile, plaintiff had filed a second notice to produce
seeking, inter alia, “a complete copy of any and all documents
consulted, referred to, or relied upon by [the] County Executive . . .
in the preparation of the nineteen (19) pieces of proposed
legislation” related to child protective services that were discussed
in a 2014 memorandum to State Legislators. The County sought a
protective order for those documents, contending that they were
privileged and, additionally, that they were irrelevant to matters
concerning decedent, who was an adult when she was murdered. In
appeal No. 2, plaintiff appeals from the order granting the County’s
motion insofar as it related to the demand concerning the County
Executive’s documents.

     While preparing for the appeal in appeal No. 1, the parties began
disputing whether a transcript of oral argument of the motion and
cross motion should be included in the record on appeal in appeal No.
1. Plaintiff moved to settle the record and, in appeal No. 3,
plaintiff appeals from the order insofar as it denied that part of
plaintiff’s motion seeking inclusion of the transcript.

     Addressing first appeal No. 3, we agree with plaintiff that the
court erred in denying plaintiff’s motion insofar as it sought
inclusion of the transcript of oral argument of the motions at issue
in appeal No. 1 (see Kai Lin v Strong Health [appeal No. 1], 82 AD3d
1585, 1586, lv dismissed in part and denied in part 17 NY3d 899, rearg
denied 18 NY3d 878; see also CPLR 5526; 22 NYCRR 1000.4 [a] [2]).

     Addressing next appeal No. 2, we agree with the County that the
court properly granted its motion for a protective order. It is well
settled that the court “is invested with broad discretion to supervise
discovery and to determine what is material and necessary as that
phrase is used in CPLR 3101 (a) . . . , and only a clear abuse of
discretion will prompt appellate action” (Community Dev. Assn. v
Warren-Hoffman & Assoc., 4 AD3d 755, 755 [internal quotation marks
omitted]). Here, the record on appeal includes the 19 pieces of
proposed legislation, which sought “to improve the provision of child
protective services to New York’s children and families.” We see no
basis to disturb the court’s determination inasmuch as the records
sought are irrelevant to the issues raised by plaintiff and are thus
“not material and necessary to the prosecution . . . of this
proceeding” (Matter of 425 Park Ave. Co. v Finance Adm’r of City of
N.Y., 69 NY2d 645, 648). In our view, plaintiff’s demands were
improperly “based upon hypothetical speculations calculated to justify
a fishing expedition” (Forman v Henkin, 134 AD3d 529, 530 [internal
quotation marks omitted]).

     With respect to appeal No. 1, we reject plaintiff’s contention
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                                                         CA 16-00079

that the court abused or improvidently exercised its discretion when
it denied her renewed motion to strike the County’s answer. As we
stated in the prior appeal, “[t]he nature and degree of a sanction to
be imposed on a motion pursuant to CPLR 3126 is within the discretion
of the court, and the striking of a pleading is appropriate only upon
a clear showing that a party’s failure to comply with a discovery
demand or order is willful, contumacious, or in bad faith” (Mosey, 117
AD3d at 1384). Under the circumstances of this case, which include a
change in the County’s legal representation (see Corner Realty 30/7 v
Bernstein Mgt. Corp., 249 AD2d 191, 193), as well as differing
interpretations of communications between the parties, we decline to
disturb the court’s determination that the extreme sanction of
striking the answer is not warranted (see CPLR 3126; Sayomi v Rolls
Kohn & Assoc., LLP, 16 AD3d 1069, 1070; cf. Hann v Black, 96 AD3d
1503, 1504-1505).

     We agree with plaintiff, however, that the court erred in denying
disclosure of the documents listed in the first ordering paragraph,
i.e., the adult protective services (APS) documents created after
decedent’s death, and we therefore modify the order accordingly.
Inasmuch as decedent is the subject of those documents, her agent or
legal representative is entitled to disclosure of them under Social
Services Law § 473-e. Moreover, based upon our review of the
documents and the fact that they were all generated long before any
notice of claim or complaint was filed against the County, we conclude
that the County “failed to carry its burden of demonstrating that the
materials sought were prepared solely in anticipation of litigation”
(Zampatori v United Parcel Serv., 94 AD2d 974, 975; see CPLR 3101 [d]
[2]; Flex-O-Vit USA v Niagara Mohawk Power Corp., 281 AD2d 980, 981).

     We reject the County’s contention that the documents are
privileged under the deliberative process privilege. That privilege
is also known as the “inter-agency or intra-agency materials”
exemption under Public Officers Law § 87 (2) (g) (see Matter of Russo
v Nassau County Community Coll., 81 NY2d 690, 699). The question is
whether that statutory exemption contained in the Freedom of
Information Law ([FOIL] Public Officers Law art 6) also applies to
discovery in civil actions. We conclude that it does not.

     Both the CPLR and FOIL provide for disclosure of documents. The
former controls discovery between litigants in court proceedings, and
the latter permits disclosure of governmental records to the public
even in the absence of litigation. “When a public agency is one of
the litigants, this means that it has the distinct disadvantage of
having to offer its adversary two routes into its records” (Siegel, NY
Prac § 348 at 581 [5th ed 2011]; see Matter of M. Farbman & Sons v New
York City Health & Hosps. Corp., 62 NY2d 75, 80-81). The deliberative
process privilege or exemption under FOIL seeks “to protect the
deliberative process of the government by ensuring that persons in an
advisory role [will] be able to express their opinions freely to
agency decision makers” (Matter of Gould v New York City Police Dept.,
89 NY2d 267, 276 [internal quotation marks omitted]). While some
courts have applied that privilege outside the FOIL context (see
Matter of Entergy Nuclear Indian Point 2, LLC v New York State Dept.
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                                                         CA 16-00079

of State, 130 AD3d 1190, 1197; Mecca v Shang, 55 AD3d 570, 571; New
York Tel. Co. v Nassau County, 54 AD3d 368, 369-370), we decline to do
so inasmuch as the Court of Appeals “has never created nor recognized
a generalized ‘deliberative process privilege’ ” (Matter of 91st St.
Crane Collapse Litig., 31 Misc 3d 1207[A], 2010 NY Slip Op 52395[U],
*3 [Sup Ct, NY County 2010]).

     We “recognize[] the existence of some cases which all too
casually mention the ‘deliberate process privilege’ and purport to
apply it outside the context of a FOIL proceeding” (id. at *3).
Nevertheless, it is also important to recognize that “privileges
simply do not exist in the absence of either constitutional or
statutory authority, or, when created as a matter of jurisprudence”
(id.). Although the County seeks to assert “the so-called
‘deliberative process privilege[,]’ ” in the context of a civil
litigation, “neither the Court of Appeals’ case law nor that of the
[Fourth] Department can be construed [as] having created a distinct
‘deliberate process privilege’ outside the context of a FOIL
proceeding” (id. at *3-4).

     Inasmuch as this case involves “a request under the CPLR by a
party in a pending action for documents in the possession of another
party,” as opposed to a request by a member of the public for a
document under the Public Officers Law (Marten v Eden Park Health
Servs., 250 AD2d 44, 47; see Matter of Schwartz, 130 Misc 2d 786, 787-
789), we agree with plaintiff that the deliberative process exemption
under FOIL should not be afforded privilege status under the CPLR.
Here, as in Marten, “[i]t is clear that the public interest protected
by FOIL . . . is not served by barring [plaintiff, i.e., the agent for
the subject of the APS records], from obtaining such information from
[the County]” (id. at 47-48).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
