Preview
FILED: NEW YORK COUNTY CLERK 06/25/2020 11:07 PM INDEX NO. 154880/2018
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JANET VEGA, as mother and natural guardian of F.R., an Index No. 154880/2018
infant, and JANET VEGA, Individually, Date Filed: 5/23/2018
Plaintiff(s), REPLY AFFIRMATION IN
FURTHER SUPPORT OF
-against- DEFENDANT’S MOTION FOR
PROTECTIVE ORDER
THE CITY OF NEW YORK, THE NEW YORK CITY
ADMINSTRATION FOR CHILDREN'S SERVICES, SCO
FAMILY OF SERVICES and JEWISH CHILD CARE
ASSOCIATION OF NEW YORK,
Defendant(s).
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ROBERT S. DELMOND, an attorney admitted to practice law in the Courts of
the State of New York, hereby affirms the following statements under penalties of perjury pursuant
to CPLR § 2106:
1. I am A Member of the law firm of CONWAY, FARRELL, CURTIN &
KELLY, P.C., attorneys for the Defendant, THE CITY OF NEW YORK, THE NEW YORK
CITY ADMINSTRATION FOR CHILDREN'S SERVICES and SCO FAMILY OF
SERVICES, in the captioned case, and I am fully familiar with the facts and circumstances of this
action.
2. I respectfully submit this Reply Affirmation in Further Support of
Defendants’ Motion for an Order pursuant to CPLR § 3103(a) which seeks a protective order of
confidential foster care case records and incident reports, and for such other and further relief as
this Court may deem just and proper. A party seeking disclosure bears the burden of convincing
the court that disclosure of the information sought would be proper, and disclosure should be
accompanied by adequate safeguards to limit as much as possible the unnecessary loss of
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confidentiality. Sam v. Sanders, 80 A.D.2d 758, 436 N.Y.S.2d 301, affd. 55 N.Y.2d 1008, 449
N.Y.S.2d 474, 434 N.E.2d 710; Matter of Carla L., 45 A.D.2d 375, 382, 357 N.Y.S.2d 987,
Llorente v. City of New York, 38 A.D.3d 617, 618, 833 N.Y.S.2d 123, 125 (2007).
3. Furthermore, legal authority for the defendant to provide access to its
confidential foster care records is provided in and limited by Social Services Law § 372(4)(a)”
(Matter of Michelle HH., 18 A.D.3d at 1076, 797 N.Y.S.2d 567). That statute provides that foster
care records maintained by the defendant “shall be deemed confidential and shall be safeguarded
from coming to the knowledge of and from inspection or examination by any person other than
one authorized…when such records are required for the trial of a proceeding in such court, after
a notice to all interested persons and a hearing” (Social Services Law § 372[4] [a] [emphasis
added]; see Matter of Michelle HH., 18 A.D.3d at 1076, 797 N.Y.S.2d 567). Disclosure is “
‘limited to what is shown to be necessary and should be accompanied by adequate safeguards to
limit as much as possible the unnecessary loss of confidentiality’ ” (Matter of Michelle HH., 18
A.D.3d at 1076, 797 N.Y.S.2d 567, quoting Matter of Carla L., 45 A.D.2d 375, 382, 357
N.Y.S.2d 987 [1974] ).
4. Similarly, confidential central register reports of abuse or maltreatment,
and “any other information obtained” pertaining to such reports, “shall be confidential” (Social
Services Law § 422[4][A]). These shall be made available only to a number of specifically
enumerated individuals, agencies, the court and other entities as included. Matter of Sarah FF.,
18 A.D.3d at 1074, 797 N.Y.S.2d 571.
5. The Court of Appeals held in the Matter of Louis F., 42 N.Y.2d 260, 264–
65, 366 N.E.2d 824, 825 (1977) that to safeguard both the child and its natural parents, it is
imperative that the extensive records customarily kept by authorized child care agencies, often
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containing probing and confidential information, not be easily disclosed Id at 265. To that end,
the Appellate Division correctly required that there be a showing of necessity for an in camera
viewing. If that necessity be present, a favorable determination permitting disclosure may, if
otherwise justified, ensue (see, also, Matter of Carla L., 45 A.D.2d 375, 387, 357 N.Y.S.2d 987,
999).
6. Here, it is necessary that the Court require the plaintiff to provide a
showing as to the necessity for the disclosure of the records followed by an in-camera review to
determine whether they are material and relevant. The Court must also consider whether the
identity of other individuals and children mentioned in those records need to remain confidential.
7. It is respectfully, requested that this Court grant the motion for a
protective order in its entirety excluding from disclosure the plaintiff’s confidential case record
and, in addition, preclude discovery of incident reports and any and all documents pertaining to
the reports and investigation prepared for and included in the State Central Registry
investigations which are deemed confidential, by operation of law, as well as those documents
deemed quality assurance materials by the defendant including but not limited to any incident
reports or internal investigations into the alleged incident.
WHEREFORE, for the reasons set forth above, the Defendant(s) respectfully
request that this Court grant the within motion for a protective order in its entirety, and further request
such other and further relief as the Court deems just and proper.
Dated: New York, New York
June 25, 2020
____________________________________
ROBERT S. DELMOND
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JANET VEGA, as mother and natural guardian of F.R., an Index No. 154880/2018
infant, and JANET VEGA, Individually, Date Filed: 5/23/2018
Plaintiff(s),
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY
ADMINSTRATION FOR CHILDREN'S SERVICES, SCO
FAMILY OF SERVICES and JEWISH CHILD CARE
ASSOCIATION OF NEW YORK,
Defendant(s).
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REPLY AFFIRMATION
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Preview
FILED: NEW YORK COUNTY CLERK 06/25/2020 11:07 PM INDEX NO. 154880/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X JANET VEGA, as mother and natural guardian of F.R., an Index No. 154880/2018 infant, and JANET VEGA, Individually, Date Filed: 5/23/2018 Plaintiff(s), REPLY AFFIRMATION IN FURTHER SUPPORT OF -against- DEFENDANT’S MOTION FOR PROTECTIVE ORDER THE CITY OF NEW YORK, THE NEW YORK CITY ADMINSTRATION FOR CHILDREN'S SERVICES, SCO FAMILY OF SERVICES and JEWISH CHILD CARE ASSOCIATION OF NEW YORK, Defendant(s). --------------------------------------------------------------------X ROBERT S. DELMOND, an attorney admitted to practice law in the Courts of the State of New York, hereby affirms the following statements under penalties of perjury pursuant to CPLR § 2106: 1. I am A Member of the law firm of CONWAY, FARRELL, CURTIN & KELLY, P.C., attorneys for the Defendant, THE CITY OF NEW YORK, THE NEW YORK CITY ADMINSTRATION FOR CHILDREN'S SERVICES and SCO FAMILY OF SERVICES, in the captioned case, and I am fully familiar with the facts and circumstances of this action. 2. I respectfully submit this Reply Affirmation in Further Support of Defendants’ Motion for an Order pursuant to CPLR § 3103(a) which seeks a protective order of confidential foster care case records and incident reports, and for such other and further relief as this Court may deem just and proper. A party seeking disclosure bears the burden of convincing the court that disclosure of the information sought would be proper, and disclosure should be accompanied by adequate safeguards to limit as much as possible the unnecessary loss of 1 1 of 4 FILED: NEW YORK COUNTY CLERK 06/25/2020 11:07 PM INDEX NO. 154880/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2020 confidentiality. Sam v. Sanders, 80 A.D.2d 758, 436 N.Y.S.2d 301, affd. 55 N.Y.2d 1008, 449 N.Y.S.2d 474, 434 N.E.2d 710; Matter of Carla L., 45 A.D.2d 375, 382, 357 N.Y.S.2d 987, Llorente v. City of New York, 38 A.D.3d 617, 618, 833 N.Y.S.2d 123, 125 (2007). 3. Furthermore, legal authority for the defendant to provide access to its confidential foster care records is provided in and limited by Social Services Law § 372(4)(a)” (Matter of Michelle HH., 18 A.D.3d at 1076, 797 N.Y.S.2d 567). That statute provides that foster care records maintained by the defendant “shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination by any person other than one authorized…when such records are required for the trial of a proceeding in such court, after a notice to all interested persons and a hearing” (Social Services Law § 372[4] [a] [emphasis added]; see Matter of Michelle HH., 18 A.D.3d at 1076, 797 N.Y.S.2d 567). Disclosure is “ ‘limited to what is shown to be necessary and should be accompanied by adequate safeguards to limit as much as possible the unnecessary loss of confidentiality’ ” (Matter of Michelle HH., 18 A.D.3d at 1076, 797 N.Y.S.2d 567, quoting Matter of Carla L., 45 A.D.2d 375, 382, 357 N.Y.S.2d 987 [1974] ). 4. Similarly, confidential central register reports of abuse or maltreatment, and “any other information obtained” pertaining to such reports, “shall be confidential” (Social Services Law § 422[4][A]). These shall be made available only to a number of specifically enumerated individuals, agencies, the court and other entities as included. Matter of Sarah FF., 18 A.D.3d at 1074, 797 N.Y.S.2d 571. 5. The Court of Appeals held in the Matter of Louis F., 42 N.Y.2d 260, 264– 65, 366 N.E.2d 824, 825 (1977) that to safeguard both the child and its natural parents, it is imperative that the extensive records customarily kept by authorized child care agencies, often 2 2 of 4 FILED: NEW YORK COUNTY CLERK 06/25/2020 11:07 PM INDEX NO. 154880/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2020 containing probing and confidential information, not be easily disclosed Id at 265. To that end, the Appellate Division correctly required that there be a showing of necessity for an in camera viewing. If that necessity be present, a favorable determination permitting disclosure may, if otherwise justified, ensue (see, also, Matter of Carla L., 45 A.D.2d 375, 387, 357 N.Y.S.2d 987, 999). 6. Here, it is necessary that the Court require the plaintiff to provide a showing as to the necessity for the disclosure of the records followed by an in-camera review to determine whether they are material and relevant. The Court must also consider whether the identity of other individuals and children mentioned in those records need to remain confidential. 7. It is respectfully, requested that this Court grant the motion for a protective order in its entirety excluding from disclosure the plaintiff’s confidential case record and, in addition, preclude discovery of incident reports and any and all documents pertaining to the reports and investigation prepared for and included in the State Central Registry investigations which are deemed confidential, by operation of law, as well as those documents deemed quality assurance materials by the defendant including but not limited to any incident reports or internal investigations into the alleged incident. WHEREFORE, for the reasons set forth above, the Defendant(s) respectfully request that this Court grant the within motion for a protective order in its entirety, and further request such other and further relief as the Court deems just and proper. Dated: New York, New York June 25, 2020 ____________________________________ ROBERT S. DELMOND 3 3 of 4 FILED: NEW YORK COUNTY CLERK 06/25/2020 11:07 PM INDEX NO. 154880/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X JANET VEGA, as mother and natural guardian of F.R., an Index No. 154880/2018 infant, and JANET VEGA, Individually, Date Filed: 5/23/2018 Plaintiff(s), -against- THE CITY OF NEW YORK, THE NEW YORK CITY ADMINSTRATION FOR CHILDREN'S SERVICES, SCO FAMILY OF SERVICES and JEWISH CHILD CARE ASSOCIATION OF NEW YORK, Defendant(s). --------------------------------------------------------------------X REPLY AFFIRMATION 2 4 of 4