Preview
FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
GABRIEL PETRELLA,
Plaintiff,
v.
Index No.: 519012/2021
ROMAN CATHOLIC DIOCESE OF
BROOKLYN; ROMAN CATHOLIC
CHURCH OF THE HOLY INNOCENTS
IN THE BOROUGH OF BROOKLYN, IN
THE CITY OF NEW YORK; and JAMES
I. FROST,
Defendants.
AFFIRMATION IN OPPOSITION TO CROSS-MOTION FOR PROTECTIVE ORDER
Andrew S. Janet, an attorney admitted to practice law before the courts of the State of
New York, affirms under the penalties of perjury:
1. I represent Plaintiff in this action and am familiar with the facts set forth herein.
2. This Affirmation is filed in opposition to the Cross Motion for a Protective Order,
NYSCEF Doc. No. 31, filed by Defendant Roman Catholic Diocese of Brooklyn (hereinafter, the
“Diocese”), as well as the Defendant Diocese of Brooklyn’s Memorandum of Law in Opposition
to the Plaintiff’s Motion and in Support of Defendant Diocese’s Cross Motion for a Protective
Order, NYSCEF Doc. No. 35 (hereinafter, “Def. Mem.”), and the Notice of Motion to Join in and
Adopt Cross Motion for a Protective Order, NYSCEF Doc. No. 36, filed by Defendant James I.
Frost (hereinafter, “Frost”).
3. Frost offers no substantive argument in favor of the motion; he simply reiterates
the Diocese’s requested relief and joins its arguments. Plaintiff will therefore address the Diocese’s
arguments.
1
1 of 5
FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023
4. The Diocese’s memorandum features arguments opposing Plaintiff’s second
motion to compel, which obviously overlap with the arguments for its motion for a protective
order. Plaintiff incorporates by reference herein all arguments in his opening affirmation. See Aff.
Supp. Second Motion to Compel, NYSCEF Doc. No. 27 (hereinafter, “Pl. Aff.”). Plaintiff also
refers the Court to his reply affirmation, which will be filed in this motion sequence by February
2, 2023, and incorporates those arguments by reference as well.
5. The Diocese’s memorandum, at Def. Mem. 21, contains two paragraphs supporting
the notion that “The Court Should Issue a Protective Order for the Prevention of Abuse” (a poor
choice of words, in Plaintiff’s view, in a case involving a survivor of actual abuse). Therein, the
Diocese cites to CPLR 3103(a) and a single Kings County trial court order which granted a
protective order after finding a litigant’s document requests to be “palpably improper.” Alpha
Funding Grp. v. Cont’l Funding, LLC, 17 Misc. 3d 959, 970 (Sup. Ct. 2007). Unlike in the
inapposite Alpha Funding case, Plaintiff is only seeking unredacted responses to the standard
Court-ordered discovery requests, not palpably improper requests.
6. The Diocese utterly fails to meet the burden of proving that a protective order is
necessary. “[T]he burden of establishing any right to protection is on the party asserting it;the
protection claimed must be narrowly construed; and its application must be consistent with the
purposes underlying the immunity.” Spectrum Sys. Int’l Corp. v. Chem. Bank, 78 N.Y.2d 371, 377
(1991).
7. “In light of the strong policy in favor of full disclosure unless the information
sought is immunized, the burden of showing the appropriate immunity should be on the party
asserting it. Indeed it has long been the law, at least at the trial stage, that when a party asserts the
doctor-patient privilege, the burden is on him ‘to show the existence of circumstances justifying
2
2 of 5
FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023
its recognition.’ There appears to be no reason based either in logic or policy why the burden
should be different during the pretrial stage.” Koump v. Smith, 25 N.Y.2d 287, 294 (1969)
(citations omitted).
8. “[W]hen a party objects to a disclosure of requested documents, it must detail both
the legal basis for withholding such documents along with their distinguishing features . . . [such
that] the objections are clearly discernable based upon either relevancy or privilege.” In re Est. of
Seelig, 302 A.D.2d 721, 724 (3d Dep’t 2003).
9. The Diocese’s Privilege & Redaction Log, NYSCEF Doc. No. 29, fails to provide
enough information on any individual document to establish that any privilege applies. For
example:
a. Claiming one document is a “memo from medical provider to Bishop DiMarzio
regarding Fr. Frost’s medical and spiritual status,” id. at 1, does not establish
doctor-patient privilege under CPLR 4504 (nor any privilege under HIPAA or the
ADA).
b. Claiming one document is “[c]orrespondence from medical provider to Msgr.
Vaccari regarding Fr. Frost’s medical and spiritual status,” id. at 5, does not
establish the clergy-penitent privilege under CPLR 4505.
c. Claiming one document is “[c]onfidential communications with the Holy See
regarding sacramental status and discipline,” id. at 4, does not establish that all the
information within it—particularly facts about allegations of abuse and/or evidence
thereof—should be protected from disclosure pursuant to the First Amendment.
d. Claiming one document is a “[m]emo from Fr. Brown to Fr. Frost’s Confidential
File regarding communications with Kevin Kearney, Esq. about a legal matter,” id.
3
3 of 5
FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023
at 6, does not establish that the document has no non-privileged information in it
pursuant to CPLR 4503, such that it should be fully redacted.
e. Claiming one document is a “[m]emo from Msgr. Garcia to Joseph Farrell, Esq.
regarding a legal matter,” id. at 8, does not establish that it is an offer to compromise
under CPLR 4547.
f. Listing many documents as being redacted for “Relevancy” or “Subsequent
Remedial Measures; Relevancy,” id. at 1–22, without providing any other
information, does not establish that the documents are actually protected from
disclosure for irrelevance reasons.
10. Again, further explanation of the inapplicability of all of these privileges is
contained in Plaintiff’s affirmations supporting his motion to compel.
11. Because the Diocese fails to meet its burden of proving that these documents are
protected from disclosure, no protective order is warranted here.
WHEREFORE Plaintiff respectfully requests that this Court deny the Diocese’s cross-
motion for a protective order as well as Frost’s motion for a protective order.
WORD COUNT CERTIFICATION: I hereby certify pursuant to 22 NYCRR 202.8-b,
that the foregoing Affirmation was prepared on a computer using Microsoft Word and that,
according to the word count generated by Microsoft Word, the total number of words in this
Affirmation, exclusive of the case caption, title, signature block, and this Certification, is 907
words, and that the foregoing complies with the limit set forth in 22 NYCRR 202.8-b.
Dated: January 27, 2023
Respectfully submitted,
/s/ Andrew S. Janet
Andrew S. Janet
4
4 of 5
FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023
Janet, Janet & Suggs, LLC
4 Reservoir Circle, Suite 200
Baltimore, Maryland 21208
Telephone: 410-653-3200
Facsimile: 410-653-9030
Email: asjanet@jjsjustice.com
Attorneys for Plaintiff
5
5 of 5
Preview
FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS GABRIEL PETRELLA, Plaintiff, v. Index No.: 519012/2021 ROMAN CATHOLIC DIOCESE OF BROOKLYN; ROMAN CATHOLIC CHURCH OF THE HOLY INNOCENTS IN THE BOROUGH OF BROOKLYN, IN THE CITY OF NEW YORK; and JAMES I. FROST, Defendants. AFFIRMATION IN OPPOSITION TO CROSS-MOTION FOR PROTECTIVE ORDER Andrew S. Janet, an attorney admitted to practice law before the courts of the State of New York, affirms under the penalties of perjury: 1. I represent Plaintiff in this action and am familiar with the facts set forth herein. 2. This Affirmation is filed in opposition to the Cross Motion for a Protective Order, NYSCEF Doc. No. 31, filed by Defendant Roman Catholic Diocese of Brooklyn (hereinafter, the “Diocese”), as well as the Defendant Diocese of Brooklyn’s Memorandum of Law in Opposition to the Plaintiff’s Motion and in Support of Defendant Diocese’s Cross Motion for a Protective Order, NYSCEF Doc. No. 35 (hereinafter, “Def. Mem.”), and the Notice of Motion to Join in and Adopt Cross Motion for a Protective Order, NYSCEF Doc. No. 36, filed by Defendant James I. Frost (hereinafter, “Frost”). 3. Frost offers no substantive argument in favor of the motion; he simply reiterates the Diocese’s requested relief and joins its arguments. Plaintiff will therefore address the Diocese’s arguments. 1 1 of 5 FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023 4. The Diocese’s memorandum features arguments opposing Plaintiff’s second motion to compel, which obviously overlap with the arguments for its motion for a protective order. Plaintiff incorporates by reference herein all arguments in his opening affirmation. See Aff. Supp. Second Motion to Compel, NYSCEF Doc. No. 27 (hereinafter, “Pl. Aff.”). Plaintiff also refers the Court to his reply affirmation, which will be filed in this motion sequence by February 2, 2023, and incorporates those arguments by reference as well. 5. The Diocese’s memorandum, at Def. Mem. 21, contains two paragraphs supporting the notion that “The Court Should Issue a Protective Order for the Prevention of Abuse” (a poor choice of words, in Plaintiff’s view, in a case involving a survivor of actual abuse). Therein, the Diocese cites to CPLR 3103(a) and a single Kings County trial court order which granted a protective order after finding a litigant’s document requests to be “palpably improper.” Alpha Funding Grp. v. Cont’l Funding, LLC, 17 Misc. 3d 959, 970 (Sup. Ct. 2007). Unlike in the inapposite Alpha Funding case, Plaintiff is only seeking unredacted responses to the standard Court-ordered discovery requests, not palpably improper requests. 6. The Diocese utterly fails to meet the burden of proving that a protective order is necessary. “[T]he burden of establishing any right to protection is on the party asserting it;the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity.” Spectrum Sys. Int’l Corp. v. Chem. Bank, 78 N.Y.2d 371, 377 (1991). 7. “In light of the strong policy in favor of full disclosure unless the information sought is immunized, the burden of showing the appropriate immunity should be on the party asserting it. Indeed it has long been the law, at least at the trial stage, that when a party asserts the doctor-patient privilege, the burden is on him ‘to show the existence of circumstances justifying 2 2 of 5 FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023 its recognition.’ There appears to be no reason based either in logic or policy why the burden should be different during the pretrial stage.” Koump v. Smith, 25 N.Y.2d 287, 294 (1969) (citations omitted). 8. “[W]hen a party objects to a disclosure of requested documents, it must detail both the legal basis for withholding such documents along with their distinguishing features . . . [such that] the objections are clearly discernable based upon either relevancy or privilege.” In re Est. of Seelig, 302 A.D.2d 721, 724 (3d Dep’t 2003). 9. The Diocese’s Privilege & Redaction Log, NYSCEF Doc. No. 29, fails to provide enough information on any individual document to establish that any privilege applies. For example: a. Claiming one document is a “memo from medical provider to Bishop DiMarzio regarding Fr. Frost’s medical and spiritual status,” id. at 1, does not establish doctor-patient privilege under CPLR 4504 (nor any privilege under HIPAA or the ADA). b. Claiming one document is “[c]orrespondence from medical provider to Msgr. Vaccari regarding Fr. Frost’s medical and spiritual status,” id. at 5, does not establish the clergy-penitent privilege under CPLR 4505. c. Claiming one document is “[c]onfidential communications with the Holy See regarding sacramental status and discipline,” id. at 4, does not establish that all the information within it—particularly facts about allegations of abuse and/or evidence thereof—should be protected from disclosure pursuant to the First Amendment. d. Claiming one document is a “[m]emo from Fr. Brown to Fr. Frost’s Confidential File regarding communications with Kevin Kearney, Esq. about a legal matter,” id. 3 3 of 5 FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023 at 6, does not establish that the document has no non-privileged information in it pursuant to CPLR 4503, such that it should be fully redacted. e. Claiming one document is a “[m]emo from Msgr. Garcia to Joseph Farrell, Esq. regarding a legal matter,” id. at 8, does not establish that it is an offer to compromise under CPLR 4547. f. Listing many documents as being redacted for “Relevancy” or “Subsequent Remedial Measures; Relevancy,” id. at 1–22, without providing any other information, does not establish that the documents are actually protected from disclosure for irrelevance reasons. 10. Again, further explanation of the inapplicability of all of these privileges is contained in Plaintiff’s affirmations supporting his motion to compel. 11. Because the Diocese fails to meet its burden of proving that these documents are protected from disclosure, no protective order is warranted here. WHEREFORE Plaintiff respectfully requests that this Court deny the Diocese’s cross- motion for a protective order as well as Frost’s motion for a protective order. WORD COUNT CERTIFICATION: I hereby certify pursuant to 22 NYCRR 202.8-b, that the foregoing Affirmation was prepared on a computer using Microsoft Word and that, according to the word count generated by Microsoft Word, the total number of words in this Affirmation, exclusive of the case caption, title, signature block, and this Certification, is 907 words, and that the foregoing complies with the limit set forth in 22 NYCRR 202.8-b. Dated: January 27, 2023 Respectfully submitted, /s/ Andrew S. Janet Andrew S. Janet 4 4 of 5 FILED: KINGS COUNTY CLERK 01/27/2023 01:37 PM INDEX NO. 519012/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/27/2023 Janet, Janet & Suggs, LLC 4 Reservoir Circle, Suite 200 Baltimore, Maryland 21208 Telephone: 410-653-3200 Facsimile: 410-653-9030 Email: asjanet@jjsjustice.com Attorneys for Plaintiff 5 5 of 5