Preview
FILED: NEW YORK COUNTY CLERK 09/04/2015 05:40 PM INDEX NO. 158932/2015
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/04/2015
SUPREME COURT OF THE STATE OF NEW YORK
COI.INTY OF NEW YORK
------ x
In the Matter of the Application of JOEL TORRES,
Petitioner AFFIRMATION IN
OPPOSITION
To examine and preserve ceftain physical evidence and to
safeguard the same from loss or destruction Index No 158932-2015
File No.: 201 5-038s70
- against -
THE CITY OF NEV/ YORK and THE NEW YORK CITY
POLICE DEPARTMENT, for an Order to secure videotape
of the accident and permitting Petitioner's attorneys, or
their representatives, to review the complete and
unredacted records in the possession of THE CITY OF
NEW YORK, and THE NEW YORK CITY POLICE
DEPARTMENT and to preserve said records and items
until the final hearing, and determination of this Couft,
Respondents.
KYLE C. BRUNO, an attomey duly admitted to practice law in the courts of the
State of New York and an Assistant Corporation Counsel of the City of New York, affirms the
truth of the following pursuant to C.P.L.R.2106, upon information and belief, based upon the
records in the office of said Corporation Counsel.
1. This affirmation is submitted on behalf of Respondents, CITY OF NEV/
YORK, and NEW YORK CITY POLICE DEPARTMENT, (hereinafter the "City"), in partial
opposition to the application by Petitioner seeking an Order requiring the City to preserve and
provide Petitioner with various items listed in Petitioners' application.
2. Petitioner has yet to file an action in the instant matter and makes the
underlying application to demand certain pre-action discovery. This matter concerns an alleged
incident involving decedent JOEL TORRES (hereinafter "Petitioner") on July 3, 2015 at
approximately 12 p.m. See Petition af 12. The alleged incident occurred at 615 West l8l't
Street New York, New York 10033 within a branch of a Banco Popular where Petitioner was
allegedly discussing a checking matter. See Id. On July 3,2015, the NYPD was allegedly called
viaagTldispatch by an employee of Banco Popular, which lead to Petitioner's arrest. See Id.
Petitioner claims he was unlawfully arrested due to the above-mentioned 911 dispatch. See Id.
3. Petitioner's instant petition should be denied in part. In sum and
substance, the instant petition seeks an order compelling the City to produce andlor preserve:
o Videotapes, audio recordings, depicting JOEL TORRES during the course of his
detention by NYPD
o Audtio tapes and/or written statements given to or taken by the NYPD
o Interviews, witness statements, copies of all tapes and printout communications recorded
on 911 or other police dispatch systems including transmissions between motor patrol
cars, radio patrol cars and precincts, radio patrol cars and personnel, precincts and radio
patrol cars, precincts and service personnel, radio cars patrol cars and 911,911 and radio
motor patrol cars, precincts and 911,911 and the precincts
. Sprint sheets
o Transcripts of sprint sheets
. Incident Reports
o Aided Reports
o Unusual Incident or Occurrence Reports
o Internal Investigation Reports
. Duplicate originals of all accident reports, photographs, and videotape of the incident in
possession of the New York City Police Department
See Petition at fl1.
4. The Court should deny Petitioner's application because the subject
discovery items are not necessary to frame a notice of claim or an initial complaint. The
Appellate Division has held that requests for pre-action discovery should be denied, upon a
petitioner's failure to prove that the information sought is necessary to frame a complaint.
Verdon v. N.Y.C. Transit Authority; 92 A.D,2d 465 (lst Dep't 1983); Ryan v. Marsh &
Mclennan Int'I, 70 A.D.2d 567 (1st Dep't 1919); In Matter of Loria, 98 A.D.2d 989 (4tr' Dep't
1e83)
5. In Liberly Imports. Inc. v. Bourguet,146 AD2d 536 (1st Dep't 1989), the
Courl stated:
[T]he law is settled that disclosure in advance of service of a
summons and complaint is available onl)t where there is a
demonstration that the party bringing such a petition (1) has a
meritorious cause of action and (2) that the information being
sought is material and necessary to the actionable wrong.
(emphasis added); see also Gleich v. Kissinger, 111 A.D.2d 130 (lst Dep't 1985); Emmrich v
Technology for Information Management. Inc. , 91 A.D.2d 777 (3rd Dep't 1982). If a petitioner
cannot prove that he needs the requested discovery to frame his complaint, such discovery is not
"material and necessary," and petitioner's request must be denied. Vernon v. N.Y.C. Transit
Authority,92A.D.2d465(1stDep,t1983);,70A'D.2d567
(lst Dep't 1979); Vulcan Methods. Inc v. Aaron Glubo,36 A.D.2d 713 (2d Dep't 1971):
Rosenkranz v. Title Guarantee & Trust Co.,260 A.D.1057 (2d Dep't 1940).
6. Furthermore, the courts have held that "a pre-action examination ... is not
permissible as a fishing expedition to ascertain whether a cause of action exists." Liberty
Imports. Inc., 146 A.D.2d at" 536. Nor can it be used as a means to determine whether facts
supporting a cause of action exist. Emmerich, 91 A.D.2d aT 777; Matter of Manufacturers &
Traders Trust Co.v. Bonner,84 A.D.2d678 (4th Dep't 1981).
7. In the instant case, Petitioner's application should be denied because he
has all of the necessaÍy information to frame his notice of claim and complaint. Petitioner is
aware of the date, time, location, and circumstances of the alleged incident. Consequently, the
City objects to production of the aforementioned items.
8. The City further objects to producing Petitioner's enumerated demands
because they are vague, overbroad, and encompass discovery contemplated within the Case
Scheduling Order. Petitioner's requests are thus improper at the pre-action discovery stage.
Petitioner is aware of the date, time, location, and circumstances of the alleged incident. He has
sufficient knowledge to serve and file a notice of claim as well as an initial summons and
complaint upon the respondents. Documents that are discoverable and unobjectionable should
be exchanged only after a notice of claim and a summons and complaint have been filed as well
as after a Case Scheduling Order has been entered into.
9. Moreover, the alleged incident occurred very recently, on July 3,2015.
Petitioner has not identified any exigent circumstances requiring the immediate release of the
requested documents. Items such as witness statements and aided reports are not in any
immediate danger of destruction nor are they necessary to frame a notice of claim or a complaint.
10. Notwithstanding the aforementioned objections concerning discovery
production, the City will issue a preservation request for any relevant documents, videos,
recordings, tapes, and transmissions to the extent that they exist.
1l. Finally, in the event that the Court orders the production of any pre-action
discovery, the City requests that the Court compel Petitioners to provide authorizations for the
documents that require such authorizations prior to disclosure.
\ryHEREFORE, it is respectfully requested that Petitioners' application for an
order compelling pre-action discovery be partially denied and for any and all further relief that
this Court seems just and proper.
Dated New York, New York
September 4,2015
Yours,
ZACHARY V/. CARTER
Counsel
By:
Manhattan Trial Unit, Tort Division
The City of New York Law Department
100 Church St.,4th Floor
New York, NY 10007-2601
Tel: (212) 356-2757
TO The Cochran Firm
Attorneys for Petitioners
233 Broadway, 5th Floor
New York, New York 10279
Index No. 158932-2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of JOEL TORRES,
Petitioner,
To examine and preserve cefiain physical evidence and to safeguard the same from loss or
Cestruction
- against -
THE CITY OF NEV/ YORK and THE NEV/ YORK CITY POLICE DEPARTMENT, for an
Order to secure videotape of the accident and permitting Petitioner's attorneys, or their
representatives, to review the complete and unredacted records in the possession of THE CITY
OF NEW YORK, and THE NEW YORK CITY POLICE DEPARTMENT and to preserve said
records and items until the fìnal hearing, and determination of this Court,
Respondents.
AFFIRMATION IN OPPOSITION
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants
The City of New York and The New York City Police Department
100 Church Street, 4'h Floor
New York, New York 10007
Contact: Kyle C. Bruno, Esq.
212-356-2757
File No.: 2015-038570
Preview
FILED: NEW YORK COUNTY CLERK 09/04/2015 05:40 PM INDEX NO. 158932/2015 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/04/2015 SUPREME COURT OF THE STATE OF NEW YORK COI.INTY OF NEW YORK ------ x In the Matter of the Application of JOEL TORRES, Petitioner AFFIRMATION IN OPPOSITION To examine and preserve ceftain physical evidence and to safeguard the same from loss or destruction Index No 158932-2015 File No.: 201 5-038s70 - against - THE CITY OF NEV/ YORK and THE NEW YORK CITY POLICE DEPARTMENT, for an Order to secure videotape of the accident and permitting Petitioner's attorneys, or their representatives, to review the complete and unredacted records in the possession of THE CITY OF NEW YORK, and THE NEW YORK CITY POLICE DEPARTMENT and to preserve said records and items until the final hearing, and determination of this Couft, Respondents. KYLE C. BRUNO, an attomey duly admitted to practice law in the courts of the State of New York and an Assistant Corporation Counsel of the City of New York, affirms the truth of the following pursuant to C.P.L.R.2106, upon information and belief, based upon the records in the office of said Corporation Counsel. 1. This affirmation is submitted on behalf of Respondents, CITY OF NEV/ YORK, and NEW YORK CITY POLICE DEPARTMENT, (hereinafter the "City"), in partial opposition to the application by Petitioner seeking an Order requiring the City to preserve and provide Petitioner with various items listed in Petitioners' application. 2. Petitioner has yet to file an action in the instant matter and makes the underlying application to demand certain pre-action discovery. This matter concerns an alleged incident involving decedent JOEL TORRES (hereinafter "Petitioner") on July 3, 2015 at approximately 12 p.m. See Petition af 12. The alleged incident occurred at 615 West l8l't Street New York, New York 10033 within a branch of a Banco Popular where Petitioner was allegedly discussing a checking matter. See Id. On July 3,2015, the NYPD was allegedly called viaagTldispatch by an employee of Banco Popular, which lead to Petitioner's arrest. See Id. Petitioner claims he was unlawfully arrested due to the above-mentioned 911 dispatch. See Id. 3. Petitioner's instant petition should be denied in part. In sum and substance, the instant petition seeks an order compelling the City to produce andlor preserve: o Videotapes, audio recordings, depicting JOEL TORRES during the course of his detention by NYPD o Audtio tapes and/or written statements given to or taken by the NYPD o Interviews, witness statements, copies of all tapes and printout communications recorded on 911 or other police dispatch systems including transmissions between motor patrol cars, radio patrol cars and precincts, radio patrol cars and personnel, precincts and radio patrol cars, precincts and service personnel, radio cars patrol cars and 911,911 and radio motor patrol cars, precincts and 911,911 and the precincts . Sprint sheets o Transcripts of sprint sheets . Incident Reports o Aided Reports o Unusual Incident or Occurrence Reports o Internal Investigation Reports . Duplicate originals of all accident reports, photographs, and videotape of the incident in possession of the New York City Police Department See Petition at fl1. 4. The Court should deny Petitioner's application because the subject discovery items are not necessary to frame a notice of claim or an initial complaint. The Appellate Division has held that requests for pre-action discovery should be denied, upon a petitioner's failure to prove that the information sought is necessary to frame a complaint. Verdon v. N.Y.C. Transit Authority; 92 A.D,2d 465 (lst Dep't 1983); Ryan v. Marsh & Mclennan Int'I, 70 A.D.2d 567 (1st Dep't 1919); In Matter of Loria, 98 A.D.2d 989 (4tr' Dep't 1e83) 5. In Liberly Imports. Inc. v. Bourguet,146 AD2d 536 (1st Dep't 1989), the Courl stated: [T]he law is settled that disclosure in advance of service of a summons and complaint is available onl)t where there is a demonstration that the party bringing such a petition (1) has a meritorious cause of action and (2) that the information being sought is material and necessary to the actionable wrong. (emphasis added); see also Gleich v. Kissinger, 111 A.D.2d 130 (lst Dep't 1985); Emmrich v Technology for Information Management. Inc. , 91 A.D.2d 777 (3rd Dep't 1982). If a petitioner cannot prove that he needs the requested discovery to frame his complaint, such discovery is not "material and necessary," and petitioner's request must be denied. Vernon v. N.Y.C. Transit Authority,92A.D.2d465(1stDep,t1983);,70A'D.2d567 (lst Dep't 1979); Vulcan Methods. Inc v. Aaron Glubo,36 A.D.2d 713 (2d Dep't 1971): Rosenkranz v. Title Guarantee & Trust Co.,260 A.D.1057 (2d Dep't 1940). 6. Furthermore, the courts have held that "a pre-action examination ... is not permissible as a fishing expedition to ascertain whether a cause of action exists." Liberty Imports. Inc., 146 A.D.2d at" 536. Nor can it be used as a means to determine whether facts supporting a cause of action exist. Emmerich, 91 A.D.2d aT 777; Matter of Manufacturers & Traders Trust Co.v. Bonner,84 A.D.2d678 (4th Dep't 1981). 7. In the instant case, Petitioner's application should be denied because he has all of the necessaÍy information to frame his notice of claim and complaint. Petitioner is aware of the date, time, location, and circumstances of the alleged incident. Consequently, the City objects to production of the aforementioned items. 8. The City further objects to producing Petitioner's enumerated demands because they are vague, overbroad, and encompass discovery contemplated within the Case Scheduling Order. Petitioner's requests are thus improper at the pre-action discovery stage. Petitioner is aware of the date, time, location, and circumstances of the alleged incident. He has sufficient knowledge to serve and file a notice of claim as well as an initial summons and complaint upon the respondents. Documents that are discoverable and unobjectionable should be exchanged only after a notice of claim and a summons and complaint have been filed as well as after a Case Scheduling Order has been entered into. 9. Moreover, the alleged incident occurred very recently, on July 3,2015. Petitioner has not identified any exigent circumstances requiring the immediate release of the requested documents. Items such as witness statements and aided reports are not in any immediate danger of destruction nor are they necessary to frame a notice of claim or a complaint. 10. Notwithstanding the aforementioned objections concerning discovery production, the City will issue a preservation request for any relevant documents, videos, recordings, tapes, and transmissions to the extent that they exist. 1l. Finally, in the event that the Court orders the production of any pre-action discovery, the City requests that the Court compel Petitioners to provide authorizations for the documents that require such authorizations prior to disclosure. \ryHEREFORE, it is respectfully requested that Petitioners' application for an order compelling pre-action discovery be partially denied and for any and all further relief that this Court seems just and proper. Dated New York, New York September 4,2015 Yours, ZACHARY V/. CARTER Counsel By: Manhattan Trial Unit, Tort Division The City of New York Law Department 100 Church St.,4th Floor New York, NY 10007-2601 Tel: (212) 356-2757 TO The Cochran Firm Attorneys for Petitioners 233 Broadway, 5th Floor New York, New York 10279 Index No. 158932-2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of JOEL TORRES, Petitioner, To examine and preserve cefiain physical evidence and to safeguard the same from loss or Cestruction - against - THE CITY OF NEV/ YORK and THE NEV/ YORK CITY POLICE DEPARTMENT, for an Order to secure videotape of the accident and permitting Petitioner's attorneys, or their representatives, to review the complete and unredacted records in the possession of THE CITY OF NEW YORK, and THE NEW YORK CITY POLICE DEPARTMENT and to preserve said records and items until the fìnal hearing, and determination of this Court, Respondents. AFFIRMATION IN OPPOSITION ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants The City of New York and The New York City Police Department 100 Church Street, 4'h Floor New York, New York 10007 Contact: Kyle C. Bruno, Esq. 212-356-2757 File No.: 2015-038570