Preview
At I.A.S. of the Supreme Court of the State of
New York, County of Kings, held at the
Courthouse, located at 360 Adams Street,
Brooklyn, NY 11201, on the ____ day of
____________, 2020.
HON:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
SAMANTHA WALLS, : INDEX NO.: 13579/14
Plaintiff, :
-against- : ORDER TO SHOW CAUSE
SNYDER AVENUE REALTY ASSOCIATES, LTD., and :
JAMES DIMITRIADES,
:
Defendants.
------------------------------------------------------------------------X
UPON reading and filing the annexed Affirmation of Laina R. Boris, Esq., dated August
28, 2020, in support of the motion by Order to Show Cause, together with all exhibits annexed
thereto, and upon all the pleadings and Orders of this Court;
LET the New York City Police Department, SHOW CAUSE before I.A.S. of the
Supreme Court of the State of New York, County of Kings, located at 360 Adams Street,
Brooklyn, NY 11201, on the ____ day of ________________, 2020 at ______ o’clock in the
forenoon of that day, or as soon thereafter as counsel can be heard, why the Court should not
execute an Order, pursuant to CPLR §§ 2302(b) and 2307, so-ordering a subpoena requiring the
New York City Police Department to produce and permit counsel for Defendants/Third-Party
Plaintiffs to inspect and copy, at counsel’s expense, a complete copy of the unredacted 911
sprint report, and for such other and further relief as this Court deems just and proper.
ORDERED, that a copy of this Order, supporting affirmation and exhibits, shall be
served upon (a) the New York City Police Department, Room 110C, 1 Police Plaza, New York,
New York 10007; and (b) plaintiff’s counsel, Herbert S. Subin, Esq., Subin Associates, LLP, 150
Broadway, 23rd Floor, New York, New York 10038, by personal service on or before the ______
day of ____________________, 2020 and shall be deemed good and sufficient service hereof.
Dated: __________________ E N T E R:
__________________________
J.S.C.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
SAMANTHA WALLS, : INDEX NO.: 13579/14
Plaintiff, :
-against- : AFFIRMATION IN SUPPORT
SNYDER AVENUE REALTY ASSOCIATES, LTD., and :
JAMES DIMITRIADES,
:
Defendants.
------------------------------------------------------------------------X
LAINA R. BORIS, an attorney duly licensed to practice law before the Courts of the State
of New York, hereby affirms the following to be true pursuant to CPLR §2106:
1. I am an associate of the law firm of WEINER, MILLO, MORGAN &
BONANNO, LLC, attorneys for defendants, SNYDER AVENUE REALTY ASSOCIATES,
LTD., and JAMES DIMITRIADES, and as such, I am fully familiar with all the pleadings and
proceedings had heretofore herein.
2. This affirmation is submitted in support of the within Order to Show Cause seeking
an Order, pursuant to CPLR §§ 2302(b) and 2307, so-ordering a subpoena requiring the New
York City Police Department (hereinafter “NYPD”) to produce and permit counsel for moving
defendants to inspect and copy, at counsel’s expense, a complete copy of the unredacted 911
sprint report, and for such other and further relief as this Court deems just and proper.
PROCEDURAL HISTORY AND FACTS
3. On or about September 18, 2014, plaintiff commenced this action by filing a
Summons and Verified Complaint, annexed hereto as Exhibit “A.” Plaintiff alleges that on or
about August 11, 2014, she was caused to be injured at 5301 Snyder Avenue, Brooklyn, New
York 11203 (hereinafter the “subject premises”). See id.
4. On or about November 14, 2014, defendants joined issue via service of a Verified
Answer, annexed hereto as Exhibit “B.”
5. Plaintiff’s Bills of Particulars are annexed collectively hereto as Exhibit “C.”
6. Plaintiff was deposed on August 22, 2016. A copy of the deposition transcript is
annexed hereto as Exhibit “D.” Plaintiff testified that on August 11, 2014, somewhere around 9:00
p.m. and 10:00 p.m., she was standing inside the vestibule of the building located at the subject
premises when the ceiling fell onto her, hitting her head, shoulder, neck, and back. See Exhibit D
at p. 26-27, 46-53. Plaintiff further testified that she thereafter lost consciousness and came to when
in an ambulance. See id. at p. 53.
DEFENDANTS’ FREEDOM OF INFORMATION LAW REQUEST
7. On or about October 28, 2019, defendants sent correspondence to NYPD pursuant to
Public Officers Law, Article 6 (“Freedom of Information Law”), requesting a copy of the sprint
report (911 call) for Samantha Walls from August 11, 2014 at 5301 Snyder Avenue, Brooklyn, NY
11203. Said correspondence is annexed hereto as Exhibit “E.”
8. Upon information and belief, NYPD never responded to defendants’ correspondence
sent on October 28, 2019.
9. On or about February 25, 2020, defendants sent correspondence to NYPD pursuant
to Public Officers Law, Article 6 (“Freedom of Information Law”), requesting copies of “the 911
sprint report, accompanying 911 audio recording, and any accident/incident report relating to a
request for an ambulance on August 11, 2014, at approximately 22:17:55 (FDNY call #: 4018), for
Samantha Walls (DOB: 09/28/1984), located at 5301 Snyder Avenue, Brooklyn, NY 11203.” Said
correspondence is annexed hereto as Exhibit “F.”
10. On or about February 26, 2020, NYPD sent defendants correspondence which
acknowledged defendants’ February 25, 2020 Freedom of Information Law request and assigned it
to an Investigator. Said correspondence is annexed hereto as Exhibit “G.” NYPD also advised that
the defendants would receive a response on or about July 9, 2020. See Exhibit G.
11. On or about July 15, 2020, sent correspondence to NYPD following up on their prior
Freedom of Information Law request. Said correspondence is annexed hereto as Exhibit “H.”
12. On or about July 22, 2020, NYPD sent defendants correspondence which enclosed a
redacted copy of the 911 sprint report from August 11, 2014. Said correspondence is annexed
hereto as Exhibit “I”. NYPD provided no reason whatsoever for why the 911 Sprint Report was
redacted. See Exhibit I.
13. On or about July 22, 2020, defendants sent correspondence to NYPD, which sought
an appeal of NYPD’s July 22, 2020 decision. Said correspondence is annexed hereto as Exhibit
“J.” Defendants sought an appeal of this decision because: (1) NYPD did not provide a response
indicating whether NYPD was in possession of the accompanying 911 audio recording and any
accident/incident reports; and (2) NYPD provided no explanation for why the 911 sprint report was
redacted. See Exhibit J.
14. On or about July 24, 2020, NYPD Sergeant Jordan S. Mazur, Esq. sent defendants
correspondence which denied defendants’ appeal. Said correspondence is annexed hereto as
Exhibit “K.” NYPD stated that a diligent search was performed, the 911 audio recording was not
located/is no longer available, and no accident/incident reports were generated. See Exhibit K.
NYPD further stated that the redactions were made to the 911 sprint report “because disclosure of
certain information – including the personally identifying information of the 911 caller – would
constitute an unwarranted invasion of personal privacy,” and “the release of personal and/or
identifying information would impede the law enforcement capabilities of this agency and hamper
future efforts to secure the cooperation of informants and witnesses.” See id.
15. Defendants respectfully submit that the information being sought is material and
necessary to defendants’ defense of plaintiff’s action. Thus, it is imperative that NYPD be directed
to furnish the unredacted 911 sprint report relating to the alleged ceiling collapse accident, which
is the subject of the plaintiff’s lawsuit, to defendants’ attorneys.
18. A copy of the subpoena, which defendants’ counsel requests that the Court so-order
is annexed hereto as Exhibit “L.”
19. No prior request for the relief requested herein has heretofore been made.
ARGUMENT
I. The NYPD Subpoena Should Be So-Ordered Because It Seeks Records That Are
Material and Necessary To the Defense of This Action and Cannot Be Obtained
Through Other Sources
20. The unredacted 911 sprint report is material and necessary to defendants’ defense
of plaintiff’s action, as it goes to the heart of liability and damages, and plaintiff’s credibility.
CPLR § 3101(a)(4) provides, “There shall be full disclosure of all matter material and necessary
in the prosecution or defense of an action, regardless of the burden of proof, by: ... (4) any other
person, upon notice stating the circumstances or reasons such disclosure is sought or required.”
N.Y. C.P.L.R. 3101 (McKinney). “The words ‘material and necessary’ as used in section
3101(a)(4) must 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. Section 3101(a)(4) imposes no requirement that the subpoenaing party
demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long
as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided
by the nonparty.” Kapon v. Koch, 23 N.Y.3d 32, 38 (2014).
21. The Court of Appeals has held that as long as the subpoenaing party sufficiently
states the “circumstances or reasons” that support disclosure from the nonparty, it is entitled to
the discovery requested. See Kapon, 23 N.Y.3d 32, 38 (2014). Here, the unredacted information
being sought is relevant to assessing liability, plaintiff’s damages, and credibility. At the very
outset, the unredacted information is being sought because itprovides crucial information that
may help the defendants identify the identity of the 911 caller, a critical witness to the alleged
accident. The 911 caller is a key witness to the condition of the ceiling at or about the time of
plaintiff’s alleged accident, as well as plaintiff’s condition (i.e.,whether there were any visible
injuries such as lacerations and bleeding, and whether plaintiff was in fact unconscious)
immediately after the alleged accident.
22. The unredacted 911 sprint report is certain to contain information that can aid in
identifying a critical witness to the alleged accident and/or plaintiff’s alleged injuries
immediately following the occurrence. To date, plaintiff has been unable to provide defendants
with the full name of plaintiff’s friend, “Shana”, whom plaintiff was visiting on the date of the
alleged accident. See Exhibit D at p. 28-30. Defendants suspect that plaintiff may be actively
concealing the identity of her friend, “Shana”, in fear that the woman may testify unfavorably
toward her or her case. The unredacted 911 sprint report could help to identify whether “Shana”
was the 911 caller. The unredacted information being sought may even contain additional or
more complete statements made by the 911 caller. As the 911 call audio recording is no longer
available, itis paramount that the defendants have access to the phone number from which the
911 call was made so that defendants can hopefully determine the identity of the 911 caller, so
defendants may later obtain a statement and/or testimony from the 911 caller relating to the
alleged accident.
23. Defendants are unable to obtain the unredacted 911 sprint report from any other
source and have been extremely prejudiced by NYPD’s denial of access to same.
II. The NYPD Subpoena Should Be So-Ordered Pursuant to CPLR §§ 2302(b) and 2307
24. CPLR § 2302(b) provides, “A subpoena to compel production of an original
record or document where a certified transcript or copy is admissible in evidence, . . .shall be
issued by the court,” upon a motion for such subpoena, which was made on at least one day’s
notice to the person having custody” of the record or document. N.Y. C.P.L.R. 2302
(McKinney).
25. The 911 sprint report is admissible in evidence under the business records exception
to the hearsay rule. See People v. DeShields, 169 A.D.3d 823 (2d Dep’t 2019); United States v.
Chen Kuo, 2011 WL 145471 (E.D.N.Y. 2011); United States v. Pizarro, 2018 WL 2089346
(S.D.N.Y. 2018). The exception applies when it can be established that it was within the scope of
the entrant's business duty to record an act, transaction, or occurrence, and each participant in the
chain producing the record was acting within the course of regular business conduct. See Matter of
Leon RR, 48 N.Y.2d 117 (1979). Further, statements made within the 911 sprint report may be
admitted into evidence, for the truth of the matter asserted, pursuant to the present sense impression
and excited utterance exceptions to the hearsay rule. See People v. Coveney, 992 N.Y.S.2d 159 (2d
Dep’t 2014) (citing People v. Buie, 86 NY2d 501 (1995); People v. Clarke, 101 AD3d 897 (2d
Dep’t 2012)).
26. The present sense impression exception applies, and the 911 caller’s statements are
admissible when they consist of descriptions of events made substantially contemporaneously with
certain observations and can be sufficiently corroborated with other evidence. See Buie, 86 N.Y.2d
501 (1995); People v. Smith, 171 A.D.3d 1102 (2d Dep’t 2019); People v. Pooler, 98 A.D.3d 751
(2d Dep’t 2012); People v. Bradley, 73 A.D.3d 1198 (2d Dep’t 2010). The excited utterance
exception applies, and the 911 caller’s statements can be properly admitted into evidence when they
relate to a startling event and are made by the declarant while under the stress of excitement. See
People v. Cummings, 31 N.Y.3d 204 (2018); People v. Johnson, 1 NY3d 302 (2003); People v.
Jaber, 172 A.D.3d 1227 (2d Dep’t 2019); Smith, 171 A.D.3d 1102 (2d Dep’t 2019). Thus, because
the 911 sprint report and the statements contained within it are generally held admissible in
evidence, this Court should issue a so-ordered subpoena compelling NYPD to produce same to
defendants’ counsel.
27. CPLR § 2307 provides, “A subpoena duces tecum to be served upon . . . a
department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the
production of any . . . papers or other things, shall be issued by a justice of the supreme court in the
district in which the . . . paper or other thing is located or by a judge of the court in which an action
for which it is required is triable.” N.Y. C.P.L.R. 2307 (McKinney). When the Court issues a
subpoena duces tecum pursuant to CPLR § 2307, compliance is met when the entity provides the
requesting party with the items, certified as complete and accurate by the person in charge of the
department or bureau or a designee of such person. Id.
28. NYPD improperly denied defendants an unredacted copy of the 911 sprint report,
claiming that disclosing any personally identifying information and the complete, unredacted 911
sprint report “would constitute an unwarranted invasion of personal privacy,” and “the release of
personal and/or identifying information would impede the law enforcement capabilities of this
agency and hamper future efforts to secure the cooperation of informants and witnesses.” See
Exhibit K. NYPD also appears to suggest that defendants were denied an unredacted copy of the
911 sprint report because “the public’s interest in disclosure is outweighed by the individual’s
interest in privacy.” See id. NYPD relied on Public Officers Law §§ 87(2)(b), (e), and (f). See id.
29. Disclosing the unredacted 911 sprint report does not constitute an unwarranted
invasion of personal privacy under the given circumstances. See N.Y. Pub. Off. Law § 87(2)(b)
(McKinney). The caller’s information will only be known by the parties to plaintiff’s action.
Further, disclosure will not hamper future efforts to secure the cooperation of 911 callers,
informants, and/or witnesses, because the identity of the caller will not be made public. Defendants
should be entitled to know the identity of the caller, as the caller was a crucial witness to the alleged
accident and/or plaintiff’s condition immediately thereafter. The caller’s testimony may shed light
on defendants’ liability or lack thereof, plaintiff’s damages, and/or plaintiff’s credibility.
30. Disclosure does not constitute an unwarranted invasion of privacy given the
circumstances because the 911 sprint report does not consist of information regarding employment,
medical history, credit history, medical records, workers’ compensation records, a taxpayer’s
electronic contact information, or law enforcement arrest or booking photographs. See N.Y. Pub.
Off. Law § 89(2) (McKinney). Further, disclosure would not lead to solicitation or fund-raising, or
result in economic hardship to the caller. See id. Notwithstanding same, Public Officers Law § 96
provides that a government entity “may disclose any record or personal information . . . to any person
pursuant to a court ordered subpoena.” N.Y. Pub. Off. Law § 96 (McKinney) (emphasis added).
31. Disclosing the unredacted 911 sprint report cannot impede law enforcement
capabilities or otherwise interfere with law enforcement investigations under the given
circumstances, because no criminal investigation ever arose out of the alleged accident. See N.Y.
Pub. Off. Law § 87(2)(e) (McKinney). No law enforcement investigation arose out of the alleged
accident. NYPD even stated, “A review of the enclosed 911 SPRINT Report confirms that no
records were generated.” Exhibit K. Not to mention, the redacted 911 sprint report itself also
clearly states, “NO LONGER NEED PD.” Exhibit I. NYPD never generated an accident or
incident report, and seemingly, its only involvement was started and ended with the 911 dispatcher.
Upon information and belief, the underlying action is the only judicial proceeding that arose out
of the alleged accident. See N.Y. Pub. Off. Law § 87(2)(e) (McKinney). Disclosure would not
deprive plaintiff of a fair trial or impartial adjudication. See id. It is possible that the unredacted
911 sprint report may even be more beneficial to plaintiff’s prosecution of the action rather than
defendants’ defense of same.
32. Disclosing the unredacted 911 sprint report would not endanger anyone’s life or
safety. See N.Y. Pub. Off. Law § 87(2)(f) (McKinney). The alleged accident has certainly not
resulted in the criminal prosecution of an individual. It appears the NYPD is citing a statute that is
more appropriate to denial of access to 911 records where there is the possibility of a criminal
defendant seeking retribution. There is no possibility that the caller might be threatened or
intimidated by a criminal defendant. Moreover, since no law enforcement investigation has arisen
out of the alleged accident, it would be impossible for an undercover agent’s identity to be
compromised.
33. In its denial of defendants’ Freedom of Information Law appeal, NYPD cites to
Matter of Moore v. Santucci and In re Knight v. Gold, cases with circumstances significantly
distinguishable from the given circumstances, and more importantly, cases with holdings that were
abrogated by the Court of Appeals. Moore, 151 A.D.2d 677 (2d Dep’t 1989); Knight v. Gold, 53
A.D.2d 694, 694, 385 N.Y.S.2d 123 (2d Dep’t 1976), abrogated by Friedman v. Rice, 30 N.Y.3d
461 (2017). As such, NYPD’s reliance on these cases to deny defendants’ Freedom of Information
Law request is entirely misplaced.
34. The Freedom of Information Law “imposes a broad duty on government agencies to
disclose their records. Statutory exemptions to disclosure are ‘narrowly construed,’ and an agency's
justification for nondisclosure must be ‘particularized and specific.’” Exoneration Initiative v. New
York City Police Dep't, 114 A.D.3d 436, 442 (1st Dep’t 2014) (citing New York Civil Liberties
Union v. City of Schenectady, 2 N.Y.3d 657 (2004)). The particularized and specific justification
provided by the government agency must be “based on an express promise of confidentiality to the
source, or by establishing that, under the circumstances of the particular case, the confidentiality of
the source or information can be reasonably inferred.” Friedman v. Rice, 30 N.Y.3d 461, 482
(2017). Neither of those scenarios is present here. NYPD does not expressly promise
confidentiality to every person that calls 911, and nothing would suggest that confidentiality should
be reasonably inferred, as no confidential informants were involved. This is a personal injury action
arising out of an alleged ceiling collapse, not a criminal prosecution of a drug dealer.
35. NYPD’s denial of access to the unredacted 911 sprint report is hampering the
underlying litigation. NYPD appears to claim that the 911 caller’s interest in privacy outweighs the
public’s interest in disclosure. See Exhibit K. However, the scale is in fact tipped in favor of the
public’s interest in a fair and just legal system that allows both sides to zealously prosecute or
defend an action. The 911 caller’s potential wariness or caution against testifying at a trial of this
action is no reason to deprive defendants’ of their right to a proper defense against plaintiff’s claims.
36. The unredacted 911 sprint report cannot be obtained through any normal discovery
processes, as NYPD, alone, holds the key to the unredacted 911 sprint report. The Freedom of
Information Law exemptions “‘are to be narrowly interpreted so that the public is granted maximum
access to the records of government.’” Friedman, 30 N.Y.3d 461, 477 (2017) (citing Data Tree,
LLC v. Romaine, 9 N.Y.3d 454 (2007); Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69
N.Y.2d 246 (1987)). Given the circumstances of this case, there is no reason why NYPD should
deny defendants access to the unredacted 911 sprint report. NYPD has not and cannot establish a
valid reason for denying defendants access. Defendants are entitled to the unredacted 911 sprint
report to assist in their defense of plaintiff’s action. To continue to deprive defendants of same is
unwarranted and extremely prejudicial.
WHEREFORE, it is respectfully requested that this Court execute an Order, pursuant to
CPLR §§ 2302(b) and 2307, so-ordering a subpoena requiring the New York City Police
Department to produce and permit counsel for defendants to inspect and copy, at counsel’s
expense, the unredacted 911 sprint report, and for such other and further relief as this Court deems
just and proper.
Dated: New York, New York
August 28, 2020
Yours etc.,
Laina R. Boris, Esq.
WEINER, MILLO, MORGAN & BONANNO, LLC
Attorneys for Defendants
SNYDER AVENUE REALTY ASSOCIATES,
LTD., and JAMES DIMITRIADES
220 Fifth Avenue, 10th Floor
New York, NY 10001
(212) 213-1220
WMMB File No.: 428-003
TO: New York City Police Department
1 Police Plaza, Room 110C
New York, New York 10007
Herbert S. Subin, Esq.
Subin & Associates, LLP
Attorneys for Plaintiff
150 Broadway
New York, New York 10038
(212) 285-3800/ (347) 771-8204 fax
hs@subinlaw.com
INDEX NO.: 13579/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SAMANTHA WALLS,
Plaintiff
- against -
SNYDER AVENUE REALTY ASSOCIATES, LTD. and JAMES DIMITRIADES
Defendants
ORDER TO SHOW CAUSE
WEINER, MILLO, MORGAN & BONANNO, LLC
ATTORNEYS AT LAW
Attorney for Defendants
220 FIFTH AVENUE 10TH FLOOR
NEW YORK, NEW YORK 10001-7708
TELEPHONE (212) 213-1220
FACSIMILE (212) 889-5228
Pursuant to 22 NYCRR 130-1.1.a, the undersigned, an attorney admitted to practice in the courts of New York State,
certifies that, upon information and belief and reasonable injury, (1) the contentions contained in the annexed document
are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through
illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in
the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims for personal injury
or wrongful death, the matter was not obtained in violation of 22 NYCRR 1200.4-a.
Dated: August 28, 2020
LAINA R. BORIS, ESQ.
Preview
At I.A.S. of the Supreme Court of the State of New York, County of Kings, held at the Courthouse, located at 360 Adams Street, Brooklyn, NY 11201, on the ____ day of ____________, 2020. HON: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X SAMANTHA WALLS, : INDEX NO.: 13579/14 Plaintiff, : -against- : ORDER TO SHOW CAUSE SNYDER AVENUE REALTY ASSOCIATES, LTD., and : JAMES DIMITRIADES, : Defendants. ------------------------------------------------------------------------X UPON reading and filing the annexed Affirmation of Laina R. Boris, Esq., dated August 28, 2020, in support of the motion by Order to Show Cause, together with all exhibits annexed thereto, and upon all the pleadings and Orders of this Court; LET the New York City Police Department, SHOW CAUSE before I.A.S. of the Supreme Court of the State of New York, County of Kings, located at 360 Adams Street, Brooklyn, NY 11201, on the ____ day of ________________, 2020 at ______ o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why the Court should not execute an Order, pursuant to CPLR §§ 2302(b) and 2307, so-ordering a subpoena requiring the New York City Police Department to produce and permit counsel for Defendants/Third-Party Plaintiffs to inspect and copy, at counsel’s expense, a complete copy of the unredacted 911 sprint report, and for such other and further relief as this Court deems just and proper. ORDERED, that a copy of this Order, supporting affirmation and exhibits, shall be served upon (a) the New York City Police Department, Room 110C, 1 Police Plaza, New York, New York 10007; and (b) plaintiff’s counsel, Herbert S. Subin, Esq., Subin Associates, LLP, 150 Broadway, 23rd Floor, New York, New York 10038, by personal service on or before the ______ day of ____________________, 2020 and shall be deemed good and sufficient service hereof. Dated: __________________ E N T E R: __________________________ J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X SAMANTHA WALLS, : INDEX NO.: 13579/14 Plaintiff, : -against- : AFFIRMATION IN SUPPORT SNYDER AVENUE REALTY ASSOCIATES, LTD., and : JAMES DIMITRIADES, : Defendants. ------------------------------------------------------------------------X LAINA R. BORIS, an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms the following to be true pursuant to CPLR §2106: 1. I am an associate of the law firm of WEINER, MILLO, MORGAN & BONANNO, LLC, attorneys for defendants, SNYDER AVENUE REALTY ASSOCIATES, LTD., and JAMES DIMITRIADES, and as such, I am fully familiar with all the pleadings and proceedings had heretofore herein. 2. This affirmation is submitted in support of the within Order to Show Cause seeking an Order, pursuant to CPLR §§ 2302(b) and 2307, so-ordering a subpoena requiring the New York City Police Department (hereinafter “NYPD”) to produce and permit counsel for moving defendants to inspect and copy, at counsel’s expense, a complete copy of the unredacted 911 sprint report, and for such other and further relief as this Court deems just and proper. PROCEDURAL HISTORY AND FACTS 3. On or about September 18, 2014, plaintiff commenced this action by filing a Summons and Verified Complaint, annexed hereto as Exhibit “A.” Plaintiff alleges that on or about August 11, 2014, she was caused to be injured at 5301 Snyder Avenue, Brooklyn, New York 11203 (hereinafter the “subject premises”). See id. 4. On or about November 14, 2014, defendants joined issue via service of a Verified Answer, annexed hereto as Exhibit “B.” 5. Plaintiff’s Bills of Particulars are annexed collectively hereto as Exhibit “C.” 6. Plaintiff was deposed on August 22, 2016. A copy of the deposition transcript is annexed hereto as Exhibit “D.” Plaintiff testified that on August 11, 2014, somewhere around 9:00 p.m. and 10:00 p.m., she was standing inside the vestibule of the building located at the subject premises when the ceiling fell onto her, hitting her head, shoulder, neck, and back. See Exhibit D at p. 26-27, 46-53. Plaintiff further testified that she thereafter lost consciousness and came to when in an ambulance. See id. at p. 53. DEFENDANTS’ FREEDOM OF INFORMATION LAW REQUEST 7. On or about October 28, 2019, defendants sent correspondence to NYPD pursuant to Public Officers Law, Article 6 (“Freedom of Information Law”), requesting a copy of the sprint report (911 call) for Samantha Walls from August 11, 2014 at 5301 Snyder Avenue, Brooklyn, NY 11203. Said correspondence is annexed hereto as Exhibit “E.” 8. Upon information and belief, NYPD never responded to defendants’ correspondence sent on October 28, 2019. 9. On or about February 25, 2020, defendants sent correspondence to NYPD pursuant to Public Officers Law, Article 6 (“Freedom of Information Law”), requesting copies of “the 911 sprint report, accompanying 911 audio recording, and any accident/incident report relating to a request for an ambulance on August 11, 2014, at approximately 22:17:55 (FDNY call #: 4018), for Samantha Walls (DOB: 09/28/1984), located at 5301 Snyder Avenue, Brooklyn, NY 11203.” Said correspondence is annexed hereto as Exhibit “F.” 10. On or about February 26, 2020, NYPD sent defendants correspondence which acknowledged defendants’ February 25, 2020 Freedom of Information Law request and assigned it to an Investigator. Said correspondence is annexed hereto as Exhibit “G.” NYPD also advised that the defendants would receive a response on or about July 9, 2020. See Exhibit G. 11. On or about July 15, 2020, sent correspondence to NYPD following up on their prior Freedom of Information Law request. Said correspondence is annexed hereto as Exhibit “H.” 12. On or about July 22, 2020, NYPD sent defendants correspondence which enclosed a redacted copy of the 911 sprint report from August 11, 2014. Said correspondence is annexed hereto as Exhibit “I”. NYPD provided no reason whatsoever for why the 911 Sprint Report was redacted. See Exhibit I. 13. On or about July 22, 2020, defendants sent correspondence to NYPD, which sought an appeal of NYPD’s July 22, 2020 decision. Said correspondence is annexed hereto as Exhibit “J.” Defendants sought an appeal of this decision because: (1) NYPD did not provide a response indicating whether NYPD was in possession of the accompanying 911 audio recording and any accident/incident reports; and (2) NYPD provided no explanation for why the 911 sprint report was redacted. See Exhibit J. 14. On or about July 24, 2020, NYPD Sergeant Jordan S. Mazur, Esq. sent defendants correspondence which denied defendants’ appeal. Said correspondence is annexed hereto as Exhibit “K.” NYPD stated that a diligent search was performed, the 911 audio recording was not located/is no longer available, and no accident/incident reports were generated. See Exhibit K. NYPD further stated that the redactions were made to the 911 sprint report “because disclosure of certain information – including the personally identifying information of the 911 caller – would constitute an unwarranted invasion of personal privacy,” and “the release of personal and/or identifying information would impede the law enforcement capabilities of this agency and hamper future efforts to secure the cooperation of informants and witnesses.” See id. 15. Defendants respectfully submit that the information being sought is material and necessary to defendants’ defense of plaintiff’s action. Thus, it is imperative that NYPD be directed to furnish the unredacted 911 sprint report relating to the alleged ceiling collapse accident, which is the subject of the plaintiff’s lawsuit, to defendants’ attorneys. 18. A copy of the subpoena, which defendants’ counsel requests that the Court so-order is annexed hereto as Exhibit “L.” 19. No prior request for the relief requested herein has heretofore been made. ARGUMENT I. The NYPD Subpoena Should Be So-Ordered Because It Seeks Records That Are Material and Necessary To the Defense of This Action and Cannot Be Obtained Through Other Sources 20. The unredacted 911 sprint report is material and necessary to defendants’ defense of plaintiff’s action, as it goes to the heart of liability and damages, and plaintiff’s credibility. CPLR § 3101(a)(4) provides, “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: ... (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” N.Y. C.P.L.R. 3101 (McKinney). “The words ‘material and necessary’ as used in section 3101(a)(4) must 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. Section 3101(a)(4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Kapon v. Koch, 23 N.Y.3d 32, 38 (2014). 21. The Court of Appeals has held that as long as the subpoenaing party sufficiently states the “circumstances or reasons” that support disclosure from the nonparty, it is entitled to the discovery requested. See Kapon, 23 N.Y.3d 32, 38 (2014). Here, the unredacted information being sought is relevant to assessing liability, plaintiff’s damages, and credibility. At the very outset, the unredacted information is being sought because itprovides crucial information that may help the defendants identify the identity of the 911 caller, a critical witness to the alleged accident. The 911 caller is a key witness to the condition of the ceiling at or about the time of plaintiff’s alleged accident, as well as plaintiff’s condition (i.e.,whether there were any visible injuries such as lacerations and bleeding, and whether plaintiff was in fact unconscious) immediately after the alleged accident. 22. The unredacted 911 sprint report is certain to contain information that can aid in identifying a critical witness to the alleged accident and/or plaintiff’s alleged injuries immediately following the occurrence. To date, plaintiff has been unable to provide defendants with the full name of plaintiff’s friend, “Shana”, whom plaintiff was visiting on the date of the alleged accident. See Exhibit D at p. 28-30. Defendants suspect that plaintiff may be actively concealing the identity of her friend, “Shana”, in fear that the woman may testify unfavorably toward her or her case. The unredacted 911 sprint report could help to identify whether “Shana” was the 911 caller. The unredacted information being sought may even contain additional or more complete statements made by the 911 caller. As the 911 call audio recording is no longer available, itis paramount that the defendants have access to the phone number from which the 911 call was made so that defendants can hopefully determine the identity of the 911 caller, so defendants may later obtain a statement and/or testimony from the 911 caller relating to the alleged accident. 23. Defendants are unable to obtain the unredacted 911 sprint report from any other source and have been extremely prejudiced by NYPD’s denial of access to same. II. The NYPD Subpoena Should Be So-Ordered Pursuant to CPLR §§ 2302(b) and 2307 24. CPLR § 2302(b) provides, “A subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence, . . .shall be issued by the court,” upon a motion for such subpoena, which was made on at least one day’s notice to the person having custody” of the record or document. N.Y. C.P.L.R. 2302 (McKinney). 25. The 911 sprint report is admissible in evidence under the business records exception to the hearsay rule. See People v. DeShields, 169 A.D.3d 823 (2d Dep’t 2019); United States v. Chen Kuo, 2011 WL 145471 (E.D.N.Y. 2011); United States v. Pizarro, 2018 WL 2089346 (S.D.N.Y. 2018). The exception applies when it can be established that it was within the scope of the entrant's business duty to record an act, transaction, or occurrence, and each participant in the chain producing the record was acting within the course of regular business conduct. See Matter of Leon RR, 48 N.Y.2d 117 (1979). Further, statements made within the 911 sprint report may be admitted into evidence, for the truth of the matter asserted, pursuant to the present sense impression and excited utterance exceptions to the hearsay rule. See People v. Coveney, 992 N.Y.S.2d 159 (2d Dep’t 2014) (citing People v. Buie, 86 NY2d 501 (1995); People v. Clarke, 101 AD3d 897 (2d Dep’t 2012)). 26. The present sense impression exception applies, and the 911 caller’s statements are admissible when they consist of descriptions of events made substantially contemporaneously with certain observations and can be sufficiently corroborated with other evidence. See Buie, 86 N.Y.2d 501 (1995); People v. Smith, 171 A.D.3d 1102 (2d Dep’t 2019); People v. Pooler, 98 A.D.3d 751 (2d Dep’t 2012); People v. Bradley, 73 A.D.3d 1198 (2d Dep’t 2010). The excited utterance exception applies, and the 911 caller’s statements can be properly admitted into evidence when they relate to a startling event and are made by the declarant while under the stress of excitement. See People v. Cummings, 31 N.Y.3d 204 (2018); People v. Johnson, 1 NY3d 302 (2003); People v. Jaber, 172 A.D.3d 1227 (2d Dep’t 2019); Smith, 171 A.D.3d 1102 (2d Dep’t 2019). Thus, because the 911 sprint report and the statements contained within it are generally held admissible in evidence, this Court should issue a so-ordered subpoena compelling NYPD to produce same to defendants’ counsel. 27. CPLR § 2307 provides, “A subpoena duces tecum to be served upon . . . a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any . . . papers or other things, shall be issued by a justice of the supreme court in the district in which the . . . paper or other thing is located or by a judge of the court in which an action for which it is required is triable.” N.Y. C.P.L.R. 2307 (McKinney). When the Court issues a subpoena duces tecum pursuant to CPLR § 2307, compliance is met when the entity provides the requesting party with the items, certified as complete and accurate by the person in charge of the department or bureau or a designee of such person. Id. 28. NYPD improperly denied defendants an unredacted copy of the 911 sprint report, claiming that disclosing any personally identifying information and the complete, unredacted 911 sprint report “would constitute an unwarranted invasion of personal privacy,” and “the release of personal and/or identifying information would impede the law enforcement capabilities of this agency and hamper future efforts to secure the cooperation of informants and witnesses.” See Exhibit K. NYPD also appears to suggest that defendants were denied an unredacted copy of the 911 sprint report because “the public’s interest in disclosure is outweighed by the individual’s interest in privacy.” See id. NYPD relied on Public Officers Law §§ 87(2)(b), (e), and (f). See id. 29. Disclosing the unredacted 911 sprint report does not constitute an unwarranted invasion of personal privacy under the given circumstances. See N.Y. Pub. Off. Law § 87(2)(b) (McKinney). The caller’s information will only be known by the parties to plaintiff’s action. Further, disclosure will not hamper future efforts to secure the cooperation of 911 callers, informants, and/or witnesses, because the identity of the caller will not be made public. Defendants should be entitled to know the identity of the caller, as the caller was a crucial witness to the alleged accident and/or plaintiff’s condition immediately thereafter. The caller’s testimony may shed light on defendants’ liability or lack thereof, plaintiff’s damages, and/or plaintiff’s credibility. 30. Disclosure does not constitute an unwarranted invasion of privacy given the circumstances because the 911 sprint report does not consist of information regarding employment, medical history, credit history, medical records, workers’ compensation records, a taxpayer’s electronic contact information, or law enforcement arrest or booking photographs. See N.Y. Pub. Off. Law § 89(2) (McKinney). Further, disclosure would not lead to solicitation or fund-raising, or result in economic hardship to the caller. See id. Notwithstanding same, Public Officers Law § 96 provides that a government entity “may disclose any record or personal information . . . to any person pursuant to a court ordered subpoena.” N.Y. Pub. Off. Law § 96 (McKinney) (emphasis added). 31. Disclosing the unredacted 911 sprint report cannot impede law enforcement capabilities or otherwise interfere with law enforcement investigations under the given circumstances, because no criminal investigation ever arose out of the alleged accident. See N.Y. Pub. Off. Law § 87(2)(e) (McKinney). No law enforcement investigation arose out of the alleged accident. NYPD even stated, “A review of the enclosed 911 SPRINT Report confirms that no records were generated.” Exhibit K. Not to mention, the redacted 911 sprint report itself also clearly states, “NO LONGER NEED PD.” Exhibit I. NYPD never generated an accident or incident report, and seemingly, its only involvement was started and ended with the 911 dispatcher. Upon information and belief, the underlying action is the only judicial proceeding that arose out of the alleged accident. See N.Y. Pub. Off. Law § 87(2)(e) (McKinney). Disclosure would not deprive plaintiff of a fair trial or impartial adjudication. See id. It is possible that the unredacted 911 sprint report may even be more beneficial to plaintiff’s prosecution of the action rather than defendants’ defense of same. 32. Disclosing the unredacted 911 sprint report would not endanger anyone’s life or safety. See N.Y. Pub. Off. Law § 87(2)(f) (McKinney). The alleged accident has certainly not resulted in the criminal prosecution of an individual. It appears the NYPD is citing a statute that is more appropriate to denial of access to 911 records where there is the possibility of a criminal defendant seeking retribution. There is no possibility that the caller might be threatened or intimidated by a criminal defendant. Moreover, since no law enforcement investigation has arisen out of the alleged accident, it would be impossible for an undercover agent’s identity to be compromised. 33. In its denial of defendants’ Freedom of Information Law appeal, NYPD cites to Matter of Moore v. Santucci and In re Knight v. Gold, cases with circumstances significantly distinguishable from the given circumstances, and more importantly, cases with holdings that were abrogated by the Court of Appeals. Moore, 151 A.D.2d 677 (2d Dep’t 1989); Knight v. Gold, 53 A.D.2d 694, 694, 385 N.Y.S.2d 123 (2d Dep’t 1976), abrogated by Friedman v. Rice, 30 N.Y.3d 461 (2017). As such, NYPD’s reliance on these cases to deny defendants’ Freedom of Information Law request is entirely misplaced. 34. The Freedom of Information Law “imposes a broad duty on government agencies to disclose their records. Statutory exemptions to disclosure are ‘narrowly construed,’ and an agency's justification for nondisclosure must be ‘particularized and specific.’” Exoneration Initiative v. New York City Police Dep't, 114 A.D.3d 436, 442 (1st Dep’t 2014) (citing New York Civil Liberties Union v. City of Schenectady, 2 N.Y.3d 657 (2004)). The particularized and specific justification provided by the government agency must be “based on an express promise of confidentiality to the source, or by establishing that, under the circumstances of the particular case, the confidentiality of the source or information can be reasonably inferred.” Friedman v. Rice, 30 N.Y.3d 461, 482 (2017). Neither of those scenarios is present here. NYPD does not expressly promise confidentiality to every person that calls 911, and nothing would suggest that confidentiality should be reasonably inferred, as no confidential informants were involved. This is a personal injury action arising out of an alleged ceiling collapse, not a criminal prosecution of a drug dealer. 35. NYPD’s denial of access to the unredacted 911 sprint report is hampering the underlying litigation. NYPD appears to claim that the 911 caller’s interest in privacy outweighs the public’s interest in disclosure. See Exhibit K. However, the scale is in fact tipped in favor of the public’s interest in a fair and just legal system that allows both sides to zealously prosecute or defend an action. The 911 caller’s potential wariness or caution against testifying at a trial of this action is no reason to deprive defendants’ of their right to a proper defense against plaintiff’s claims. 36. The unredacted 911 sprint report cannot be obtained through any normal discovery processes, as NYPD, alone, holds the key to the unredacted 911 sprint report. The Freedom of Information Law exemptions “‘are to be narrowly interpreted so that the public is granted maximum access to the records of government.’” Friedman, 30 N.Y.3d 461, 477 (2017) (citing Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007); Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246 (1987)). Given the circumstances of this case, there is no reason why NYPD should deny defendants access to the unredacted 911 sprint report. NYPD has not and cannot establish a valid reason for denying defendants access. Defendants are entitled to the unredacted 911 sprint report to assist in their defense of plaintiff’s action. To continue to deprive defendants of same is unwarranted and extremely prejudicial. WHEREFORE, it is respectfully requested that this Court execute an Order, pursuant to CPLR §§ 2302(b) and 2307, so-ordering a subpoena requiring the New York City Police Department to produce and permit counsel for defendants to inspect and copy, at counsel’s expense, the unredacted 911 sprint report, and for such other and further relief as this Court deems just and proper. Dated: New York, New York August 28, 2020 Yours etc., Laina R. Boris, Esq. WEINER, MILLO, MORGAN & BONANNO, LLC Attorneys for Defendants SNYDER AVENUE REALTY ASSOCIATES, LTD., and JAMES DIMITRIADES 220 Fifth Avenue, 10th Floor New York, NY 10001 (212) 213-1220 WMMB File No.: 428-003 TO: New York City Police Department 1 Police Plaza, Room 110C New York, New York 10007 Herbert S. Subin, Esq. Subin & Associates, LLP Attorneys for Plaintiff 150 Broadway New York, New York 10038 (212) 285-3800/ (347) 771-8204 fax hs@subinlaw.com INDEX NO.: 13579/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SAMANTHA WALLS, Plaintiff - against - SNYDER AVENUE REALTY ASSOCIATES, LTD. and JAMES DIMITRIADES Defendants ORDER TO SHOW CAUSE WEINER, MILLO, MORGAN & BONANNO, LLC ATTORNEYS AT LAW Attorney for Defendants 220 FIFTH AVENUE 10TH FLOOR NEW YORK, NEW YORK 10001-7708 TELEPHONE (212) 213-1220 FACSIMILE (212) 889-5228 Pursuant to 22 NYCRR 130-1.1.a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable injury, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims for personal injury or wrongful death, the matter was not obtained in violation of 22 NYCRR 1200.4-a. Dated: August 28, 2020 LAINA R. BORIS, ESQ.