DeMoya v Sinha (2010 NY Slip Op 52078(U))

DeMoya v Sinha

2010 NY Slip Op 52078(U) [29 Misc 3d 1228(A)]

Decided on November 29, 2010

Supreme Court, Queens County

Lane, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Upon the foregoing papers it is ordered that this motion is determined as follows:

This is a personal injury action by the plaintiff, Paul [*2]DeMoya ("DeMoya"), seeking money damages from defendant, Lina Sinha ("Sinha"), a former teacher and administrator at Montessori School for injuries he sustained, inter alia, from sexually abusing and assaulting and raping him while he was a student at the school. Prior to the commencement of this civil action, the allegations in the Verified Complaint were the subject of criminal charges brought by the District Attorney of New York County ("DANY") against her. Specifically, on May 19, 2006, a New York County grand jury charged Sinha in an 81-count indictment with rape, sodomy, sexual abuse, bribery and further related charges involving DeMoya and another complainant. On March 7, 2007, a jury trial was commenced before the Hon. Carol Berkman on the case of People v Lina Sinha, New York County, Indictment No. 2466/06. On March 12, 2007, a conference was held before Justice Berkman concerning the prosecutions late disclosure of emails relating to certain witnesses. After a hearing, the court, among other things, denied Sinha's motion for a mistrial and request to conduct a hearing on the emails, and granted her request for an adverse inference charge.

On March 29, 2007, while acquitting her of some charges, the jury returned a verdict convicting Sinha of, inter alia, sodomy, bribing a witness, criminal impersonation and falsely reporting an incident. The jury also failed to reach a verdict on six counts, which charged first and second degree rape for Sinha's sexual relationship with DeMoya. The court accepted the partial verdict, declared a mistrial on the unresolved counts and sentenced Sinha to an aggregate prison term of 4-1/2 to 14 years. Her sentence is currently stayed pending appeal. One of the grounds for Sinha's appeal is that she was denied a fair trial by the late disclosure of emails between prosecutors, and DeMoya and DeMoya's mother, Carmen Paulino.

On March 15, 2007, this civil action was commenced by DeMoya against Sinha. On January 13, 2009, Sinha conducted a deposition of DeMoya as part of discovery in the instant civil action. Among other things, he was questioned by counsel for Sinha about email communications with the prosecutor.

Thereafter, Sinha filed a post judgment motion in the criminal case pursuant to CPL 440.10 to vacate the judgment, and submitted in support of the motion, statements made by DeMoya elicited at the January 13, 2009 civil litigation deposition. On July 9 and 10, 2009, Justice Carol Berkman conducted a hearing on the CPL 440 motion. At the hearing, Justice Berkman denied Sinha's request that the emails be made part of the record and precluded defendant from asking any questions about the emails. In a written decision dated September 8, 2009, Justice Berkman [*3]denied defendant's motion to vacate the conviction, noting in her decision, inter alia, that the email disclosure was or could have been raised at trial, and in any event is now an issue that Sinha has raised and is pending before the Appellate Division on appeal (Decision and Order of Berkman, J. at page 28). The criminal court's CPL 440.10 motion decision is also the subject of appeal by Sinha.

In this civil action, pursuant to CPLR 2307 and 3120(4), Sinha made a motion on notice to nonparty DANY seeking leave of this court to issue three (3) judicial subpoenae duces tecum. Sinha's application was granted without opposition, and in or about February 25, 2009, three (3) judicial subpoenae duces tecum, dated February 25, 2009 were issued.

On or about April 24, 2009, Sinha served the three judicial subpoenae duces tecum, which are the subject of this motion upon nonparty DANY. (DANY's Exhibit A attached DANY's Notice of Motion dated October 28, 2009). The subpoenae demanded that the "Custodian of Records" of DANY on March 13, 2009 appear to give testimony and produce ". . . [a]ny and all e-mails by or between ADA Florence Chapin,....; ADA Lisa Friel,....; ADA Rachel Hochhauser,....; and Carmen Paulino,....; and/or Paul DeMoya, ...., on any date between December 20, 2005 and the present." Upon DANY notifying Sinha's counsel of its objections by letter dated May 7, 2009, defendant's counsel withdrew the subpoenae writing: "[s]ince the same request is now before Justice Berkman in the criminal case, we do not at present intend to press the subpoena issue in the civil case." Nonparty DANY now moves for a protective order denying or limiting the scope of the subpoenae pursuant to CPLR 3103 and to quash or modify pursuant to CPLR 2304.

As an initial matter, the court notes that DANY appears to object to the subpoenae on the ground that the subpoenae called for the depositions of the assistant district attorneys ("ADAs") who were either the authors and/or recipients of emails from or to DeMoya or Carmen Paulino. Upon review of the subpoenae submitted by DANY (Movant's Exhibit A), the court determines that this objection is misplaced as the subject subpoenae are subpoenae duces tecum for the production of documents and not subpoenae ad testificandum for a non-custodial witness to appear and give live testimony. Sinha has not served DANY, nor has this court issued judicial subpoenae that demanded that the ADA's appear at depositions and give testimony. Therefore, this court will treat DANY's motion not as an objection to Sinha's demand for the deposition testimony of the two ADA's, but rather as challenging the scope and nature of the documents demanded for [*4]production and inspection.^[FN1]

II.DISCUSSION

As DANY has raised several grounds for granting its motion, the court will address each ground separately. In analyzing under the facts in this case whether the defendant is entitled to disclosure of email records from nonparty DANY, the court will apply a three part analysis. The court will consider first, whether the materials sought are subject to disclosure; second, whether the records sought are either immune, exempt or protected from disclosure (see, Pittari v Pirro, 258 AD2d 202, 206 [2d Dept 1999] (in a FOIL dispute, the court first considered whether the records sought are subject to disclosure, and second, whether the records sought are protected from disclosure on the grounds that disclosure would interfere with law enforcement investigation or pending judicial proceedings); and third, whether the timing of the request rendered the discovery temporarily exempt.

Under CPLR 3120(1)(i), a party may serve upon a nonparty a subpoena duces tecum to produce documents or things for inspection, testing, copying or photographing that are in the possession, custody or control of the nonparty served.

Under CPLR 3101 there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. The purpose of disclosure proceedings is to advance [*5]the function of trial, to ascertain truth and to accelerate disposition of suits. The CPLR further provides that disclosure should be construed broadly to effectuate this purpose (CPLR 3101[a][1][2]; Allen v Crowell-Collier Publishing Co., 21 NY2d 403 [1968]). "Evidence" is defined to mean not the equivalent to that evidence which might be admissible on trial of the action, but means evidence required in preparation for trial. The information sought need not qualify as evidence admissible at the trial of an action, but only lead to such evidence. Disclosure is required as to all relevant information calculated to lead to relevant evidence (David D. Siegel, New York Civil Practice, [4th ed 2005] § 344, at 550).

It is immaterial that the material sought may not be admissible at trial as "pretrial discovery extends not only to proof that is admissible but also to matters that may lead to disclosure of admissible proof." (Twenty Four Hour Fuel Oil Corp v Hunter Ambulance Inc., 226 AD2d 175 [1st Dept 1996]; Polygram Holding, Inc. v Cafaro, 42 AD3d 339 [1st Dept 2007] ["disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof, including materials which may be used in cross-examination."]).

The CPLR directs full disclosure of all relevant material. The test is one of usefulness and reason (CPLR 3101[a]; Allen, supra; Andon v 302-304 Mott Street Assoes., 94 NY2d 740 [2000]; Hoenig v Westphal, 52 NY2d 605 [1981] [pre-trial discovery is to be encouraged, limited only by the test of materiality of "usefulness and reason"]; Spectrum Sys. Int'l. Corp. v Chemical Bank, 78 NY2d 371, 376 [1991]). However, there are three categories of protected materials: 1) privileged matter, absolutely immune from discovery; 2) attorney's work product, also immune; and 3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means (Id. at 377-378).

With respect to nonparty discovery, in order to withstand a challenge to the disclosure request, the party seeking disclosure must satisfy the threshold requirement that the disclosure sought is "material and necessary" (Kooper v Kooper, 74 AD3d 6 [2d Dept 2010]). Moreover the adequacy and circumstances and reasons for [*6]the disclosure will ultimately be determined by the trial court, and the "determination of whether a particular discovery demand is appropriate, are all matters within the sound discretion of the trial court, which must balance competing interests." (Id.; Santariga v McCann, 161 AD2d 320 [1st Dept 1990] [the scope and supervision of disclosure is a matter within the sound discretion of the court in which the action is pending]).

CPLR 3103(a) states in relevant part that "[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device...". The protective order is to be designed to "prevent unreasonable annoyance ... disadvantage or other prejudice to any person or the courts." (See, CPLR 3013[a]). "The 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 of the underlying immunity." (148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009][citations omitted]).

DANY merely argues that email records are not relevant. In opposition, Sinha argues that her defense in the instant civil action, as it is in the criminal case, is that she did not have any sexual interaction with DeMoya, but rather that DeMoya is only accusing her now because he hoped for, was promised and/or received, benefits from DANY in connection with his own criminal matters and because he hopes to gain financially. Sinha further argues that at the criminal trial, testimony and documents "introduced or revealed that [certain ADA's] played a key role in promising and obtaining consideration for DeMoya in exchange for his cooperation with the prosecution of [Sinha], and in that regard exchanged emails with DeMoya's Connecticut prosecutor and DeMoya's mother [Carmen Paulino] concerning such benefits." (¶4 Joel B. Rudin, Esq. Affirmation in Opposition to Motion to Quash Subpoena, dated January 26, 2010). Defendant further argues as DeMoya is the sole "witness" to the sexual abuse he claims occurred several years ago, it is essential to Sinha's defense that she be able to challenge and to show at trial that DeMoya is not credible. [*7]

It is unquestionable that the plaintiff's credibility can be undermined by defendant by showing that plaintiff has an interest in the outcome of the litigation. Evidence of bias, interest or hostility is directly probative of a witness' credibility and is not merely collateral in nature (see, People v Chin, 67 NY2d 22, 29 [1986]; People v Green, 156 AD2d 465 [2d Dept 1989]). Therefore, Sinha may impeach DeMoya as being interested by admitting extrinsic evidence, such as by calling other witnesses or admitting documentary evidence (see, People v Garcia, 4 AD3d 374 [2d Dept 2004]; People v Green, 156 AD2d at 465).

Here, the defendant Sinha has satisfied the threshold requirement that the email records sought are material and necessary for her to defend plaintiff's action, as the emails may be probative on the issue of whether DeMoya's testimony had been motivated in part by any promise or benefit from DANY in connection with his own criminal matters. DANY has failed to demonstrate that the discovery sought is not material and necessary for Sinha to defend plaintiff's action.

DANY contends that defendant has not satisfied the threshold determination of "special circumstances" regarding it as a nonparty. The Appellate Division, Second Department held that it would no longer adhere to the standard of "special circumstances" for nonparty discovery, noting the party seeking discovery must satisfy the threshold requirement that the disclosure sought was "material and necessary." (Kooper v Kooper, 74 AD3d 6 [2d Dept 2010]). The court further stated that the adequacy and circumstances and reasons for the disclosure will ultimately be determined by the trial court, and the "determination of whether a particular discovery demand is appropriate, are all matters within the sound discretion of the trial court, which must balance competing interests." (Id.)

The court finds that the judicial subpoenae are facially valid as they were issued on notice pursuant to CPLR 2307 and 3120(4) and set forth the reason why disclosure was sought from the nonparty (see, Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2d Dept 2006]; CPLR 3101[a][4]). Moreover, as defendant has satisfied the threshold requirement that the [*8]disclosure sought is "material and necessary", defendant was not required to demonstrate "special circumstances." (Kooper v Kooper, supra). Accordingly, as the court determines that the nonparty subpoenae were facially proper, that branch of DANY's motion for an order quashing the nonparty subpoenae on the ground that the subpoenae are facially defective is denied.

DANY claims that the information sought by defendant is privileged. "[I]f the information sought is in fact privileged, it is not subject to disclosure no matter how strong the showing of need or relevancy." (Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 [1974][internal citations omitted]).

In DANY's affirmation in support of the motion, without any specific factual support for its claim and without admitting that the requested emails exist, DANY argues that the emails are privileged because the records are (1) communications between the prosecutors, witnesses and law enforcement agencies and the privilege is for DANY to assert and not for the witness to assert, and (2) correspondence with other law enforcement agencies or prepared by an Assistant District Attorney during the course of her investigation are privileged as work product.

It is true that if the information sought is privileged, it is not subject to disclosure. However, in order to assert any privilege the burden rests on the party asserting the privilege to prove each element of the privilege. In addition, the party must specify which documents or class of documents are privileged and for what reasons, and show in detail the reasons for non-disclosure with sufficient particularity. Otherwise, a court has "no choice but to order disclosure" (see, Thompson v Lynnbrook Police Dept., 172 FRD 23, 25-26 [EDNY 1997]). Mere characterization captured in conclusory statements or affidavits is not enough (see, Cirale v 80 Pine Str. Corp., 35 NY2d 113, 119 [1974]). Independent factors beyond the statement of counsel must be shown. Whether a document is privileged "is necessarily a fact-specific determination ..., most often requiring an in camera review" (Sevenson Envtl Servs, Inc. v Sirius America Ins. [*9]Co., 64 AD3d 1234 [4th Dept 2009]). A hearing may be held, and or in camerasubmissions may be made.^[FN2]

Here, DANY has failed to satisfy its burden of proving any privilege, as DANY has failed to submit any information in support of this claim other than an attorney's affirmation that lacks personal knowledge and consists of suppositions and conclusory statements. Accordingly, that branch of DANY's motion for a protective order on the ground that the email records are privileged is denied.

DANY argues that the subpoenae are improper in that they seek deposition and documents from trial prosecutors while the criminal proceeding is still pending, and because there are remaining counts which Sinha was indicted and the jury deadlocked on, there still exists a pending criminal case and retrial of Sinha. DANY further argues that the subpoenae are improper because they seek to utilize civil discovery for matters related to the criminal proceeding, and are an abuse of process because they are essentially being used by Sinha for discovery on the criminal case, when the court that tried the criminal matter denied the exact same request.

The court is cognizant of the sensitive nature of the allegations contained within the complaint and the critical stage of the pending criminal proceeding. DANY's motion raises the question of whether the nature of the records sought and the timing of Sinha's disclosure request from nonparty DANY made while the criminal proceeding is still active and pending rendered the discovery temporarily exempt. [*10]

There is no question that there is a significant difference between the discovery rules between civil and criminal litigation which stems from the fact that the rules are based on contradictory principles. Civil discovery is based upon the principle of full and open disclosure, while criminal discovery is based on a fundamental principle of non-disclosure with the exception that certain evidence is required to be disclosed pursuant to the requirements of constitutional, case and statutory law. The tension between civil and criminal discovery rules is not easily resolved by a rote application of the rules.

Clearly, the civil disclosure rules were not intended for the purpose of enabling criminal defendants to use civil disclosure to obtain records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution (see, Matter of Fink v Lefkowitz, 47 NY2d 567, 572 [1979]).

"During the course of a criminal action, it is not within the authorized powers of the courts to compel disclosure which is not provided for in CPL Article 240 and attempts to do so generally warrant issuance of a writ of prohibition." (Pittari v Pirro, 258 AD2d 202, 207 [2d Dept 1999][internal citation omitted]). "If a defendant in a pending criminal prosecution was capable of obtaining such disclosure..., many of the provisions of CPL article 240 would be rendered meaningless." (Id.)

Moreover, the court cannot ignore an important concern, namely that defendant may undermine or interfere with an active criminal proceeding. A litigant in a civil action should not be permitted to use civil disclosure to interfere with a pending criminal proceeding. The court must ensure that the defendant is not using civil discovery procedures to manipulate or undermine the criminal process. This court cannot encourage such actions nor condone such results. Where a criminal proceeding is pending, it is incumbent upon this court before mandating disclosure to first determine whether the disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240.

There is no dispute that the criminal action was pending when the civil discovery request was made. Defendant has acknowledged that the email documents for this civil action she seeks are the same emails/documents she sought in the pending criminal proceeding. Moreover, there is no dispute that based [*11]upon the rules of the CPL, the criminal court has previously denied defendant's request that DANY disclose the emails to the defendant (¶40 Joel B. Rudin, Esq. Affirmation in Opposition to Motion to Quash Subpoena, dated January 26, 2010).

Furthermore, although there is no stay in effect in this civil case, the court is well guided by the well-settled principle

that a motion pursuant to CPLR 2201 seeking to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court (Matter of Kopf [Doublekay Contr. Corp. United States], 169 AD2d 428 [1st Dept 1991]). Factors to consider include: avoiding the risk of inconsistent adjudications, application of proof, and potential waste of judicial resources (Zonghetti v Jeromack, 150 AD2d 561, 563 [2d Dept 1989]).

Disclosure may be limited by not only what material is subject to disclosure in the course of the criminal proceeding (see, Matter of Catterson v Jones, 229 AD2d 435 [2d Dept 1996]) but also by the timing for such disclosure. Here, notwithstanding the merits of defendant's motion, there is a real question here as to whether the court should wait until the criminal matter is concluded before mandating disclosure, especially where, as here, there is an open, ongoing criminal matter which is actively on appeal.

Based upon the undisputed facts, this court determines that the disclosure at this time would undermine or "would cause interference" of the criminal proceeding. "Such disclosure during the course of a criminal proceeding would have a chilling effect on the pending prosecution." (Pittari v Pirro, 258 AD2d 202, 206 [2d Dept 1999] [internal citations omitted]). Moreover, a resolution of related issues in the criminal action may obviate the need for trial as to certain issues in the instant civil action, avoid the risk of inconsistent adjudications or may serve to narrow the issues and reduce the scope of discovery and avoid potential waste of judicial resources (see, DeSiervi v Liverzani, 136 AD2d 527, 528 [2d Dept 1988]).

While waiting until the pending criminal proceeding is completed before DANY is required to comply with defendant's disclosure demand may cause prejudice to plaintiff by the delay, plaintiff's prejudice is not as severe as DANY would suffer were [*12]DANY to be required to comply with defendant's discovery demands for the civil action.

Accordingly, DANY's motion for a protective order is granted solely to the extent that the nonparty subpoenae duces tecum served upon DANY not returned prior to the date of this decision and order, the production thereunder is stayed, and the stay is effective until further order of the court. With respect to the documents over which DANY asserts any privilege, an in camera review is ordered. Within thirty (30) days of the date the stay is vacated or lifted, DANY must turnover to the court only, all documents responsive to the nonparty subpoenae duces tecum over which DANY asserts any privilege and a privilege log which complies with CPLR 3122(b) and which states as to each document the specific privilege claimed and why such privilege is claimed.^[FN3] Thereafter, the court will render a decision on the production of the documents as against any privilege asserted. In the event the court finds that any privilege is unsupported, the court will direct DANY that such documents be turned over to defendant. The stay shall remain in effect pending the final disposition of the criminal proceeding against the defendant Lina Sinha. Defendant retains the right to move to vacate the stay in the event the criminal proceeding is not disposed of within reasonable period of time. Counsel for DANY is directed to apprise the parties and the court of the status of the criminal proceeding periodically, including any final disposition.

A courtesy copy of this order is being mailed to counsel for the respective parties.

Dated:November 29, 2010..............................