[*1]
Matter of Nespoli v Doherty
2007 NY Slip Op 52048(U) [17 Misc 3d 1117(A)]
Decided on September 28, 2007
Supreme Court, New York County
Kahn, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 28, 2007
Supreme Court, New York County


In the Matter of the Application of Harry Nespoli, as President of the Uniformed Sanitationmen's Association, Local 831 I.B of T., And the Uniformed Sanitationmen's Association, Local 831 I.B. of T., Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

John J. Doherty, as Commissioner of the Department of Sanitation of the City of New York, the Department of Sanitation of the City of New York, Martha K. Hirst, as Commissioner of the Department of Citywide Administrative Services, and the City of New York, Respondents.




103762/07



For the Petitioners:

Ernst H. Rosenberger, Esq.

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

For the Resondents:

Jonathan M. Bardavid, Esq.

Assistant Corporation Counsel

New York City Law Department

Office of the Corporation Counsel

100 Church Street New York, NY 10007-2601

Marcy L. Kahn, J.

Petitioners Harry Nespoli ("Nespoli"), as president of the Uniformed Sanitationmen's Association, Local 831, International Brotherhood of Teamsters, (the "union") and the union have moved this court for an order and judgment pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") vacating and annulling the administrative action of respondents which extended the probationary period for all newly appointed sanitation workers of respondent Department of Sanitation of the City of New York ("DSNY") from twelve months to eighteen months as arbitrary, capricious and an abuse of discretion (motion sequence no. 1). Respondents have opposed the application, and the matter is currently pending before this court.

On this motion (motion sequence no. 2), petitioners seek leave of court to obtain "limited" discovery of respondents pursuant to CPLR §408 in aid of the underlying proceeding. Respondents oppose the application as unnecessary.

For the reasons stated, petitioners' application for limited discovery is granted, as set forth below.

I.BACKGROUND

A.Motion Sequence No. 1

On or about February 7, 2007, the Department of Citywide Administrative Services ("DCAS") by its Commissioner, respondent Martha K. Hirst ("Commissioner Hirst"), issued a notice of examination for its June 9, 2007 sanitation worker civil service examination which stated that successful candidates who were hired by DSNY would be subject to an eighteen-month probationary period, which would apply to all sanitation workers appointed from the eligible list thereafter. (Affid. of William Klimowicz, sworn May 24, 2007 ["Klimowicz Affid."], attached as Exh. 1 to Verified Answer of Respondents ["Ver. Answ."], ¶14; Ver. Answ., at 3). Sometime prior to that date, respondent John J. Doherty, Commissioner of DSNY ("the Commissioner" or Commissioner Doherty") had requested, and Commissioner Hirst had approved, the probationary period extension. (Verified Petition ["Pet."], Exh. B).

On February 15, 2007, Nespoli complained to Commissioner Doherty about the lengthening of the probationary period for all newly appointed sanitation workers from twelve months [FN1] to eighteen months in the absence of any consultation with the union. (Pet., Exh. A). On [*2]February 20, 2007, the Commissioner responded to Nespoli, confirming the change, and stating that the lengthened probationary period was warranted due to "experience and education requirements, and the new entry level salary for the job." (Pet., Exh. B).

Petitioners commenced an Article 78 proceeding to annul the administrative action of DSNY and DCAS, alleging that it lacks a rational basis justifying an across-the-board extension of the probationary period. (Pet., at 4). Respondents contend that the decision is rationally based, in that the extended period will provide more time to train and evaluate newly hired employees, resulting in safer and more effective job performance. (Ver. Answ., at 6-8, 12).

B.Motion Sequence No. 2

In defense of their position, respondents rely on representations by Commissioner Doherty that the administrative action was neither arbitrary nor capricious. (Affid. of John J. Doherty, sworn May 24, 2007, attached as Exh. 2 to Ver. Answ. of Respondents ["Doherty Affid."]). In his affidavit, the Commissioner cites certain statistical information derived from the records of DSNY to establish respondents' contention that his decision was rationally based. (Id.).[FN2] Petitioners allege that they are unable to respond in a meaningful way to the statistics the [*3]Commissioner provides, because respondents proffer no documentary support for the statistics beyond the Commissioner's own conclusory representations. (Affirm. of Ernst H. Rosenberger, Esq., affirmed June 8, 2007, attached to Petitioners' Motion for Discovery ["Rosenberger Affirm."], at 3.) Accordingly, petitioners now seek limited disclosure of certain books and records in DSNY's possession in order to ascertain the factual basis of respondents' statistical averments.[FN3] (Rosenberger Affirm., at 4). [*4]

Respondents counter that petitioners have failed to demonstrate how the discovery of the books and records sought will aid the court in its resolution of the petition, and argue that the Doherty Affidavit provides ample rational basis to support the administrative action. (Affirm. of Jonathan Bardavid, Esq. in Opposition to Petitioner's Motion for Discovery, affirmed July 20, 2007, at 3).

II.DISCUSSION

Although disclosure is not prohibited in Article 78 proceedings, it is only available upon leave of court. (CPLR §408). Due to the summary nature of special proceedings, and the tendency of discovery to prolong litigation, courts should grant discovery only upon a demonstrated need for such relief. (Town of Pleasant Valley v. New York State Bd. of Real Prop. Servs., 253 AD2d 8, 15 [2nd Dept. 1999]). The information sought must be "material and necessary" to the prosecution or defense of the proceeding. (Id., quoting CPLR §3101[a]). As observed by the Appellate Division, Second Department in Town of Pleasant Valley, the Court of Appeals has determined that:

" material and necessary'" should 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. The test is one of usefulness and reason." (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406).


(Town of Pleasant Valley v. New York State Bd. of Real Prop.

Servs., supra, 253 AD2d at 16). If the information requested is material to the action and necessary to the court's resolution of the factual issues before it, discovery is properly ordered.

(Roth v. Pakstis, 13 AD2d 194 [1st Dept. 2004], citing Goldstein v. McGuire, 84 AD2d 697 [1st [*5]Dept. 1981];[FN4] Town of Wallkill v. New York State Bd. Of Real Prop. Servs., 274 AD2d 856 [3rd Dept. 2000]; see Margolis v. New York City Transit Auth., 157 AD2d 238 [1st Dept. 1990]).

In the present case, although couched in terms of their need to reply to respondents' answer, petitioners' reason for seeking discovery of seven categories of data maintained by DSNY is, in practical terms, to aid them in furnishing information to the court that the statistically-based arguments advanced by the Commissioner in support of respondents' actions are without basis in fact. Although the Commissioner does offer some limited statistical support for his position (see Doherty Affid., at 5,7 and 8), it is proffered without attribution or context.

It seems clear that petitioners need access to the data they are seeking in order to address, and give the court access to, the factual basis for the Commissioner's conclusions. (Margolis v. New York City Transit Auth., supra). Certainly, this court's interpretation of the "material and necessary" standard need not be very liberal in order to conclude that access to the underlying data would aid the court in evaluating respondents' contentions of rational bases in fact for the extension of the probationary period. Although respondents are correct in stating that citation of statistical evidence was not a prerequisite to their successful defense of this proceeding, that is the defense they have chosen. Access to the underlying data is therefore material and necessary to petitioner's prosecution of the proceeding as well as to this court's resolution of it.

The Pleasant Valley court further observed:

Generally, the trial court has broad discretion in granting or denying disclosure . . ., although it must balance the needs of the party seeking discovery against opposing interests as expedition and confidentiality . . . .


(Town of Pleasant Valley v. New York State Bd. of Real Prop.

Servs., supra, 253 AD2d at 16 [citation omitted]). Where the disclosure would intrude on confidential record-keeping, it should be denied. (Grossman v. McMahon, 261 AD2d 54 [3rd Dept. 1999]).

Here, none of the records sought by petitioners are cloaked in privilege or confidentiality. Moreover, respondents have not demonstrated that production of these materials would be prejudicial or unduly burdensome, nor that their disclosure would cause undue delay of these proceedings. Absent any such considerations, disclosure relevant to the issues at hand is deemed material and necessary, and subject to discovery. (Town of Pleasant Valley v. New York State Bd. of Real Prop. Servs., supra, 253 AD2d at 16).

III.CONCLUSION

Accordingly, petitioners' motion for discovery pursuant to CPLR §408 is granted, to the extent indicated herein. Respondents Doherty and DSNY are directed to provide the following documents to petitioners within 45 days of service of this order and notice of entry upon them: a) [*6]all documents reflecting the number of sanitation workers, in total and as broken down by length of employment, for each year, 2003 through 2006 [FN5], inclusive; b) all documents reflecting the number of sanitation workers whose probationary periods were extended on an individual basis, and the number of sanitation workers who refused to consent to such extension, for each year, 2003 through 2006, inclusive; c) all documents reflecting the number of accidents involving sanitation workers and a breakdown of accidents reflecting the length of employment of the sanitation workers involved, for each year, 2003 through 2006, inclusive; d) all documents reflecting the number of disciplinary complaints resulting in disciplinary action [FN6] and/or charges against sanitation workers and a breakdown of all such complaints reflecting the length of employment of the sanitation workers involved, for each year, 2003 through 2006, inclusive; e) all documents reflecting the number of arrests of sanitation workers and a breakdown of arrests reflecting the length of employment of the sanitation workers involved, for each year, 2003 through 2006; and f) all documents reflecting any additional training respondents intend to implement for sanitation workers.

Petitioners are granted 30 days after the conclusion of the discovery period within which to file a supplemental reply in motion sequence no. 1. Respondents are granted 20 days after the filing and service upon them of the supplemental reply for the filing of any supplemental sur-reply.

The foregoing constitutes the decision and order of this court.

E N T E R:

Marcy L. Kahn, J.S.C.

DATED: New York, New York

September 28, 2007

Footnotes


Footnote 1: The personnel rules of the City of New York City provide in pertinent part:

[E]very appointment . . . shall be for a probationary period of one year unless otherwise set forth in the terms and conditions of the certification for appointment or promotion as determined by the commissioner of citywide administrative services.

(55 RCNY §A [Personnel Rules and Regulations of the City of New York], Rule 5.2.1.).

Footnote 2: The affidavit states, in relevant part:

11. Within the last 3 years the number of accidents involving employees with less than two years of employment has been rising while the number of accidents for people on the job more than two years has been decreasing. In 2004 there were 65 accidents involving employees with less than two years of employment. In 2005 there were 434 accidents involving employees with less than two years of employment. In 2006 there were 618 accidents involving employees with less than two years of employment.

12. In comparison the number of accidents involving employees with more than 2 years of employment has decreased. From 2004 to 2006 the number of accidents involving employees with more than 2 years of employment was reduced from 1448 accidents in 2004 to 1343 accidents in 2006. These statistics indicate that additional training and evaluation of our new employees on the proper and safe use of all of our equipment is required.

19. Approximately one-third of employees in their second year of employment, who were hired between April 4, 2004 and May 9, 2005, were served with disciplinary complaints (footnote omitted). This indicates that approximately one-third of the employees who passed the 12 month probationary period are charged with misconduct within the first year of achieving permanent status.

20. Additionally, there has been an increase in the percentage of DSNY employees in their second year of employment who are arrested. In 2003, approximately 6.5 percent of DSNY employees arrested were in their second year of employment; in 2004, none of the DSNY employees arrested were in their second year of employment. In the period from January 2005 to April 2007, approximately 13 percent of the DSNY employees were in their second year of employment.

(Doherty Affid., at 5,7 and 8).

Footnote 3: The documents petitioners seek are as follows:

a. Documents reflecting the number of Sanitation Workers, both in total and as broken down by length of employment, for each year, 2003 through the present.

b. Documents reflecting the number of Sanitation Workers whose probationary period has been extended on an individual basis, and the number of Sanitation Workers who have refused to consent to an extension of their probationary period, for each year, 2003 through the present.

c. Documents reflecting the number of accidents involving Sanitation Workers, and a breakdown of accidents reflecting the length of employment of the Sanitation Workers involved, for each year, 2003 through the present.

d. Documents reflecting the number of disciplinary complaints served upon Sanitation Workers, and a breakdown of disciplinary complaints reflecting the Sanitation Workers' length of employment, for each year, 2003 through the present.

e. Documents reflecting the number of disciplinary complaints that resulted in disciplinary action and/or charges against Sanitation Workers fore each year, 2003 through the present.

f. Documents reflecting the number of arrests of Sanitation Workers, and a breakdown of arrests of Sanitation workers reflecting the Sanitation Workers' length of employment, for each year, 2003 through the present.

g. Documents reflecting any additional training that Respondents intend to implement or have implemented for new Sanitation Workers.

(Rosenberger Affirm., at 5-6).

Footnote 4: Although the Appellate Division, First Department in Roth also upheld the grant of discovery because the information was unavailable by other means, that court's ruling in Goldstein makes clear that unavailability is not a prerequisite to the ordering of section 408 discovery.

Footnote 5: As the administrative action in question was completed by February 7, 2007 (Klimowicz Affid., ¶14), the calendar years which could furnish a rational basis for that action would have concluded with calendar 2006. As respondents could not have, in fact, relied for their decision upon data from calendar year 2007, and with one exception, did not claim to do so, discovery of that data is not material to the issues before this court. As for that exception, for the same reason, when the court evaluates the information relating to arrests, the reliance of respondents on arrest data from February through April of 2007 (Doherty Affid., ¶20) will not be considered.

Footnote 6: Petitioners' demand for all disciplinary complaints served during this period is overly broad and significantly less material than their other requests, and is not granted.