Upon the following papers numbered 1 to 34 read upon this motion to compel disclosure: Notice of Motion and supporting papers, 1 - 24; Answering Affidavits and supporting papers, 25 - 32; Replying Affidavits and supporting papers, 33 - 34.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff at approximately 10:15 p.m. on May 11, 2008 when she was assaulted by Joseph Lepore during the course of her employment as a nurse at St. Catherine of Siena Hospital and Medical Center in Smithtown, New York.

According to the plaintiff, earlier that evening officers of the Suffolk County Police Department ("the Department") responded to the report of an altercation at Lepore's residence in Ronkonkoma, New York and, when the officers observed Lepore behaving in a "belligerent, combative, and highly agitated manner," Police Officer William Michaelis sprayed Lepore in the face with chemical mace. The officers did not take Lepore into custody but instead caused him to be transported by ambulance to the hospital where the assault took place. The plaintiff contends that the officers had a duty of care, both to Lepore and to those who might come into contact with him, to accompany Lepore to the hospital and that had they not breached their duty she would not have suffered the injuries which followed.

Following joinder of issue, on December 3, 2008, the plaintiff served a series of disclosure requests on the defendants. Among those was a demand for discovery and inspection seeking, inter [*2]alia, all reports and documents, including the Use of Force Report and the Internal Affairs file prepared by the Department in connection with the incident. On September 11, 2009, the defendants produced Officer Michaelis for deposition. On October 25, 2010, the plaintiff served a notice of discovery and inspection seeking, inter alia, training videos and training materials relating to the Department's use of force and use of chemical mace for the three-year period prior to May 11, 2008. It appears that the defendants have since produced the Use of Force Report, but that they have refused to produce the Internal Affairs file on the ground of privilege, and that they have also refused to produce the training videos and training materials.

On or about February 24, 2011, the plaintiff moved for an order compelling Officer Michaelis to execute and return his deposition transcript together with a copy of the pertinent portions of his notepad as referred to at page 66 of the transcript, directing that the Internal Affairs file be delivered to the Court for in camera inspection and further directing that the defendants produce the requested training videos and training materials. By order dated June 23, 2011, the Court denied the plaintiff's motion for failure to submit the required attorney's affirmation of a good faith effort to resolve the issues raised on any motion relating to disclosure, stating in such order (inter alia):

The plaintiff's attorney failed to provide the required affirmation of a good faith effort to resolve the parties' discovery dispute (see, Uniform Rules for Trial Courts [22 NYCRR] §202.7 [a]). In any event, to the extent the plaintiff seeks to compel the defendants to return a signed deposition transcript, it is noted that any refusal or delay in signing or returning a deposition transcript is not a disclosure violation since there is statutory direction for the use of such a transcript as if it were signed (see, CPLR §3116 [a]; Tine v. Courtview Owners Corp., 40 AD3d 966 [2nd Dept., 2007]; Moak v. Raynor, 28 AD3d 900 [3rd Dept., 2006]).

The parties are strongly advised to make a determined effort to resolve this dispute without additional motion practice.

On August 16, 2011, the plaintiff served another notice for discovery and inspection again seeking the Internal Affairs file and training videos and training materials previously requested, as well as other documents relating to the incident, the Department's investigation of the incident, and any disciplinary action taken as a result of the incident. The defendants immediately served a response objecting to each of the demands and producing no new documents. This motion ensued.

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) §202.7 (a), a party seeking to compel disclosure is required to serve and file an affirmation of a good faith effort to resolve the underlying discovery dispute. Such an affirmation must indicate the time, place and nature of the consultation, the issues discussed and any resolutions, or must show good cause why no such conferral with opposing counsel was held (Uniform Rules for Trial Cts. [22 NYCRR] §202.7[c]; Natoli v. Milazzo, 65 AD3d 1309 [2nd Dept., 2009]; 148 Magnolia v. Merrimack Mut. Fire Ins. Co., 62 AD3d 486 [1st Dept., 2009]).

The "good faith" requirement is intended to remove from the court's work load all but [*3]the most significant and unresolvable disputes over what has been the most prolific generator of pretrial motions: discovery issues. Most seasoned litigators know that, with a modicum of good sense, discovery disputes can and should be resolved by the attorneys without the necessity of judicial intervention. (Eaton v. Chahal, 146 Misc 2d 977, 982 [Sup. Ct., Rensselaer County, March 26, 1990]).

Here, although the plaintiff's attorney annexes to the moving papers a document which he identifies as his "Affirmation of Good Faith," it does little more than recount the defendants' "refusal to cooperate with discovery" and to contend that the defendants have "effectively thwarted the prosecution of this action by simply refusing to turn over critical information."

The plaintiff's attorney appears not to have grasped the import of the Court's prior order. Merely stating that the responding party has refused to respond, as the plaintiff's attorney has, does not satisfy the Court's requirement that the seeking party make a diligent effort to resolve the parties' dispute. Section 202.7(a) of the Uniform Rules of Trial Courts reflects the policy of this Court not to determine motions relating to disclosure unless and until it is satisfied that such an effort has been made. Only when the seeking party has made the required effort and has related the details of that effort in affidavit or affirmation form will the Court intervene. Here, the affirmation does not refer to any communications between the parties—much less the details of those communications as required by the rule (Uniform Rules for Trial Cts. [22 NYCRR] §202.7[c]; see, 148 Magnolia v. Merrimack Mut. Fire Ins. Co., 62 AD3d 486 [1st Dept., 2009])—that would evince any kind of effort, diligent or otherwise, to resolve the dispute (see, Mironer v. City of New York, 79 AD3d 1106 [2nd Dept., 2010]; Natoli v. Milazzo, 65 AD3d 1309 [2nd Dept., 2009]). Nor does it appear that the plaintiff's attorney made any effort to modify or simplify his demands (see, Amherst Synagogue v. Schuele Paint Co., 30 AD3d 1055 [4th Dept., 2006]). While the failure to provide an affirmation of good faith may be excused where it is shown that any effort to resolve the dispute without judicial intervention would be futile (see, Carrasquillo v. Netsloh Realty Corp., 279 AD2d 334 [1st Dept., 2001]), here it has not been demonstrated that the facts are so unique, or that the defendants' conduct is so unjustifiable, or that the parties have so repeatedly resorted to judicial intervention in discovery disputes as to warrant that outcome (see generally, Yargeau v. Lasertron, 74 AD3d 1805 [4th Dept., 2010]). In any event, as to the plaintiff's demands for the Internal Affairs file, the plaintiff would appear to be guilty of inexcusable delay by waiting for more than two years after her initial demand before moving to compel a response (see, Charter One Bank v. Houston, 300 AD2d 429 [2nd Dept., 2002], lv dismissed 99 NY2d 651 [2003]; Remark Elec. Corp. v. Manshul Constr. Corp., 242 AD2d 694 [2nd Dept., 1997]). While neither CPLR §3122 nor CPLR §3124 imposes a time limit upon a party seeking discovery to bring a motion to compel, the failure to bring such a motion within a reasonable time will result in a forfeiture of the right to obtain the items sought (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3122:1). To the extent that the plaintiff again seeks to compel Officer Michaelis to return a signed copy of his deposition transcript, the Court is again constrained to note that such relief is both unnecessary and unauthorized (see, Ireland v. GEICO Corp., 2 AD3d 917 [3rd Dept., 2003]).

Accordingly, it is [*4]

ORDERED that the motion by the plaintiff for an order pursuant to CPLR §3124 (i) directing the defendants to cause Police Officer William Michaelis to execute the transcript of his deposition taken on September 11, 2009, and to return and deliver the signed transcript to the plaintiff's attorney together with a copy of the pertinent portions of the officer's notepad as referred to at page 66 of the transcript, (ii) directing that the defendants fully and completely respond to each and every demand contained in the plaintiff's notice for discovery and inspection dated August 15, 2011, without further objection, and produce each and every document, video or recording requested, and (iii) directing that the defendants comply within 20 days of the date of this Court's order, is denied.

Dated:

HON. William B. Rebolini, J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION