FILED PAPERS: Claim, filed September 1, 2000; Answer, filed September 20,
This Claim arises from the alleged unlawful arrest of Claimant Mark Ferran on
June 4, 2000 by New York State Troopers following an incident that is alleged to
have occurred on property owned by Claimant Nadia Ferran. Following a
conference, the Court, pursuant to 22 NYCRR 206.8(b), authorized the instant
Claimant seeks an order pursuant to CPLR 3103(c) "suppressing any public use or
disclosure of Claimant's private matters." (see Notice of Motion,
Ferran Affidavit ¶ 2). Specifically, Claimant seeks to suppress the
release of information, gleaned at his deposition that he "does not presently
own nor carry a ‘pistol' " (id.). The ostensible purpose for
suppressing this information is that Claimant "may be able to prevent or deter a
multiple-assailant (gang-type) assault....by suggesting that Claimant is
carrying a concealed Pistol...." (id. at ¶25). Defendant opposes
the application (Cagino Affirmation ¶¶ 18-20).
A party is free to seek a protective order to restrict disclosure based on
grounds that justify the issuance of such an order (see Tai Tran v New
Rochelle Hosp. Med. Ctr., 99 NY2d 383, 388 n 2). By moving pursuant to CPLR
3103(c), Claimant was required in the first instance to establish the
information was "improperly or irregularly obtained" (CPLR 3103 (c), see
e.g. Lipin v Bender, 84 NY2d 562 [plaintiff took confidential
documents from defendant's attorney]). Inasmuch as the information was obtained
in the course of Claimant's deposition, he can not satisfy the first requirement
of the statute. Moreover, Claimant does not identify "the substantial right of
a party" which is prejudiced in this litigation. Accordingly, the motion is
Assuming arguendo Claimant had simply moved for a protective order
pursuant to CPLR 3103 (a), the Court would also decline to issue such order.
Quite simply, Claimant's stated reason does not justify the issuance of a
Claimant, by this motion, seeks an order pursuant to CPLR 3126 for "default
judgment, absolute or conditional" based upon Defendant's failure to answer 68
interrogatories propounded on May 15, 2001. Defendant objected to the
interrogatories as, inter alia, vague, unduly burdensome, irrelevant and
not reasonably calculated to lead to admissible or useful evidence (see
Ferran Affidavit, Exhibit B).
Whether a party intentionally, willfully or in bad faith failed to comply with
discovery demands, such a determination "will be tempered by a ‘general
policy favoring the resolution of actions on their merits.' Hence, before
striking an answer, entering a default judgment or issuing a preclusion order,
there must be a clear showing of willful or contumacious conduct" [citations
omitted] (Kinge v State of New York, 302 AD2d 667, 669; Jones v
General Motors Corp., 287 AD2d 757). Claimant bears the initial burden of
coming forward with a clear-cut showing of willfulness (Forman v Jamesway
Corp., 175 AD2d 514). The instant record does not support such a finding.
Rather, Defendant, albeit in the most general of terms, has objected to the
interrogatories and Claimant is dissatisfied. Moreover, Claimant acknowledges
that the State Police Investigation Report, supplied in response to a Notice to
Produce dated February 10, 2003 (see Cagino Affirmation ¶ 21,
Ferran Reply ¶ 20), is fully responsive to 16 interrogatories and
responsive in part to 21 interrogatories (Ferran Reply, ¶ 22).
Notwithstanding Claimant's vitriol, the record does not disclose any conduct
from which the Court could base a finding of willful or contumacious behavior.
Accordingly, Claimant's motion is denied.
Defendant seeks an order compelling Claimant Nadia Ferran to provide medical
release authorizations and compelling Claimants to produce photographs.
Claimant opposes the cross-motion asserting that with regard to the photographs,
Claimant has already agreed to produce same (Ferran Reply ¶ 11) and
as to the authorizations, Defendant did not avail himself of the opportunities
to obtain same when in Nadia Ferran's presence (id.). Accordingly,
Defendant's motion is granted as to the authorizations and denied, without
prejudice, as to the photographs.
The parties shall appear at a conference to be held in Courtroom 2, 7th Floor,
Justice Building, Empire State Plaza, Albany, New York on July 10, 2003 at 1:00
p.m. Claimants shall appear at that date with the aforementioned authorizations
By virtue of the foregoing, Claimants' motions are DENIED and Defendant's
cross-motion is GRANTED in part and DENIED, without prejudice, in part.