The following e-filed documents, listed by NYSCEF document number (Motion 003) 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, defendants the City of New York, Detective Brian Hendricks, Detective Joseph Carinha, Shield No. 4077, Detective Edward Clifford, Shield No. [*2]526, Detective Robert Mooney, Shield No. 1406, Detective Luis Ramirez, Shield No. 2154, Detective Michael Derosa, and Detective Michael Rogers (together, "Defendants") move this court pursuant to CPLR § 3126 to dismiss the complaint due to plaintiff Reginald Wiggins's ("Plaintiff") failure to respond to material and relevant questions asked at his deposition, or, in the alternative, for an order compelling Plaintiff to appear for a continued deposition to respond to the questions. The Plaintiff cross-moves pursuant to CPLR § 3126 for an order striking the Defendants Answer, or in the alternative, (2) precluding the Defendants from offering testimony in a dispositive motion or at the time of trial, or in the alterative, (3) pursuant to CPLR § 3124 compelling Defendants to provide further discovery responses, (4) and such other and further relief as to this Court may seem just and proper together with the costs of this motion. Upon review, the motion is denied and cross-motion is granted in part.

This civil rights action arises from a fatal shooting that occurred at a sweet sixteen birthday party on May 24, 2008 (NYSCEF Doc No. 63, tr). On May 28, 2008, Plaintiff was arrested in connection with the shooting and remanded without bail. He was charged in an indictment with murder in the second degree, two counts of attempted murder in the second degree, and criminal possession of a weapon in the second degree. Plaintiff was then held in pre-trial detention for Rikers Island for more than six years. Approximately three of the six years were spent in solitary confinement (NYSCEF Doc No. 45, appellate decision at 2). On September 23, 2014, Plaintiff pled guilty to manslaughter in the first degree in connection with events that occurred at a sweet sixteen party on May 24, 2008 (NYSCEF Doc No. 63, court tr at 4). In the plea allocution, Plaintiff attested that, on the night of May 24, 2008, he his co-defendant Jamal Armstead ("Armstead") were at the location of the shooting (id. at 5). He further attested that Armstead pointed a gun at a partygoer and pulled the trigger twice (id.). When the gun failed to fire, Armstead handed the gun to the Plaintiff, who pointed it and fired (id.). However, the shot missed its target and hit a 15-year-old bystander, who died from their injuries (id.). Following the plea agreement, Plaintiff was sentenced to twelve years' imprisonment and five years of post-release supervision (NYSCEF Doc No. 64, appellate brief at 1). However, by a decision and order dated February 15, 2018, Plaintiff's guilty plea and conviction were overturned by the Court of Appeals for violations of his constitutional right to a speedy trial (People v Wiggins, 31 NY3d 1 [2018]).

Plaintiff subsequently filed a notice of claim and commenced this action by filing a summons and complaint on March 13, 2019. Plaintiff testified at a 50-h hearing on July 13, 2018 (NYSCEF Doc No. 68, 50-h tr). In his 50-h testimony, the Plaintiff testified, inter alia, that on the night of the shooting, May 24, 2008, he was with his little cousins Trayvon and Amina at their home, was not in the area of the shooting, and was not involved in the shooting (id. at 16-21). Plaintiff's deposition in this matter was held on August 23, 2023 (NYSCEF Doc No. 67, deposition tr). At the deposition, counsel for Defendants asked several questions regarding Plaintiff's whereabouts on the night of May 24, 2008, including whether he attended the sweet sixteen party on that evening, whether Armstead was at the party, whether anyone other than Armstead places him at the party, and why Armstead said he was at the party (id. at 32, 40, 42-43). In response to each of these questions, Plaintiff's counsel objected and instructed the Plaintiff not to answer (id.). At the conclusion of the deposition, Defendants' counsel stated on [*3]the record that their intention to hold the deposition open due to the objections and Plaintiff's failure to answer the questions regarding the night of May 24, 2008.

Defendants now move pursuant to CPLR § 3126 to compel Plaintiff to answer questions regarding his whereabouts on the night of May 24, 2008 at a continued deposition. In support of the motion, Defendants argue that the requested information is material and relevant to the issue of probable cause and Plaintiff's credibility (NYSCEF Doc No. 61, affirmation in support at 5-6). Plaintiff opposes the motion and argues that the deposition questions regarding Plaintiff's whereabouts on the night of May 24, 2008 are irrelevant because any probable cause inquiry for this matter concerns only "what the defendants knew in 2008 at the time they made the decision to arrest, detain, and ultimately prosecute" Plaintiff (NYSCEF Doc No. 83, affirmation in opposition ¶ 3). Plaintiff further asserts that "Defendants are improperly seeking to find new probable cause to justify their actions in 2008 by questioning the defendant about the homicide itself, but that is palpably improper and significantly prejudicial" (id.).

Plaintiff cross-moves pursuant to CPLR § 3126 for an order striking the Defendants' Answer or precluding the Defendants from offering testimony in a dispositive motion or at the time of trial, or in the alterative, pursuant to CPLR § 3124 compelling Defendants to provide discovery responses. The cross-motion was largely resolved by a stipulation between the parties, except with respect paragraph 11 of Plaintiff's Discovery Demands dated June 7, 2021 for "the entire employment record of each and every officer who was present during this incident and/or participated in plaintiff's arrest" (NYSCEF Doc No. 87). Defendants object to the demand on the grounds that it is overly broad, unduly burdensome and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

Pursuant to CPLR § 3101(a), "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action." "If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article . . . the party seeking disclosure may move to compel compliance or a response" (CPLR § 3124). On a motion brought pursuant to CPLR § 3124, the burden is on the party seeking the disclosure to establish a basis for the production sought (Rodriguez v Goodman, M.D., 2015 NY Slip Op 31412 [U], *5 [Sup Ct, NY County 2015]). If a party refuses to obey an order for disclosure or willfully fail to disclose information which the court finds ought to have been disclosed, the court is authorized to issue appropriate sanctions upon motion of a party or the court's own motion (CPLR § 3126; Kutner v Feiden, Dweck & Sladkus, 223 AD2d 488, 489 [1st Dept 1998]).

Questions at an examination before trial should be "freely permitted and answered, unless violative of a witness' constitutional rights or a privilege recognized in law, or are palpably irrelevant, since all objections other than as to form are preserved for trial and may be raised at that time" (22 NYCRR § 221.2; Hertz Corp. v Avis, Inc., 106 AD2d 246, 249 [1st Dept 1985]). However, even if questions answered are not palpably improper, or irrelevant, they may still be excluded "upon timely objection, in the exercise of discretion," since the "true test is one of usefulness and reason" (id. at 249, citing, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, [*4]406 [1968]). "Thus, even information reasonably calculated to lead to relevant evidence may be beyond the scope of disclosure because it is more trouble to gather than it is worth" (id. [internal quotation omitted]). Defendants argue that Plaintiff's testimony regarding his whereabouts on May 24, 2008 is material and necessary because it is "highly relevant" to the issue of probable cause and Plaintiff's credibility. Plaintiff argues that the information is not relevant to the issue of probable cause and is "palpably improper and significantly prejudicial" because it "would allow defendants to obtain more information to prove probable cause that the police and prosecutors didn't even know existed in 2008" (NYSCEF Doc No. 83, affirmation in opposition ¶ 3).

Certainly, probable cause is relevant to the privilege element of Plaintiff's causes of action for false arrest and malicious prosecution (see De Lourdes Torres, 26 NY3d 742, 759 [2016]; Colon v City of New York, 60 NY2d 78, 82 [1983]). However, the existence of probable cause is measured by the facts known to the arresting officer at the time of the arrest, or to the prosecution at the start of the prosecution (Colon v City of New York, 60 NY2d 78, 82 [1983]; Munoz v City of New York, 18 NY2d 6, 9 [1966]). Plaintiff's ex post facto deposition testimony regarding the night in question cannot alter the evidence available to officers at the time of his arrest or to the prosecution at the start of the criminal proceeding. Any evidence regarding the facts known to the arresting officer at the time of the arrest or of the prosecution at the start of the prosecution are already in the possession of the Defendants. The testimony is, therefore, irrelevant to the issue of probable cause (see Agront v City of New York, 294 AD2d 189, 190 [1st Dept 2002]["The alleged conflicting evidence uncovered in the course of the police investigation is relevant to the issue of whether guilt beyond a reasonable doubt could have been proven at a criminal trial, not to the initial determination of the existence of probable cause"]). To the extent that the testimony sought is relevant to the Plaintiff's credibility, or to the extent that Defendants seek to impeach Plaintiff at trial regarding apparent discrepancies between the testimony offered at his plea agreement and the testimony offered at the 50-h hearing, the 50-h hearing testimony satisfies this purpose and further deposition testimony would be duplicative. The Court of Appeals has already determined that Plaintiff's constitutional rights were violated in the prosecution of the criminal case against him (see People v Wiggins, 31 NY3d 1 [2018]). He should not be now made to endure the delay of a further deposition regarding the underlying facts of the criminal case which would serve only a limited purpose in this proceeding. Therefore, in an exercise of this court's discretion, the motion to compel is denied.

Turning to the cross-motion, Plaintiff seeks disclosure of "the entire employment record of each and every officer who was present during this incident and/or participated in plaintiff's arrest" (NYSCEF Doc No. 78, 87). Employee personnel files are not typically discoverable in the absence of a cause of action for negligent hiring because they are unlikely to contain relevant and material information (Parkinson v FedEx Corp., 184 AD3d 433, 434[1st Dept 2020]). Nevertheless, the records may be relevant and discoverable to the extent that the documents contain information relevant to Plaintiff's case or reference prior complaints or disciplinary actions taken against officers who participated in Plaintiff's arrest (Chavez v City of New York, 33 Misc 3d 1214(A), *4 [Sup Ct, NY County 2011], affd, 99 AD3d 614, 615 [1st Dept 2012]; (Rodriguez v The City of New York, 2016 NY Slip Op 30484 [U] [Sup Ct, NY County 2016]). Therefore, the records of those officers that participated in the arrest shall be disclosed, in [*5]camera, within 30 days of entry of this order, such that the court may determine what portions of the records, if any, shall be disclosed to the Plaintiff. This order does not extend to officers that were merely present at the time of the arrest.

Accordingly, it is hereby

ORDERED that the motion to compel is denied; and it is further

ORDERED that the cross-motion to compel is granted to the extent that the City shall disclosed the employment records of all officers who participated in Plaintiff's arrest, in camera, within 30 days of entry of this order; and it is further

ORDERED that a settlement conference will be held for this matter at the courthouse located at 80 Centre Street, Room 320, New York, New York on July 30, 2024 at 2:00 p.m.