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Betancur, etal. v. The City Of New York

(Supreme Court, NY County, October 8, 1999)

We represented: Plaintiffs

Hon. Martin Shulman, J.S.C.

DECISION and ORDER

In the instant proceeding, plaintiffs NYC Emergency Medical Services ("plaintiffs" or "EMS") personnel allege they were injured on August 13, 1990 by correction officers demonstrating at, and blocking access to, the Queens side of the Riker's Island bridge. Plaintiffs seek permission to depose Allyn Sielaff ("Sielaff") and Gerald Mitchell ("Mitchell"). Mr. Sielaff and Mr. Mitchell were, respectively, the Commissioner of the NYC Department of Correction ("DOC") and the Chief of Department of DOC at the time the incident allegedly occurred. Defendant the City of New York ("the City") cross-moves for a protective order precluding the depositions of Sielaff and Mitchell, and for an order amending the caption to delete defendants Lee Brown and "John and Jane Does #1-1000, being correction officers employed by the City of New York whose identities are presently unknown." The motion and cross-motion are consolidated herein for disposition.

Previously, the City had produced Michael Caruso and Robert Ross for examination before trial. Mr. Caruso, is employed by The New York City Department of Investigation ("DOI") and serves as Inspector General for the DOC. Mr. Caruso was involved in investigating demonstration at the Riker's Island bridge and supervised an investigation into a disturbance that occurred on Riker's Island on August 14, 1990. In addition, Mr. Caruso helped prepare an extensive DOI Report to the Mayor entitled, "The Disturbance at the Rikers Island Otis Bantum Correctional Center, August 14, 1990: Its Causes and the Department of Correction Response [hereinafter 'The DOI Report']." Mr. Ross, a New York City Police Detective, investigated the allegations asserted by plaintiffs EMS on August 13, 1990 and subsequent thereto. Notwithstanding these prior depositions, plaintiffs contend that there is a compelling need to depose Sielaff and Mitchell.

Plaintiffs do not have unlimited discretion in deciding whom they shall examine before trial as it is clear that a municipality has the right to determine which of its officers with knowledge of the facts shall appear for pretrial examination. Colicchio v. City of New York, 181 A.D.2d 528 (1st Dept., 1992); D'Ulisse v. Town of Oyster Bay, 81 A.D.2d 825 (2nd Dept., 1981); Consolidated Petroleum Terminal, Inc. v. Village of Port Jefferson, 75 A.D.2d 611 (2nd Dept., 1980). In order to show that additional depositions are necessary, the moving party must show: (1) that the representatives already deposed had insufficient knowledge or were otherwise inadequate; and (2) there is a substantial likelihood that the person sought for depositions possess information which is material and necessary for the prosecution of the case. Zollner v. City of New York, 204 A.D.2d 626 (2nd Dept., 1994); Derma v. Brooklyn Union Gas, 217 A.D.2d 681 (2nd Dept., 1995); Ayala v. City of New York, 169 A.D.2nd 530 (1st Dept., 1991); D'ulisse v. Town of Oyster Bay, 81 A.D.2d 825 (2nd Dept., 1981).

Here, plaintiffs, inter alia, allege that despite clear warning signs of the potential for disturbances in and/or around Riker's Island in the days preceding the August 13, 1990 incident, Sielaff and Mitchell negligently failed to take appropriate action. In support of this theory, plaintiffs note that the DOI report contains significant criticism of Sielaff's and Mitchell's actions prior to and during the Riker's Island disturbances, to wit:

Commissioner Allyn Sielaff and Chief of Department Gerald Mitchell, the highest-ranking uniformed member of the DOC, responded to the growing crisis by failing to take appropriate action, often ignoring existing emergency plans designed to specifically address the issue at hand....Despite advanced warning of a possible job action for August 13, DOC managers failed to take proscribed precautions to prevent a blockade of the Riker's Island bridge. (DOI Report, p.6)...

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DOC officials had sufficient warning of the planned demonstration to take appropriate precautions, but failed to do so. Certain precautionary steps were detailed in existing emergency plans for DOC labor unrest; had they been taken the bridge blockade might well have been averted. Two reasons for this failure are evident. First, Sielaff and Mitchell apparently discounted the threat of a job action. Second, Mitchell, having agreed to notify the NYPD of the threatened demonstration was apparently unaware that existing DOC and City emergency plans required the NYPD Operations Division, specifically the Office of Emergency Management ('OEM') be contacted to ensure an appropriate NYPD response. (DOI Report, p.37-38)

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Had Mitchell ensured proper notification of the anticipated job action...police officers equipped and trained in crowd control would...have been prepared to respond. An appropriate NYPD response would have prevented the blockade of the bridge. (DOI Report, p.50).

The DOI report also found that, "...only Sielaff and Mitchell have the authority to coordinate the activities of DOC to meet a department-wide crisis." Supra, at 69. In part, plaintiffs seek to hold the City liable for their injuries on the basis of Sielaff's and Mitchell's alleged failure to effectively utilize their authority prior to the alleged assault on plaintiffs.

The moving papers under review reveal that the previously deposed witnesses lacked personal knowledge of the facts and circumstances under which Sielaff and Mitchell operated under prior to the Riker's Island disturbances. There has been no evidence presented to suggest that either Messrs. Caruso or Ross attended any of the meetings or discussions, as referred to in the DOI report, that were held to address the deteriorating situation at Riker's Island in August 1990. The deposition taken of Caruso indicates that he began to monitor the situation on August 13, 1990, after receiving reports of a demonstration/blockade by correction officers. The deposition taken of Ross indicates that his involvement in the events surrounding the Riker's Island disturbances began when he was dispatched to investigate the criminal complaints of EMS personnel on August 13, 1990.

In light of the foregoing, plaintiffs have presented facts sufficient to demonstrate that those witnesses proffered by The City of New York possessed insufficient personal knowledge of the facts underlying this litigation. Moreover, given the historic, albeit prominent roles at the DOC at the time of the incident in question, there is a substantial likelihood that Sielaff and Mitchell possess information which is material and necessary for the prosecution of plaintiffs' case. It should be readily apparent that the deposition testimony to be offered by Sielaff and Mitchell would not, as defendant asserts, be either "...duplicative or cumulative of the prior testimony and of each others' testimony."

The City further opposes examination of Sielaff and Mitchell by noting that a high ranking government official is subject to a deposition "...only on a showing both that the deposition, is necessary to obtain relevant information and can not be obtained elsewhere, and that the deposition[s], will not significantly interfere with the official's performance of his governmental duties." Marisol v. Guiliani, 1998 WL 132810 (S.D.N.Y.). This limited immunity from being deposed is granted to high government officials to ensure that they are not distracted from performing their governmental functions and preventing the disruption of the primary functions of government. Supra. At the present time, neither Sielaff or Mitchell are employed by the DOC, nor has any representation been made that Sielaff and/or Mitchell are currently "high ranking government officials." As such, there is little reason to extend to either Sielaff or Mitchell the limited immunity that such government service may entail. Their examination before trial poses little threat to effective governmental administration. In addition, Sielaff and Mitchell are uniquely qualified to offer relevant information based upon their personal knowledge that is material and necessary for the prosecution of plaintiffs' case.

For the reasons stated above, the motion and cross-motions are decided solely to the extent as detailed below: It is

ORDERED that plaintiffs are granted leave to depose Allyn Sielaff and Gerald Mitchell. As defendant has represented to this Court that neither Sielaff nor Mitchell remain in defendant's employ, The City is hereby directed to provide to plaintiffs the last known addresses of both Sielaff and Mitchell; and it is further

ORDERED that the branch of The City's cross-motion which seeks a protective order precluding the depositions of Allyn Sielaff and Gerald Mitchell is denied. That branch of The City's cross-motion to amend the caption to delete defendants "Lee P. Brown and John and Jane Does #1-1000, being correction officers employed by the City of New York whose identities are presently unknown," being unopposed, is hereby granted. It is ordered that the Clerk of the Court shall delete said defendants from the caption, and the caption is being amended accordingly.

This matter shall be restored to the Part 30 Trial Assignment Part calendar upon stipulation of the parties on a mutually agreed upon date subsequent to the completion of the ordered depositions.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.

Dated: New York, New York

October 8, 1999