Appeals: Jose Perez v. City of New York

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Jose Perez, et al., Plaintiffs-Respondents, v The City of New York, et al., Defendants-Appellants.
Index 18637/03
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 1960; 2007 N.Y. App. Div. LEXIS 2664
March 8, 2007, Decided
March 8, 2007, Entered

CASE SUMMARY

PROCEDURAL POSTURE: Defendants, a city, a police officer, and others, sought review of an order entered by the Supreme Court, Bronx County (New York), which granted discovery to plaintiffs with regard to photographs of police personnel assigned to a specific precinct. Plaintiffs sought damages for personal injuries arising from an allegedly false arrest.

OVERVIEW: Plaintiffs sought photographs of all police personnel assigned to the precinct in question who were not women and who were not dark-complected. The court had previously ordered defendants to produce for discovery photographs for all male, non-blacks from the precinct. In the order at issue which resulted from further litigation, the court directed defendants to produce not only the photographs themselves but to, inter alia, provide the height and weight of each officer and the date when the photograph was taken. On appeal, the court affirmed. While defendants claimed that the production of the photographs for in camera review was unduly burdensome and overly broad, the court determined that in camera review was needed to determine whether any of the already limited set of photographs would subsequently be placed into photo arrays and which photographs had to be produced for plaintiffs.

OUTCOME: The court affirmed the trial court's order.

COUNSEL:
Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for appellants.
Sivin & Miller, LLP, New York (Edward Sivin of counsel), for respondents.

JUDGES: Mazzarelli, J.P., Sullivan, Sweeny, Catterson, McGuire, JJ.

OPINION:Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered September 23, 2005, which granted discovery to plaintiffs with regard to photographs of police personnel assigned to the 43rd Precinct, unanimously affirmed, without costs.

This is an action for personal injury arising from an alleged false arrest. In an order dated March 17 and entered April 6, 2005, the court directed defendants to produce for discovery photos of all "male-non-blacks from the 43rd Precinct." Defendants were given 45 days to comply, and the matter was adjourned for three months. Upon further litigation, the court directed defendants, in the order now appealed from, to provide photographs of all police officers assigned to the 43rd precinct [**2] . . . excluding only women and dark-complected African American officers, together with a corresponding description of the height and weight of each officer, and the date on which each photograph was taken, after which the court will decide which photographs will be shown to plaintiff, Lorraine Perez, for her review in a photo array or arrays . . . conducted in the presence of the court, and will be comprised of the photographs so selected . . . together with photographs of members of the NYPD who were not assigned to the 43rd precinct.

We reject defendants' claim that the production of the photographs for in camera review is unduly burdensome and overly broad. Whether any of the already limited set of photographs will subsequently be placed in photo arrays, and which photographs must be produced for plaintiffs, will not be determined until after in camera review. [*2]

The relevancy of the identity of defendant Officer "Douglas Doe" cannot be appraised from the record, since defendants failed to include the parties' pleadings.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2007

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