Kimmel v. StateKimmel v. State
—Order unanimously modified on the law and as modified affirmed with costs to plaintiffs in accordance with the following Memorandum: These arе appeals by plaintiffs and cross appeals by defendants from two discovery orders. In appeal No. 1, plaintiffs appeal from an order insofar as it ordered that plaintiffs must pay defendants 15 cents per page plus an amount for an еmployee’s time to copy all documents produced by defendants; that defendants need not produce policе personnel files of nonparties; that audiotapes of depositions of two defendants shall be inadmissible; and that defendаnts submit to the court for in camera review items sought in plaintiffs’ notice of discovery and inspection (except those nonрarty materials that the court protected from disclosure). Defendants cross-appeal from that order insofar as Supreme Court directed them to submit personnel records for in camera review without first conducting a hearing pursuant to Civil Rights Law § 50-a.
In appeal No. 2, plaintiffs appeal from an amended order
Insofar as pertinent to our disposition of the case, plaintiffs cоntend that prior orders in the case, none appealed by defendants, constitute the law of the case and preclude defendants from relitigating the issues of document discovery and the location of the McMahon and Luitweiler depositions; thаt defendants failed to demonstrate their entitlement to reargument/renewal concerning the location of the depositions; that plaintiffs should not have been assessed with the costs of those depositions or with copying costs; and that audiotaрes of the depositions of defendants Steve LaLonde and Linda Stevens-Wagner are admissible. On their cross appeal, defendants contend that the court erred in ordering in camera review of defendants’ police personnel files without first conducting a hearing pursuant to Civil Rights Law § 50-a.
The law of the case requires defendants to turn over all documents identified in plaintiffs’ original discovery request and precludes defendants from again raising Civil Rights Law § 50-a as an obstacle to disclosure. Plaintiffs served their discovеry notice in July 1995, requesting the personnel records of Betty L. Kimmel (plaintiff), the individual defendants, and’ 17 other officers who were alleged to have played a part in the acts of discrimination, harassment and retaliation against plaintiff. Defendants promptly оpposed plaintiffs’ discovery notice, arguing, among other grounds, that it sought information protected from disclosure by Civil Rights Law § 50-a. The court impliedly or explicitly rejected those arguments in its oral orders of August and September 1995 and in its written orders entered in Deсember 1995 and February 1997. Defendants failed to appeal from those orders, which thus constitute the law of the case conсerning the proper scope of document discovery and, in particular, the applicability of Civil Rights Law § 50-a (see, Matter of Jamaica Tobacco & Sales Corp.,
For similar reasons, the court erred in granting rеnewal or reargument and in ordering that the McMahon and Luitweiler depositions take place in Albany. In serving their deposition notices in July 1995, plaintiffs properly scheduled the depositions in Rochester, where the action is pending (see, CPLR 3110 [1]). In its two prior written orders, as in its prior oral orders, the court ordered that defendants produce McMahon and Luitweiler for depositions. The оbvious effect of those orders was that the depositions take place, as noticed, in Rochester. Defendants did not сontend otherwise until July 1997, when they raised a hardship issue in opposition to plaintiffs’ motion to compel. Even then, the court rejеcted the claims of hardship and specifically ordered that the depositions take place in Rochester. Given thоse prior orders, the first four of which were not appealed and the fifth of which was on appeal when the amended order was entered, the court should not have ordered that the depositions take place in Albany (see, Francione v Birnbaum, supra, at 851). In any event, defendаnts’ motion, though styled as one for reargument, in essence sought renewal. Renewal did not properly lie, however, becausе the additional proof could have been submitted on the earlier motion. Finally, defendants’ showing of inconvenience is unpеrsuasive and defendants’ conclusory allegations of hardship insufficient (see, Carella v King,
We take this occasion to note our strong disapрroval of the obstructionist and delaying tactics carried out by defendants and tolerated by the court. This action was commеnced four years ago and is still in the initial stages of discovery. We urge the court to move this matter expeditiously.
In light of our disposition, we need not consider the parties’ contentions concerning the proper interpretation of Civil Rights Law § 50-a. We also need not consider the contention of plaintiffs that they should not have been assessed the costs of taking the depositions of Luitweiler and McMahon in Albany.
We modify the order in appeal No. 1 by vacating the first, fifth, and seventh ordering paragraphs and by directing defendants to comply with plaintiffs’ discovery notice and the prior orders in the case. We modify the amended order in appeal No. 2 by vacating the first ordering paragraph. (Appeals from Order of Supreme Court, Monroe County, Calvaruso, J.— Discovery.) Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.