STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA. PATTY JACKSON, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF DARRYL ‘MOUNT, Plaintiffs, -against- CITY OF SARATOGA SPRINGS, A MUNICIPALITY. ORGANIZED AND OPERATING UNDER THE LAW OF ‘THE STATE OF NEW YORK; CHRIS MATHIESEN, COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY; CHIEF GREGORY J. VEITCH; SGT. AARON P. BENWARE; OFFICER FREDERICK J. WARFIELD; OFFICER JOHN BATEHOLTS; OFFICER TYLER MCINTOSH; OFFICER ADAM FRENCH; AND. INVESTIGATOR JAMES BELL, Defendants. oats MEMORANDUM OF LAW Respectfully submitted, FITZGERALD MORRIS BAKER FIRTH P.C. By: John D. Aspland, Jr, Esq, Attomeys for Defendants 68 Warren Street P.O. Box 2017 Glens Falls, NY 12801 (818) 745-1400PRELIMINARY STATEMENT ‘This Memorandum of Law is submitted in support of Defendants’ Motion for a Protective Order pursuant to CPLR §3103. The discovery of this action has spanned several ‘years, during which time events have occurred that have generated records Plaintfis believe they are entitled to. As will be discussed further below, Plaintiffs are not entitled to these records as they relate to a sealed criminal case, Defendants respectfully request that the Court issue a protective order, pursuant to CPLR §3103(a), acknowledging that these records are beyond the scope of discovery and sealing the records and transcripts of Aaron Benware and Robert Jilison. Alternatively, Defendants request that the court conduct an in-camera review to determine whether the records Plaintifis have requested are at all relevant to the instant case. STATEMENT OF FACTS Discovery in this matter was completed in early 2019 with the filing of the note of issue by Plaintiffs’ counsel, After learning about events that occurred after the close of discovery, Plaintiffs" counsel moved to vacate the note of issue and reopen discovery; Defendants opposed this motion, In an Order dated September 17, 2020, this Court granted Plaintiffs’ motion and reopened discovery. Since discovery was reopened, Plaintiffs’ counsel had the opportunity to take a further EBT of Dr. Sikirica. Additionally, in June of 2021 Plaintiffs’ counsel came to the office of Defendants’ counsel to review and request copies of a plethora of records related to the Saratoga Springs Police Department Officers. As part of this review, Mr. Breedlove, in error, received a copy of Mr. Benware’s personnel file, which included information that was related to and supported criminal charges. Unbeknownst to the undersigned until September 2021, the criminal charges against Mr. 2Benware were sealed by the Honorable Jeffrey D. Wait. The sealing of these charges occurred on November 12, 2019 and on July 24, 2020. A copy of the sealing orders is attached hereto as Exhibit “A.” After learning that the charges were sealed, Defense counsel wrote to Plaintiffs? counsel to request that the parties enter into a mutually acceptable stipulation. A true and accurate copy of this letter is attached hereto as Exhibit “B.” Plaintiffs’ counsel declined to enter into a stipulation, Based on Plaintiffs refusal to enter a stipulation, on October 5, 2021, Defendants wrote to this Court and requested input and guidance from the Court on this issue. A true and accurate copy of this letter is attached hereto as Exhibit “C.” In response, the Court requested that the parties submit leer briefs on the issue. On November 5, 2021, Defendants submitted a letter brief to the Court outlining the reasons why Defendants were entitled to a Protective Order. A true and accurate copy of this leter is attached hereto as Exhibit “D.” Plaintiffs filed a response ‘on November 12, 2021. A true and accurate copy of this letter is attached hereto as Exhibit “E.” Following the submission of these letter briefs, the Court held a conference on November 15, 2021. Discussions between counsel after the conference were unfruitful. It quickly became apparent that the parties walked away from this conference with diametrically opposed viewpoints on the Court’s instruction. Therefore, Defendants respectfully request that the Court issue a Decision and Order on these issues for the parties so that discovery in this matter can finally be closed and the dispositive motion filed by Defendants be refiled and ruled upon.LEGAL AUTHORITY and ARGUMENT The court has discretion to issue a protective order “denying, limiting, conditioning or regulating the use of any disclosure device.” See, CPLR §3103(a). In the instant case, the Court should deny Plaintiffs’ counsel’s request for information underlying Mr. Benware’s criminal record and limit the use of the information that may have been disclosed prior to the parties learning that the record was sealed, including documents and deposition testimony. 1. _ Mr. Benware’s criminal record is sealed, and this Court does not have authority to unseal the records; even if the Court had such authority, Plaintiffs’ counsel is not entitled to the records, ‘As the Court is aware, Plaintiffs’ counsel has requested information regarding Aaron Benware’s criminal record. The undersigned in this matter recently leamed that the criminal charges against Mr. Benware were sealed'. The charges were sealed on November 12, 2019 pursuant to New York Criminal Procedure Law (“CPL”) §160.55; additional charges were sealed on July 24, 2020 pursuant to CPL 160.50, In both cases the charges were sealed by the Honorable Jeffrey D. Wait. See, Exhibit “A”. At this time, there have been no orders issued by Judge Wait, or any other authority, to unseal these records. Nor should such an order be issued now. Plaintiffs’ assertion, in Exhibit “E”, that this Court's September 17, 2020 Order unsealed Mr. Benware’s record is incorrect. The Order does not reference the fact that the charges were sealed. A true and accurate copy of this Order is attached hereto as Exhibit “F.” At no point does the Court state that it is unsealing the records. Defendants are also unaware of any discussion " Defendants did receive a letter from Plaintiffs’ counsel on or around November 25, 2019, However, Mr. Breediove's assertion that this letter is suficient notice to defendants regarding the sealing of the records is patently false. At no time did Plaintiffs’ counsel present a sealing order from any court. Nor could counsel have such an order forall ofthe charges. The charge with the arest date of May 14, 2019 was not sealed until July 24, 2020, well after Plaintiff sent the above-referenced leter. While motion practice ensued during the summer of 2020, Plaintiff never affixed the sealing order issued by Judge Wait as an exhibit to any motion papers. 4regarding the fact that the charges were sealed during any conferences prior to the Order being issued. Review of the statutes sealing these charges supports the conclusion that the information underlying the charges is not subject to disclosure in this case. CPL 160.55(c) provides: all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency. Moreover, subsection (d) of CPL 160.55 enumerates specific exceptions for which records sealed pursuant to subsection (c) shall be made available. Many of these reasons revolve around use by law enforcement agencies. There is no argument that could be made that would make the exceptions in this section fit the facts of the instant case. Similarly, CPL 160.5(1) provides: “[uJpon the termination of a criminal action or proceeding against a person in favor of such person...the record of such action or proceeding shall be sealed...” Subsection (4) provides exceptions to the sealing order. None of the exceptions enumerated in this subsection provide a basis for unscaling Mr. Benware’s criminal record in this case. Even if the Court looks beyond the aforementioned statutory provisions, it remains the ccase that the information that Plaintiffs have requested is not subject to disclosure based on the law. In Matter of New York State Commission on Judicial Conduct v. Rubenstein, 23 NY3d 570, 578 (2014), the issue before the Court of Appeals was whether the Commission of Judicial Conduct acted within its power when it obtained records of an underlying criminal proceeding that were sealed pursuant to CPL 160.50. In determining that the Commission was entitled to disclosure of the sealed records, the Court reviewed the legislative purpose of CPL 160.50:the Legislature’s objective in enacting CPL 160.50 and the related statutes...wwas to ensure that the protections provided be consistent with the presumption of innocence... Indeed, the over-all scheme of the enactments demonstrates that the legislative objective was to remove any stigma flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection...to such acoused in the pursuit of employment, education, professional licensing and insurance opportunities. 1d. at 579-80, citing, People v. Patterson, 78 NY2d 711, 716, 579 NYS2d 617 (1991). Acknowledging the purpose of the statute, and the enumerated exceptions to the sealing of the records, the Court of Appeals reasoned that “there may be other sources of authority permitting access to sealed records.” Id. at 580. However, review of the case law cited by the Court regarding these other reasons, offers no support for Plaintiff's assertion that Mr. Benware’s criminal record should be unsealed in this case? Continuing its analysis, the Court of Appeals reasoned that “we have been careful when considering whether to permit access to sealed records so that we do not undermine the legislative goals of CPL 160.50 and make unsealing of records the rule rather than a narrowly confined exception.” Id, at 581. To that end, the Court held that in order to unseal the criminal records there must be “extraordinary circumstances’,” a specific grant of power, or the existing of a legal mandate the nature of which would be impossible to fulfill without unseating criminal records. Id. As discussed below, these reasons are not present in the instant case, and the unsealing of Mr. Benware’s criminal records ‘would do what the Court of Appeals expressly forbade, that is, it would undermine the legislative goals of CPL 160.50 and make unseating of records the rule, rather than the narrowly confined exception that it should be. 2 For example, in Matter of Dondi, 63 NY2d 331, 338 (1984), the Court of Appeals allowed a grievance committee access to sealed records based on the “inherent authority of records and is oversight and disciplinary power over attorneys and counselors at law. The “extraordinary circumstances” language relied on by the Court originated from an earlier case, Hynes v. Karassik, 47 NY2d 659 (1979). In Hynes, the Court held “fit is suggested that, by like logic, in the even rarer and more extraordinary circumstances in which sealed records must be unsealed in order to serve faimess and justice, ‘courts are not impotent to do so as well” Hynes at 664,Application of the reasoning from Matter of New York State Comm’n on Judicial Conduct, and the cases cited therein, to the facts of the matter before the Court results in the conclusion that the Court has neither the authority nor the basis to unseal Mr. Benware’s criminal record. The statutory purpose alone supports the conclusion that Mr. Benware’s record should not be unsealed. The revelation of Mr. Benware’s post incident criminal records would do more than attach a stigma. Indeed, if the records are unsealed itis likely that Plaintiffs’ counsel would attempt to use the records as improper character evidence to attack Mr. Benware’s credibility at trial. This would defeat the purpose of the statute. Careful analysis of the other three (3) reasons the Court of Appeals provides for unsealing records does not support the unsealing of Mr. Benware’s criminal record. First, there exists no “extraordinary circumstances” which would provide a basis for the unsealing of the records, The acts underlying Mr. Benware’s criminal charges occurred several years after the facts in this case. Even if these charges occurred more contemporaneously to the events underlying the instant case, they have no bearing on Mr. Benware’s liability, if any, as the acts are not at all similar to the allegations involving Mr. Mount. There can be no dispute that the records at issue, related to charges against Mr. Benware, are not required in order to serve faimess and justice. Second, there is not a specific grant of power issued to the Court by any authority, which would provide a basis for authority to unseal the records. Finally, there is no legal mandate which would be impossible to fulfill without unsealing Mr. Benware’s criminal records. Although Plaintiffs may argue that extraordinary cireumstances do in fact exist, their argument would be unpersuasive. Recently, the Third Department narrowed the exception to unsealing records. In Prag v, Prag, 161 AD3d 1364 (3d Dept, 2018), the plaintiff moved to 7unseal the record of her husband’s criminal proceedings. The Court flatly denied this request and held “{a]s a final matter, the wife cannot invoke the inherent authority of the courts to unseal criminal records in the interest of justice, as that authority is confined to attomey disciplinary matters.” Prag at 1365. The issue before this Court has nothing to do with attomey disciplinary matters. Therefore, based on the recent and precedential holding in Prag, the Court does not have authority to unseal Mr. Benware’s criminal record. Il, The case law cited to throughout Exhibit “E” is unpersuasive and attempts to mislead and obfuscate the issues. In making a decision on this motion, Defendants respectfully request that the Court follow the reasoning of the above case law. The case law cited in Exhibit E is unpersuasive and it is clear that with the citation to these cases, Plaintiffs are manipulating and cherry-picking case Jaw in an attempt cloud the issue before the court. For example, the piece of Hynes v. Karassik 47 NY2d 659, 664 (1979) that Plaintiffs’ counsel cited does not support Plaintiffs’ argument that Mr. Benware’s records should be unsealed, and the deposition transcripts of Mr. Benware and Mr. Jilson should not be sealed, in fact the holding by the court does very much the opposite, “It is suggested that, by like logic, in the even rarer and more extraordinary circumstances in which sealed records must be unsealed in order to serve fairness and justice, courts are not impotent to do so as well.” Hynes at 664. Therefore, there must exist a rare and extraordinary circumstance to unseal records. Plaintiffs have not met this threshold. Plaintiffs’ reliance on Svaigsen v. City of New York, 203 AD2d 32 (Ist Dept. 1994) is misplaced and has absolutely no value in the issue presently before the Court, In Svaigsen, the defendant sought to preclude the disclosure of information pursuant to the Public Officers Law, which was, at the time of that case, a New York State statute that protected the disclosure ofinformation from police departments. Here, Defendants at no time have relied on Public Officers Law and do not do so now. If one were to apply federal law, as Plaintiffs seem to suggest, it ‘would be even more obvious that this Court could not unseal Mr. Benware’s records. In Cruz v. Kennedy, 1997 WL 839483, No. 97 Civ 4001, *2 (KMW) (SDNY Dec. 19, 1997), cited by Plaintiffs, the court recognized “[w]here plaintiff in a federal civil rights actions seeks files sealed by state court order in the custody of the district attorney, federal courts have required plaintiff to first apply to the state court to lift the order or subpoena to the district attomey's office.” In so holding, the Court in Cruz cited to Townes v. New York City, 1996 WL 164961, CV-94-2595 (EDNY 1996). In Townes, plaintiff sought to unseal the defendant's records that were sealed pursuant to CPL Section 160.5. In response, the Court stated “[p]laintiff should proceed either by application to the state court that issued the sealing order or by subpoena or request to the clerk of the court.” Townes at *10. ‘Therefore, based on the law that Plaintiffs would like this Court to apply, they must apply to the court that issued the sealing order or by subpoena or request to the clerk of the court. Respectfully, this Court has neither the basis nor the authority to unseal the records of Mr. Benware. II. Even if the Court could unseal Mr. Benware’s criminal record, the information contained therein is not relevant to the instant case. Previously discussed in Defendants’ Affirmation in Opposition to Plaintiffs’ Motion to ‘Vacate the Note of Issue, dated August 6, 2020, it remains the case that Mr, Benware’s criminal record, and the facts underlying those charges, are not at all relevant to the facts in the instant case, In Forman v, Henkin, 30 NY3d 656, 70 NYS3d 157 (2018), the Court of Appeals held that Plaintiffs bear the burden to show that the request is “reasonably calculated to yield informationthat is material and necessary — i.e., relevant.” Forman at 661, citing, CPLR §3101(@)(1). Plaintiffs have failed to meet their burden to show that Mr. Benware’s criminal record is at all relevant to the theories advanced against Defendants. This is even more clear when applying the standard for relevant evidence. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. It tends to convince that the fact sought to bbe established is so.” People v. Davis, 43 NY2d 17 (1977). In his Affirmation in support of Plaintiff's Motion to Vacate the Note of Issue and to Re- Open and Compel Discovery in this matter, dated July 2, 2020, counsel alleged that the City of Saratoga Springs Police Department “covered-up” or gave Mr. Benware “special treatment.” This alleged cover-up would likely be the basis for any counterargument regarding the relevance of Mr, Beaware’s criminal record to his claim that the City had a policy or practice of covering up police misconduct. However, what Plaintiffs fail to appreciate is that Mr. Benware was investigated and arrested by other members of the City of Saratoga Springs Police Department. Although the charges were sealed, the arrest wes reported in the police blotter and remains available to the public on websites that publish the blotter. If there was any special treatment or a “cover-up” by the City of Saratoga Springs Police Department, as Plaintiffs allege, then Mr. Benware would not have been arrested and his arrest would not have been publicly announced, Despite Plaintiffs” aspirational and unsupported assertion otherwise, itis unclear how Mr. Benware’s criminal charges, which were filed six (6) years after the incident involving Darryl Mount, could make any fact that is of consequence to the determination of this action more or less probable. The fact that he was arrested by other members of the City of Saratoga Springs Police Department does not support Plaintiffs’ theory that there was a cover up. As this 10information is not at all relevant, Plaintiffs’ attempt to obtain Mr. Benware’s criminal record is no more than a fishing expedition for improper character evidence at its best. Therefore, Defendants respectfully request that the Court issue an Order denying Plaintiffs’ request for disclosure of information related to Mr. Benware's criminal record, as such disclosure would violate the legislative intent of the aforementioned CPL statutes, and is in direct contradiction to the relevant, precedential case law cited above, IV. There was no cover-up by the City of Saratoga Springs Police Department regarding the actions of Mr. Benware that would provide a basis for the unsealing of Mr. Benware’s criminal records. Frankly, what Plaintiffs’ November 12, 2019, letter alleges is not a cover up, it is a conspiracy. See, Exhibit “E”, Counsel goes on at length about the so-called special treatment that Mr. Benware received. However, in order for the events to have occurred the way that Plaintiff's counsel alleges more parties would have needed to be involved. While the City of Saratoga Springs Police Department is responsible for the initial investigation following the receipt of a complaint of allegedly illegal conduct and the recommendation of charges based on that investigation, it is ultimately up to the Saratoga County District Attomney’s Office to interview witnesses and determine with what charges to proceed. For this conspiracy to work, the Court ‘would also need to be involved as it has the ultimate say in any pleas and the sealing of criminal charges. Plaintiffs also brazenly infers that the Court was drawn into working with Defendants in this conspiracy, “[iJt is fairly clear that someone on behalf of the City, a defendant in this lawsuit, contacted the Judge to secure this Order.” See, Exhibit “E”, I am certain that this was not the intended inference. Perhaps more problematic is the fact that the basis of this conspiracy is entirely uspeculative and rite with conjecture: ‘She described violent actions which placed her in fear for her safety. She told him that Beware had on one occasion sexually assaulted her and on another he raped her. She related to Jilson that Benware had committed an act of felony coercion. He threatened her. None of these crimes were charged. Had he not been a supervising sergeant in the department he would have been charged with multiple felonies. See, Exhibit E at 5. Plaintifis, acting as both jury and judge, take a statement, reproduced with poetic license above, as true without any other evidence and has found Mr. Benware guilty of sexual assault, rape, and coercion, Plaintiffs omit the fact that the “she” above (who will remain nameless for privacy reasons) refused to cooperate with the Police Department and did not want to make a complaint against Mr. Benware', It is unclear what the basis of Plaintiffs’ last sentence in the above quote is; there is no evidence that has been adduced during discovery that would support this allegation, Review of Plaintiffs’ Complaint, attached hereto as Exhibit “G” and Amended Complaint attached hereto as Exhibit “H” reveal that no claim for conspiracy has been alleged. is clear that Plaintiffs are attempting to assert this claim now, eight (8) years after the original Complaint was filed. The Court must reject Plaintiffs’ attempt to do so. V. The Court should also seal the transcripts of the depositions of Aaron Benware and Robert Jillson. Also at issue are the transcripts of the depositions of Aaron Benware and Robert Jillson, dated August 11, 2021. These depositions were taken pursuant to the Court's Order dated September 17, 2020. During these depositions, Plaintiffs’ counsel asked specific questions about Mr. Benware’s criminal charges and the conduct underlying these charges. These depositions were held prior to counsel for either party being made aware that the charges were in fact sealed. “ Her exact words were “I prefer not o give a sttement, but I understand he violated his order and may get in trouble” 12Had Defense counsel been made aware that the charges were sealed, counsel would have strenuously objected to any line of questioning related to the sealed charges. The sealing of these transcripts is supported by the Court’s holding in Matter of New York State Commission on Judicial Conduct, In that case, the entire analysis of the Commission’s access to the sealed records, as discussed above, started with the deposition of the appellant. During that deposition, appellant's counsel objected to any questions that were derived from the sealed records. Although the court in that case ultimately held that the Commission was entitled to the sealed records, and therefore deposition questions derived from those records was appropriate, the reasoning used by the Court does not support the same conclusion in the instant case. In the instant case, intemal records and criminal Court records at issue should not be unsealed and any portions of the transcripts related to the records or the conduct underlying the criminal charges should be sealed to prevent the stigma contemplated by the legislature. ‘Therefore, Defendants respectfully request that the Court issue an order sealing the transcripts of ‘Aaron Benware and Robert Jillson dated August 11, 2011, and any records used during the same action are properly sealed or should not have been disclosed due to the City Court’s action. 13CONCLUSION For all of the reasons set forth herein, Defendants respectfully request that the Court issue an order, pursuant to CPLR §3101, directing Plaintiffs to return the records and certify the destruction of any copies, and seal the records and portions of the transcript, and if the transcripts are used in motion practice that they be sealed, along with such other and further relief which as, to the Court seems just and proper. Dated: January 17, 2022 Respectfully submitted, FITZGERALD MORRIS BAKER FIRTH, P.C. Spland, Attorneys for Defendants 68 Warren Strect P.O. Box 2017 Glens Falls, NY 12801 (518) 745-1400WORD COUNT CERTIFICATION PURSUANT TO 22 NYCRR 202.8-5 ‘The undersigned hereby certifies that this computer-generated Memorandum of Law was prepared using proportionally spaced typeface, and complies with the word count limit under 22 NYCRR 202.8-b. Name of typeface: Times New Roman Point size: 12 point (10 point for footnotes) Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of authorities, signature block and this Certification, 3955 words. 15... mTCcR0NS7.19 ~ UCS-160 ~ oj082008 STATE OF NEW YORK COUNTY OF SARATOGA Present: Cletk’s Office, Clerk's Office Page tof ves.160 SARATOGA SPRINGS CITY COURT The People of the State of New Vork Sealing Order Docket Number: CIT: 069134385K ‘Aaron P. Benware NYSID: 0: 138 Cranberry Hills, Ballston Lake, NY 12019, ae ‘Sex Male Race White DOB: OMan970 EYO:N Yon ‘The charges in the above-roferenced docket are scaled as follows: Count [Ticket Number [Charge ‘Arrest Date | Seal Section | Sealing Date 1 I. 120.45 01 BM Stalking ath:Cause Fear| 08/22/2019 160.55) 11272019 2 I. 215.50 03 AM Crim Contempt- 08222019, 160.55 11272019 2nd:Disobey Crt Reduced 10 (Count 6) 3 PI. 240.20 V Disorderly Conduct (087272019 160.55 132019CcROLS9719 - UCS-t60 - oRnsr02t STATE OF NEW YORK COUNTY OF SARATOGA Page tof” ucs.160 SARATOGA SPRINGS CITY COURT "ie People of he State of New Vark Seating Order vs Docket Number: cR-01597-19 ae Nv Osseo 1B Crantery Hills, Ballston Lake, N See Mae Rae While DOD:O8NA1070 EvO:N Yo:n “he charges in the above-referenced docket ae sealed as follows: Count [Ticket Number [Charge ‘Arrest Date | Seal Section | Seating Date 1 PL. 145.0001 AM Crim Mis tent 057142019 160.50 0772472020 Damage Prop Date as \re2.1— BEN Breedlove & Noll, LLP Brian H. Breedlove ‘Attorneysat Law ‘CanieMeLougiin Noll October 5, 2021 Honorable Thomas D. Buchanan 612 State Street EMAIL ONLY ‘Schenectady, New Yorke 12305 Caroline Welch (cswelch@nycourts.gov) Re: Jackson/Mount v Saratoga Springs et al Index # 20143461 RUL# 45- 1- 2016 - 0155 Motion Retum Date: November 18, 2019 Dear Justice Buchanan: Issues have arisen that require the Court’s attention. The parties have exchanged letters and conferenced to no avail. A conference with the Court prior to motions would be helpful. This is a complex civil rights case brought by my deceased client’s mother as Administratrix of mny client’s estate. The individual defendants include police officers, Sgt. Benware and their supervisors. The City of Saratoga is sued under Monel! v Dep't Social Services, 436 US. 658 4978). ‘The Court, by Order dated September 17, 2020 re-opened discovery, inter alia, to “allow the plaintiff to pursue inquiry into the criminal proceedings involving Sgt. Benware and the disciplinary records of police officers.”(Order dated 9.17.20). The defense fled a notice of appeal. It was not perfected, In my November 25, 2019 letter to the Court seeking e conference and again in my affirmation on the underlying motion, I pointed out that one of the issues was that the original charges against Benware “are now sealed.” That issue was front and center ‘before the Court. Ithas been decided. Since then Thave sent numerous “good faith” letters, Defendants did not respond adequately to our interrogstories/notice to produce served on May 31, 2016. Specious objections were made and questions went unanswered. Ihave laid out these deficiencies in great detail in “good faith’ correspondence to counsel for the defendants, ‘On March 31, 2021 I served a Third Supplemental Notice. Counsel for the defendant called and scheduled a meeting at his office to review multiple documents, A principal issue was the production of the internal affairs investigation into Sgt. Benware, attended that meeting with ‘my partner Carrie Noll. I was given a file and advised that it was the internal affairs investigation RESPOND TO: ‘82 Glenwood Avenue Fax: (518) 383-1959 Qaceasbary, NY 12804 evobeeoveal com Phone: (51) 3929400Jackson/Mount v Saratoga Springs et al Page 2 on Benware. Upon my inquiry I was told that Lieut. Jilson was the IA investigator. I said that I ‘would notice him for an EBT. Other files were reviewed at the meeting, However, no notices of discipline or records of disciplinary proceedings were produced. On August 12, 2021, Lieut, Jilson and Sgt. Benware appeared for their EBTs. I limited some of my questions to Benware es I believed that I had the IA file. 1 intended to get the additional information that I needed from Lieut. Jilson. Filson shockingly testified that he was not the IA investigator. He testified thatthe file produced ‘was not the IA file. This was directly contrary to what I had been told. I relied upon that representation in expending the funds to depose Jilson. I immediately advised defense counsel {hat I needed the 1A Ble andthe IA officer. Counsel for the defendant eemed to be equally surprised. The oriminal file is important but, in my view, the LA file was more so given the issues in this case. Despite good faith letters the IA file end the identity of the investigator have not ‘been produced. Lieut. Jilson identified other documents including emails that had been demanded. Counsel for the defendants insisted that I had not asked for those documents, At his request I returned to my office and emailed a copy of the notice highlighting those precise demands. On August 30, 2021 defense counsel advised that he was working on discovery responses. No comment was made regarding the production of Lieut. Jilson or the criminal file. wrote him on September 1, 2021 laying out the City’s repeated failure to comply with discovery demands. I ‘was making yet another good faith effort to secure discovery without the need for motions, For the first time, on September 15, 2021 Ireceived an email which raised an issue about the City’s production of the criminal file. Counsel wanted an agreement to a protective order. The City now claims that the criminal records were sealed. This is the precise issue that had been litigated. It isthe Iaw of the case. I did not agree as: the issue had already boen decided by the court; no objection was raised at the EBT, and, most importantly, they produced the fle as the TA. file. The City is bound by their representations. The criminal file proved directly material to the issues in this case as expected. The City has waived any such claim by virtue oftheir conduct. ‘The City has now refused to produce the other documents promised and, indeed, ordered.Jackson/Mount v Saratoga Springs et al Page 3 ‘A new matter has arisen. On October 1, 2021 I was emailed a copy of a subpoena duces tecum., “The subpoena sought production of parole records regarding my deceased client. There was no return date, It was not signed by a Supreme Court Justice. [immediately notified the defendants that the subpoena was deficient. I inquired as to service. I stated that a protective order may be appropriate, Approximately one hour after I received the subpoena, I received an email with documents produced in response to that subpoena. CPLR 2307 was clearly violated. One must, ‘wonder how itis that an illegal subpoena engenders a response within one hour from a state agency. Given that my client is deceased, his parole history is completely immaterial. Some of the personal observations of my client by the parole officers are relevant and material. A limited portion of those records would be discoverable under those circumstances. All other records should not have been produced. Plaintiff may seek to secure testimony from one or more parole officers as to their observations of the plaintiff while he was alive. However, the fact that he was on parole is completely immaterial given that he cannot testify. His credibility is not at issue. ‘The history, custom, policy and practice of the Saratoga City Police Department with regard to allegations of police misconduct are a central issue in this case. Such incidences are not only discoverable but also admissible at trial on this central issue. See: Fincco v City of Rensselaer, 783 F.2d 319, See: Also Birdenbaker v Buffalo, 137 A.D. 3d 1729. The department's methodology for conducting, or failing to conduct, internal affairs investigations on allegations of police misconduct are at issue. The failure to produce discovery is not limited to the Benware issues. We are aware through other means that there are other allegations, incidents and proceedings relating misconduct of other officers and defendants for which no documents, despite clear demands, have been produced, It is clear to me that the City is doing whatever it ‘can do to prevent and forestall discovery. I recognize that there are several issues intertwined in this request for a conference. It is my hope that some, or all, of these issues can be resolved at the ‘conference so that motion practice can be avoided. ce: John Aspland Esq. jda@finbf-law.comJohn D. Aspland, Jr. FitzGerald Morris Partner Baker Firth Hda@imbblaw.com October 5, 2021 Email Only eswelch@nycourts.gov) Hon. Thomas D. Buchanan Schenectady County Supreme Court 612 State Street Schenectady, NY 12305 Re: Estate of Darryl Mount v. City of Saratoga Springs Index No.: 20143461 RIINo.: —45-1-2016-0155 Our File No.: 10269-0001 Dear Justice Buchanan: Defense counsel in this case agrees that a conference with the Court would be advantageous in this case in order to narrow the issues for motion practice. However, counsel respectfully requests that any conference in this matter be scheduled in November due to a pending hip- replacement surgery. Mr, Breedlove and I have been corresponding about the discovery issu cease for several years and he has summarized them in his letter. Plaintiffs asserts that Defendants intentionally violated CPLR §2307 based on the subpoena to New York State Department of Corrections and Community Supervision ("DOCCS”) and the response received therefrom, If there was a violation, it was not the fault of Defendants and certainly was not intentional. Defendants were advised by a DOCCS employee that in order to obtain the parole records for Mr. Mount, they needed a subpoena. They did not indicate that they needed a subpoena signed by a Supreme Court Justice, Based on the direction of the DOCCS employee, Defendants sent a subpoena and in response received Mr. Mount’s parole records. The records do not contain any new information or information that was otherwise unknown, as both Patty Jackson and Morgan McLean testified about Mr. Mount’s parolee status and violations. The remedy, if in fact there is a violation, would be to submit a subpoena signed by a Supreme Court Justice which would result in Defendants obtaining the same records. Regarding the outstanding discovery responses. Defense counsel was recently provided with additional material from the City of Saratoga Springs. The material included thousands of emails, and other records. In order to adequately respond to Plaintiffs’ discovery demands, Defense counsel has had to comb through these records for relevant information, and then filter ‘out privileged documents and create a privilege log. Any delay in getting these materials to Plaintiffs has not been done to prevent the disclosure of information, quite the opposite, we want b.tos 2017, Glens tll HY 12501 Hudson Falls fice: 3019 Sate Route, Hudson Fl 12839, est nS Combi 37816 | Salem Oe 10 1 Sh Sl, 1 12068 one: 518 735 100 | fax S18 755 1576 | srembtow.com Glos falls tices Warn Se, Cami tee:Page 2 to ensure that Plaintiffs receive all of the information that he is entitled to. Moreover, Mr. Breedlove and I have had regular conversations conceming the discovery issues. ‘There is information contained in the City’s recent disclosure that Pk iffs are not entitled to. Specifically, the information regarding Aaron Benware’s criminal record is not discoverable. Plaintiffs assert that his November 2019 letter and subsequent Order by the Court allows Plaintiffs access to information that has been sealed, Mr. Breedlove and I have had ongoing conversations about this issue. Aer recently learning that Judge Wait sealed Mr. Benware’s criminal record, we requested that Plaintiff stipulate to not disclosing Mr. Benware’s or Lt. (o's transcripts and requested that any portion used in motion practice be sealed. Despite the ai limited scope, Mr. Breedlove denied the request and indicated that the Court's Order opened the record for discovery purposes. We disagree with this characterization of the situation, and it is ‘not supported by any case law. The Order from the Court did not unseal Mr. Benware's criminal record; an unsealing order must come from the judge that sealed the record in the first place. Even if the Court had the authority to unseal the records, the New York Court of Appeals has made it clear that records should only be unsealed in “extraordinary circumstances.” Matter of New York State Commission on Judicial Conduct v. Rubenstein, 23 NY3d 570, 581 (2014), citing, Matter of Dondi, 63 NY2d 331, 338 (1984). It is clear that there are no “extraordinary cumstances" present in this case. Unsealing Mr. Benware’s criminal records would undermine the legislative intent of CPL, 160.5, which the Court of Appeals has indicated they do not want o do as that would “...make unsealing of records the rule rather than a narrowly confined exception.” Matter of New York Sate Commission on Judicial Conduct at 581. Defendants anticipate filing a Motion for a Protective Order in order to prevent further disclosure of Mr. Benware’s sealed criminal record. Like Plaintiffs, Defendants hope that the above issues can be resolved, or perhaps at least narrowed, if only to limit the scope of motion practice. JDA/ssm ce: Brian Breedlove, Esq. (via email only)*) y John D. Aspland, Jr, FitzGerald Moris so Baker Firth Ha@imbtev.com ‘November 5, 2021 Hon. Thomas D, Buchanan Schenectady County Supreme Court 612 State Street Schenectady, NY 12305 Re: Patty Jackson, Individually, and as Administratrix of the Estate of Index No: 20143461 RUINo: —— 45-1-2016-0155 Our File No.: 10269-0001 Dear Justice Buchanan: Please accept this letter as Defendant's response to your request, via email on October 21, 2021, for a letter brief concerning the ease law cited in our October 5, 2021 letter As you know, Plaintiffs’ counse] has requested information regarding Aaron Benware’s criminal record. The parties in this matter recently leaned that the criminal charges against Mr. Benware were sealed. The charges were sealed on 11/12/2019 pursuant to New York Criminal Procedure Law (“CPL”) §160.55; additional charges were sealed on 07/24/2020 pursuant to CPL 160.50. In both cases the charges were sealed by the ITonorable Jeffrey D. Wait; copies of said orders are enclosed. At this time, there have been no orders issued by Judge Wait to unseal these records. ‘Nor should such an order be issued now. Review of the statutes sealing these charges supports the conclusion that the information underlying the charges is not subject to disclosure in this case. CPL 160.55(c) provides: all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency. Moreover, subsection (d) of CPL 160.55 enumerates specific exceptions for which records sealed ‘pursuant to subsection (c) shell be made available. Many of these reasons revolve around uso by Taw enforcement agencies, There is no argument that could be made that would make the exceptions in this section fit the facts of the instant case, Similarly, CPL 160.5(1) provides: “upon the termination of a criminal action or proceeding against a person in favor of such person...the record of such action or proceeding shall be tens lis ics 8 Warren Steat, PO. Box 2017, Glen al, HY 12801 fe 190 Mala Suey, Salem, HY 12865 1400 | ay: 518.745.1576 | ses i les. come Pon. 5Page 2 sealed...” Subsection (4) provides exceptions to the sealing order. None of the exceptions ‘enumerated in this subsection provide a basis for unseating Mr. Benware’s criminal record. Even if the Court looks beyond the aforementioned statutory provisions, it remains the case that the information hat Palais ve resuetd i ot jet 10 corre bated he a. Tn Matter York 23 NY3d 570, 578 (2014), ‘the issue before the Court eal nat the Commission of Judicial Conduct acted ‘within its power when it obtained records of an underlying criminal proceeding that were sealed pursuant fo CPL 160.50. In determining that the Commission was entitled to disclosure of the sealed records, the Court reviewed the legislative purpose of CPL 160.50. the Legislature's objective in enacting CPL 160.50 and the related statutes, .was to ensure that the protections provided be consistent with the presumption of innocence...Indeed, the over-all scheme of the enactments demonstrates that the legislative objective was to remove any stigma flowing from an accusation of ‘criminal conduct terminated in favor of the accused, thereby affording protection..fo such accused in the pursuit of employment, education, professional licensing end insurance opportunities. Id. at 579-80, citing, People v. Patterson, ‘78NY2d 711, 716, 579 NYS2d 617 (1991). Acknowledging the purpose of the statute, and the enumerated exceptions to the sealing of the records, the Court of Appeals reasoned that “there may be other sources of authority permitting ‘access to sealed records.” Id. at 580. However, review of the case law cited by the Court regarding these other reasons, offers no support for Plaintiff's assertion that Mr. Benware’s criminal record should be unsealed in this case. For example, in Matter of Dondi, the Court allowed a grievance committee access to scaled records based on the “inherent authority of records and its oversight and disciplinary power over attomeys and counselors at law.” The Court of Appeals reasoned that “we have been careful when considering whether to permit access to sealed records so that we do not undermine the legislative goals of CPL 160.50, and rake unsealing of records the rule rather than a narrowly confined exception.” Jd, at S81. To that end, the Court held that in order to unseal the criminal records there must be “ circumstances!,” a specific grant of power, or the existing of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records. Id. As discussed below, these reasons are not present in the instant case, and the unsealing of Mr. Benware’s criminal records would do what the Court of Appeals expressly forbade, that is, it would undermine the legislative goals of CPL 160.50 and make unsealing of records the rule, rather than the narrowly confined exception that it should be, ‘Application ofthe reasoning fom Matter of New York State Comm'n on Judicial Coméuct tothe facts of the matter before the Court results in the conclusion that the Court has neither the "Tho “extraordinary circumstances” language relied on by the Court originated fiom an earlier case, Hynes v- acl 47 NY24 69 1979). 1a yma th Cort held“ i wngeted ha by elope, nh een rae end ‘more extraordinary circumstances in which sealed records must be unsealed in order to serve faimess and justice, ‘courts are not impotent to do so as well” Hynes at 664.Page 3 authority nor the basis to unseal Mr. Benware’s criminal record. The statutory purpose alone ‘supports the conclusion that Mr. Benware’s record should not be unsealed. The revelation of Mr. ‘Benware's criminal records would do more than attach a stigma. Indeed, if the records are ‘unsealed it is likely that PlaintifP's counsel would attempt to use the records as improper character evidence to attack Mr, Beaware's credibility at tral. This would defeat the purpose of ‘the statute. Careful analysis of the other three (3) reasons the Court of Appeals provides for unsealing records does not support the unsealing of Mr. Benware’s criminal record. First, there exists no “extraordinary circumstances” which would provide a basis for the unseating of the records. The acts underlying Mr. Benware’s criminal charges occurred several years after the facts in this case. Even if these charges occurred more contemporaneously to the events underlying the instant case, they have no bearing on Mr. Benware’s ligblity, if any, as the acts are not at ll similar to the allegations involving Mr. Mount. There can be no dispute that the records at issue, related to charges against Mr. Benware, are not required in order to serve faimess and justice. Second, there isnot a specific grant of power imued othe Cou by any autor, which would provide a basis for authority to unseal the records. Finally, there is no legal mandate which ‘would be impossible to fulfill without unsealing Mr. Benware’s criminal records, Although Plaintiffs may argue that extraordinary circumstances do in fact exist, their argument ‘would be unpersuasive. Recently, the Third Department narrowed the exception to unsealing, records. In Prag v. Prag, 161 AD3d 1364 (3d Dept. 2018), the plaintiff moved to unseal the record of her husband’s criminal proceedings. The Court flatly denied this request and held “{a]s a final matter, the wife cannot invoke the inherent authority of the courts to unseal criminal records in the interest of justice, as that authority is confined to attomey disciplinary matters.” Prag at 1365. The isoue before this Court has nothing to do with attomey disciplinary matters. ‘Therefore, based on the recent and precedential holding in Prag, the Court does not have authority to unseal Mr, Benware’s criminal record. Previously discussed in Defendants’ Affinmation in Opposition to Plaintiff's Motion to Vacate the Note of Issue, dated August 6, 2020, it remains the case that Mr. Benware’s criminal record, and the facts underlying those charges, are not at all relevant to the facts in the instant case. In Forman v. Henkin, 30 NY3d 656, 70 NYS3d 157 (2018), the Court of Appeals held that Plaintiffs bear the burden to show that the request is “reasonably calculated to yield information that is material and necessary — ie., relevant.” Forman at 661, citing, CPLR S101eXD Plaintiff bas failed to meet their burden to show that Mr. Benware’s criminal record is at vant to the charger aprins Deeadans This is even more ear when applying the unas for relevant evidence. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. It tends to convince that the fact sought to be established is so.” People v. Davis, 43 NY2d 17 (1977). In his Affirmation in support of Plaintiff's Motion to Vacate the Note of Issue and to Re-Open and Compel Discovery in this matter, dated July 2, 2020, Mr. Breedlove alleged that the City of ‘Saratoga Springs Police Department “covered-up” or gave Mr. Benware “special treatment.”Page 4 This allegedcoveryp woeld Iikely be the bss for any counteargmentrepading th relevance ‘Mr. Benware’s criminal record to his claim that the City had a policy or practice of covering tp police misrnduet Howeves, what Paint fils to Sppecine hat Ma Benware was arrested by other members of the City of Saratoga Springs Police Department. Although the charges were sealed, the arrest was reported in the police blotter and remains available to the public on websites that publish the blotter, If there was any special treatment or a “cover-up” by the City of Saratoga Springs Police Department, as Plaintiff alleges, then Mr. Benware would not have been arrested and his arrest would not have been publicly announced. Despite Plaintiff's ‘unsupported assertion otherwise, it is unclear how Mr. Benware’s criminal charges, which were filed six (6) years after the incident involving Darryl Mount, could make any fact that is of ‘consequence to the determination of this action more or less probable as the fact that he was arrested by other members of the City of Saratoga Springs Police Department does not support Plaintiff's theory that there was a cover up. As this information is not at all relevant, Plaintifis’ ‘attempt to obtain Mr. Benware’s criminal record is no more than a fishing expedition for ‘improper character evidence. ‘Therefore, Defendants respectfully request that the Court issue an Order denying Plaintifis’ request for disclosure of information related to Mr. Benware’s criminal record as such disclosure ‘would violate the legislative intent of the aforementioned CPL statutes, and is in direct contradiction to the relevant, precedential case law cited above, ‘Also at issue are the transcripts of the depositions of Anron Benware and Robert Jillson, dated ‘August 11, 2021. These depositions were taken pursuant to the Court's order dated September 17, 2020. ‘During these depositions, Plaintifis’ counsel asked specific questions sbout Mr. Benware’s criminal charges and the conduct underlying these charges. These depositions were held prior to counsel for either party being made aware that the charges were in fact sealed. Had Defense counsel been made aware that the charges were sealed, we would have strenuously objected to any line of questioning related to the sealed charges. The sealing of these transcripts is supported by the Court’s holding in Matter of New York State Commission on Judicial Conduct. In that case, the entire analysis of the Commission's access to the sealed records, as discussed above, started with the deposition of the appellant. During that deposition, appellant’s counsel objected to any questions that were derived from the sealed records. Although the court in that case ultimately held that the Commission was entitled to the sealed records, and therefore ‘deposition questions derived from those records was appropriate, the reasoning used by the Court does not support the same conclusion in the instant case. In the instant case, the records at issue should not be unsealed and eny portions of the transcripts related to the records or the conduct underlying the criminal charges should be sealed to prevent the stigma contemplated by the legislature. Therefore, Defendants respectfully request that the Court issue an order sealing the transcripts of Aaron Benwere and Robert Jillson dated August 11, 2011. Based on the foregoing, Defendants respectfully request that the Court deny Plaintiff's request to unseal the criminal records of Aaron Benware and seal the transcripts of Aaron Benware and Robert Jillson,‘Very truly yours, Joha D. Aspland, Jr. IDA/ssm cc: Brian Breedlove, Esq. Page 5XABE Breedlove & Noll, LLP Brian H. Breedlove ‘Attorneys atLaw Cartie McLoughlin Noll ‘November 12, 2021 Honorable Thomas D. Buchanan 612 State Street EMAIL ONLY Schenectady, New York 12305 Caroline Welch (eswelch@nycourts.gov) Re: Jackson/Mount v Saratoga Springs et al Index # 20143461 RUI# 45 —1- 2016 - 0155 Conference Date: November 15, 2021 Dear Justice Buchanan: Defendants’ letter brief is replete with factual misstatements. Their focus on Benware’s “credibility” is a deliberate misdirection, We are in discovery not trial. The argument that “relevance” should control fails for that reason alone. The criminal records discovered are material to the case against the City. As will be seen their disclosure demonstrates their importance. The City is sued under Monell v Dep't Social Services, 436 U.S. 658 (1978) for violations of the 4", 5 and 14" amendments to the Constitution under the auspices of 42 U.S.C. $1983, §1981 and §1985, Racial animus is alleged. Policy, pattem, practices and the City’s management of the police overtime is the essence of the claim. This action was brought to vindicate important federal constitutional and statutory rights. HISTORY First, the parties have been aware of the “sealing” of Benware's criminal charges pursuant to CPL §160.50. This is not a recent surprise. It is mind boggling that the defendants claim to be surprised, This issue was litigated before the Court. On November 25, 2019 | advised the Court, by letter that the criminal records were sealed. The letter was, in part, a request for a conference to address the release of these records. A conference was held on February 19, 2020 with the defense insisting on motions. Covid intervened. Plaintiff's motion was filed on July 2, 2020. A central issue on Motion was the unsealing of the criminal records. My affirmation on the Motion stated as follows: RESPOND TO: 82 Glenwood Avenue Fax: (518) 383-1959 (Queensbury, NY 12804 won brcedlovenll.com Phone: (518) 383.94002 “On November 12, 2019, Sgt. Benware was permitted to plead to disorderly conduct, a violation, in full satisfaction of all three misdemeanor domestic violence charges. The original charges are now sealed, It is pretty clear that the fix was in. ‘The resolution of these charges is shocking and smacks of improper conduct and ‘unde influence by public officials.” (7: affirmation of Brian H. Breedlove 7.2.20) ‘Subsequent events support the allegation of a fix. Benware was allowed to plead to a Disorderly Conduct, a violation, in fall satisfaction of three Class A Domestic Violence charges. What Court would accept a plea like this in a case in which a police officer stalked his victim while armed in violation of this same Court’s Order? Under the circumstances, given that Benware is a defendant inthis case, itis painfully obvious that it is in the City’s interest to bury or minimize these charges. Allowing him to plead guilty to a violation would guarantee thatthe true extent of his misconduct would never see the light of day. Benware got a good deal, The City did as well. ‘The relief sought on the prior motion, in part, was as follows: 4), Allowing discovery into the conduct of Set. Benware, his arrest, plea agreement, and any internal affairs investigation or other investigation into his misconduct as well as his resignation and retirement.(Prayer for relief; Affirmation Brian H, Breedlove) ‘This Court, by Order dated September 17, 2020 re-opened discovery, inter alia, to“‘allow the plaintiff to pursue inquiry into the criminal proceedings involving Sgt. Benware and the disciplinary records of police officers.” (Order dated 9.17.20). The defense filed a notice of appeal. The eppeal was not perfected and is dismissed. This decision is the law of the case. Plaintiff thereafter served demands, When the appeal time expired we tried to schedule the depositions of Benware and Lt. Jilson, At first, the defense objected to producing Lieut. Jilson, I urged counsel to review the Coutt’s order. I inquired as to whether Lieut. Jilson wes the Internal ‘Affairs Designee (IAD) on Benware’s charges.(See Ex. 1; emails 3.30 and 3.31. 2021), On June 2, 2021, Carrie Noll and I met with Mr. Aspland to review documents. I was given the IA file and Jilson was confirmed as the (IAD). During the course of Jilson’s EBT on August 11, 2021, I was shocked to discover that he was not the IAD. He did not even know who the IAD was; if anyone. He said the file produced was not ‘the IA file. I again demanded the name of the IAD and the IA file, While the criminal file is indispensable the IA file should contain different and additional information. General Order #25, the City’s protocol on IA investigations, requires the IAD to secure the criminal investigation records as well as other documents, statements, witnesses, and records,3 ‘The IA file would necessarily contain a much broader spectrum of information as well as disciplinary actions and information, The resultant management of the situation is directly pertinent to the issues under Monell. To date despite repeated demands I have not received the IA file or the identity of the IAD. Defense counsel has advised that they cannot locate the IA file. ‘That is somewhat shocking as General Order #25 requires the file to be locked in the chief's office. How is it thatthe file is missing? Was there an IA investigation? Who was the IAD? We have been secking the IA file since September 2020. Spoliation is now an issue. The failure to produce the IA file is alone a basis for denying a protective order. Jilson described emails and other documents we demanded. Defense counsel insisted that I had ‘not asked for those documents. At his request I returned to my office and emailed a copy of the notice highlighting those precise demands. They have not been produced, ‘At the meeting on June 2, 2021 on discovery, no TA files were produced other than a car accident from 1999 involving Benware, No notices of discipline or other documents demanded were produced. Officer French, a defendant herein was subject to discipline in 2010 for serious misconduct. The documentation squarely within the material demanded was not provided. It was only discovered by the undersigned in investigating another case altogether. Attached hereto as, Exhibit 2 is the notice of discipline regarding Officer French. No IA report on French has been produced. Another officer was subject of an excessive force complaint involving an Aftican American three weeks before the incident with the plaintifP’s decedent, While the complaint was produced no IA report as delineated by General Order #25 has been provided. ‘Despite public pronouncements by the Chief and others from the City that an IA investigation into plaintifs injuries had been completed, it was not. The Chief has admitted he lied. Benware ‘was an integral part of that incident personally and as a supervisor. The failure to produce the IA investigation into Benware’s crimes and French's misdeeds taken in the foregoing context ‘demonstrates the City’s bad faith in responding to discovery. It also goes to prove a pattem and practice of “cover up” of police misconduct and, frankly, lying to the public. Given the City’s conduct in repeatedly hiding the ball in discovery, I would not be surprised to learn that there ‘was indeed no IA investigation into Sgt. Benware. The faiture to produce it to date and the comment by counsel that it cannot be found speaks volumes. DEFENDANT CITY’S POST DISCLOSURE REQUEST FOR A PROTECTIVE ORDER On August 30, 2021 defense counsel said that he was working on discovery responses. No comment was made at that time with regard to a protective order on the depositions or the criminal file, On September 1, 2021 I wrote yet another “good faith” letter.+ On September 15, 2021 I received an email from defendants It raised, for the first time, a claim to a Protective Order on the file that they produced as the IA file, They now claimed that since it ‘was in fact the criminal file it was sealed by Order of Judge Waite, the Saratoga Springs City ‘Court Judge. Defendants claimed they just found out the criminal records were sealed. This is somewhat shocking considering the prior motion practice on this very issue, Defendants want the depositions of Filson and Benware sealed. Their letter states that “Had defense counsel been made aware that the charges were sealed, we would have strenuously objected to any line of ‘questioning related to the sealed charges.” (Deft’s ltr Brief p. 4). Defense counsel was clearly aware of the sealing based upon my prior letter, the court conference, motion practice, and, most importantly, the Court’s Order. Not only that but they had produced the file as the IA file. ‘The history, custom, policy and practice ofthe Saratoga City Police Department with regard to investigation and management of allegations of police misconduct are central tothe lishility of the City under 42 U.S.C. §1983. Such incidences over time are discoverable and admissible at trial. See: Fiaceo v City of Rensselaer, 783 F.2d 319 (2% Cir.1986). See: Also Birdenbaker ¥ Buffalo, 137 A.D. 34 1729 (4* Dep't 2016). The department's methodology for conducting, or {ailing to conduct intemal affairs investigations on allegations of police misconduct are at issue, ‘The failure to take actions to correct, retrain and or discipline officers for violations of civil rights over time is material to show “deliberate indifference” under the standards of Monell. ‘NO SPECIAL TREATMENT Defendant's state that the plaintiff does not appreciate that Benware was arrested by Saratoga Officers. They claim he was not given any special treatment. The facts show otherwise. Daryl ‘Mount was chased on the Street by multiple officers as well as by Sgt. Benware in his police cruiser. They knew who he was and where he lived. He was chased on an allegation of a class B misdemeanor domestic violence charge. He ended up in a tea-month vegetative state and thea died. Sgt. Benware, onthe other hand, was charged with multiple acts of domestic violence. He ‘was charged with Stalking his victim and Contempt of Court for violating a Court Order. He was politely asked to come down to the police station and released immediately, He was not handouffed. Daryl Mount was handouffed while he lay on the ground unconscious. The three Class A misdemeanors charged against Set. Benware wero reduced to a Disorderly Conduct a violation. This was an unheard of disposition given the circumstances. Sgt. Benware was permitted to retire with his fall pension. What would Darry!’s disposition have been? ‘General Order #25 requires that an 1A investigation be conducted on any allegation of misconduct. That protocol requires a specifically delineated set of actions, documents, witnessSs statements and reports to be completed and filed in the chief's office. Instead of following that protocol the chief of police sent an email to be read at rolicall denying the allegations of misconduct despite having had no investigation. He sent an email to the district attorney claiming thet any such allegation was meritless. Of course, he lied to the public about an IA investigation. Benware would have been a subject of the IA investigation into both the Mount incident and on his own criminal misconduct at issue herein. It is becoming clear that no IA investigation took place on either. Again, such an IA investigation was required under General ‘Order #25, The City’s failure and deliberate indifference to the conduct of Benware on multiple occasions is at issue inthis case, ‘ilson’s testimony shows the special trestment given to Benware, He was originally charged with ‘4 Class A misdemeanor criminal mischief. ilson got a statement from the victim. She described violent actions which placed her in fear for her safety. She told him that Benware had on one ‘occasion sexually assaulted her and on another he raped her. She related to Jilson that Benware had committed and act of felony coercion. He threatened her. None of these crimes were ‘charged. Had he not been a supervising sergeant in the department he would have been charged with multiple felonies. He would not have been politely invited to the station, immediately released and granted an ACOD. They buried his felony misconduct, He kept his job as a supervisor. He was allowed to remain on the job. Thereafter he was charged with stalking the ‘same victim while armed on the job. He violated the Court’s Order. All of this was ignored in the final disposition. Daryl Mount was Aftican-American, Sgt, Benware is white, Was the special treatment was on the basis of race? That is a jury question. The fact that there was no IA investigation into this felony misconduct is in direct violation of General Order #25, It ‘demonstrates an appalling abuse of power and a “cover up”. Juxtapose that with the Chief's deliberate lie to the public about an IA investigation and the picture of deliberate indifference ‘becomes all too clear, Parenthetically, this is the same Police Department that recently secured ‘warrants from a City Court judge for the arrest of African-American protesters for an alleged Disorderly Conduct, a violation, not a crime. They were arrested at their homes, handcuffed and jailed. Does the City treat African-Americans differently? It is apparent that they do, ‘One must also ask as to why no internal affairs investigation took place into the misconduct of Officer French es described in Exhibit 2. If there was such an investigation why has it not been produced? What other disciplinary proceedings and documents have not been produced? Is it the custom and policy of the department to ignore misconduct and ignore the requirement that TA. investigations take place? Does this failure to conduct IA investigation in the face of egregious misconduct repeatedly demonstrate a deliberate indifference amounting to an actionable policy, ‘pattern or practice? These are the relevant issues for this discovery. This discovery is calculated to lead to the discovery of material evidence, the standard to be applied.6 DEFENDANT'S REQUEST FOR A PROTECTIVE ORDER SHOULD BE DENIED ON ‘THE FACTS AND THE LAW For multiple reasons defendants requests must be denied. The facts belie their claims as stated hereinabove, The law does not require that these criminal records remain sealed under the facts of this case, As a separate matter the depositions of Benware and Jilson are not required to be sealed. With regard to the testimony of Benware and Jilson, Prag v Prag, 161 A.D. 3" 1364 (3d ‘Dep’t 2018) is instructive. In that case the Appellate Division indicated that it was appropriate to secure the wife's testimony as to the assaultive conduct by her husband despite any sealing order. IeL.at 1365. (Citing Matter of Hynes v. Karassik, 47 NY 2™ 659, at 664.) Hynes also indicated that “sealed records must be unsealed in order to serve fairness and justice, courts are not impotent to do so as well.” Id at 664. Jilson reviewed the file prior to giving his testimony. That is the responsibility of the defendants. After all, they produced it as the IA file and Jilson as the IAD. Plaintiff has no responsibility in that regard. Indeed, the IA file has never been produced. They claim it is missing, In accordance with General Order #25 the IAD would have secured the criminal file. General Order #25 requires the IAD to secure statements from all witnesses. As indicated the IA file would contain ‘a broader fund of information germane to this action. The actions of the City upon completion of the IA are relevant and material. What was the Cities motivation in not doing an IA in Mount and in the Benware criminal matters? The criminal record likely contains different information. Discovery of the criminal record is essential to the PlaintifPs federal claims. Plaintiff also submits that the defendants, by their conduct, in representing Jilson to be the IAD and the file to be the IA file have waived any claim for a protective order. Again, they should be ‘bound by their representations upon which the plaintiff relied in taking the deposition of Lieut. Jilson at great expense. THE SEALING ORDER Certain records are sealed by operation of law under CPL §160.50 and §160.55. The defendants brief implies, if not directly states, that orders were issued at the time the charges were dismissed. They have not produced any such Order. At my request they sent me the Order which they have relied upon in claiming that they just found out that the record was sealed. The Orders they provided to the court after the filing of their letter brief demonstrates an odd and troubling fact. The Orders are dated September 82021. :Ie One week after the signing of the Order referenced above, the defendants sent a letter tome claiming they were entitled to a protective order. They said they just found out the criminal records were sealed. The charges were dismissed in 2019. The parties litigated the sealing issue ‘two years ago. It is of no small moment that the file they now claim is the criminal record was produced voluntarily under the false representation that it was the IA file. It should be noted that any sealing Order would have no impact on the requirement to produce the IA file. Judge Jeffrey Waite is a City Court Judge in the City of Saretoga Springs. He was appointed by the political leadership of that City, the defendants inthis case. One must wonder how itis that two years after a case was resolved a Judge suddenly decides to issue an Order sealing the files. Any contact with the city administration or their representatives with the judge conceming how this came sbout should be subject to discovery. Also, records seem to show that, at least on the Criminal Mischief charge, the Saratoga Judges were recused. This case was presided over by the visiting Judge Constantine DeStefano of Mechanicville. We do not, however, have all the records, If that is the case how is it that a recused Judge signed a sealing Order two years Inter? It is fairly clear that someone on behalf of the City, a defendant inthis lawsuit, contacted the Judge to secure this Order. The City i clearly behind this gambit to bury its’ own misconduct, ‘THE LAW ALLOWS THE UNSEALING OF THE RECORDS All of the cases indicate that under a variety of circumstances the sealing of the criminal records may be undone pursuant to the inherent authority of the court. In the Matter of New York State ‘Commission on Judicial Conduet v Rubenstein, 23 New York 3" 570, at 578 (2014); Hynes vv. Karasolk, 47 NY 2" 659, at 664; Prag v Prag, 161 A.D. 3° 1364 (3d Dep't 2018); in the Matter of Philip P Dondi, 63 NY 2° 331, at 338. As stated above defendant City is sued under Monell v Dep’t Social Services, 436 U.S. 658 (1978) for violations of the 4%, 5* and 14" amendments to the Constitution under the auspices of 42 U.S.C. §1983. Racial animus is alleged. This action seeks to vindicate Federal Constitutional ‘and statutory rights. ‘In Svaigsen v City of New York, 203 A.D. 2 32 (1" Dep't 1994), an action under 42 U.S.C. $1983 on claims on point with those in the instant matter, the Court stated as follows: “tis not disputed that State and Federal courts enjoy concurrent jurisdiction over section Ibe) caine (ery v Board of Regents 457 US 49, 506507 Felder v Casey, 487 US. 131) When a State court entertains a Federally created cause of action, the “ ‘federal right cannot be defeated by the forms of local practice’ ” (Felder v Casey, supra, at 138, quoting Brown v Western Ry 338 US 294, 296) This is especially true of section+ 1983 which was enacted particularly to vindicate Federal rights “against deprivation by state action” (Kerr v United States Dist. Ct,511 F 2d 192, 197 (0% Circ) affd 426 US 394 citing Monroe v Pape, 365 US 167, 180. Thus, it is appropriate that the court follow Federal law wien assessing the disooverebility of documents sought by plaintifé” Id at 33. (Emphasis added), In Svaigeen, supra, the defendants were relying upon sections of the New York Public Officers Law in an attempt to preclude discovery. In Cruz v Kennedy, 1997 WL 839483 (Case attached) the court on an application to unseal records sealed pursuant to CPL §160.50 and §160.55 for the purpose of discovery in an action brought pursuant to 42 U.S.C. §1983, (Citing: King v Conde, 121 FRD. 180 (ED. N.Y. 1988) held that: “New York State law does not govem discoverablity and confidentiality in federal civil rights actions... Although in the spirit of comity, federal courts should consider state privacy rules in resolving discovery issues, these rales should never be permitted to frustrate the important federal interests in broad discovery and truth-secking and the interest in vindleating important federal substantive policy such as embodied in section 1983”. (King v Conde, 121 FRO. 180, at 187 (BD. N.Y. 1988). ( See also: People v Cruz, 781 NYS. 2d 626, 1 Mise 34 908(A).(S. Ct, Bronx 2004))(Emphasis added) ‘The Court in King, supra stated that “Federal law disfavors privileges barring disclosure of relevant cricae tate teva toes rood inthe (edenl] Conson 1d. At 187, ( See: Herbert ‘y Lando, 441 US. 153, at 175(1979). The Court focused on the interest in vindicating Federal rights in actions based upon Federal statutes such as 42 U.S.C. 1983 and set forth the primary considerations and concerns to be addressed as follow: “Moreover, state rules protecting state officers must always be viewed with caution because they may be parochially designed to thwart federal interests: ‘It obviously would make no sense to permit state law to determine what evidence is discoverable in cases brought pursuant to federal statutes whose central purpose is to protect citizens from abuses of power by state and local authorities. If state law controlled, state authorities could effectively insulate themselves from constitutional norms simply by developing privilege doctrines that made it virtually impossible for plaintiffs to develop the kind of information they need to prosecute their federal claims,’ Kelly v City of San Jose, 114 F.R.D. 653 See also Carr v Monroe ‘Manufacturing Co, 431 F. 2° 384 at 389 (5 Cir. 1970), cert. denied sub nom, Aldridge v Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Bd, 24 451 (1971) special danger” in permitting state governments to shield their own agents with a state-defined privilege); Garner v Wolfinbarger, 430 F. 2d 1093, i i ! {oo 1100(5" Cir, 1970) cert, denied, 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed. 2d 323 (1971) (“In federal question cases ... federal substantive rights may be compromised if a stringent state rule of evidence is applied.”).” (King, Supra 187-188). (Emphasis added) ‘The “special danger” referred to in King supra, is blatantly apparent in this case. Could there be anything more obvious than a Defendant City going to an appointed City Court Judge to secure a sealing Order two years after the termination of the proceedings? The clear purpose is to thwart discovery and prevent plaintiff from pursuing federally created rights and remedies. The City ‘want this Court's assistance in burying evidence of their failure in policy, eustom and practice, ‘The continued and repeated failure to conduct IA investigations into misconduct and/or to supervise, manage and control the police department is front and center in this case. Significantly it is Benware, a supervisor, who is involved in Mount and then again in his own separate criminal acts of violence. Perhaps they only cover up for supervisors; or Benware. We will only know when they finally comply with our discovery demands. ‘The Court in King v Conde, 121 F.R.D. 180, st 195 (E.D. N.Y. 1988) cited with approval the case of Wood y Breier, 54 F.R.D. 7 (E.D. Wise. 1972) wherein the Court found that the federal civil rights policy is of paramount importance. Id. at, 195. The court quoted Wood, supra as follows: ‘In a federal civil rights action, a claim that the evidence is privileged ‘must be so meritorious as to overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action’ ...” Id. at 13 (Citing to Skibo v City of New York, 109 F.R.D. 58, 61 (B.D. New York 1985). Defendants? position that there is no legal mandate is contrary to the facts and the law. Plaintiff, as in Svaigsen, supra is attempting to vindicate an important Federal constitutional right. She cannot be forestalled by local practice. Section 1983 takes precedence. Given the circumstances in this ease there are numerous reasons to deny the protective Order not the least of which is the fact that the matter has already been ruled on. Moreover, it is apparent that City officials have deliberately manipulated the issuance of the purported “Sealing Order" in a post hoc fashion in order to deny Plaintif?'s ability to vindicate rights guaranteed under Federal Law. 42 U.S.C. §1983 was designed to protect citizens from just this kind of State and Local government misconduct. Sincerely/ Zp eo We BREEDLOVE, ESQ. Enel. jda@fmbf-law.comFrom: Brian Breedlove [mailto:brian.breedlove@breedlovenoll.com] Sent: Wednesday, March 31, 2021 7:54 AM Tos "John D. Aspland, Jr, Esq.’ ‘Subject: RE: John: Appreciate your position on Jillson. However, look at the bottom of page 3 of the Order. “which will reopen discovery and allow Plaintiff to pursue inquiry into the criminal proceedings involving Sgt. Benware and the disciplinary records of police officers”. My information is the Jillson signed the complaints and was the IAD on Benware. If | am wrong let me know. Just tell me who it was as that is clearly discoverable under both prongs of the Order. Brian H, Breedlove, esq. Breedlove & Noll, LLP 82 Glenwood Ave ‘Queensbury NY 12804 518-383-9400 From: John D. Aspland, Jr., Esq. [mailto:jda@fmbf-law.com] Sent: Tuesday, March 30, 2021 12:01 PM To: Brian Breedlove; John Bailey ‘Subject: RE: Let me look at those dates later. The Court order did not include Jillson so | will not able to produce him, exaisit |From: Brian Breedlove Sent: Tuesday, March 30, 2021 10:52 AM ‘Tot John D. Aspland, J. Esq. ; John Bailey Subject: (1111. This email originated from outside FMB. Do not click links or open attachments unless you recognize the sender and know the content is safe. I can do april 22, 23, 26,27 30, may 5, and 7 for Sikarica. | trust we can do it at your office. You and John can let me know. | have some more demands for you and assuming | can get responses ! would like to set additional deps in May. Will you produce Jillson or do you want me to subpoena him? Brian H. Breedlove, esq. Breedlove & Noll, LLP 82 Glenwood Ave ‘Queensbury NY 12804 518-383-9400Stipulation of Settioment fw Bisctpiinary Action PO French, with representation by Sgt. John Catone has Agreed, a8 8 result of hig misconduct, to eocept a Peuulty of Letter of Reprimen} Which will become a pan of kis ‘Pemnanent employment file, ToWit On or about July 2010 - August 2010, Officer Adam French did violate the Saratoge Springs Police Department Operations Manual General Order Section 14.1 and $5.11, under the following subdivisions: " Count 1 14.1 - 2.0000) h did from his personal cellular telephone, forward @ digital photograph depicting one Partially unclothed to atleast two other members of the ¥ Police Department. Offcor French did this without the knowledge or consent of jand said actions reflected * upon Officer French as a member Of the depertment {he department into disrepute, gout2: G0 55.11 - vq) Officer French did 1s. his Bon-department cellular phone excessively | forpersonal use and while on duty ‘Agreed upon between the parties this 22nd dey of October, 2019 BA Fro Lites Polite Omicer {olin Catone, PBA President ¢TO: PO Adam French. FROM: hief Christopher J. Cole DATE OF OCCURRENCE: July 2010 - Avnust 2010 ‘Based upon the investigative report of Sgt. Timothy Sicko, the Internal Investigation Authority, « fine! ‘ctermination has been reached in the disciplinary matter against you, ‘The following violations of Department policy, procedure, end / or rales have been sustained as a result ofthis investigation: On or abou! the months of July and August, 2010, PO Adam French did violate General Order Section 14.1 titled Rules of Conduct, under the following subdivisions: To Wit: GO 14.1 - 2.00 (01) Unbecoming Con: mich did disseminate, by use of his personal cellular phone, « digital photograph hina her partially unclotied to at east two other members of rings Police Department. Officer French did this without ‘the knowledge or consent a said actions reflected discredit upon Officer French 5.4 member of the Department end did bring the Deparuneat into disrepute, On or about the months of July ‘and August, 2010, PO Adami French did violate General Order Section 55.11 titled Rudes of Conduct, undor the following subdivisions: To Wit: GO 55.11 - 1V@) Nou-Departuent Cell Phone Use. Officer French did use his ‘on-department cellular phone excessively for personel use end while on duty. Be advised thet the aforementioned conduct constitutes violations of tie department rules of conduct stipulated above. This notice is intended as a strong admonislunent for you to immediately reftain from any further incidents of such conduct. ‘The impropricty of your uctious is of such a depres that iplinary proceedings in accordence with Section 75 of future violations will subject you to further disci the New York State Civil Service Lew.‘STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA PATTY JACKSON, Individually, and as ADMINISTRATRIX OF THE ESTATE OF DARYL MOUNT, Plaintiff, DECISION AND ORDER vs, Index No. 20143461 CITY OF SARATOGA SPRINGS, a Municipality ‘Organized and Operating under the law of the ‘State of New York; CHRIS MATHIESEN, Commissioner of the Department of Public Safety; CHIEF GREGORY J. VEITCH; SGT. AARON P. BENWARE; OFFICER FREDERICK J, WARFIELD; OFFICER JOHN BATEHOLTS; OFFICER TYLER McINTOSH; OFFICER ADAM FRENCH; and INVESTIGATOR JAMES BELL; Ww bi Defendants. WéS NOLST. BG: Hd 12 d3S 0202 Buchanan, J.: ‘This matter comes before the Court on two applications by Plaintiff. By Order to ‘Show Cause Issued by the Court on June 24, 2020, Plaintiff seeks an order of the Court compelling non-party witness Michael Siketica, M.D. to appear for deposition, to testify and to answer all questions propounded to him. By Notice of Motion dated July 2, 2020, Plaintiff seeks to vacate the Note of Issue previously filed In this case and to compel Defendants to reepond to and comply with further disclosure requests. Defendants and Dr. Sikarica have opposed Plaintiffs applications. ‘Tuming first to the motion to compel testimony, the reach of disclosure under the CPLR Is broad. Generally speaking, deposition questions are broadly permitted and should be answered unless they violate a constitutional right or a privilege, they are 4 qaussubject to a protective order, or they are palpably irelevant (22 NYCRR §221.1; see Kay v, Tee Bar Corp., 161 ADSd 1530 [3d Dept 2017). It has been held that the witness may be asked any question that ‘may be relevant’ to an Issue in the case (see e.g. Homme! v, Dental Care Services, P.C., 159 AD2d 754 [3d Dept 1980). Indeed, for the deposition of Dr. Sikarlca, the parties entered into the usual stipulation that all objections, except fo the form of a question, are reserved for trial, At the same time, there is case authority for the proposition that an expert may not be compelled to answer a question that seeks their expert opinion (see @.g,, Fristrom v. Peakskill Comm. Hosp., 238 AD2d 315 [2d Dept 4987). Counsel analyze a series of cases on the subject and offer argument from two sides of the same principle: an expert witness can be compelled to testify as to facts within their knowledge, but cannot be compelied to offer their expert opinion. In this case, counsel for Plaintiff asserts that he did not ask for Dr. Stkarica’s opinion, but instead sought the facts on which he based his conclusions in the autopsy report. The transoript of the deposition shows thet counsel repeatedly stated he was seeking the facts upon which Dr. Sikerica relied, rather than his opinion. Dr. Sikarioa disagreed and refused to answer several of counsel's questions. Some of the refused questions could be argued to border on seeking opinion. For example: “Can you tell me what value in your analysis this domestic incident report had?" Others appear to be stralghtforward factual inquiry: ‘What do you meen by skeletal muscles?" Parsing these questions, however, Is rendered unnecessary by Dr. Sikarica’s answer to the single question asked by counsel for Defendants: @: — Doctor, | may just have one. In the records that you reviewed did you find any evidence In those records that Mr. Mount sustained a beating? A No. Dr, Skarica offered his expert opinion In response to this question and opened the door to further inquiry as to his opinion and the basis fort. Also, Dr. Sikarica Is nota retained expert In this case, so that the prohibition on calling another party’s expert as a witness does not apply (cf Young v. Strong, 118 AD2d 874 [3d Dept 1986). ‘The deposition of Dr. Sikerica will therefore be continued. : ‘Amotion to strike a note of issue will generally be granted If the case Is not ready {or trial, but a motion to strike may be denied if the parties have had sufficient time to complete discovery (sae e.g. Rosen v. Mosby, 180 AD3d 1253 [3d Dept 2020}; ireland v. 2Geico Corp., 2. AD3d 817 [3d Dept 2003). Plaintiff asserts four reasons to strike the Note of Issue in this case, First, there Is Plaintiffs desire to continue the deposttion of Dr. Sikarica. Second Is Plaintiff's discovery that defendant Benware was the subject of domestic violence charges arising after the Note of Issue was filed, a subject Plaintiff wishes to explore. Third, Plaintiff points out that one of the defendants, who served in the National Guard, has been deployed overseas and Is thus unavallable at this time, Fourth, Plaintiff asserts that new discovery demands are avallable, and interrogatories previously served and objected to by the defense should be revisited, in the wake of the repeal of Civil Rights Law 850-2. Plaintiff has presented sufficient reason to vacate the Note of Issue. Dr. Sikatica’s deposition will indeed be continued. Also, while the defense seeks to minimize Sgt. Benware's Involvement In the events underlying this case, the theory of Plaintiffs claim and the fact that Benware was in a supervisory position merit exploration of the criminal proceedings against Benware. Likewise, the sea change in the law occasioned by the repeal of Civil Rights Law §50-2, which took effect In June of this year, opens the door for Plaintif to explore the disciplinary records of police officers not previously available to Plaintiff. There Is no real prejudice to re-opening discovery In this case, as the various measures adopted by the courts In response to the COVID-19 pandemic will mean that a {rial cannot be expected for several months. This case Is not ready for tial and the Note of Issue will be vacated. Finally, Plaintiff moves to compel responses to discovery demands previously objected to by Defendants, again based on the repeal of Civil Rights Law §50-a. The timing of the repeal of §50-a In relation to the procedural posture of this case renders Plaintiff's motion premature. Defendants dispute Plaintiffs contention that thelr objections were based on §50-a, but even Ifthey were, such objections would have been permissible at the time Defendants raised them. Plaintiff Is also effectively prevented from showing a good-falth attempt to resolve the objections, given how recently the repeal became effective (22 NYCRR §202.7; see Mosit v. Welss, 178 ADSd 1332 [3d Dept 2018). The Court is vacating the note of Issue, which will re-open discovery and allow Plaintiff to pursue inquiry Into the criminal proceedings Involving Sgt. Benware and the disciplinaryrecords of police officers. Should disputes arise between the parties as to the conduct of discovery, the usual remedies can be requested. The parties’ remaining contentions have been considered, but do not alter the outcome of these motions, Therefore, in consideration of the foregoing, itis hereby ORDERED, that Plaintife’ motion seeking an order compelling Dr. Sikarica to ‘appear for deposition and to answer all questions asked of him Is GRANTED IN PART and Dr. Sikarica Is hereby ordered fo appear for deposition as noticed by Plaintiff and to answer all questions that are properly posed to him; and itis further ORDERED, that Plaintiffs motion to vacate the Note of Issue previously filed in this case Is GRANTED and the Note of Issue Is hereby VACATED; and itis further ORDERED, that Plaintif's motion to compel responses to discovery demands is DENIED WITHOUT PREJUDICE. Dated: Septouber 11,2020 ENTER. cheney ena ‘Supreme Cdbft zistige Ot seratogn County Crk Papers considered: Order to Show Cause; Affirmation of Brian H. Breedlove, Esq.; Affirmation in Opposition of John D. Aspland, Esq., with exhibits; Afrmation of Willam C. Firth, Esq.; Reply Affirmation of Brian H. Breedlove, Esq. Notice of Motion; Affirmation of Brian H. Breediove, Esq., with exhibits; Affirmation in Opposition of John D. Aspland, Esq., with exhibits; Reply Affirmation of Brian H. Breedlove, Esq. aguas