SMITH v. District Attorney, New York County, Nonparty-Respondent. (2008)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 30, 2007, which granted the motion of nonparty respondent New York County District Attorney's Office to quash a subpoena seeking the deposition of an assistant district attorney (ADA) in an action against defendant City, unanimously affirmed, without costs.

 The quashing of the subpoena was a proper exercise of judicial discretion (see Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ).   Plaintiff failed to establish that the ADA's deposition testimony as to her motives for charging plaintiff with possession of a forged instrument in an underlying criminal action, and instructing the grand jury in the way she did, is “material and necessary” to this malicious prosecution action against the City (CPLR 3101[a];  see generally Blittner v. Berg & Dorf, 138 A.D.2d 439, 525 N.Y.S.2d 858 [1988] ).   Such an action based on the allegedly malicious or improper acts of an ADA cannot stand where, as here, the actions complained of are associated with “the prosecutorial phase of the criminal process,” and are thus subject to absolute immunity (Johnson v. Town of Colonie, 102 A.D.2d 925, 926, 477 N.Y.S.2d 513 [1984];  see generally Drakeford v. City of New York, 6 A.D.3d 302, 775 N.Y.S.2d 138 [2004], appeal dismissed 2 N.Y.3d 779, 780 N.Y.S.2d 304, 812 N.E.2d 1253 [2004], cert. denied 543 U.S. 909, 125 S.Ct. 228, 160 L.Ed.2d 188 [2004], appeal dismissed and lv. denied 3 N.Y.3d 731, 786 N.Y.S.2d 805, 820 N.E.2d 284 [2004] ).

 In view of the foregoing, it is unnecessary to address whether the motion was properly granted based on the attorney work-product privilege (see CPLR 3101[c] ).  However, were we to address the issue, we would find that such privilege applies to protect the ADA from disclosing her “ mental impressions, conclusions, opinions or legal theories” (CPLR 3101[d] [2] ) in the underlying criminal action.