AGUASANTA v. CITY OF NEW YORK (2025)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about August 5, 2022, which, insofar as appealed from, denied plaintiffs’ motion to compel with respect to the identity of and other information regarding the confidential informant, unanimously modified, on the law, and the motion granted to the extent of directing defendants to produce, to the extent such documents are in their possession, any materials relied on by the court issuing the search warrant, including the affidavit prepared in support thereof, and the transcript of any proceedings before that court, redacted to conceal the identity of the confidential informant, and otherwise affirmed, without costs.

We decline to consider plaintiffs’ argument that defendants’ pleading should be stricken for noncompliance with discovery because this issue was not identified in the notice of appeal or the “Grounds for Reversal” section of the pre-argument statement and is not “inextricably intertwined” with the issues identified therein (Max Markus Katz, P.C. v. Sterling Natl. Bank, 206 A.D.3d 533, 533–534, 171 N.Y.S.3d 90 [1st Dept. 2022]).

Defendants’ arguments against disclosure of the identity of and other information regarding the confidential informant, which are based on the so-called “informer's privilege,” are not precluded by their failure to raise them earlier.  Even if some of these arguments should have been raised, at least with more particularity, in defendants’ initial responses, the failure to do so would only result in a waiver of objections “based on any ground other than privilege or palpable impropriety” (Khatskevich v. Victor, 184 A.D.3d 504, 505, 124 N.Y.S.3d 178 [1st Dept. 2020];  defendants’ arguments fall squarely within these categories.

It is undisputed that federal privilege law applies to this case involving significant federal civil rights claims (see Finn v. City of NY, 4 A.D.3d 218, 219, 772 N.Y.S.2d 46 [1st Dept. 2004];  Zabala v. City of New York, 32 Misc.3d 695, 696, 926 N.Y.S.2d 874 [Sup. Ct., Kings County 2011]).  Defendants’ submissions were sufficient to invoke the informer's privilege under federal law.  Because this privilege is recognized under federal as well as state law (see Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 [1957];  Cullen v. Margiotta, 811 F.2d 698, 715–716 [2d Cir.1987], cert denied 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 [1987];  Matter of United States, 565 F.2d 19, 22–23 [2d Cir.1977], cert denied 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 [1978]), defendants were not required to submit a supporting affidavit from a government official with personal knowledge (compare Butler v. City of New York, 15 Misc.3d 1134[A], 2007 N.Y. Slip Op. 50974[U], 2007 WL 1374488 [Sup. Ct., Kings County 2007];  King v. Conde, 121 F.R.D. 180, 187–190 [E.D.N.Y.1988]).

Plaintiffs have demonstrated a need for additional discovery to enable them to determine whether the subject search warrant is subject to challenge – specifically, the affidavit prepared in support of the search warrant application, the transcript of any proceedings before the court issuing the warrant, and any other materials relied on by the court in so doing (see Espady v. City of New York, 40 A.D.3d 475, 476, 839 N.Y.S.2d 4 [1st Dept. 2007]).  Defendants should produce these documents, to the extent any are in defendants’ possession (see Espady, 40 A.D.3d at 476, 839 N.Y.S.2d 4 [“However, since the Bronx District Attorney, who is not a party to this action, is not under the control of the City of New York, defendants cannot be expected to produce documents prepared or maintained by any prosecutors”]).  The confidential informant's identifying information should, however, be redacted from these documents because, without a clear understanding of the basis for issuance of the warrant, it is not clear whether the confidential informant's identity is necessary to challenge same (see generally Sanchez v. City of New York, 201 A.D.2d 325, 326, 607 N.Y.S.2d 321 [1st Dept. 1994]).