SPENCER v. CITY OF BUFFALO (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking to recover damages based on alleged violations of his constitutional rights and personal injuries sustained when two police officers, including defendant Corey Krug, used excessive force against him.  Defendants contend that Supreme Court erred in granting plaintiff's motion pursuant to CPLR 3124 for an order compelling Krug's deposition and denying their cross motion pursuant to CPLR 2201 and 3103(a) for a protective order staying Krug's deposition until completion of a pending criminal prosecution against him.  We reject that contention.

Pursuant to CPLR 4501, which “provides statutory protection parallel to that of the constitutional right against self-incrimination” (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 4501;  see U.S. Const. Amend. V;  N.Y. Const. art. I, § 6), a witness in a civil action is not required “to give an answer which will tend to accuse himself [or herself] of a crime” (CPLR 4501).  Nonetheless, “ ‘[a] blanket refusal to answer questions based upon the ․ privilege against self-incrimination cannot be sustained absent unique circumstances, and ․ the privilege may only be asserted where there is reasonable cause to apprehend danger from a direct answer’ ” (Matter of Astor, 62 A.D.3d 867, 869, 879 N.Y.S.2d 560 [2d Dept. 2009] ).  “[W]hile courts have recognized the difficulty faced by defendants in choosing between presenting evidence in their own behalf and asserting their [constitutional] right[ against self-incrimination], ‘a court need not permit a defendant to avoid this difficulty by staying a civil action until a pending criminal prosecution has been terminated’ ” (id., quoting Steinbrecher v. Wapnick, 24 N.Y.2d 354, 365, 300 N.Y.S.2d 555, 248 N.E.2d 419 [1969], rearg. denied 24 N.Y.2d 1038, 303 N.Y.S.2d 1026, 250 N.E.2d 357 [1969];  see Lloyd v. Catholic Charities of Diocese of Albany, 23 A.D.3d 783, 784, 803 N.Y.S.2d 739 [3d Dept. 2005];  Access Capital v. DeCicco, 302 A.D.2d 48, 52–53, 752 N.Y.S.2d 658 [1st Dept. 2002];  Walden Mar. v. Walden, 266 A.D.2d 933, 933, 698 N.Y.S.2d 185 [4th Dept. 1999] ).  Moreover, “invoking the privilege against self-incrimination is generally an insufficient basis for precluding discovery in a civil matter” (Access Capital, 302 A.D.2d at 52, 752 N.Y.S.2d 658;  see Astor, 62 A.D.3d at 869, 879 N.Y.S.2d 560;  Lloyd, 23 A.D.3d at 784, 803 N.Y.S.2d 739;  Walden Mar., 266 A.D.2d at 933, 698 N.Y.S.2d 185).

Here, the court did not abuse its discretion in granting plaintiff's motion for an order compelling Krug's deposition and refusing to grant defendants' cross motion for a protective order staying the deposition until completion of the pending criminal prosecution against him (see Walden Mar., 266 A.D.2d at 933, 698 N.Y.S.2d 185).  The criminal prosecution concerns other incidents that did not involve plaintiff (see Galper v. Burkes, 44 A.D.3d 451, 452, 843 N.Y.S.2d 293 [1st Dept. 2007];  cf. Britt v. International Bus Servs., 255 A.D.2d 143, 144, 679 N.Y.S.2d 616 [1st Dept. 1998];  DeSiervi v. Liverzani, 136 A.D.2d 527, 528, 523 N.Y.S.2d 147 [2d Dept. 1988] ) and, even if certain questions at the deposition might relate to the criminal prosecution, Krug “may ․ assert the privilege [only] when he reasonably perceives a risk from answering a particular question posed during the deposition” (Lloyd, 23 A.D.3d at 784, 803 N.Y.S.2d 739;  see Astor, 62 A.D.3d at 869, 879 N.Y.S.2d 560).  Contrary to defendants' contention, they did not demonstrate that they will suffer prejudice if Krug's deposition is conducted while his criminal prosecution is pending by being deprived of critical and necessary testimony thereby rendering them unable to assert a competent defense (cf. Britt, 255 A.D.2d at 144, 679 N.Y.S.2d 616), particularly because the incident involving plaintiff does not form the basis for the criminal prosecution (see Galper, 44 A.D.3d at 452, 843 N.Y.S.2d 293;  see also Walden Mar., 266 A.D.2d at 933–934, 698 N.Y.S.2d 185).