BY SHEREE GILBERT FRANCES NICTORA CO ADMINISTRATRICES ESTATE OF MARI GILBERT BY SHEREE GILBERT ADMINISTRATRIX v. PETER HACKETT

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Supreme Court, Suffolk County, New York.

Estate of Shannan Gilbert BY SHEREE GILBERT and FRANCES NICTORA, CO-ADMINISTRATRICES and ESTATE OF MARI GILBERT BY SHEREE GILBERT, ADMINISTRATRIX, Plaintiffs, v. Charles Peter Hackett, D.O., a/k/a C. PETER HACKETT, D.O., Defendants.

12-33683

Decided: October 29, 2018

PLAINTIFF'S ATTORNEY: RAY, MITEV & ASSOCIATES 122 North Country Road P.O. Box 5440 Miller Place, New York 11764 DEFENDANT'S ATTORNEY: O'ROURKE & HANSEN, PLLC 646 Main Street Suite 105 Port Jefferson, New York 11777 NON-PARTY ATTORNEY DENNIS M. BROWN, ESQ. 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by non-party Suffolk County Police Department, dated February 22, 2016, and supporting papers; (2) Order to Show Cause (Martin, J.), on behalf of plaintiffs, dated and entered February 26, 2016, and supporting papers; (3) Notice of Motion by non-party Suffolk County Police Department, dated February 29, 2016, and supporting papers; (4) Affirmation in opposition to Order to Show Cause, dated March 1, 2016, on behalf of non-party Suffolk County Police Department; (5) Notice of Cross-Motion by plaintiffs, dated March 21, 2016, and supporting papers; (5) Affirmation in Opposition to Cross-Motion and in Further Support of Motion, dated March 25, 2016, on behalf of non-party Suffolk County Police Department; (6) Answering Affidavits made by plaintiffs, dated August 30, 2016; (7) Supplemental Affidavit in Opposition on behalf of non-party Suffolk County Police Department, sworn to March 14, 2018; (8) Supplemental Affirmation in Support of motion, dated March 26, 2018, on behalf of non-party Suffolk County Police Department; and (9) Supplemental Affirmation in support of cross-motion and order to show cause and in opposition to motion, dated March 29, 2018, on behalf of plaintiffs; and oral argument having been heard on March 6 and 19, 2018; it is,

ORDERED that the motions to quash on behalf of non-party Suffolk County Police Department (Mots. Seq. #004 and #006) are hereby denied; and it is further

ORDERED that the order to show cause and cross-motion (Mots. Seq. #003 and #007) made by plaintiffs, seeking, inter alia, to enforce the subpoenas, is hereby granted to the extent that the non-party respondent Suffolk County Police Department is ordered to produce the subpoenaed 911 call recordings and any transcripts and analyses thereof, as specified in the subpoenas duces tecum dated January 29, 2016 and February 4, 2016, respectively, for inspection and copying by the attorneys for the parties to the current action, subject to the restrictions set forth in the following decretal paragraph of this decision and order, within 20 days of the date hereof; and it is further

ORDERED that pending further order of the court made upon application to the court on notice to counsel for the counterparty and for the respondent Suffolk County Police Department, the receiving attorneys may use such copies of the aforesaid 911 call recordings and any transcripts and analyses thereof and the information contained therein and in any original recordings and any transcripts and analyses thereof solely for purposes of prosecuting or defending the current action and may not disseminate or divulge such copies or information to any person or entity other than employees or contractors of said attorneys who are assisting in the prosecution or defense of the within action and who shall be and hereby are prohibited from disseminating or divulging to any other person or entity copies of such recordings and any transcripts and analyses or the information contained therein; and it is further

ORDERED that the parties are reminded that a compliance conference is scheduled for Tuesday, November 27, 2018 at 9:30 a.m. in Part 6 of this Court located at One Court Street in Riverhead, New York.

Currently before the court are a series of motions and cross-motions to quash or enforce two subpoenas duces tecum, issued by plaintiffs' counsel and so ordered by the court, calling for the non-party Suffolk County Police Department to produce recordings, transcripts and analyses of specified 911 emergency calls that were placed over eight years ago. For the reasons that follow, the motions to quash are denied and the motions to enforce the subpoenas are granted subject to stated restrictions.

Background

This is an action by the representatives of the estates of Shannan Gilbert and of her mother, Mari Gilbert 1 , seeking an award of damages against Dr. Peter Hackett, the sole defendant, in connection with Shannan Gilbert's disappearance and death. As a result of prior rulings of the court, the remaining claims are for Shannan Gilbert's pain and suffering up to the time of her death and for emotional distress and related harms suffered by Mari Gilbert. The matter is now before the court on opposing motions to quash and to enforce, two non-party discovery subpoenas duces tecum directed to the Suffolk County Police Department

Shannan Gilbert, who reportedly worked as an escort, disappeared in the early morning hours of May 1, 2010 after being present at a party in the home of one of Dr. Hackett's neighbors in a gated community in Oak Beach on Jones Beach Island in Suffolk County. The plaintiffs claim that Shannan's belongings were found approximately thirty yards behind Dr. Hackett's house, a half mile from where Shannan's badly decomposed body was found, in the heavily thicketed marsh that lies between Oak Beach and Ocean Parkway, in December of 2011. The wide and protracted search for Shannan Gilbert resulted in the discovery of the remains of at least ten other individuals in the line of marsh and brush that adjoins Gilgo Beach.

Although the action against Dr. Hackett as first brought included causes of action for wrongful death and intentional tort, those claims were dismissed, in a decision and order dated December 10, 2013 (Martin, J.), for having been brought beyond the applicable statutes of limitations. Thereafter, in a decision and order dated December 17, 2017, the court denied Dr. Hackett's subsequent motion for summary judgment dismissing plaintiffs' remaining claims, which are primarily "survival" claims alleging medical malpractice, negligence, gross negligence, breach of fiduciary duty and fraudulent inducement. The gravamen of all of those claims, as well as those previously dismissed as time barred, is the allegation that prior to her disappearance in the early morning hours of May 1, 2010, Shannan Gilbert came under the control and care of the defendant, a Doctor of Osteopathy licensed to practice medicine in the State of New York. Plaintiffs claim that Dr. Hackett led Shannan - and later, her mother, Mari Gilbert - to believe that he owned and operated a home for "wayward females" out of his Oak Beach house and that he would render "aid" to her there, including medical treatment; that Shannan in fact came under Dr. Hackett's care and control and was administered medication by him; that Shannan was in such a state of confusion and "mental derangement" at that time that she "was incapable of making any informed decisions and of understanding her own or her surrounding circumstances"; and that Dr. Hackett's treatment of Shannan not only was "coerced," but was rendered "negligently, grossly negligently, recklessly and willfully and in reckless disregard of Shannan Gilbert's life and safety." Plaintiffs further claim that in addition to the obligations stemming from the physician-patient relationship that they allege existed between Dr. Hackett and Shannan Gilbert, or which were imposed upon him by virtue of the control he exercised over her and the representations he made to her and to her mother, Dr. Hackett also had "a duty of care to protect Shannan Gilbert and keep her safe from harm and to call the police and/or 9-1-1 to protect Shannan Gilbert, which [Dr.] Hackett failed and refused to do." Plaintiffs claim that as a result of Dr. Hackett's alleged misrepresentations, tortious acts and breaches of trust and duties, Shannan Gilbert "experienced pain, suffering, anguish, agony, knowledge and fear of her imminent death, and her death." In their general allegations (as well as in the specific context of two of their subsequently dismissed causes of action), and perhaps at least partly in anticipation of potential gaps in their proof, plaintiffs also allege that Dr. Hackett "engaged in conduct to conceal and thwart discovery" of his alleged treatment of Shannan Gilbert, including attempting to "thwart" discovery of her body, which, they, claim "frustrated, delayed and blocked" the "determination of her cause of death." Dr. Hackett has denied all of the material allegations of the complaint.

The motions now before the court are (1) plaintiffs' motion inter alia to compel compliance with (and for sanctions for the failure to comply with) two court-ordered subpoenas duces tecum directed to the non-party Suffolk County Police Department (the "Police Department"), one calling for the production to plaintiffs of the recording, and any transcripts and analyses, of a lengthy 911 emergency call, received and recorded by the New York State Police and turned over to the Suffolk County Police Department, that Shannan made the night of her disappearance, the other for the production to plaintiffs of "any and all recordings of any and all 911 calls made on or about" May 1st through 3rd 2010 regarding Shannan Gilbert 2 , as well as any transcripts and analyses of those calls, and (2) the Police Department's twice made motion to quash the two subpoenas as facially defective and as seeking the production of records that are "barred" from production under the Public Officers Law.

Two prior attempts, one by Mari Gilbert herself, the other by one of plaintiffs' lawyers, to obtain access to the recording of Shannan Gilbert's call under the Freedom of Information Law were denied by the Police Department and then, when an appeal was taken from the second denial, by the Police Department's appeal officer. Plaintiffs' counsel's subsequent challenge to the latter determination by way of a proceeding against the Police Department under CPLR Article 78 was deemed barred by both the failure to seek administrative review of the first denial, on Mari Gilbert's application, and the passage of more than 120 days from that denial, although the court, in dictum, indicated that it would have denied the petition on the merits on the grounds that calls made to a municipality's 911 system are clothed with a blanket exemption from Freedom of Information Law disclosure requests under County Law § 308(4) and that Public Officers Law § 87(2)(e)(i) specifically permits an agency to deny access "to records or portions thereof" that would "interfere with law enforcement investigations . . . ." (In Re Mitev v. Suffolk County Police Department, Index No. 29121-2013, August 9, 2016, at 3 (Sup. Ct. Suffolk County, Gazzillo, J.)). The court did, however - after noting that the recordings were "part of an ongoing homicide and contain specific information conveyed by Gilbert, which, if released, would impede and/or impair the continuing investigation and any resulting prosecution" (id.) - observe that the Appellate Division, Second Department's holding in Anderson v. State of New York, 134 AD3d 1061 [2d Dept 2015], which held that "the general language of County Law § 308(4) . . . cannot be interpreted as prohibiting court-ordered discovery of 911 materials in civil litigations," id., 134 AD3d at 1063, afforded petitioner "another avenue through which to seek copies of these recordings," In Re Mitev v. Suffolk County Police Department, supra, at 4, i.e., a so-ordered subpoena or judicial discovery order under CPLR 3101, id.  3

Discussion

In Anderson v. State of New York, supra, the Appellate Division distinguished the limitations on Freedom of Information Law access to 911 call recordings and related records and things by operation of County Law § 308(4), on the one hand, and party entitlement to discovery of such matter in civil litigation, on the other hand:

We view the language of County Law § 308(4) as generally prohibiting entities and private individuals from accessing 911 tapes and records (see Newsday LLC v. Nassau County Police Dept., 42 Misc 3d 1215 [A], 2014 NY Slip Op 50044[U], 2014 WL 258558 [Sup.Ct., Nassau County]). However, the statute is not intended to prohibit the disclosure of matter that is material and relevant in a civil litigation, accessible by a so-ordered subpoena or directed by a court to be disclosed in a discovery order (cf. Renni v. Jackson, 43 Misc 3d 1205[A], 2014 NY Slip Op. 50499[U], 2014 WL 1303427 [Sup.Ct., Kings County]). Indeed, in analogous criminal practice, 911 tapes and records are frequently made available to individual defendants as part of the People's disclosure obligations pursuant to People v. Rosario, 9 NY2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; see CPL 240.40 [1], 240.44[1]; People v. Boyd, 254 AD2d 740, 741, 679 N.Y.S.2d 768 and are admitted at trials to describe events as present sense impressions of witnesses (see People v. Vanderhorst, 117 AD3d 1197, 1200, 984 N.Y.S.2d 688), to identify perpetrators as present sense impressions (see People v. Buie, 201 AD2d 156, 159—160, 615 N.Y.S.2d 794), or as excited utterances (see People v. Wise, 279 AD2d 424, 719 N.Y.S.2d 847). Clearly, the general language of County Law § 308(4), which is part of the statute governing the establishment of an emergency 911 system in various counties, cannot be interpreted as prohibiting court-ordered discovery of 911 material in civil litigation.

134 AD3d at 1062—63. Accord, Abate v County of Erie, 152 AD3d 177, 182 [4th Dept 2017]4 . Indeed, CPLR 3101(a)(1) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action," and it is well settled that "[t]he terms 'material and necessary' in this statute must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (D'Alessandro v Nassau Health Care Corp., 137 AD3d 1195, 1196 [2d Dept 2016][internal citations omitted] ). Parties to litigation are entitled to "full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101(a); Forman v Henkin, 30 NY3d 656, 660, 70NYS3d 157 [2018] ). Indeed, as the Court of Appeals made emphatic fifty years ago, this liberal construction of CPLR 3101, and the breadth of disclosure it mandates, means that "[i]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered 'evidence material * * * in the prosecution or defense' " (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968], quoting CPLR 3101(a)).

Here, the Police Department does not seriously dispute that the information sought by the subpoenas falls within the scope of evidence that is "material and necessary in the prosecution" of plaintiffs' claims within the meaning of Section 3101(a) as it has been consistently interpreted by the courts of this State, or, in the wake of the Anderson v State and Abate v County of Erie decisions, supra, that 911 tapes are per se non-discoverable. Indeed, given the broad reach of the discovery to which parties are entitled, and to which parties and non-parties alike are required to submit, and which is core to the explicit objective of the Civil Practice Law and Rules "to secure the just, speedy and inexpensive determination of every civil judicial proceeding" (CPLR § 104), it is hard to conceive of any argument that could be invented to place the information plaintiffs are seeking outside the scope of "matter that is material and necessary in the prosecution or defense" of this action. Indeed, as Professor Connors has written, the broad and salutary "purpose of disclosure" under the CPLR - "to advance the function of a trial to ascertain truth and to accelerate the disposition of suits.' " P.M. Connors, Practice Commentary Civil Practice Law and Rules § 3101 (McKinney 2005), C3101:4 The Purpose of Disclosure, quoting Rios v. Donovan, 21 AD2d 409, 411, 250 N.Y.S.2d 818, 820 (1st Dept 1964); see Byork v. Carmer, 109 AD2d 1087, 1088, 487 N.Y.S.2d 226, 228 (4th Dept 1985) - has been repeatedly extended by the Legislature over the more than five decades since the adoption of the CPLR, including, in 1993, to provide specifically for the broad disclosure of all audio and visual materials:

A party's expansive right to disclosure recognized under the enactment of the CPLR in 1963 has been further extended during the last fifty years by the legislature and the courts. In 1993, the legislature substantially amended Article 31 to broaden the reach of the disclosure devices. CPLR 3101(a) was amended to confirm that disclosure was not limited to "evidence" that could be produced at trial, but to any "matter" that is relevant. . . . That same year, CPLR 3101(I) was also added to require full disclosure of various films and tapes of the parties, among other things. See Commentary C3101:50, below. These amendments, and the courts' interpretation of them, demonstrate New York's commitment to ensuring that cases be decided on their merits after a full vetting of the facts.

P.M. Connors, Practice Commentary Civil Practice Law and Rules, § 3101 (McKinney 2005) C3101:4 The Purpose of Disclosure.

Rather, the Police Department seeks to prevent discovery of the specified 911 recordings and transcripts 5 on the grounds that their criminal investigation into the death of Shannan Gilbert remains "open" and that the 911 recordings constitute "investigative" materials that are exempt from disclosure under Public Officers Law § 87(2) as "records that" (e) "are compiled for law enforcement purposes and which, if disclosed would " (i) "interfere with a criminal investigation . . . ," and, thus, are not subject to production pursuant to the final sentence of CPLR 3101(i).6 According to the Police Department, although Shannan Gilbert's disappearance and death occurred more than eight years ago and no arrests have been made or prosecution initiated, its investigation remains "open, active, and ongoing" and the disclosure of the recordings "would compromise confidential information and interfere with and frustrate the SCPD's efforts with respect to that investigation." (Affidavit of Detective Patrick Portella, sworn to March 14, 2018.)

More specifically, the Police Department asserts that the recordings "were made during the course of a criminal investigation conducted by the Homicide Bureau of the SCPD," that "any and all information contained within the requested recordings relate to the homicide investigation, which is ongoing,"7 and that as no arrests have as yet been made, "the SCPD has a critical interest in preserving the confidentiality of this investigation, including its witness statements, which would necessarily include the calls made to 911." One obvious, and potentially consequential, flaw in this chain of reasoning is, of course, that the Police Department has offered nothing to indicate that the 911 calls to which the subpoenas are directed were made or recorded either as part of a criminal investigation or in such manner as to render those calls its witness statements - or, for that matter, that those who made the calls and those who received them had any intention or expectation at the time the calls occurred that the information that was being communicated would be closely held by the Police Department at all 8 , much less for over eight years. Nor does the Police Department suggest, much less offer anything to show, that disclosure of the information might, for example, place the personal safety of any of the callers, or for that matter, anyone else, in jeopardy in any way. See, e.g., Public Officers Law §§ 87(2)(e)(iii) and (f).

Certainly, to the extent that a glimpse of the contents of one of the calls sought by plaintiffs' subpoenas - Shannon Gilbert's 22-minute May 1, 2010 call with a 911 operator - has been publicly disclosed, by a member of the Police Department in a letter to the editor of Newsday, published on January 23, 2012 and quoted in plaintiffs' submissions, there is no indication that confidentiality was expected or promised or that the call "was compiled for law enforcement purposes." On the contrary, the writer, a detective who states that he worked on the investigation during its first three months, characterizes the call as quite the opposite:

. . . In the house at Oak Beach, Gilbert was not about to be murdered. Her demeanor on the tape was calm. You can hear male voices on the tape, and they are clam. From what I heard on the call, Gilbert was not speaking as if she were in danger. . . .

(Newsday, letter to the editor, "All Out Effort for Shannan," January 23, 2012.) While there is no doubt agreement among both plaintiffs and the Police Department that that call, as well as the other calls to 911 for which the subpoenas seek recordings and transcripts, contains information potentially bearing on the circumstances surrounding Ms. Gilbert's disappearance and death 9 , and the recording - as well as the others - has been maintained by the Police Department because of the potential pertinency of that tape and the other tapes to what the Police Department avers remains an active investigation, the potential application of the exemption provided by Public Officers Law § 87(2)(e)(i) is, on its face, less than clear cut, both because of the provenance of the calls - that is, the 911 system, not any independent investigative activity on the part of the Police Department - and because of the purpose of the calls. See Davis v Washington, 547 US 813, 826-28 [2006].10

Moreover, the Police Departments submissions are consistently conclusory, failing to provide even the slightest intimation of how or why affording plaintiffs - who, after all, remain alone in undertaking actively to prosecute any claim in connection with Shannan Gilbert's disappearance and the circumstances leading up to her death - access to the 911 calls made by Shannan and others over a brief, three-day period would compromise any aspect of their protracted investigation. While it may well be that when a criminal prosecution is actually pending and it is the criminal defendant who is seeking disclosure, a "particularized showing" to support a claimed exemption from disclosure pursuant to Public Officers Law § 87(2)(e)(i) is not required and a generalized or categorical assertion of exemption is sufficient because the Criminal Procedure Law provides the criminal defendant with an "orderly process of disclosure" (Legal Aid Soc. v New York City Police Dept., 274 AD2d 207, 213-14 [1st Dept 2000]; compare Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-75 [1996]), here, no criminal prosecution is pending nor, so far as can be discerned from the Police Department's bare assertions, is it anticipated that a criminal prosecution will be brought within any time frame that the Police Department is currently willing, or able, to articulate. As the Court of Appeals emphasized in Gould v New York City Police Dept., supra, in the context of post-conviction FOIL requests for certain internally generated police department records:

All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2). To ensure maximum access to government documents, the "exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" (Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109; see, Public Officers Law § 89 [4] [b] ). As this Court has stated, "[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" (Matter of Fink v Lefkowitz, 47 NY2d 567, 571).

(89 NY2d at 274-75.) Accord Collins v New York City Police Dept., 55 Misc 3d 1214(A) [Sup. Ct. New York County 2017]. See generally Loevy & Loevy v New York City Police Dept., 139 AD3d 598, 599 [1st Dept 2016] (trial court order granting in camera review pursuant to FOIL request reversed and petition denied where detective averred that "he was handling an active, ongoing investigation into the homicide, and had recently pursued potential leads," and it was established that "disclosure of the records could interfere with the active investigation by, among other things, leading to witness tampering or enabling the perpetrator to evade detection . . . ."].)

In Collins, the petitioner's FOIL request was for information relating to a 1991 murder investigation that had resulted in the prosecution and conviction of a single individual. The respondent police department sought to justify its withholding of most of the requested information by invoking an array of FOIL exemptions, among other things contending that disclosure of the information would reveal its non-routine investigative techniques and confidential sources, reveal personal information about the victims and witnesses and jeopardize the personal safety of the latter, and compromise what it claimed was an ongoing investigation concerning the one to four additional accomplices to the 1991 murder who remained at large - and who could be charged and prosecuted "if additional evidence surfaces at some future date" - particularly as the petitioner, even though he denied having any connection with anyone involved in the case, might have been hired or directed by the convicted murder to seek out the information. The police department also argued that earlier denial of a FOIL petition filed by the convicted defendant himself several years earlier was binding on the current petitioner. After noting both the need to be "sensitive to the victim(s) and witnesses when evaluating a FOIL request" for documents relating to a murder investigation and that courts are hesitant to require disclosure of details about witnesses and victims "[w]hen the requester is an accused criminal defendant with a pending criminal prosecution," but that the police department is not free to withhold responsive records simply because the requester may have relationship to a criminal defendant, the Supreme Court rejected the police department's contentions and directed that the requested materials be produced to the petitioner with only such redactions as were necessary to protect the witnesses' personal information. The court in Collins summarized the operative portions of its holding as follows:

In the instant proceeding, respondent made only generalized arguments about why disclosure should not be permitted. Respondent failed to provide any details supporting its claims or request that the Court review documents in camera to substantiate its arguments. This leaves the Court with respondent's circular and speculative contentions that certain exemptions apply. Respondent is effectively asking the Court to credit its claims even though they lack any support. Under these circumstances, respondent must produce the documents in response to petitioner's request with the redactions necessary to protect witnesses' personal information. This Court cannot ignore the clear purpose of FOIL and permit respondent to make generalized, unsupported claims to prevent disclosure.

Collins v New York City Police Dept., 55 Misc 3d 1214(A) [Sup Ct New York County 2017]. See generally Matter of Gould v New York City Police Dept., supra, 89 NY2d 267 passim.

Here, in the face of the respondent Suffolk County Police Department's similar coyness in its submissions, which the court does not doubt is motivated by the department's hope that ultimately its investigation into Shannan Gilbert's disappearance and death will ripen into a criminal prosecution or some other form of culmination 11 , is the right of the plaintiffs in this proceeding to have their asserted and long-pending claims fully, fairly and timely adjudicated, including the opportunity to obtain discovery of all information material and necessary to the prosecution of those claims. As the courts made clear in both Anderson v. State, supra, and Abate v. County of Erie, supra, there is nothing inherently sacrosanct about 911 recordings that per se shields them from production when their disclosure is otherwise called for under the provisions of the Civil Practice Law and Rules; indeed, such recordings are not uncommonly produced, and introduced into evidence, in civil as well as criminal proceedings (see, e.g., Olivier A. v Christina A., 9 Misc 3d 1104(A) [Sup Ct Suffolk County 2005] [custody proceeding] ). And while it is certainly true that by operation of CPLR 3101(i), the constraints of Public Officers Law § 87, part of the Freedom of Information Law, may, in appropriate instances, come into play to limit the disclosure of such recordings, it is also true that the Freedom of Information Law also provides that "[n]othing in this article shall be construed to limit or abridge any otherwise available rights of access at law or in equity of any party to records" (Public Officers Law § 89(6)).

In Matter of Estate of Schwartz, 130 Misc 2d 786, 789 [Sur Ct Nassau County 1986], the decedent's parents, who were petitioning for letters of administration for the daughter's estate and opposing the cross-petition of their late daughter's spouse, served subpoenas duces tecum and notices of deposition seeking to obtain discovery from the district attorney's office and the county police department with respect to the investigation they had conducted into the death of their daughter, contending that the daughter's spouse might have been responsible for her death. The district attorney and police department moved to quash, claiming both a common law "public interest" privilege and the Freedom of Information Law exemptions from disclosure provided in Public Officers Law §§ 87(2)(e)(i) and (iii). After reviewing, among other things, practice under the exemptions provided in the federal Freedom of information Act, 5 USC § 552, the model for the exemptions in New York's Freedom of Information Law, and concluding - in anticipation of the later Appellate Division holdings in Anderson v. State, supra, and Abate v. County of Erie, supra - that "while a litigant should not be denied access to information which any member of the public can obtain, it does not logically follow that because a member of the public is denied access to information, the litigant should be deprived of the opportunity to demonstrate that his interest outweighs the public's interest in confidentiality' and that "[t]he provisions of the CPLR provides a second level of access to the litigant" (130 Misc 2d at 788-89), the court held that:

A balancing test should be applied to determine whether the government's interest in nondisclosure outweighs the petitioners' interest in disclosure (Friedman v Bache Halsey Stuart Shields [738 F2d 1336 (DC Cir. 1984)] ). As part of the balancing test, the court should take into account the Legislature's concern for preserving the confidentiality of the records of the police department and other law enforcement agencies, as expressed in the Freedom of Information Law (Toran, Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo Wash L Rev 843, 848-854).

Matter of Estate of Schwartz, 130 Misc 2d at 789 [Sur Ct 1986]. On the then-existing facts presented to it, the Surrogate's Court concluded that "the government's interest in preserving the confidentiality of an investigation into a possible homicide far outweighs the petitioners' interest in securing information in support of an application for letters of administration"(id.). Notably, however — and in plain recognition not only of the early stage in the estate proceedings in which the issue was presented, but also of the evidently incomplete state of the separate police department investigation — the court rendered its determination, explicitly "without prejudice to a renewed application at the termination of criminal proceedings or at a future date if formal proceedings are not commenced" (id., emphasis supplied). See also Demoya v Sinha, 29 Misc 3d 1228(A) [Sup Ct Queens County 2010] (defendant's subpoenas to District Attorney seeking production of emails between complainant/plaintiff and prosecutors, served in civil action during pendency of defendant's appeal from conviction in criminal proceeding against defendant, stayed, with proviso that "[d]efendant retains the right to move to vacate the stay in the event the criminal proceeding is not disposed of within reasonable period of time").

Here, more than eight years have elapsed since Shannan Gilbert's disappearance and nearly seven years since her body was discovered. What began with what one of the respondent's investigator's has described publicly as a lengthy but, as he described it, generally anodyne call by a woman whom, he believed, did not consider herself to be in any immediate danger, then developed into a lengthy search for a missing person, and only later evolved into an investigation into a possible homicide, has produced much grist for speculation. To date, no prosecution in connection with her disappearance and death has been commenced nor has the Police Department indicated that any is imminent. In the interim, a great deal of discovery has been conducted in this civil action, first brought by Shannan Gilbert's estate and by her mother six years ago, and is nearing completion 12 . It is inarguable that the recordings and transcripts sought by the plaintiff constitute "matter material and necessary in the prosecution . . . of the action . . . ." At this juncture, applying the "balancing test" described in Matter of Estate of Schwartz, supra - that is, whether "the government's interest in nondisclosure outweighs the petitioners' interest in disclosure" - the court must conclude that measured against the Police Department's hope - unarticulated here but presumably not materially different from that offered by the respondent police department in Collins v New York City Police Dept., supra - that charges will be brought "if additional evidence surfaces at some future date" (55 Misc 3d 1214(A)), the plaintiffs' interest in seeking both recompense for their loss and vindication for their contentions 13 on a balanced playing field and armed with all of the tools that the Civil Practice Law and Rules affords them and all litigants - including access to "all matter material and necessary in the prosecution . . . of [their] action . . . " - the balance necessarily tilts in the plaintiffs' favor. Were a criminal prosecution pending or in prospect in a stated time frame, the balance might well tilt the other way (see Matter of Estate of Schwartz, supra. Cf. State, Div. of State Police v Boehm, 71 AD2d 810 [4th Dept 1979]). But in the circumstances presented here, it would be both without foundation and manifestly unfair to hamper the plaintiffs in the prosecution of their civil claims based solely on the unquantified, and seemingly unmeasurable, possibility that a criminal prosecution that has not been commenced more than eight years after the 911 calls that are the subject of the current subpoenas and motions were placed will at some unstated point in the future be commenced. At the same time, to the extent that the concerns that have been generally expressed, but not articulated in any meaningful detail, by the Police Department can be accommodated without compromising the plaintiffs' interest in obtaining the information that they are legitimately and justifiably seeking, the court, pursuant to CPLR 3103(a), will limit the disclosure and use of the recordings and any transcripts and analyses, and the information contained in such materials, to the parties' attorneys and the attorneys' employees and contractors who are assisting in the prosecution or defense of this action, and will prohibit the dissemination or divulging of such materials and information to any other individuals or entities except upon further order of the court on motion on notice both to opposite counsel and to counsel for the Police Department.

Finally, the movants' respective prayers for the award of attorneys' fees and costs against one another are denied as unwarranted on the current record.

The foregoing constitutes the decision and order of the court.

Dated: October 29, 2018

Riverhead, New York

___________________________________________

HON. SANFORD NEIL BERLAND, A.J.S.C.

FOOTNOTES

1.   The action was originally brought by Mari Gilbert both individually and as the administratrix of her daughter Shannan's estate. Mari Gilbert was killed on July 23, 2016; thereafter, the subsequently appointed administratrices of Shannon's estate and the administratrix of Mari Gilbert's estate were substituted as plaintiffs.

2.    According to plaintiffs' counsel, the recordings that are sought include 911 calls placed by a number of Oak Beach residents who had contact with Shannan Gilbert or Dr. Hackett, or both, prior to Ms. Gilbert's disappearance, including Gus Coletti, Joseph Brewer and Barbara Brennan. According to plaintiff's counsel, Shannan Gilbert reportedly knocked on Mrs. Brennan's door at approximately 5:00 am on the morning of May 1, 2010; Mrs. Brennan, saw her through the door, texting, and called 911. At some point prior to that, Ms. Gilbert had knocked on Mr. Coletti's door, and he let her in, but she ran away when he said he was calling the police. It does not appear to be disputed that Ms. Gilbert's visit to Oak Beach began at Mr. Brewer's house late on the night of April 30, 2010, or in the very early hours of May 1.

3.   The respondent Police Department argues that the plaintiffs should be deemed precluded by the decision and order in the Mitev proceeding from disputing its contention that the 911 recordings are exempted from disclosure pursuant to Public Officers Law § 87(2)(e). However, as noted in text, supra, that proceeding was dismissed both as time barred and as precluded by Mari Gilbert's failure to seek administrative review of the denial of her prior, June 13, 2013, FOIL request. (In Re Mitev v. Suffolk County Police Department, Index No. 29121-2013, August 9, 2016, at 3 (Sup. Ct. Suffolk County, Gazzillo, J.).) The court's additional observations in its decision and order were, thus, dicta, unnecessary to its determination of the Mitev petition, and, in any event, concerned the status of the investigation as reflected in underlying administrative determinations made in 2013 and in submissions proffered years ago, and cannot be deemed to reflect the current status of the investigation. See, e.g., Schwartz v Pub. Adm'r of Bronx County, 24 NY2d 65, 73 [1969] (party invoking collateral estoppel bears "the burden of showing that the issue was identical and necessarily decided" in the prior action); accord Strough v Inc. Vil. of W. Hampton Dunes,78 AD3d 1037, 1039 [2d Dept 2010].

4.   In Abate v County of Erie, supra, the Fourth Department explicitly adopted the reasoning of the Second Department in holding that the statutory insulation of 911 recordings from FOIL disclosure was not intended to, and does not, prevent the discovery of such recordings pursuant to disclosure provisions of the CPLR: . . . [W]e are persuaded that section 308(4) operates not as a restriction on discovery pursuant to CPLR article 31- whose scope must be liberally construed - but rather as a narrow carve out that exempts 911 records from requests under the Freedom of Information Law and similar sunshine regimes. We thus join our colleagues in the Second Department in concluding that County Law § 308 (4) "is not intended to prohibit the disclosure of matter that is material and relevant in a civil litigation, accessible by a so-ordered subpoena or directed by a court to be disclosed in a discovery order" (Anderson, 134 AD3d at 1062, 21 N.Y.S.3d 356). 152 AD3d at 182.

5.   Although the Police Department has addressed the issue of whether the subpoenas could be interpreted to call for production of calls subsequently received - and which apparently continue to be received on its so-called "Suffolk County Crime Stoppers Tips call line," the court at this time is addressing only the motions and subpoenas as they apply to Ms. Gilbert's call and other calls concerning her disappearance received on May 1 through May 3, 2010. The Police Department's parallel argument, that the plaintiffs are precluded by the disposition of the petition filed by one of their attorney's challenging the denial of his request for access to the 911 calls and transcripts pursuant to the Freedom of Information Law is addressed in footnote 3, supra.

6.   In Zegarelli v Hughes, 3 NY3d 64 [2004], the Court of Appeals noted that CPLR 3101(i) was enacted in response the Court's 1992 decision in DiMichel v South Buffalo Ry. Co. (80 NY2d 184 [1992], which had applied to surveillance videos made in anticipation of litigation, a qualified privilege from disclosure, under CPLR 3101(d)(2), limiting disclosure of such tapes to those the defendant intended to use at trial and allowing the defendant to delay production until after the plaintiff had been deposed (id., 3 NY3d at 68). Citing its 2003 decision in Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383, at 387-388, the Court of Appeals went on to note in Zegarelli that the provision in CPLR 3101 (i) for "full disclosure" of surveillance tapes removed them from the protection of CPLR 3101 (d) (2), and put them on the same footing with other material discoverable under CPLR 3101 (a). Indeed, subdivision (i) tracks the language of subdivision (a), which states: "There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. . . ." (3 NY3d at 68). The Court of Appeals also noted, addressing a specific production issue in that case - the defendant had produced a VHS copy, rather than the original eight millimeter video camera recording of the surveillance - and citing CPLR 3120(1)(i), that "[i]n the case of 'documents and things'--a term that includes videotapes--a party's obligation is 'to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph' the items produced" (3 NY3d at 68), an obligation that may be satisfied by telling the party seeking the discovery where the materials are and providing a reasonable opportunity for that party to look at them and make copies; but it is often more convenient, and very common, for counsel for the producing party to make copies and send them to the other side. Where that is done, it is understood that the originals must be available for inspection on request. (3 NY2d at 69). Although the Court of Appeals thus made clear not only that surveillance recordings and other matter described in CPLR 3101(i) are governed by the same disclosure principles as all other "matter material or necessary in the prosecution or defense of an action," and that ordinary rules of production are also applicable to such matter, it did not address the essentially converse proposition, that is, the extent to which, if at all, the exemption referenced in the final sentence of CPLR 3101(i) was intended, by operation of CPLR 3101(i), to extend beyond the scope of the matter specifically delineated in that subsection.

7.   The affiant for the Police Department is a Detective in the Suffolk County Police Department who avers that he is "the lead detective in the investigation of the death of Shannan Gilbert." Although plaintiffs' counsel questions whether the "investigation that is ongoing" includes Shannan Gilbert's disappearance and death or concerns that of the other individuals whose bodies were discovered in the course of the protracted search for Shannan Gilbert, the court notes that the Detective's affidavit, dated March 14, 2018, is specific in its contention that there is "a presently active investigation in the case of Shannan Gilbert in which an indictment has not yet issued" and that "[t]he current status of the case is active and includes the participation of the Federal Bureau of Investigation's Behavioral Science Unit" (affidavit sworn to March 14, 2018, ¶¶ 5 and 4).

8.    See generally Collins v New York City Police Dept., 55 Misc 3d 1214(A), at 4 (Sup. Ct. New York County 2017), rejecting the respondent New York City Police Department's assertion of a broad claim of presumed confidentiality for witness statements in a homicide investigation, as follows: Respondent even insists that [w]hile the witnesses may not have been provided with express assurances of confidentiality, the circumstances and contents of the information provided to the police as part of a homicide investigation give rise to a presumption of confidentiality" [citation omitted]. This argument is preposterous—it suggests that any work done in a homicide investigation is unavailable pursuant to a FOIL request.

9.   Nonetheless, it should be noted that plaintiffs' counsel contends that the account of the recorded call provided by the author of the Newsday letter to the editor is "just the opposite" of the "statement" the Suffolk County Medical Examiner provided at the "autopsy meeting" with Shannan Gilbert's relatives.

10.   Although an extensive body of caselaw has been developed with respect to the admissibility and production of 911 recordings in criminal proceedings, see, e.g., Davis v Washington, supra [cited in the accompanying text]; People v Cortes, 4 Misc 3d 575, 596 [Sup Ct Bronx County 2004], the necessary focus of those cases on Confrontation Clause and other state and federal constitutional and evidentiary issues renders them of limited guidance in characterizing particular 911 recordings for purposes of determining the applicability of the Public Officers Law § 87(2)(e)(i) exemption.

11.   Among other things, plaintiffs, on the one hand, and the Police Department, on the other, disagree as to the extent, if at all, the findings of the independent post mortem examination of Shannan Gilbert's remains performed at the request of the Gilbert family - particularly that "[t]here is insufficient information to determine a definite cause of death, but the autopsy findings are consistent with homicidal strangulation" - impacts the significance, to the current motions, of the Suffolk County Medical Examiner's Office's labeling both the cause and the manner of Shannan Gilbert's death "Undetermined."

12.   Also in the interim, however, at least one individual with potentially relevant information has died and others have moved away, and both common sense and experience teach that recollections have faded and that other evidence that might earlier have been available may no longer be so.

13.   Plainly, the public policy of this State does not prevent those who claim injury from allegedly tortious acts that may also be punishable under the Penal Law or other criminal codes from pursuing civil redress for the losses they have incurred. E.g., Blaich v Van Herwynen, 37 AD3d 387, 388 [2d Dept 2007] (quoting McDonald v McDonald, 193 AD2d 590 [2d Dept 1993] for the principle that " '[w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of his [or her] liability' "). On the contrary, the policy of this state favors such redress. See, e.g.,CPLR 213-b; Elkin v Cassarino, 248 AD2d 35, 39 [2d Dept 1998].

Sanford N. Berland, J.