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Estate of Gilbert v. Hackett

Supreme Court, Suffolk County

October 29, 2018

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.

          PLAINTIFF'S ATTORNEY: RAY, MITEV & ASSOCIATES

          DEFENDANT'S ATTORNEY: O'ROURKE & HANSEN, PLLC

          NON-PARTY ATTORNEY DENNIS M. BROWN, ESQ.

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

         Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by non-party Suffolk County Police Department, dated, 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

         ORDEEDR 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 A.D.3d 1061');">134 A.D.3d 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 A.D.3d 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');">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 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; see CPL 240.40 [1], 240.44[1]; People v. Boyd, 254 A.D.2d 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 A.D.3d 1197, 1200, 984 N.Y.S.2d 688), to identify perpetrators as present sense impressions (see People v. Buie, 201 A.D.2d 156, 159160, 615 N.Y.S.2d 794), or as excited utterances (see People v. Wise, 279 A.D.2d 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 A.D.3d at 106263. Accord, Abate v County of Erie,152 A.D.3d 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 A.D.3d 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 N.Y.3d 656, 660, 70N.Y.S.3d 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 ...


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