O'Day, et al v. Nassau County, et al
ORDER granting 512 Motion to Compel: The application is granted to the extent that with respect to class members who have not filed claims the County shall run the names of said class members and their contact information through WMS for updated addresses and provide to the Claims Administrator any updated addresses garnered from WMS and from NCCC records at the same time. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 4/10/2017. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
In re NASSAU COUNTY STRIP
A P P E A R A N C E S:
Herbst Law PLLC
420 Lexington Avenue - Suite 300
New York, New York 10170
Robert L. Herbst, Esq.
Giskan Solotaroff Anderson & Stewart LLP
11 Broadway Suite 2150
New York, New York 10004
Iliana Konidaris, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 1600
New York, New York 10016
Jonathan C. Moore, Esq.
Emery Celli Brinckerhoff & Abady LLP
75 Rockefeller Plaza, 20 Floor th
New York, New York 10019
Matthew D. Brinckerhoff, Esq.
Wolf Haldenstein Adler Freeman & Herz, LLP
270 Madison Avenue
New York, New York 10016
Jeffrey G. Smith, Esq.
Cuti Hecker Wang LLP
154 Grand Street
New York, New York 10013
Mariann Meier Wang, Esq.
Law Offices of Martin E. Restituyo Esq.
135 Avenue of the Americas
New York, New York 10105
Martin E. Restituyo, Esq.
Nassau County Attorney's Office
Carnell T. Foskey
One West Street
Mineola, New York 11501
Liora M. Ben-Sorek, Esq.
Robert F. Van der Waag, Esq.
HURLEY, Senior District Judge:
The purpose of this Memorandum and Order is to address the Plaintiff’s motion asking
this Court to direct defendant County of Nassau (“County”) “to grant access to the electronic
database maintained by or available to its Department of Social Services for the purpose of crossmatching it with the electronic database of class members to uncover updated contact
information for those class members.” By way of format, relevant background information, the
nature of the application, and the County’s response will precede the Court’s discussion.
The plaintiffs class consists of approximately 17,000 individuals who were strip searched
during the class period (viz. from May 20, 1996 to and including June 1, 1999) upon their
admission to the Nassau County Correctional Center ("NCCC") for misdemeanor or lesser
offenses absent reasonable suspicion that they harbored contraband. Some of those individuals
were arrested and admitted to the NCCC more than once so that the total of the subject strip
searches exceeds the number of class members. After nearly fifteen years of litigation, this Court
issued a final judgment on April 10, 2014, against the defendants and in favor of the plaintiff
class on the state constitutional claims awarding each member of the class $500.00 per strip
search in general damages for a total aggregate award of $11,508,000.00. (Apr. 10, 2014 Final
Judgment at 2.) On June 16, 2016, the Second Circuit Court of Appeals issued its mandate
affirming that judgment. Claim forms and notices have been mailed to class members by the
Claims Administrator. Claims forms must be postmarked by February 15, 2018 in order to be
eligible for payment. The parties report that approximately 12.5% of class members have filed
claims for the monetary recovery to which they are entitled.
Nature of the Application
The database currently being used by the Claims Administrator was created many years
ago by the Nassau County Sheriff’s Department (“NCSD”) and contains the addresses and other
contact information which the class members listed at the time of their respective admissions for
the Nassau County Correction Center (“NCCC”) in the years 1996-99; the information contained
therein is thus 18 to 21 years old. The County’s Information Technology Department (“NCITD”)
is currently creating an electronic database of class members that may identify more current
contact information for those class members who have been re-arrested and admitted to the
NCCC since 1999. In order to reach more class members, plaintiff seeks to have NCITD provide
the new class member database to the Nassau County Department of Social Services (“NCDSS”)
“so that NCDSS can run the class members and their old contact information through the
computerized electronic database to which they have access, and cross-reference the ‘hits’ for
updated address and other contact information for those class members.” (DE 512-1 at 2.)
According to Plaintiffs, the referenced database is one maintained by the New York State
Department of Social Services (“NYDSS”) containing all recipients of public assistance, food
stamps, Medicaid, and other benefits and social services, to which NCDSS has access.” (DE5123
4 at 2.) Once this cross referencing was complete, “[u]pdated contact information for the crossreferenced class members - and only such updated contact information - would then be provided
by NCDSS to the Claims Administrator, to be used solely for the purpose of locating the 87.5%
of class members who have not yet filed claims . . . .” (DE 512-1 at 2.) Plaintiffs argue that
although the information contained in the database is deemed confidential under section 21 of the
New York Social Services Law, that section incorporates section 136 of the New York Social
Services Law pursuant to which the sought disclosure is permissible.
The County’s Response
The County opposes the Plaintiffs’ request, citing the “legal impediment . . . that the
records at issue belong to New York State, not the County of Nassau, and, further, the records are
subject to State and Federal confidentiality provisions.” (DE 512-9 at 1.) Specifically, the
County maintains that access to New York State’s electronic database known as the Welfare
Management System (“WMS”) was granted to NCDSS “for the limited purpose of implementing
various federal and state social services assistance programs” and it “ has no authority to use
WMS for any other purpose or to grant access to any unauthorized third party, including
plaintiff” and “to do so would be a violation of federal and state law . . . .” (Id. at 2.) Referencing
the most recent report from the Claims Administrator, the County also notes that only 2,656 (of
the 17,722 notices that were mailed) have not been delivered.
Having recited the pertinent history of this case, the nature of the application, and the
parties’ respective positions, the Court turns to the present application.
The “statutory confidentiality of DSS records is not always sacrosanct, and upon the basis
of a proper showing may be released upon court order after an in camera inspection.” People v.
Mc Fadden, 178 Misc.2d 343, 346 (Sup. Ct. Monroe County 1998) (confidentiality of records
must yield to right of defendant to be provided with material necessary to his defense), aff’d, 283
A.D.2d 1030 (4th Dept. 2001); accord Zaccaro v. 50 E. 196th Assocs., 1997 U.S. Dist. LEXIS
(S.D.N.Y. Oct. 23 1997) (granting motion to compel disclosure of social services files for
claimant in action for damages due to injuries sustained as a result of infant claimant’s ingestion
of lead paint on premises on the theory the files might contain information relevant to an
alternative causation defense); W. v. U., 44 A.D.2d 727 (2d Dept. 1974) (holding putative father
in paternity action was entitled to subpoena welfare department to support his claim that mother
had made inconsistent statements concerning parentage of children); In re Estate of Robinson,
140 Misc.2d 599 (1988) (in action by mother of decedent to compromise and settle cause of
action for minor decedent, limited access granted to guardian ad litem appointed for decedent’s
father where guardian was not requesting information concerning income or benefits of recipient
but only information relevant to the identity of his ward as demand for identify of unknown
father necessitated minimal intrusion onto confidentiality of records so that guardian could
perform his function): Paine v. Chick, 50 A.D.2d 686 (3d Dept. 1975) (in action for damages for
personal injury and lost wages lower court properly denied motion to quash a subpoena served on
Commissioner of Social Security as it did not jeopardize the real purpose and function of statute
restricting disclosure and was justified as there were no income tax returns or employment
records with respect to the element of wages involved in the case). See also Steinberg v. Mount
Sinai Med. Ctr. Inc., 2014 U.S. Dist. LEXIS 44033 (E.D.N.Y. 2014) (having conducted an in
camera review, court permits parties access to redacted versions of the confidential records of the
State of New Jersey Department of Children and Families as relevant to federal and state civil
claims having balanced the parties’ interest in disclosure against the state’s legitimate concern for
protecting the confidentiality of the requested information).
The Court is cognizant of and sensitive to the privacy and confidentiality provisions
relied upon by the County. However, plaintiffs’ are not requesting that either they, their counsel,
the Plan Administrator. or even the Court be given access to WMS; they are seeking to have the
County search for updated addresses and provide them with only those updated addresses - not
any information with respect to what, if any, services they are receiving. Moreover, the County is
currently in the process of checking for updated records from the Department of Corrections and
can provide updated addresses from Corrections and WMS at the same time and therefore
plaintiffs would not know from which source the information came from.
Accordingly, the application is granted to the extent that with respect to class members
who have not filed claims the County shall run the names of said class members and their contact
information through WMS for updated addresses and provide to the Claims Administrator any
updated addresses garnered from WMS and from NCCC records at the same time.
Dated: Central Islip, New York
April 10, 2016
/s Denis R. Hurley
Denis R. Hurley
United States District Judge
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