Derisse v. City of New York et al

Filing 18

ORDER granting 16 Motion to Compel. Plaintiff must provide the requested release by August 19, 2013. Discovery is extended to September 30, 2013. The next conference is adjourned to October 2, 2013 at 10:30 a.m. Ordered by Magistrate Judge Marilyn D. Go on 8/13/2013. (Proujansky, Josh)

United States District Court
Eastern District of New York
MINUTE ORDER
12cv5192 (NGG)(MDG) Derisse v. City of New York, et al.,
This order addresses the defendant City of New York's letter
motion dated July 27, 2013 (ct. doc. 16) to compel plaintiff to
provide a release for records of prior arrests, incarcerations and
prosecutions that have been sealed pursuant to N.Y. C.P.L. § 160.50
and for an extension of time to complete discovery.
Plaintiff brings this section 1983 action asserting claims for
false arrest and malicious prosecution.

According to the

allegations in the complaint, plaintiff's incarceration and
prosecution caused him "anxiety, humiliation, tension and stress"
for which he seeks damages.

Compl. ¶ 17.

In response to the City's

interrogatories requesting that plaintiff identify each occasion
that he has been arrested and for an authorization for release of
his arrest, incarceration and prosecution records sealed pursuant to
C.P.L. § 160.50, plaintiff objected on the grounds of relevance and
has refused to provide such a release.

Under C.P.L. § 160.50,

records relating to an "action [that] has been terminated in favor
of the accused . . . shall be sealed."

C.P.L. § 160.50.

The City correctly argues that records of plaintiff's prior
arrests, incarcerations and prosecutions may lead to the discovery
of admissible evidence concerning his claim for damages for
emotional distress.

See Duncan v. City of New York, 2013 U.S. Dist.

LEXIS 11162, at *2 (E.D.N.Y. 2013); Wisdom v. Undercover Police
Officer No. C0127, 879 F. Supp.2d 339, 342 (E.D.N.Y. 2012); Nibbs v.

Goulart, 822 F. Supp.2d 339, 344-45 (S.D.N.Y. 2011); Cicero v. City
of New York, 2011 WL 3099898, at *3-*5 (E.D.N.Y. 2011).

This is

because "[a] plaintiff who has previously been incarcerated 'may
suffer less damage as a result of a subsequent wrongful
incarceration.'"

Cicero, 2011 WL 3099898, at *4 (quoting Green v.

Baca, 226 F.R.D. 624, 657 (C.D. Cal. 2005)).

Damages based on loss

of liberty for which prior arrest history is not relevant are
separate and different from emotional damages.

See Kerman v. City

of New York, 374 F.3d 93, 125 (2d Cir. 2004).

While the information

sought be defendant is discoverable, whether the records may be
admissible is a separate matter that will ultimately be resolved by
the trial judge.1
For the foregoing reasons, defendant's motion to compel is
granted.
2013.

Plaintiff must provide the requested release by August 19,

Discovery is extended to September 30, 2013.
The next conference is adjourned to October 2, 2013 at 10:30

a.m.
SO ORDERED.
Dated:

Brooklyn, New York
August 13, 2013
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

1

Plaintiff, in his opposition, misquotes the Honorable Tucker
L. Melancon as stating that defendant "may not ask about the date
and duration of incarceration." Ct. doc. 17 at 1 (emphasis added)
(quoting Edwards v. City of New York, 2011 WL 2748665 (E.D.N.Y.
2011)). In fact, Judge Melancon wrote that at trial, defendant "may
only ask about the date and duration of incarceration." Id. at *4
(emphasis added).