IIJima v. The City of New York et al

Filing 58

MEMORANDUM AND ORDER re 49 Plaintiff's motion to compel is granted in part and denied in part. So Ordered by Magistrate Judge Cheryl L. Pollak on 3/25/2015. (Caggiano, Diana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORI(

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MA YUMI IIJIMA, proposed Administrator for the
Estate of Ryo Oyamada, deceased,
Plaintiff,
-against-

MEMORANDUM
AND
ORDER
13 CV 2688 (ARR)

THE CITY OF NEW YORK, et al.,
Defendants.

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On May 3, 2013, Mayumi Iijima, plaintiff and Administrator ofthe Estate ofDecedent
Ryo Oyamada, filed a Complaint against the City ofNew York (the "City"), the New York City
Police Department ("NYPD"), and Police Officer Darren Ilardi (collectively, "defendants"),
alleging that Officer Ilardi, through acts of recklessness and gross negligence, caused the death of
Ryo Oyamada, a pedestrian. (Compl. 1 ~~ 15-19). On August 29,2014, plaintiff filed a letter
motion to compel, detailing certain deficiencies in defendants' response to plaintiffs Second
Request for Production. For the reasons set fotih below, plaintiffs motion to compel is granted
in part and denied in part.

FACTUAL BACKGROUND
On February 21,2013, Ryo Oyamada, a 24-year-old Japanese student was struck and
killed on 40th Avenue in Queens by a marked NYPD vehicle, driven by Police Officer Darren

1

Citations to "Compl." refer to plaintiffs Complaint, filed on May 3, 2013.

Ilardi. (Compl. ~~ 2, 14, 18-19; Am. Compl. 2 ~ 1). In the original Complaint, plaintiff asserted
causes of action against Ilardi for personal injury and wrongful death, based on negligence and
recklessness, and a cause of action against the City for imputed vicarious liability based on the
City's ownership of the NYPD vehicle. (Compl.

~~

11-12, 14-17, 19-20). By Notice of Motion

dated July 12, 2014, plaintiff moved for leave to file an amended complaint. By Order dated
March 25, 20 15, the Court granted plaintiffs motion to amend to add certain counts, but denied
the motion insofar as it sought to add a Monell claim, claims of supervisory liability under
Section 1983 and state law, and a claim of denial of access to the courts.
By letter dated August 29, 2014, plaintiff complains that defendants have failed to
produce certain discovery which plaintiff believes will likely lead to the production of admissible
evidence. (Pl.'s Ltr. 3 at 1). Defendants contend that the requests fall into four basic groupings
and that: 1) defendants have already complied with or have agreed to comply with the first
grouping; (2) the second grouping concerns new causes of action contained in plaintiffs
proposed amended complaint for which defendants were awaiting the Court's ruling on the
motion to amend before acting on these requests; (3) the third grouping contains requests that
defendants have already partially complied with, but that defendants contend are overbroad and
seek discovery beyond the scope of this lawsuit; and (4) the fomih grouping contains requests

2

Citations to "Am. Compl." refer to plaintiffs proposed First Amended Complaint,
attached as Exhibit 2 to the Notice of Motion for Leave to Amend Complaint, dated July 11,
2014.
3

Citations to "Pl.'s Ltr." refer to plaintiffs letter outlining defendants' remaining
obligation to respond to Plaintiffs Second Request for Production, dated August 29, 2014.
2

that are "palpably improper." (Defs.' Ltr. 4 at 1-2). Using the four categories identified by
defendants, the Court addresses each group of requests in turn.

I.

Motion to Compel
A.

The First Grouping

The first grouping consists of Requests 10, 15, and 17-22. Of this first grouping, plaintiff
seeks to compel responses to Requests 15, 17, and 18. 5 Defendants state that they "agree[] to
attempt to comply with, or ha[ve] already complied with" these requests. (Defs.' Ltr. at 1).
Request 15 seeks documents referencing or concerning video recordings depicting events
within a two block radius of the crash location. (Pl.'s Ltr. at 9). Although defendants turned
over video from surveillance cameras, plaintiff objects because the videos include "only tiny
snippets" from the surveillance cameras, and plaintiff contends that the NYPD failed to collect
any video recordings showing the collision or its immediate aftermath. (Id.) Plaintiff questions
"why critical events were cut out at the end." (ld.) Defendants are Ordered to confirm that all
documents and video recordings responsive to this request that are in their custody and control
have been produced, and that the copies that have been provided are complete and the only copies
available.
Request 17 seeks "any data or information contained in or extracted from any recording
device that was incorporated into or contained within the vehicle Ilardi was operating at the time

4

Citations to "Defs.' Ltr." refer to defendants' letter to the Comi, dated October 10, 2014.

5

Plaintiff states that she does not discuss Requests 10 and 19-22 in her letter motion
because defendants indicated that they will conduct searches for documents responsive to those
requests, and plaintiff reserves the right to object to the responses. (Pl.'s Ltr. at 11, n.5).
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of the Crash." (I d. at 9-1 0). Defendants provided a paper printout from the event data recorder
in Ilardi's report and have agreed with plaintiffs request to produce the data in its original digital
format. (I d. at 10). However, plaintiff contends that defendants have not indicated whether they
searched for any recordings from other devices in Ilardi's vehicle. (Id.) Accordingly, defendants
are Ordered to produce the data in its original digital format, and confirm that the digital data from
the event data recorder is all that defendants have responsive to this request.
Request 18 seeks Ilardi's cellular phone records or information regarding Ilardi's use of
other p01iable electronic devices during a three hour window surrounding the time of the crash.
(I d. at 10). This request was addressed at the October 2, 2014, status conference held before the
undersigned. The Court directed defendants to provide Ilardi's cellular phone records for 30
minutes prior to and 30 minutes after the accident. Defendants have indicated that they will
comply with the Couti's directive and are thus, Ordered to do so.

B.

The Second Grouping

The second grouping includes Requests 5-9, 11, and 16, which involve causes of action
that were the subject of plaintiffs motion to amend. Defendants indicated that they are awaiting
the Couti's ruling on the motion to amend before acting on these Requests but, in any event, they
object to these requests because they are "vague, ambiguous, overbroad, not limited in time or
scope, and seek[] information that is not material or reasonably calculated to lead to the
discovery of admissible evidence." (Defs.' Ltr. at 1, 9-12, 14).
Now that the motion to amend has been decided, the parties are directed to meet and
confer on these requests. Plaintiff is directed to narrow the scope of her requests in light of the

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Court's ruling on the motion to amend, and clearly indicate what documents plaintiff is seeking.
The Court notes that all of these requests as now phrased are overbroad and vague, and plaintiff
needs to describe with greater specificity the nature or type of record sought. The requests
should also be narrowed to materials relevant to the incident at hand, taking into account the
Court's denial of certain claims in the motion to amend. If defendants continue to object to these
naiTowed requests and the parties cannot agree, defendants are directed to submit their objections
in writing on or before April3, 2015. Plaintiff will be given until AprillO, 2015 to respond., If
the objections have been fully stated in the letters already submitted to this Court, counsel may
simply refer to their earlier submissions.

C.

The Third Grouping

The third grouping includes Requests 1, 2, and 12-14. Defendants argue that they have
already partially complied with these requests in previously exchanged discovery responses, but
that the new requests are worded in a manner that are objectionably overbroad and stretch beyond
the scope of this lawsuit. (Defs.' Mem. at 1).

1.

Request 1

Request 1 seeks "any document concerning or evidencing the presence or activities of any
NYPD employee present within a two-block radius of the Crash location for the period of 00:30
through 02:45 on February 21, 2013, including without limitation any documents concerning or
evidencing crowd control activities, crash investigation activities, and or the presence or
activities of any Disorder Control Unit personnel." (Pl.'s Ltr. at 2). Plaintiffrequests, at a

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minimum, documents concerning: "(a) the 10-52/domestic disturbance call to which defendant
Ilardi was assigned to respond at the time of the crash ... (b) the 10-34/knife call two blocks
from the Crash, to which defendant Ilardi claims he was responding when he struck decedent; (c)
the 10-53/pedestrian struck call made by Ilardi and/or his pminer after the Crash, including
without limitation any assignment of personnel to control the crowd that gathered at the crash
scene; (d) personnel assigned to investigate the Crash; (e) personnel assigned to investigate the
origin ofthe 10/34 knife call." (Id.)
Plaintiff argues that Requests 1(a), 1(b), and l(e) are relevant to the key issue in the case
-whether Ilardi was engaged in an "emergency operation," at the time of the accident. Plaintiff
contends that information "concerning the presence and activities" of officers other than Ilardi
will shed light on the plausibility of Ilardi's claim that he was responding to the knife call at the
time of the accident, and that he decided to ignore the domestic disturbance call. (Id. at 3).
Plaintiff claims that the available evidence suggests that the officers who were actually assigned
to the knife incident did not view it as an "emergency" even though Ilardi "sped dangerously
through a densely populated area to respond." (Id.)
Plaintiff also argues that Request 1(c) is relevant because it is reasonably calculated to
lead to the identification of eyewitnesses, and that if the Comi grants plaintiffs motion to amend
to add a denial of access to the courts claim, then these documents are also relevant to the
dispersal orders and methods that resulted in the absence of eyewitnesses. (Id. at 2-3). Finally,
plaintiff contends that Request 1(d) and the activity logs, emails, and other notes created by the
crash investigators are reasonably calculated to lead to the discovery of admissible evidence. (Id.
at 2).
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Defendants argue that they have already produced responsive documents pertaining to
"the extensive investigation performed by the NYPD regarding the motor vehicle accident in
question," such as the Accident/Collision Investigation Squad's file and the worksheets from the
Internal Affair Bureau's file. (Defs.' Ltr. at 5). However, they object to Request 1 to the extent
that plaintiff is "improperly broadening the scope of discovery to cover the emergency call to
which Officer Ilardi was responding." (Id.) Defendants cite to the decision in Criscione v. City
ofNew York, 97 N.Y.2d 152, 762 N.E.2d 342, 736 N.Y.S.2d 656 (2001), where the New York
Court of Appeals held that "[g]iven the legislative determination that a police dispatch call is an
'emergency operation,' it is irrelevant whether the officers believed that the ... call was an
emergency." 97 N.Y.2d at 158, 762 N.E.2d at 345, 736 N.Y.S.2d at 659. In Criscione, a police
officer was involved in a car accident while responding to a dispatch call to investigate a family
dispute. 97 N.Y.2d at 154-55, 762 N.E.2d at 343, 736 N.Y.S.2d at 657. Even though the
defendant driver and the recorder officer in the vehicle testified that they did not consider the call
to be an emergency run, the New York Court of Appeals held that, because Vehicle and Traffic
Law § 114-b states that a police officer in an authorized emergency vehicle is engaged in an
'emergency operation' "when such vehicle is ... responding to ... [a] police call," the police
officer was involved in an 'emergency operation' as a matter of law. 97 N.Y.2d at 157-58,762
N.E.2d at 345, 736 N.Y.S.2d at 659. Therefore, the Comi of Appeals determined that, pursuant
to Vehicle and Traffic Law § 1104, the jury should have been instructed that a driver of an
authorized emergency vehicle is granted "a qualified privilege to disregard the ordinary rules of
prudent and responsible driving, subject to a 'reckless disregard' standard of liability." 97
N.Y.2d at 158, 762 N.E.2d at 345, 736 N.Y.S.2d at 659. Based on this decision, defendants

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argue that "it is irrelevant and undiscoverable whether or not Officer Ilardi or any other officer
on duty that night, believed that the 'man with a knife' radio call was a true emergency or not."

(Defs.' Ltr. at at 6) (emphasis in original).
Having considered the parties' arguments, the Court finds that with respect to the
plaintiffs request for all documents "concerning or evidencing" the knife call, the domestic
disturbance call, and "personnel assigned to investigate the origin of the 10/34 knife call," the
requests are vague and overbroad in that they are virtually unlimited in the scope of the types of
documents they seek. The request for documents concerning the knife call is not limited to the
identity of the officers called to the scene, which would arguably provide the information
plaintiff seeks even if it was relevant. Indeed, the request is not limited in any way and
potentially seeks information about individuals, other than police officers, who may have been
involved in the underlying knife incident, including documents as to victims of the knife call,
possible alTest charges, pleas taken, trial papers, etc., that are wholly unrelated to the issue that
plaintiff claims she is seeking to prove. Similarly, the request for all documents relating to the
10-52 domestic disturbance call is equally unlimited in scope, and since defendant Ilardi did not
respond to that call, it is unclear what relevance information about the victims or even the
officers involved in that call would have to the issues in this case.
Finally, the request for "any document concerning or evidencing ... personnel assigned
to investigate the ... knife call," is so vague as to be incomprehensible. If plaintiff seeks the
identities of the other officers who were assigned to respond to or investigate the knife incident,
in order to depose them, then the request should so state. If she seeks their memo books or
reports relating to the incident, then she should specify what she is looking for. As currently

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drafted, the request for documents responsive to Request 1(e) arguably calls for production of
any record relating to any officer assigned to that knife call, including that officer's health
records, pension records, service applications, etc. Accordingly, the Court denies the motion to
compel as to these categories of documents - Requests 1(a), (b), and (e) - because the requests
are not only vague and ambiguous but clearly overbroad and not likely to lead to the discovery of
any relevant evidence.
Moreover, even if plaintiff were able to limit these requests in some manner, to seek
information solely related to the other officers who responded to the knife call or the domestic
dispute and their conduct in connection with the investigations conducted that night, the Court
agrees with defendants' analysis of Criscione and finds that these other officers' opinions as to
whether the knife call was an emergency or not are irrelevant as a matter of law, given the Court
of Appeals' interpretation of the Vehicle and Traffic Law provision. Thus, the Court finds no
basis upon which to order defendants to produce these records.
With respect to Requests 1(c) and 1(d) seeking any document concerning "personnel
assigned to investigate the Crash" and "the 10-53/pedestrian struck call ... including without
limitation any assignment of personnel to control the crowd that gathered at the crash scene,"
defendants argue that counsel's assertion that officers either negligently or intentionally failed to
interview people at the scene and appropriately conduct an investigation is without merit because
"[t]he caselaw makes it quite clear that there is no cause of action for a negligent or insufficient
police investigation." (ld. at 7) (citing Medina v. City ofNew York, 102 A.D.3d 101,953
N.Y.S.2d 43 (1st Dep't 2012); Coyne v. State, 120 A.D.2d 769, 501 N.Y.S.2d 769 (3d Dep't
1986)).

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While defendants are correct that there is no basis for a claim of negligence based on an
officer's failure to conduct a,n adequate investigation, plaintiffs request for the identities of other
officers on the scene, regardless of whether they were investigating the plaintiffs accident or
there for purposes of crowd control, may in fact lead to the discovery of admissible evidence.
Plaintiff alleges that there were civilian eyewitnesses to the accident, but that the defendants
dispersed the crowd without obtaining any of the witnesses' identification. It is unclear from
defendants' response whether they have contacted these other officers who may not have been
assigned to investigate the accident, but were at the scene to control the crowd to determine if
they made notes in their memo books or elsewhere as to any potential witnesses to the accident.
Defendants are Ordered to provide, if they have not already done so, the identities of any
police officers on the scene at the time of the accident or shmily thereafter, and indicate whether
these officers have been directed to produce any records or notes reflecting the identities of
witnesses to the accident. However, to the extent that plaintiff seeks other documents from these
witnesses, plaintiff is directed to more specifically describe the documents sought. The Requests
as now framed are vague and ambiguous.

2.

Request 2

Request 2 seeks "any document concerning or evidencing the whereabouts, assignment
and/or activities of the following NYPD personnel during the period of 23:45 on February 20
through 02:45 on February 21, 3013: [Officer] Ilardi; Jason Carman (Shield #28065); Sgt. f/n/u
Fletcher (Shield #991); P.O. Smith Dorsaint (command as of2/21/13, #809); Sgt. f/n/u Hacklin
Ng (command as of2/21/13, #809; P.O. f/n/u Anthony Coppola (command as of2/21/13; #809);
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P.O. Brito (Shield #4613)." (Pl.'s Ltr. at 3-4).
Plaintiff seeks these documents for several reasons. First, plaintiff argues that the
whereabouts of the other five officers at the time of the crash are relevant because, if they were
closer to the knife call than Ilardi, then "Ilardi's purported decision to redirect to the knife call is
less plausible." (Id. at 4). Plaintiff argues that an unidentified officer stated on the police radio
that he was a "block out," presumably from the knife call, shortly before the crash, and plaintiff
believes that Sergeant Fletcher and Officer Dorsaint were responsible for this radio call. (Id.)
Accordingly, plaintiff argues that documents showing the officers' whereabouts will shed light
on whether it was Fletcher or Dorsaint, "rather than Ilardi/Carman, who claimed seconds before
the crash that they were a 'block out' from the knife call." (I d.)
Request 2 also seeks documents regarding Ilardi and Carmen's whereabouts during the
three-hour time before the accident, and plaintiff argues that these documents would shed light
on whether or not Ilardi and Carmen were heading towards the knife call at the time of the
accident. (I d.)
Defendants state that they have already turned over the memo book entries for Darren
Ilardi and Jason Carman, and they reiterate the objections stated in response to Request 1 in
opposing Request 2. Specifically, they state that "[t]he actions of other officers that may have
come either to the scene of the accident or to the '1 0-34 call' are completely irrelevant and are
not material or necessary to the instant lawsuit." (Defs.' Ltr. at 7-8).
In light of the Criscione decision discussed above, the only relevant issue is whether
Officer Ilardi was responding to any police call at the time of the accident and thus, engaged in
an emergency operation, irrespective of whether it was the knife call or domestic disturbance
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call. The identity of the speaker on the radio call minutes before the crash may be relevant to this
issue. Thus, although the Court finds no basis to order production of the whereabouts of
Sergeant Hacklin Ng, Officer Anthony Coppola, or Officer Brito for a 3-hour period prior to the
accident, the Court finds that the memo books reflecting the activities of Fletcher or Dorsaint
may shed light on who made the radio response. However, the request is limited to the half hour
period prior to the knife call.
Plaintiff further argues that documents concerning Officers Ilardi's and Carman's location
and activities, including hospital documents and statements, are relevant to demonstrate that
Ilardi and Carman had an opportunity to "coordinate accounts of the Crash, or statements they
may have made about the Crash." (Id. at 4-5). Finally, plaintiff argues that, ifthe Court grant's
plaintiffs motion to amend to add a denial of access to the courts claim, then the activities of
these officers is relevant to the crowd dispersal methods that were used and the crash
investigation. (Id. at 5).
To the extent that defendants have already disclosed Ilardi's and Carman's memo books,
it is unclear what additional information plaintiff seeks and why what the officers were doing an
hour before the accident will demonstrate whether Ilardi's destination was the knife call.
Similarly, it is unclear what "hospital records and statements" plaintiff is referring to and why, if
the officers were treated for injuries, their statements to their doctors would demonstrate that they
had time to coordinate their statements. If plaintiff seeks records demonstrating that the two
officers were taken to the hospital in the same ambulance, defendants are directed to produce that
ambulance call report or any other records generated that would show how the officers got to the
hospital. As for hospital or treatment records for the officers, the Court Orders that those be
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produced for in camera inspection. If there is no mention by either officer as to how the crash
occurred, the records will not be produced.

3. Requests 12 and 13
Requests 12 and 13 seek "any document referencing Ryo Oyamada," and "any document
referencing the Crash," respectively. (Pl.'s Ltr. at 8). These requests are limited to the period of
February 21, 2010 through the present. (Id. at 1). Plaintiff argues that because Ryo Oyamada
had no known contact with the NYPD other than this incident, documents referencing him or the
accident are presumptively relevant. (Id. at 8). Plaintiff also contends that defendants have not
fulfilled their discovery obligations until they conduct a reasonably diligent search for responsive
documents kept by the following individuals, units, and divisions: ( 1) Chief Tuller,
Transportation Bureau Chief; (2) DI Iglesias, Commanding Officer ofPSA 9 (Ilardi's command);
(3) Captain Mark Wachter, Executive Officer of the 114th Precinct; (4) Sergeant Aaron Lai,
NYPD Police Academy; (5) Lieutenant Luis Perez, Driver Education and Safety Unit; and (6)
Captain Tarantolo, Patrol Borough Queens North. (Id. at 8-9).
Defendants argue that they have already turned over the Accident Investigation Squad
file, Internal Affairs documents, and other police documents regarding this incident, and have
thus complied with this demand. (Defs.' Ltr. at 12). Defendants also state that there is no way to
conduct a search for "any document" referencing "any single human being." (Id.) With respect
to Request 12, defendants contend that most ofthe specific individuals listed by plaintiff,
especially those from the police academy, Transportation Bureau, and Driver Education and
Safety Unit, have no connection to the motor vehicle accident. (Id.)

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Given that defendants state that they have turned over documents responsive to this
request, defendants are Ordered to provide a statement to plaintiff stating that they have
conferred with these named individuals and that these individuals do not have any additional
documents referring to Ryo Oyamada or the relevant incident. If defendants should find any
documents referencing Ryo Oyamada or the relevant incident, defendants are directed to produce
them to plaintiff.

4.

Request 14

Request 14 seeks "any document referencing or concerning skid marks left by the vehicle
that struck Ryo Oyamada." (Pl.'s Ltr. at 9). This request is limited to the period of February 21,
2010 through the present. (Id. at 1). Plaintiff argues that skid marks at the scene would be
relevant to negligence and recklessness, and that although the NYPD regularly uses skid mark
measurements to estimate the speed of a vehicle, those measurements were not taken in the
instant case even though an "earwitness" heard tires screeching. (Id.) Defendants contend that
they have already produced the Accident Investigation Squad file, Internal Affairs documents,
and other police documents regarding this incident, and that they have, thus, complied with this
demand. (Defs.' Ltr. at 13). They further contend that there is no way to conduct a search for
"any document referencing" an event. (Id.)
Defendants are directed to confirm that they have searched for and produced all
documents referring to skid marks left by the vehicle that struck Ryo Oyamada. If defendants
should find any additional documents referencing skid marks at the scene of this accident, they
are directed to produce them to plaintiff.
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D. The Fourth Grouping- Requests 3 and 4
Request 3 seeks documents concerning the "location, assignment, use, custody or
operation of' four listed NYPD vehicles, which responded to the scene of the accident, or the
other 10/34 radio call. (Pl.'s Ltr. at 5). Plaintiff seeks this information apparently to support her
argument that there were other officers in the vicinity of the knife call who could have responded
instead of Ilardi, and that Ilardi's intended destination at the time of the accident was not the
knife call. (Id.) Request 4 seeks "any document concerning the assignment, use or custody of
any NYPD-owned vehicle" operated "on 40th Avenue between Vernon Boulevard and 12th
Street." Plaintiff seeks this information because surveillance videos turned over by defendants
show four different patrol cars in the vicinity of the accident, but plaintiff is unable to confirm
which videos depict Ilardi's vehicle. (I d.) Plaintiff alleges that she is willing to narrow this
request to vehicles assigned to the I 14th Precinct or PSA 9, but that defendants have refused to
respond to the narrowed request. (ld. at 6).
Again, these requests are overly broad in asking for "any document," without limitation
as to type of document and without specifying the information sought with respect to these
vehicles. Even if defined with more specificity, plaintiff has failed to show how the locations of
these other vehicles could possibly be relevant or lead to the discovery of admissible evidence.
Thus, the Court denies the motion to compel as to Requests 3 and 4. However, to the extent that
what plaintiff seeks is a way to identify Ilardi's vehicle in the videos, defendants are Ordered to
provide whatever identifying information they may have to assist in this process.

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CONCLUSION
In conclusion, plaintiffs motion to compel is granted in part and denied in part.
The Clerk is directed to send copies of this Order to the pmiies either electronically
through the Electronic Case Filing (ECF). system or by mail.

SO ORDERED.
Dated: Brooklyn, New York
March 25,2015

/s/ CHERYL POLLAK
Che~·)} CPollak
Uni
States Magistrate Judge
Eas ern District ofNew York

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