Maitland et al v. Lunn et al

Filing 106

ORDER granting, in part, 79 Motion to Compel; granting in part and denying in part 84 Motion to Continue. SEE ATTACHED ORDER for details. Counsel for the Defendant Town of Hempstead is directed to serve a copy of this Order on the pro se Plaintiffs forthwith by first-class mail and email, if feasible, and to file proof of such service on ECF. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/19/2018. (McCuiston, Hannah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EDSON MAITLAND and
EDSON MAITLAND, JR.,
Plaintiffs,
ORDER
- against CV 14-5938 (JS) (AKT)
FAWN-NITA LUNN, TOWN OF HEMPSTEAD,
NY, and COUNTY OF NASSAU
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
This Order resolves two motions currently pending before the Court: (1) the pro se
Plaintiffs’ application to renew their prior motion to compel Defendants to produce certain
unredacted documents [DE 79]; and (2) the pro se Plaintiffs’ application for an Order extending
the time to serve Defendant Lunn with a copy of the Amended Complaint and compelling
Nassau County to disclose Defendant Lunn’s last known address [DE 84] so that she may be
served. The Court addresses each motion in turn, starting with DE 79.
In DE 79, Plaintiffs seek to renew their January 19, 2016 motion to compel which
sought production from the Defendants of unredacted versions of the following documents
[DE 53], as stated by the Plaintiffs:
1. All Contract, Lease Agreement, Tax Form 1099 and Inspection
Checklist from 2010 to 2014.
2. Letter from the Town of Hempstead dated April 16, 2014, Bate
#121.
3. Letter from the Town of Hempstead dated redacted and title
“Reasons for Termination of Assistance”, Bate # 143.
4. Letter from the Town of Hempstead dated July 10, 2014 and title
“Re: Informal Hearing”, Bate #163.

5. Letter from the Town of Hempstead dated June 16, 2014 and
title “Re: Repayment Agreement Arrears”, Bate #164.
6. Letter from the Town of Hempstead dated April 16, 2014 and
title “Re: Re-certification”, Bate #166
7. Letter from the Nassau County Social Services dated Oct 19,
2013 and title “Vender Letter”, Bate # 125-126 (page 125
redacted only).
8. Letter from the Nassau County Social Services dated June 5,
2012 and title “Vender Letter”, Bate #024-025. (page 25
redacted only).1
The original motion was deemed moot when Judge Seybert dismissed this case, without
prejudice, for lack of subject matter jurisdiction. DE 58. Plaintiff subsequently filed a motion
for reconsideration of Judge Seybert’s Memorandum and Order dismissing the action. DE 59.
Judge Seybert denied the motion but advised that Plaintiffs could file an Amended Complaint
and, if they chose to do so, they could renew their January 19, 2016 motion to compel. DE 62 at
25.
Plaintiffs filed an Amended Complaint and now seek to renew their original application.
DE 79. Shortly after the motion was filed, the Court directed Defendants’ counsel to provide
unredacted copies of the documents at issue for an in camera review. Electronic Order of
January 16, 2018. Counsel for the Defendant Town of Hempstead subsequently filed his
opposition to Plaintiffs’ application, arguing that the documents at issue are confidential and
privileged under “42 U.S.C. § 602 et seq., Social Services Law § 136, and/or 18 NYCRR 357.3.”
DE 81. Counsel proceeded to explain that while Defendants do not dispute that the documents
are indeed relevant to this case, they request that Plaintiffs’ motion be denied until the Court has
completed its in camera review and issues a decision on whether the documents can be disclosed

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Plaintiffs attached copies of the aforementioned documents to their motion to

compel.
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in unredacted form.2 The Court has received and reviewed the in camera documents which
consist of materials relating to the U.S. Department of Housing and Urban Development’s
Section 8 Housing Voucher Program. A review of each document shows that the name of the
individual participant in the program as well as what appears to be that individual’s telephone
number have been redacted. The Court also notes that a page entitled “Inspector Page,” which is
found on page 55 of DE 53, contains text which appears to have either (1) been highlighted and
when copied the highlighting was rendered darker, or (2) was in fact redacted.
Although Defendants do not specify the particular provision of the United States Code
they rely on, 42 U.S.C. § 602(a)(1)(A)(iv) provides that states must take “reasonable
steps…necessary to restrict the use and disclosure of information about individuals and families
receiving assistance under the program attributable to funds provided by the Federal
Government.” Turning to the law of New York State, New York Social Services Law § 136
provides that the “names and addresses of all persons applying for or receiving public
assistance,” shall remain confidential. Moreover, 18 New York Codes, Rules and Regulations
(“N.Y.C.R.R.”) § 357.3 provides, in relevant part, as follows:
(a) Safeguards in disclosing information.
Information shall be released to another agency or person only when
the public welfare official providing such data is assured that:
(1) the confidential character of the information will be
maintained;
(2) the information will be used for the purposes for which
it is made available, such purposes to be reasonably
related to the purposes of the public welfare program and
the function of the inquiring agency; and
Counsel for Nassau County also responded to Plaintiffs’ application. Counsel
explains that the motion is inapplicable to Nassau County since the County did not produce the
documents at issue. DE 82.
2

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(3) the information will not be used for commercial or
political purposes.
[]
(f) Disclosure upon subpoena by court.
(1) When a public assistance record is subpoenaed by court,
the public welfare agency shall immediately consult its
legal counsel before producing any record or revealing
any information or giving any testimony.
(2) When the subpoena is for a purpose directly related to
the administration of public assistance or protection of
the child, the agency before complying with the
subpoena shall endeavor to get in touch with the client
whose record is involved or his attorney and secure
permission to reveal the contents of the record which
relate to the administration of public assistance.
(3) In the event that the subpoena is for a purpose not
directly related to the administration of public assistance
or the protection of a child, the agency shall plead, in
support of its request to withhold information, that the
Social Security Act, the Social Services Law and the
regulations of the State Department of Social Services
prohibit disclosure of confidential information contained
in records and files, including names of clients. The
agency will be governed by the final order of the court
after this plea is made.
18 CRR-NY § 357.3.
“The ‘statutory confidentiality of [Department of Social Services] records is not always
sacrosanct, and upon the basis of a proper showing may be released upon court order after an in
camera inspection.’” In re Nassau Cty. Strip Search Cases, No. 99-CV-2844, 2017 WL
1322128, at *2 (E.D.N.Y. Apr. 10, 2017) (“Strip Search Cases I”) (quoting People v. Mc
Fadden, 178 Misc.2d 343, 346 (Sup. Ct. Monroe County 1998), aff'd, 283 A.D.2d 1030 (4th
Dept. 2001)). Both federal and state courts have held that “[suppression] should not exceed the

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purpose of [New York Social Services Law § 136].” Zaccaro v. 50 E. 196th Assocs., L.P., No.
96 CIV 5119, 1997 WL 661905, at *1 (S.D.N.Y. Oct. 23, 1997) (quoting Early v. Nassau
County, 98 A.D.2d 789, 789–90, 469 N.Y.S.2d 809, 810 (2d Dep't 1983)) (internal quotation
marks omitted). Disclosure is thus not absolutely prohibited. See e.g., Strip Search Cases I,
2017 WL 1322128, at *2 (noting that New York courts have permitted the disclosure of certain
public assistance data for litigation purposes); Downer v. Franklin Cty., No. 7:02-CV-0157, 2003
WL 22319418, at *2 (N.D.N.Y. July 31, 2003) (“New York law does indeed protect the
confidentiality of those who receive social security assistance. N.Y. Soc. Serv. Law § 136(1)
(McKinney 2002). However, this confidentiality is not absolute….”) (collecting cases); Zaccaro,
1997 WL 661905, at *1 (directing the plaintiffs to subpoena Department of Social Services for
records pertaining to the infant plaintiff’s ingesting of lead-based paint); Paine v. Chick, 50
A.D.2d 686 (2d Dept. 1975) (affirming lower court’s denial of motion to quash subpoena served
on Commissioner of Broome County Department of Social Services despite the Commissioner’s
objection that the social services records are confidential); W. v. U., 44 A.D.2d 727, 728, 354
N.Y.S.2d 721, 723 (2d Dept. 1974) (determining that putative father had the right to subpoena
social services department to support claim that the child’s mother made inconsistent statements
regarding parentage); In re Robinson, 140 Misc.2d 599, 531 N.Y.S.2d 431 (Surr. Ct. 1988)
(directing the production of documents pertaining to the identity of the putative father
notwithstanding the objection of the Department of Social Services that the information is
confidential under New York Social Services Law § 136 and 18 NYCRR § 357.2 and 357.3) ; cf.
Van Emrik v. Chemung County Dept. of Soc. Services, 121 F.R.D. 22 (W.D.N.Y. 1988)
(directing disclosure of the identity of individuals who participated in an investigation conducted
by the Department of Social Services notwithstanding N.Y. Social Services Law § 422(7) which

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permits the Commission to prohibit the release of such information if it is determined that doing
so would be “detrimental to the safety or interests of such person.”). Indeed, federal and state
statutes “do not protect against court use of records and courts have ordered disclosure outside
the parameters enumerated in the statutes and regulations.” In re Nassau County Strip Search
Cases, No. 99-2844, 2017 WL 3189870, at *7 (E.D.N.Y. July 26, 2017) (“Strip Search Cases
II”). Moreover, disclosure has been directed even without the explicit consent of the individual
named in the records. See id. at *6-*7 (directing the disclosure of the identities and contact
information of “as yet unheard from class members about the monetary relief to which they are
entitled under the judgment” notwithstanding the confidentiality required under SSL §§ 21(3),
136(2), 459-b, 459-c; 42 U.S.C. § 602(a)(1)(A)(iv)).
The Court finds that the information Plaintiffs seek is relevant to their claims, a fact that
the Defendant Village of Hempstead does not dispute. Plaintiffs allege that they were the subject
of a renewable “Rental Contract” entered into with Defendant Lunn, the Village of Hempstead
and County of Nassau. Amended Complaint [DE 66] (“Am. Compl.”) ¶ 14. Pursuant to that
contract, Defendant Lunn and her family rented a four bedroom home owned by Plaintiffs in
exchange for a monthly rental payment. Id. ¶ 15. Plaintiffs allege that Defendants wrongfully
withheld payments in violation of the “Rental Contract,” id. ¶ 21, 29, 32, and that Defendant
Lunn failed to leave the property. Id. ¶ 31. Plaintiffs further allege that Defendant Lunn
damaged the premises. See ¶ 34, 56. Whether Defendant Lunn’s residence at Plaintiff’s
property was part of HUD’s Section 8 housing program is therefore relevant to Plaintiffs’ claims.
Moreover, a confidentiality agreement between the parties will put in place the safeguards
contemplated by 18 N.Y.C.R.R. § 357.3(a).

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Therefore, in light of the case law and considerations analyzed above, the Court is hereby
directing Defendants’ counsel to turn over to Plaintiffs unredacted versions of the documents
requested in DE 79. To the extent the documents set forth the participant’s telephone number,
that number shall remain redacted. Before doing so, however, the Court requires that the parties
enter into a Stipulation and Order of Confidentiality forthwith, with an eye towards Section
357.3(a). That stipulation is to be executed by the parties and filed on ECF by October 1, 2018.
Defendants’ counsel is directed to then turn over the unredacted documents by October 5, 2018.
The copies which are currently filed at DE 53 will remain in redacted form. Based on the
aforementioned rulings, DE 79 is GRANTED, in part.
The Court turns to the second application pending, namely, the pro se Plaintiffs’
“Request for Extension to Serve Miss Lunn and to Have Defendant Nassau County to Disclose
Her Last Known Address on File.” DE 84. Counsel for Defendant Nassau County opposes the
portion of Plaintiffs’ request seeking the disclosure of Defendant Lunn’s address. See DE 86.
Counsel argues that they already provided Plaintiff with Defendant Lunn’s address and service
of the original complaint was effectuated at that location on December 5, 2015. See Affidavit of
Service [DE 45]. Moreover, counsel adds, Plaintiffs’ current application does not allege that
Defendant Lunn is no longer at the address previously provided nor do Plaintiffs set forth their
attempts, if any, to locate her. On these grounds, counsel argues, Defendant Nassau County
should not be compelled to search its Social Service Department Records for information that is
confidential under the same laws referenced by Defendant Village of Hempstead in connection
with DE 79.
Since Defendants do not object to Plaintiffs’ request for additional time to serve
Defendant Lunn with the Amended Complaint, the Court is granting that portion of Plaintiff’s

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application. However, the Court will not require Defendant Nassau County to disclose
Defendant Lunn’s address a second time. Plaintiff shall serve Defendant Lunn at the address
utilized at DE 45, namely 731 Camellia Circle, Warner Robins, GA 31093. As such, DE 84 is
GRANTED, in part, and DENIED, in part.
Counsel for the Defendant Town of Hempstead is directed to serve a copy of this Order
on the pro se Plaintiffs forthwith by first-class mail and email, if feasible, and to file proof of
such service on ECF.

SO ORDERED:
Dated: Central Islip, New York
September 19, 2018
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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