Doe v. City of New York et al.
Filing
42
ORDER granting 41 Letter Motion to Stay re: 41 JOINT LETTER MOTION to Stay addressed to Magistrate Judge Debra C. Freeman from Ian William Forster dated November 18, 2021. For the reasons stated in this letter, all discovery in this case shall be stayed until 2/28/2022 or the conclusion of the criminal trial (or guilty plea) of Mr. Negron, whichever date is sooner. At the end of the stay period, the parties are directed to submit a joint proposal for modifying the schedule for all remaining discovery. SO ORDERED.. (Signed by Magistrate Judge Debra C. Freeman on 11/19/2021) (ks)
Case 1:20-cv-06393-AJN-DCF Document 41 Filed 11/18/21 Page 1 of 3
THE CITY OF NEW YORK
LAW DEPARTMENT
GEORGIA M. PESTANA
Corporation Counsel
100 CHURCH STREET
NEW YORK, NY 10007
IAN WILLIAM FORSTER
Phone: (212) 356-2624
Fax: (212) 356-1148
iforster@law.nyc.gov
November 18, 2021
Via ECF
Honorable Debra C. Freeman
United States Magistrate Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:
John Doe v. City of New York and N.Y.C. Health and Hospitals Corp.,
20-CV-6393 (AJN) (DCF)
Dear Magistrate Judge Freeman:
I am an Assistant Corporation Counsel (“ACC”) assigned to represent Defendants the City
of New York (the “City”) and New York City Health + Hospitals (“H+H”) in the above-referenced
action, in which Plaintiff alleges that he was the victim of a sexual assault by a physical therapist
that occurred at Rikers Island, where Plaintiff was a detainee, on May 30, 2019. As the Court may
be aware, the non-party physical therapist who allegedly assaulted Plaintiff is presently facing
criminal charges in a Bronx County criminal court proceeding stemming from the same incident
in question in this civil action, in which Plaintiff is the complainant and is expected to testify at
trial. For the reasons detailed below, I write jointly with Plaintiff’s counsel, Joshua Kelner of
Kelner & Kelner, Esqs., to respectfully request that the instant action be stayed pending completion
of the forthcoming criminal trial, which is expected to take place in January or February of 2022. 1
Earlier this week, my Office received a call from Sean McCauley, the Assistant District
Attorney in the Bronx County District Attorney’s Office’s Public Integrity Bureau assigned to
prosecute the physical therapist in the above-mentioned criminal proceeding. As set forth in the
letter that Mr. McCauley provided to me, a copy of which is attached hereto as Exhibit A, any
additional discovery in the civil case at this time would impact and likely delay the already
advanced stage of the criminal proceeding (which is trial ready). Mr. McCauley reports that plea
discussions are ongoing in the criminal matter. See Ex. A. Alternatively, Mr. McCauley also
1
The request for a stay is through the duration of the criminal trial only, and does not include posttrial or appellate proceedings.
Case 1:20-cv-06393-AJN-DCF Document 41 Filed 11/18/21 Page 2 of 3
reports, the matter will proceed to trial in early 2022. Id. In the second scenario, New York
Criminal Procedure Law § 245.20 would allow for any additional discovery in the civil action to
be subject to discovery in the criminal proceeding. Id. (also citing People v. Rosario, 9 N.Y.2d
286 (1961)). Notably, here, Plaintiff and Defendants are currently attempting to schedule at least
four depositions in the coming weeks. Those transcripts may produce hundreds or even thousands
of pages of additional discovery, and could lead to the need for additional depositions, motions, or
arguments in the criminal proceeding. Cf. N.Y. Crim. Pro. Law § 245.20(1)(c) (allowing for
disclosure of “[t]he names and adequate contact information for all persons other than law
enforcement personnel whom the prosecutor knows to have evidence or information relevant to
any offense charged or to any potential defense thereto, including a designation by the prosecutor
as to which of those persons may be called as witnesses”).
Yesterday, Defendants provided Mr. McCauley’s letter to Plaintiff and counsel for the
parties then discussed the District Attorney’s Office’s request by phone. Plaintiffs’ counsel, Mr.
Kelner, also spoke separately with Mr. McCauley. Based on those conversations, Plaintiff joins
in the present application for a stay, but in reliance on Mr. McCauley’s expectation that the
criminal proceeding will be tried in January or February 2022. In the event that the criminal trial
did not proceed as planned within that time frame, Plaintiff would reevaluate his position regarding
the stay.
When deciding whether to grant a stay of a civil action pending the outcome of a related
criminal proceeding, courts generally consider a number of factors. See, e.g., Trs. of Plumbers &
Pipefitters Nat’l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y.
1995) (applying six factor test); Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. 268, 270
(S.D.N.Y. 1995) (applying five-factor test). The considerations generally involve, at a minimum,
the overlap between the issues in the parallel civil and criminal cases, the status of the criminal
case, and the interests of the parties in the cases, the court, and the public. Id.; see also Banyan v.
Sikorski, 2021 U.S. Dist. LEXIS 142731, *7–8 (S.D.N.Y. July 30, 2021). “These tests, however,
no matter how carefully refined, can do no more than act as a rough guide for the district court as
it exercise its discretion.” Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 99 (2d Cir.
2012). The determination should ultimately depend on “the district court’s studied judgment as to
whether the civil action should be stayed based on the particular facts before it and the extent to
which such a stay would work a hardship, inequity, or injustice to a party, the public, or the court.”
Id.
Here, the instance at issue is the same in the criminal case and the civil action.
Additionally, the prompt prosecution of the criminal proceeding would be aided by a stay of
Plaintiff’s instant civil case because, as detailed in the Bronx District Attorney’s Office’s letter,
Ex. A, the criminal case is trial ready. Finally, a stay would not prejudice the parties, the Court,
or the public interest in this civil proceeding. Therefore, the parties jointly and respectfully request
that Your Honor stay this matter pending the completion of the criminal trial in the related case of
People v. Carlos Negron. Specifically, the parties respectfully request that the deadlines set forth
in the Court’s November 4, 2021 Order, Dkt. No. 40, be held in abeyance. The parties also propose
that they be permitted to submit a status letter to the Court on February 1, 2022, which will address
the posture of the criminal case and the parties’ positions regarding the continued pendency of the
stay.
2
Case 1:20-cv-06393-AJN-DCF Document 41 Filed 11/18/21 Page 3 of 3
Thank you for your consideration of this request.
Respectfully,
___/s/_______________
Ian William Forster
Assistant Corporation Counsel
cc:
Via ECF
all counsel of record
For the reasons stated in this letter, all discovery in this
case shall be stayed until 2/28/2022 or the conclusion of
the criminal trial (or guilty plea) of Mr. Negron, whichever
date is sooner. At the end of the stay period, the parties are
directed to submit a joint proposal for modifying the
schedule for all remaining discovery.
Dated: 11/19/2021
3
Case 1:20-cv-06393-AJN-DCF Document 41-1 Filed 11/18/21 Page 1 of 2
OFFICE OF THE DISTRICT ATTORNEY, Bronx County
Darcel D. Clark
District Attorney
198 East 161st Street
Bronx, NY 10451
718.838.6688
Direct: 718.664.1672
Fax:
718.590.4255
Sean P. McCauley
Assistant District Attorney
Public Integrity Bureau
November 17, 2021
Mr. Ian Forster, Esq.
Assistant Corporation Counsel
General Litigation Division
New York City Law Department
100 Church Street
New York, NY 10007
Re: Peo. v. Carlos Negron (IND 1972/2019)
Dear Mr. Forster:
My name is Sean P. McCauley and I am an assistant district attorney in the Public Integrity
Bureau of the Bronx County District Attorney’s Office. I am the attorney of record in the above
captioned criminal case, which is being overseen by Justice Raymond Bruce of the New York State
Supreme Court, Bronx County. Based upon my review of the complaint in the case of Doe v. City of
New York and New York City Health & Hospital Corporation (20-CV-06393) and my knowledge of the
facts of the aforementioned criminal case, I have determined that Plaintiff Doe is the complaining
witness in the criminal matter and that the two cases involve the same set of facts, circumstances,
and witnesses.
The criminal case is currently adjourned to December 21, 2021 for a possible plea. My office
has been in lengthy negotiations with Mr. Negron’s attorneys for several months, and we are very
close to resolving this case with a plea. However, Justice Bruce has informed the parties that if the
case is not resolved at the next adjourn date then we will be set for a firm trial date for early 2022.
The state criminal case has already involved extensive discovery and motions practice, and, if
further discovery and depositions in the civil case were to proceed at this point, then that would
cause a potentially significant delay in the criminal case. This is because any depositions taken or
other discovery produced for a civil case would potentially be subject to discovery under N.Y.
Criminal Procedure Law § 245.20. That is particularly true for any witness depositions, of either law
enforcement personnel or civilian witnesses, because that deposition testimony would become
automatically discoverable under People v. Rosario, 9 N.Y.2d 286 (1961), and § 245.20, and would need
to be gathered, reviewed, redacted, and provided to the defendant prior to trial. Any other civil case
discovery that involved the events at issue in the criminal case would similarly need to be reviewed
and considered for use in the criminal case, including possible additional motions or arguments.
Case 1:20-cv-06393-AJN-DCF Document 41-1 Filed 11/18/21 Page 2 of 2
OFFICE OF THE DISTRICT ATTORNEY, Bronx County
Darcel D. Clark
District Attorney
198 East 161st Street
Bronx, NY 10451
718.838.6688
Direct: 718.664.1672
Fax:
718.590.4255
Sean P. McCauley
Assistant District Attorney
Public Integrity Bureau
For these reasons, I am requesting that you respectfully request that the District Court stay
discovery in Doe v. City of New York and New York City Health & Hospital Corporation (20-CV-06393)
pending the outcome of the state criminal case either through plea or trial. I will, of course, keep
your office appropriately updated on the status of the case so that you may do the same for the
plaintiff’s counsel and the District Court.
Sincerely,
_______________________________
_________________________ ___
___
__
_
__
______ ___
_____
ADA Sean P. McCauley
McCauley
ADA
ADA
D
P. McC
Public Integrity Bureau
Bronx County District Attorney’s Office
198 East 161 Street
Bronx, NY 10451
mccauleys@bronxda.nyc.gov
(718)664-1672
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