New York State Court of Claims

New York State Court of Claims
COOPER v. THE STATE OF NEW YORK, # 2021-028-537, Claim No. 135852, Motion Nos. M-96799, M-96800, M-96801

Synopsis

Case information

UID: 2021-028-537
Claimant(s): EMMANUEL COOPER
Claimant short name: COOPER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135852
Motion number(s): M-96799, M-96800, M-96801
Cross-motion number(s):
Judge: RICHARD E. SISE
Claimant's attorney: LAW OFFICES OF THOMAS HOFFMAN, P.C.
BY: Thomas Hoffman, Esq.
Defendant's attorney: HON. LETITIA JAMES, ATTORNEY GENERAL
BY: No Appearance
and, on M-96799
KINGS COUNTY DISTRICT ATTORNEY'S OFFICE
BY: John C. Carroll
Assistant District Attorney
Third-party defendant's attorney:
Signature date: August 23, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read on Claimant's motions for subpoenas duces tecum:

1. Notice of Motion (M-96799) filed May 19, 2021;

2. Affirmation of Thomas Hoffman filed May 19, 2021 with Exhibits 1 and A annexed;

3. Notice of Motion (M-96800) filed May 19, 2021;

4. Affirmation of Thomas Hoffman filed May 19, 2021 with Exhibits 1 and A annexed;

5. Notice of Motion (M-96801) filed May 19, 2021;

6. Affirmation of Thomas Hoffman filed May 19, 2021 with Exhibits 1 and A annexed;

7. Affirmation of John C. Carroll filed May 25, 2021;

8. Affirmation of Thomas Hoffman filed May 27, 2021 with Exhibits 1 and A annexed.

Filed papers: Claim, Answer

Claimant has made an application for court ordered subpoenas addressed to the Kings County District Attorney (KCDA), the New York City Police Department (NYPD) and the New York City Transit Police (NYCTP). No opposition was received to the requests for the latter two subpoenas and those subpoenas have been executed and returned to the claimant. The KCDA has raised opposition to some of the material sought by the proposed subpoena addressed to that office and to the time frame in which the documents are to be produced. The issues raised on the motion involving the KCDA subpoena are addressed in this decision and order.

In opposing the motion the KCDA has raised both general and specific objections. One of the general objections is that some of the demands made may encompass Grand Jury material. This court has no jurisdiction over Grand Jury proceedings and has no authority to order production of sealed Grand Jury material (Ivey v State of New York, 138 AD2d 962 [4th Dept 1988]). Consequently, to the extent any of the items in the subpoena might cover such material, no response is required.

The KCDA also contends that the subpoena improperly seeks numerous other privileged materials that are exempt from disclosure and then lists a series of categories of material that might be exempt from disclosure. To the extent that the KCDA, in compiling a response to the subpoena, concludes that any responsive material is privileged, a privilege log that complies with the requirements of CPLR 3122 (b) must be provided to claimant.

To the extent that the KCDA determines that it is not in possession of material sought by the subpoena, an affidavit to that effect from the individual who conducted the search should be provided to claimant. Insofar as the KCDA asserts that certain material sought is publically available, the objection is denied and such material should be provided.

Those instances in which the KCDA objected to items as overbroad have been examined and are rejected except with respect to item 1 (o). In addition, the objection to item 3 is sustained as claimant has not provided sufficient identifying information.

Accordingly, it is

ORDERED, that the motions are granted and the subpoenas have been issued consistent with the decision above.

August 23, 2021

Albany, New York

RICHARD E. SISE

Judge of the Court of Claims