Motion for so-ordered subpoenas duces tecum denied; Notice provided to nonparty was facially deficient; notwithstanding facial deficiency of the notice, the documents requested were either previously provided by the nonparty or not relevant to the prosecution of this Claim.
|Claimant short name:||DOE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Merson Law, PLLC
By: Jordan Rutsky, Esq.
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Cheryl M. Rameau, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 10, 2021|
|See also (multicaptioned case)|
Claimant filed this Claim on August 13, 2020 pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated by Jeffrey Bernstein, an attorney assigned by Bronx County Family Court pursuant to County Law article 18-B to represent Claimant in a custody proceeding. The alleged sexual misconduct occurred on several occasions in 1989 in a conference room at the Bronx County Family Courthouse.
Claimant now moves pursuant to CPLR 2307 for a subpoena duces tecum directing the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts of the Appellate Division, Second Department (the Grievance Committee) to produce Mr. Bernstein's disciplinary records.(2) The Grievance Committee opposes the motion on, among other grounds, that "the proposed subpoena concerns confidential attorney grievance records within the exclusive jurisdiction of the Appellate Division, Second Department" pursuant to Judiciary Law § 90 (10) (Affirmation of Shawn Kerby, Esq. [Kerby Aff] ¶ 3). Defendant joins in the Grievance Committee's opposition but contends that in the event the Court directs disclosure of Mr. Bernstein's disciplinary records, the State should receive access to those records as well (see Affirmation of Cheryl M. Rameau, Esq., Assistant Attorney General ¶¶ 2-3). Claimant counters that because the disciplinary charges against Mr. Bernstein were sustained (see Matter of Bernstein, 237 AD2d 89 [2d Dept 1997]), the records related thereto are public record under Judiciary Law § 90 (10) and should be disclosed (Reply Affirmation of Jordan Rutsky Esq., ¶ 1).
"It is well settled that a trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Voss v Duchmann, 129 AD3d 1697, 1698 [4th Dept 2015]). "Disclosure in civil actions is generally governed by CPLR 3101 (a), which directs: '[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof'" (Forman v Henkin, 30 NY3d 656, 661 ). "CPLR 3101 (a) (4) 'obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'" (Bianchi v Galster Mgt. Corp., 131 AD3d 558, 559 [2d Dept 2015], quoting Matter of Kapon v Koch, 23 NY3d 32, 39  [internal quotation marks and citations omitted]). "The subpoenaing party must include that information in the notice in the first instance, lest it be subject to a challenge for facial insufficiency" (Matter of Kapon, 23 NY3d at 39 [internal citation omitted]). Upon satisfaction of the notice requirements set forth in CPLR 3101 (a) (4), the party seeking the subpoena must establish that the documents sought are both "material and necessary" to the prosecution or defense of an action (see Matter of Kapon, 23 NY3d at 34; Ferolito v Arizona Beverages USA, LLC, 119 AD3d 642, 643 [2d Dept 2014]; Lee v State of New York, UID No. 2020-015-038 [Ct Cl, Collins, J., May 6, 2020]; see also CPLR 3101 [d] ). The Court of Appeals has "emphasized that '[t]he words, "material and necessary," are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason'" (Forman, 30 NY3d at 661, quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ). Production of a document sought in a nonparty subpoena should be denied as irrelevant only if "the futility of the [disclosure] process to uncover anything legitimate is inevitable or obvious . . . or . . . the information sought is utterly irrelevant to any proper inquiry" (Matter of Kapon, 23 NY3d at 38  [internal quotation marks and citations omitted]; see Gathers v State of New York, UID No. 2017-049-015 [Ct Cl, Weinstein, J., May 23, 2017]).
The Grievance Committee contends that it was only served by Claimant with the proposed subpoena and an accompanying cover letter (see Kerby Aff ¶ 2 & Ex A). Although the affirmation of Claimant's counsel submitted in support of the motion details the circumstances for the disclosure, said document was not served upon the Grievance Committee (see id.; Affirmation of Jordan Rutsky [Rutsky Aff], Esq. Ex 9). Consequently, the Court concludes the subpoena is facially insufficient.
Assuming arguendo the subpoena was facially sufficient, the Court agrees with Claimant that the records related to these 10 charges of professional misconduct sustained by the Appellate Division, Second Department in Matter of Bernstein (237 AD2d 89 [2d Dept 1997]) are public record under Judiciary Law § 90 (10) and no permission is needed from the Appellate Division to review these records (see Matter of Alberton, 57 AD2d 532, 532-533 [1st Dept 1977]). Moreover, the records related to the 10 sustained charges are relevant to the prosecution of this Claim as each of the disciplinary charges sustained involved inappropriate sexual misconduct committed by Mr. Bernstein at the Bronx Family Courthouse against clients to whom he was assigned to represent pursuant to County Law article 18-B. Indeed, it appears that the Grievance Committee has provided Claimant with copies of the records relating to the Appellate Division, Second Department's decision sustaining the 10 charges of professional misconduct against Mr. Bernstein and ordering his disbarment (see Rutsky Aff Ex 6).
It appears that this request for so-ordered subpoenas was precipitated by the Grievance Committee's failure to disclose certain records relating to prior admonitions of Mr. Bernstein and a psychiatric examination report of Mr. Bernstein performed by Virginia L. Susman, M.D. (see Rutsky Aff. Exs 7-8).
With respect to the admonitions/admonition letters, the Appellate Division, Second Department noted
"in two unrelated matters, [Mr. Bernstein] was issued an admonition dated February 16, 1988, for submitting an affirmation of services in a Family Court paternity proceeding requesting that the complainant pay him $13,500 for which he had previously billed the Assigned Counsel Plan, and for retaining a clearly excessive fee in a criminal action in light of the limited services rendered prior to the defendant's demise"
(Matter of Bernstein, 237 AD2d at 93 [emphasis added]).
To the extent the proposed subpoena seeks documents and records relating to these two admonitions, the Appellate Division specifically concluded that these admonitions are unrelated to the 10 sustained charges premised upon Mr. Bernstein's alleged sexual misconduct. Consequently, the Court concludes that these documents are irrelevant to the prosecution of this Claim. Moreover, Claimant's request for "admonitions or letters of admonition issued to Jeff Bernstein . . . prior to 1990 for any reason" (see Rutsky Aff, Ex 1 [Proposed So-Ordered Subpoena] ¶ 2) is overbroad (see generally Fuentes v State of New York, UID No. 2021-040-022 [Ct Cl, McCarthy, J., June 21, 2021]).
As to Claimant's request for the report of Virginia L. Sussman, M.D., the Court concludes that Claimant has failed to show how this document is relevant to the prosecution of this Claim. The Court recognizes that Mr. Bernstein has a privacy interest in keeping his mental health records confidential and has not placed his mental health at issue in this Claim. Moreover, the Court notes that Dr. Sussman's report concluded that Mr. Bernstein was not incapacitated from continuing to practice law by reason of mental illness (see Rutsky Aff, Ex 6 at 32-34 [Order of Special Referee]). Consequently, the Court will not order the production of this record (see Olszewski v Bloomberg, L.P., 2000 WL 1843236, *2-*3 [SD NY Dec. 13, 2000, No. 96 Civ. 3393(RPP)]).
Lastly, to the extent the proposed subpoena seeks "[c]laims, complaints, or communications regarding attorney Jeff Bernstein," "[d]ocuments containing allegations of professional misconduct against attorney Jeff Bernstein," and "[d]ocuments filed, prepared and/or submitted in any disciplinary proceedings instituted by the Grievance Committee regarding attorney Jeff Bernstein" that are not part of the 10 charges of professional misconduct sustained in Matter of Bernstein (237 AD2d 89 [2d Dept 1997]) (Proposed So-Ordered Subpoena ¶¶ 3-5), Claimant has failed to establish that these documents are part of any record resulting in sustained charges of professional misconduct. As such, it appears that Claimant must seek these records from the Appellate Division, Second Department in accordance with Judiciary Law § 90 (10).
Accordingly, it is hereby:
ORDERED Claimant's Motion No. M-96939 is DENIED.
August 10, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following papers in deciding this motion:
(1) Notice of Motion, dated June 28, 2021.
(2) Affirmation of Jordan Rutsky, Esq. in Support, dated June 28, 2021, with attachments.
(3) Affirmation of Shawn Kerby, Esq., in Opposition, dated July 1, 2021, with attachment.
(4) Affirmation of Cheryl M. Rameau, Esq., Assistant Attorney General, dated July 29, 2021.
(5) Reply Affirmation of Jordan Rutsky, Esq., dated July 8, 2021.
1. The Caption is amended sua sponte to reflect the State of New York as the only proper Defendant.
2 The Court declined to sign a previous subpoena submitted by Claimant due to the failure to comply with the notice requirements of CPLR 2307.