FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ULSTER
`---------------------------------------------------------------X
`JOHN DOE and JOHN DOE II,
`
`
`
`
`
`
`-
`
`
`
`against -
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`WILLIAM J. DEDERICK and KINGSTON
`CITY SCHOOL DISTRICT,
`
`
`
`
`
`
`
`
`
`
`
`
`
`Defendants.
`---------------------------------------------------------------X
`
`
`
`
`
`
`
`
`
`
`Index No.: EF2020-1189
`
`AFFIRMATION IN
`OPPOSITION TO
`PLAINTIFFS’ MOTION
`TO COMPEL PURSUANT
`TO CPLR § 3124
`
`VALENTINA LUMAJ, an attorney duly admitted to the practice of law in the State of
`
`New York, under the penalty of perjury, affirms as follows:
`
`1.
`
`I am an attorney with the law firm Silverman & Associates, Of Counsel to SHAW,
`
`PERELSON, MAY & LAMBERT attorneys for defendant Kingston City School District (the
`
`“District”) in this action. As such, I am fully familiar with the facts and circumstances surrounding
`
`this action based upon both the documents contained in our office file, appearances at the parties’
`
`meet and confers, appearances at conferences with the Court, and my own personal handling of
`
`the matter.
`
`2.
`
`I submit this affirmation and annexed exhibits in opposition to Plaintiffs’ motion
`
`for an Order pursuant to CPLR § 3214 seeking to compel the production of certain personnel files
`
`of former District staff members. Defendants seek dismissal of this motion, and for such other,
`
`different, and further relief as this Court deems just and proper.
`
`RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
`
`3.
`
`The above-captioned action is one brought by the anonymous Plaintiffs against
`
`defendants William J. Dederick (“Dederick”) and the Kingston City School District (“District”)
`
`pursuant to the New York Child Victims Act, CPLR 214-g, alleging that between 1982 and 1984,
`
`
`
`1
`
`1 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`Dederick, a teacher for the District, engaged in sexual abuse of the Plaintiffs both at the District’s
`
`high school and at locations off of school grounds, that Dederick sexually abused a number of
`
`other minor students of the District and that the District knew or should have known between 1982
`
`and 1984 both that Dederick had a propensity to engage in sexual abuse of children and that
`
`Dederick was sexually abusing minor students, including the Plaintiffs. The Complaint asserts
`
`causes of action against the District sounding in negligence, negligent hiring and retention and
`
`negligent supervision of Dederick and the Plaintiffs.
`
`4.
`
`Plaintiffs served the District with their first set of interrogatories dated September
`
`3, 2020 and requested, inter alia, information regarding any claims or complaints of sexual abuse
`
`brought against any employee or independent contractor of the District prior to the institution of
`
`the instant lawsuit.
`
`5.
`
`In response, the District identified T
`
` O
`
`, R
`
` V
`
`, E K
`
`, and
`
`B
`
` F
`
` as former employees who the District knew were accused of inappropriate conduct
`
`with students and/or minors. Further, the District agreed to disclose documentation related to those
`
`claims to the Plaintiffs.
`
`6.
`
`Subsequently, the District produced all documents in its possession containing
`
`information regarding the claims of inappropriate conduct made against T
`
` O
`
`, R
`
`
`
`V
`
`, E K
`
`, and B
`
` F
`
`. At Plaintiffs’ request, the District also produced an affidavit
`
`from Abbie Reinhardt, the District’s Coordinator of Personnel, Benefits, and Payroll, who
`
`conducted the search for documents concerning the allegations made against T
`
` O
`
`, R
`
`
`
`V
`
`, E K
`
`, and B
`
` F
`
`. Ms. Reinhardt set forth in her affidavit that the documents
`
`the District produced were all of the documents her office “was able to locate concerning the sexual
`
`
`
`2
`
`2 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`abuse allegations made against B
`
` F
`
`, T
`
` O
`
`, E K
`
`, and R
`
` V
`
`.”
`
`Exhibit A, Reinhardt Affidavit.
`
`7.
`
`Thereafter, Plaintiffs requested the entire personnel files for B
`
` F
`
`, T
`
`
`
`O
`
`, E K
`
`, and R
`
` V
`
` despite the District’s representation that those files had
`
`been reviewed and that all documents concerning the sexual abuse allegations lodged against these
`
`individuals were already produced.
`
`8.
`
`Further, the District objected on grounds that the sexual abuse allegations against
`
`T
`
`O
`
`, E K
`
`, and R
`
` V
`
` involved conduct that occurred several years after
`
`the relevant time period in this case. Specifically, the allegations against T
`
` O
`
` occurred
`
`in January 2003, E K
`
` in March 2020, and R
`
` V
`
` in April 2014, which is decades
`
`after the allegations of abuse in this case.
`
`9.
`
`Plaintiffs served the District with a request for documents dated September 4, 2021,
`
`requesting, inter alia, the personnel files for R N
`
`, R
`
` R , and H
`
` S
`
`.
`
`10.
`
`In response to Plaintiffs’ September 4, 2021 documents requests, the District
`
`objected to producing the personnel files of R N
`
`, Ro
`
` R , and H
`
` S
`
` on
`
`grounds that the personnel files of these individuals have no bearing on the issue of whether the
`
`District had prior notice of Dederick’s alleged propensity to sexually abuse students either prior to
`
`his hiring or at any time during the relevant period of alleged abuse in this case.
`
`11.
`
`The parties participated in several meet and confers to attempt to resolve this
`
`discovery issue, however, after discussing the Plaintiffs’ requests, the District maintains its
`
`objections to producing the requested personnel files.
`
`
`
`
`
`
`
`3
`
`3 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`PLAINTIFFS ARE NOT ENTITLED TO THE REQUESTED PERSONNEL FILES
`
`12.
`
`In order to establish their entitlement to the requested personnel records, the
`
`Plaintiffs must show that the files contain information that is “material and necessary” to their
`
`prosecution of this action. See Melfe v. Roman Catholic Diocese of Albany, N.Y., 196 A.D. 3d
`
`811, 813 (3d Dept. 2021). “The 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”. Galasso v. Cobleskill Stone Prods., Inc., 169 A.D.3d 1344, 1345 (3d Dept.
`
`2019). The party seeking the discovery bears the burden of proving that the discovery request is
`
`reasonably calculated to yield material and necessary information. Dee Catlyn & Derzee, Inc. v.
`
`Amedore Land Devs., LLC, 166 A.D.3d 1137, 1141 (3d Dept. 2018).
`
`13.
`
`Plaintiffs’ reliance on Harmon v. Diocese of Albany, 204 A.D.3d 1270 (3d Dept.
`
`2022) is misplaced. While the Court did order disclosure of the personnel files of priests credibly
`
`accused of sexually inappropriate conduct, the Court limited the disclosure to those “files
`
`containing a reference to possible misbehavior that occurred before 1985, when plaintiff’s alleged
`
`abuse ended”. Id. at 1273.
`
`14.
`
`Here, Plaintiffs’ claims are that Dederick sexually abused Plaintiffs from 1982
`
`through 1984 and that the District knew or should have known about the abuse.
`
`15.
`
`The Plaintiffs argue that the entire personnel files of B
`
` F
`
`, E K
`
`, R
`
`
`
`V
`
`, and T
`
` O
`
` are relevant to their claims because they are “likely” to have
`
`information regarding the allegations, the District’s knowledge of the allegations, and the District’s
`
`handling of those allegations.
`
`16.
`
`However, as the District has previously conveyed to Plaintiffs’ counsel and as the
`
`documents already produced make clear, the allegations of inappropriate conduct made against
`
`
`
`4
`
`4 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 P
`NYSCI
`EF DOC. NO. 151
`NYSCEF DOC. NO. 151
`
`
`INDEX NO. EF2020-1189
`
`INDEX NO. EF2020-1189
`
`
`
`
`
`RECEIVED NYSCEF:
`09/20/2023
`RECEIVED NYSCEF: 09/20/2023
`
`| Ki. 1 mm. and Ra Vii occurred in the 2000s and have no bearing
`
`whatsoever on how the District handled claims of alleged inappropriate conduct with students
`
`eitherprior to its hiring of Dederick or during the relevant period of abusein this case (1982-1984).
`
`Assuch, the Plaintiffs cannot show entitlement to the entire personnelfiles ofHa
`17.
`Ki. Tl eC and Ra Vii as anything contained therein regarding their hiring or
`
`retention has absolutely no bearing on the Plaintiffs’ claims of abuse in this case.
`
`Further, although the allegations against Hi” Hl involved inappropriate sexual
`18.
`conduct with a student in 1984, the District has already disclosed all documents from aa His
`
`personnelfile related to those allegations. The District’s production of the documents concerning
`
`the allegations of sexual abuse against a Ha include a New York Education Law § 3020-a
`opinion and determination evidencing that the District brought charges against Mr. Ha based
`
`upon these allegations andthat a disciplinary hearing was held to determine whether he wasguilty.
`
`The § 3020-a decision sets forth that based on the evidence and testimony introduced in the
`
`hearing, Mr. Hm wasfound not guilty ofengaging in inappropriate sexual conduct with a student.
`
`19.
`
`The affidavit of Ms. Reinhardt, which was also providedto the Plaintiffs, clearly
`
`sets forth that the District searched Mr. His personnel file as well as the District’s litigation file
`in order to ascertain what documents existed related to the allegations against Mr. He. Ms.
`
`Reinhardtalso clearly sets forth that all such documents have already been disclosed and that there
`
`are no other documents related to the allegations of abuse made against Mr. He. Exhibit A,
`
`Reinhardt Affidavit.
`
`20.
`
`Plaintiffs’ insistence that they are entitled to the entirety of Mr. His personnel
`
`file is mistaken as they have been provided with the extent of documents that relate to the abuse
`
`allegations made against Mr. Hi.
`
`5 of 9
`5 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`21.
`
`, R
`
`N
`
`Next, Plaintiffs allege that they are also entitled to the entire personnel files of R
`
` R , and H
`
` S
`
`. However, Plaintiffs have failed to show how any
`
`information contained in those personnel files is material or necessary to their claim that the
`
`District knew or should have known of Dederick’s alleged propensity to sexually abuse students.
`
`This is especially so as the District has no knowledge of any allegations of inappropriate conduct
`
`lodged against any of these former staff members nor do their personnel files contain any such
`
`information.
`
`22.
`
`Plaintiffs argue that nonparty deposition testimony has established that Mr.
`
`, like Dederick, allegedly had students over to his home to drink alcohol and that Mr.
`
` took students on his sailboat and to football games. None of these allegations, even if
`
`N
`
`N
`
`true, amount to inappropriate sexual conduct with students. Significantly, even if these allegations
`
`regarding Mr. N
`
`’s social interactions with students were true, such is wholly irrelevant to
`
`whether the District had notice of Dederick’s alleged propensity to sexually abuse students or how
`
`the District addressed allegations of sexual abuse involving staff members and students during the
`
`relevant time period.
`
`23.
`
`Similarly, Plaintiffs’ assertions that Dederick and Mr. N
`
` were good friends
`
`or that there were rumors that they were engaged in an intimidate relationship do not have any
`
`bearing whatsoever on Plaintiffs claims and certainly do not establish Plaintiffs’ entitlement to Mr.
`
`N
`
`’s entire personnel file.
`
`24. With respect to Mr. R ’s personnel file, Plaintiffs contend that they are in
`
`possession of information that Mr. R was shifted from school to school because of inappropriate
`
`conduct with students. However, Plaintiffs fail to set forth the time period during which Mr. R
`
`
`
`6
`
`6 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`is alleged to have engaged in inappropriate conduct with students, and thus, they fail to show how
`
`any allegations of inappropriate conduct by Mr. R have any bearing on their claims.
`
`25.
`
`It is also important to note that while Plaintiffs claim that they are in possession of
`
`“work product” which supports their belief that Mr. R was engaged in inappropriate conduct
`
`with students, no such information has been shared with the District.
`
`26.
`
`Plaintiffs also argue that they are entitled to H
`
` S
`
`’s entire personnel file
`
`because as the head of the teachers’ union his personnel file may contain information regarding
`
`allegations of sex abuse made against other staff members. As an initial matter, Mr. S
`
`’s
`
`personnel file is limited to information regarding Mr. S
`
`’s employment with the District and
`
`does not contain information concerning allegations made against other staff members. As such,
`
`the Plaintiffs have not set forth a proper basis establishing their entitlement to Mr. S
`
`’s
`
`personnel file.
`
`27.
`
`The Plaintiffs have set forth nothing more than conjecture and speculation to
`
`support their contention that they are entitled to the entire personnel files of the identified former
`
`staff members. Such clearly demonstrates that the Plaintiffs’ insistence that they are entitled to
`
`such records without a proper basis demonstrates that their request is nothing more than a fishing
`
`expedition which should not be permitted.
`
`28.
`
`, R
`
`O
`
`Lastly, Plaintiffs’ request for the personnel files for E K
`
`, B
`
` F
`
`, T
`
`
`
` V
`
`, R N
`
`, R
`
` R , and H
`
` S
`
` without any limitation is
`
`overbroad and unduly burdensome as these records contain hundreds of pages of documents which
`
`have no bearing on Plaintiffs’ claims and which will have to be reviewed and redacted to protect
`
`against the disclosure of confidential information such as social security numbers and health
`
`information.
`
`
`
`7
`
`7 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`29.
`
`Accordingly, the District respectfully requests that the Plaintiffs’ motion to compel
`
`the requested personnel files be denied in its entirety.
`
`Dated: White Plains, New York
`
`September 20, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO (via NYSCEF):
`
`
`
`
`
`
`Yours, etc.,
`
`SHAW, PERELSON, MAY & LAMBERT, LLP
`
`By: ____________________________
`Silverman & Associates, Of Counsel
`Valentina Lumaj
`Attorneys for Defendant,
`KINGSTON CITY SCHOOL DISTRICT
`445 Hamilton Avenue, #1102
`White Plains, New York 10601
`(914) 574-4510
`vlumaj@silvermanandassociatesny.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Daniel T. Stabile, Esq.
`Winston & Strawn LLP
`200 South Biscayne Blvd
`Miami, Florida 33131
`
`Miranda Soto, Esq.
`Daniel Lazaro, Esq.
`Buchanan Ingersoll & Rooney PC
`Two South Biscayne Blvd, Suite 1500
`Miami, Florida 33131
`
`Dylan S. Gallagher, Esq.
`O Connor & Partners, PLLC
`255 Wall Street
`Kingston, New York 12401
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`8 of 9
`
`

`

`FILED: ULSTER COUNTY CLERK 09/20/2023 02:08 PM
`NYSCEF DOC. NO. 151
`
`INDEX NO. EF2020-1189
`
`RECEIVED NYSCEF: 09/20/2023
`
`CERTIFICATION
`
`The foregoing Affirmation in Opposition was typed using Microsoft Word.
`
`Type: A proportionately spaced typeface was used, as follows:
`
`Name of typeface: Times New Roman
`
`Point size for body: 12
`
`Line spacing: Double
`
`Word Count: The total number of words in the Affirmation in Opposition, exclusive of
`the caption and signature block is 1,981.
`
`It is hereby certified pursuant to 22 NYCRR 202.8-b that the foregoing Affirmation in
`Opposition complies with the word count limit.
`
`It is hereby certified pursuant to 22 NYCRR 202.5 that the foregoing Affirmation in
`Opposition complies with the requirement that Paper Size of 8 ½ x 11 inch and Margins of 1-
`inch.
`
`Dated: White Plains, New York
`September 20, 2023
`
`____________________________
`Valentina Lumaj
`
`9
`
`9 of 9
`
`