`FILED: ULSTER COUNTY CLERK 09/26/2023 07:59 PM
`NYSCEF DOC. NO. 155
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`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 09/26/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ULSTER
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`-X
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`JOHN DOE I and JOHN DOE II,
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`Plaintiffs,
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`-against-
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`WILLIAM J. DEDERICK, et al,
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`Index No. EF2020-1189
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`REPLY AFFIRMATION IN
`SUPPORT OF MOTION TO
`COMPEL DISCOVERY
`PURSUANT TO CPLR §
`3124 AND OF GOOD FAITH
`EFFORT
`
`
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`
`
`
`
`
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`Defendants.
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`Before:
`Hon. Justin Corcoran
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`-X
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`DANIEL R. LAZARO, ESQ., an attorney duly admitted to the practice of law in the
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`State of New York, hereby affirms under penalty of perjury:
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`1.
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`I am an attorney with the law firm Buchanan Ingersoll & Rooney PC, attorneys for
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`Plaintiffs John Doe I and John Doe II in the above-captioned action, and as such I am fully familiar
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`with all the facts and circumstances in this case. I submit this Reply Affirmation in support of
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`Plaintiffs’ motion for an order pursuant to CPLR § 3124, directing Defendant Kingston City
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`School District to produce entire personnel files of
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`as requested through Plaintiffs’ Second Set
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`of Document Requests dated September 4, 2021 and Plaintiffs’ January 25, 2023 Letter to
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`Kingston City School District regarding the District’s deficient responses to Plaintiffs’ First Set of
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`Interrogatories and First Set of Document Requests.
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`2.
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`As detailed in my August 29, 2023 Affirmation – and a key point the District merely
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`glosses over in its Opposition – one major theme of Plaintiffs’ Amended Complaint centers on
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`how the District handled claims of sexual abuse alleged against its staff throughout the relevant
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`FILED: ULSTER COUNTY CLERK 09/26/2023 07:59 PM
`NYSCEF DOC. NO. 155
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`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 09/26/2023
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`time period (1975 to 1988).1
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`3.
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`Put another way, Plaintiffs aim to prove the District’s continued pattern and practice
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`of negligent retention and negligent supervision as one of the factors that led to Dederick’s
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`continued employment at the District.
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`4.
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`Thus, Plaintiffs seek the entire personnel files for various employees in order to
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`ascertain and identify any potential pattern and practice as it relates to negligent retention and
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`negligent supervision of District employees.
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`5.
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`As the District stated in its Opposition, “[t]he party seeking the discovery bears the
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`burden of proving that the discovery request is reasonably calculated to yield material and
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`necessary information. Dee Catlyn & Derzee, Inc. v. Amedore Land Devs., LLC, 166 A.D.3d 1137,
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`1141 (3d Dept. 2018).” Plaintiffs have done just that.
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`6.
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`As Plaintiffs have sought all along concerning these employees, Plaintiffs’
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`complete review of these entire personnel files is paramount to understand the context surrounding
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`inappropriate conduct in order to establish a pattern and practice of negligent retention and
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`negligent supervision of its employees.
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`7.
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`As it concerns the files of
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`, the
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`evidence provided in my Affidavit shows the link between not only the District’s prior notice of
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`Dederick’s alleged propensity to sexually abuse students but also the pattern and practice of
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`negligent retention and negligent supervision of its employees. For example,
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`was a
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`1 See e.g. Amended Complaint at ¶ 50 (alleging that the District “knew or, in the exercise of
`reasonable care, should have known that Dederick had a propensity for the conduct which caused
`injury to JOHN DOE and JOHN DOE II – in particular, that he had a propensity to engage in
`sexual abuse of children”); ¶ 53 (alleging other teachers at Kingston High School cautioned John
`Doe about spending extracurricular time with Dederick because it was rumored Dederick was “into
`young boys.”); ¶¶ 56-94 (detailing causes of action for negligence, negligent hiring and retention,
`and negligent supervision against the District).
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`FILED: ULSTER COUNTY CLERK 09/26/2023 07:59 PM
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`INDEX NO. EF2020-1189
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`former guidance counselor – a member of the faculty tasked with providing a safe and nurturing
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`environment for students and with interacting with other faculty administrators. That
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` and
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`Dederick were close friends and interacted with students together only supports Plaintiffs’ need
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`for his complete personnel records as it may highlight what information the District was made
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`aware of concerning Dederick’s (or others’) behavior through its guidance counselor.
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`8.
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`The personnel files for these District employees are of particular import because
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`the District has admitted 19 years of Dederick’s performance evaluations are missing. As this
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`crucial evidence is unavailable, the personnel files of others accused of misconduct involving
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`students, the District’s handling of those allegations, and the files of District personnel surrounding
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`Dederick at the time of his employ is highly relevant to prove how the District handled allegations
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`against Dederick and others.
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`9.
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`Plaintiffs seek to prove, among other things, that “there was widespread knowledge
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`among School faculty members and administrators” of Dederick’s inappropriate behavior
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`(Amended Complaint at ¶ 27), and that the District was negligent in its training, supervision,
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`retention, and instruction of Dederick because the District failed to timely educate, train, supervise,
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`and monitor Dederick. (Amended Complaint at ¶ 86).
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`10.
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`As Dederick’s records have mostly gone missing, a limited option left to Plaintiffs
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`are to obtain files surrounding Dederick’s employment and files of other District employees who
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`have been alleged of similar wrongdoing.
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`11.
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`Employment files surrounding Dederick’s employment would certainly include
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`who were all employed by the District during the
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`relevant time frame connected to Dederick.
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`12.
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`Additionally, as it concerns
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` , the District’s argument that Plaintiffs’ reliance Harmon v. Diocese of Albany is misplaced
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`because the Court there limited disclosure to files occurring within the time period of abuse in the
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`complaint is belied by the fact that by already producing portions of personnel files of
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`,
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`(conduct that by the District’s own admission
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`occurred after the allegations in the Complaint), the District has opened the door to further
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`discovery under Harmon. See Harmon v Diocese of Albany, 204 AD3d 1270, 1274 [3d Dept 2022]
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`(“Defendants have made what they knew about sexual abuse within the Diocese central to their
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`case, and the court properly found that defendants themselves opened the door to discovery of
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`what they knew about the clergy sex abuse problem.”).
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`13.
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`Thus, the District’s objection to produce complete personnel files of
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`,
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`on grounds that inappropriate conduct occurred
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`several years after the relevant time period in this case is waived by the fact that the District
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`actually did produce the portions of their respective files relating to that inappropriate conduct,
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`however limited that production may be.
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`14.
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`Lastly, the District’s argument that producing entire “personnel files for
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`without any limitation is overbroad and unduly burdensome” is not so. The District has the files in
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`its possession and it is not clear how producing them would be overbroad or unduly burdensome.
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`15.
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`By its own admission in its Opposition, the District has already compiled and
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`reviewed all of these records in their entirety. See Affidavit of A. Reinhardt at ¶¶ 7-9 (affirming
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`the District already reviewed “approximately half of the files contained in the archived personnel
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`files,” the District’s entire archived payroll records, and the personnel and payroll records for
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`current employees); Affidavit at ¶ 13 (affirming the District’s review of complete personnel files
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`FILED: ULSTER COUNTY CLERK 09/26/2023 07:59 PM
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`INDEX NO. EF2020-1189
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`of
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`); Opposition at ¶ 19 (affirming the
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`District reviewed
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`entire personnel file to extract particular records); ¶ 21 (affirming
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`that the District already reviewed personnel files of
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`to conclude that their files do not contain allegations of inappropriate conduct); ¶ 26 (affirming the
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`content and substance of
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`personnel file).
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`16.
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`Thus, the burden to produce complete employment files at this stage is de minimis.
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`17.
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`And the District’s argument that confidential information would have to be redacted
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`to protect against the disclosure of confidential information is covered by the Stipulation and Order
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`for the Production and Exchange of Confidential Information (“Confidentiality Agreement”)
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`entered into between all Parties (NYSCEF Doc. No. 105).
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`For the reasons explained herein, Plaintiffs John Doe I and John Doe II respectfully request
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`that Plaintiffs’ motion be granted, that Defendant Kingston City School District be compelled to
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`produce the entire personnel files of
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`, as requested through Plaintiffs’ Second Set of
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`Document Requests dated September 4, 2021 and Plaintiff’s January 25, 2023 Letter to Kingston
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`City School District regarding the District’s deficient responses to Plaintiffs’ First Set of
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`Interrogatories and First Set of Document Requests; and for such other and further relief as this
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`Court deems just and proper.
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`Dated:
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`
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`New York, New York
`September 26, 2023
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`
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`
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`
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`By: s/Daniel R. Lazaro
`Daniel T. Stabile, Esq.
`Email: Dstabile@winston.com
`WINSTON & STRAWN LLP
`200 South Biscayne Boulevard
`Miami, Florida 33131
`Telephone: 305.910.0787
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`FILED: ULSTER COUNTY CLERK 09/26/2023 07:59 PM
`NYSCEF DOC. NO. 155
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`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 09/26/2023
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`Attorney for Plaintiff, John Doe Only
`
`and
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`Miranda L. Soto, Esq.
`Email: miranda.soto@bipc.com
`BUCHANAN INGERSOLL & ROONEY PC
`One Biscayne Tower, Suite 1500
`Miami, Florida 33131
`Telephone: 305.347.4086
`Admitted pro hac vice
`
`and
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`Daniel R. Lazaro, Esq.
`Email: dan.lazaro@bipc.com
`BUCHANAN INGERSOLL & ROONEY PC
`640 Fifth Avenue, 9th Floor
`New York, New York 10019
`Telephone: 305.347.4080
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`and
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`Patrick T. Gartland, Esq.
`Email: ptg@cgrlaw.com
`CORBALLY, GARTLAND AND RAPPALEYEA, LLP
`35 Market Street
`Poughkeepsie, New York 12601
`Telephone: 845.240.7322
`Facsimile: 845.240.7323
`Attorneys for Plaintiffs John Doe and John Doe II
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`
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`TO (via NYSECF):
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`To: Mark C. Rushfield, Esq.
`SHAW, PERELSON, MAY & LAMBERT, LLP
`Kingston City School District
`21 Van Wagner Road
`Poughkeepsie, NY 12603
`
`Lewis Silverman, Esq.
`
`Valentina Lumaj, Esq.
`SILVERMAN & ASSOCIATES
`445 Hamilton Avenue, #1102
`White Plains, New York 10601
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`Dylan S. Gallagher, Esq.
`O’CONNOR & PARTNERS, PLLC
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`FILED: ULSTER COUNTY CLERK 09/26/2023 07:59 PM
`NYSCEF DOC. NO. 155
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`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 09/26/2023
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`255 Wall Street
`Kingston, New York 12401
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`CERTIFICATION
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`The foregoing Affirmation was typed using Microsoft Word.
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`Type: A proportionately spaced typeface was used, as follows:
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`
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`Name of typeface: Times New Roman
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`Point size for body: 12
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`Line spacing: Double, Single for Footnotes
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`Word Count: The total number of words in the Affirmation, exclusive of the caption and
`signature block is 1,472.
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`It is hereby certified pursuant to 22 NYCRR 202.8-b that the foregoing Affirmation
`complies with the word count limit.
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`It is hereby certified pursuant to 22 NYCRR 202.5 that the foregoing Affirmation complies
`with the requirement that Paper Size of 8 ½ x 11 inch and Margins of 1-inch.
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`Dated:
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`New York, New York
`September 26, 2023
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`By: s/Daniel R. Lazaro
`Daniel R. Lazaro, Esq.
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