FILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
`NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/11/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ULSTER
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`-X
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`NOTICE OF ENTRY
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`Index No. EF2020-1189
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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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`Defendants.
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`-X
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`PLEASE TAKE NOTICE, that the attached is a true copy of the Decision and Order
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`entered on December 5, 2023 (the “decision”) relating to motion sequence number 16 by the
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`Honorable Justice Justin Corcoran, entered in the office of the Ulster County Clerk on
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`December 7, 2023.
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`Dated:
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`New York, New York
`December 11, 2023
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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
`Attorney for Plaintiff, John Doe Only
`and
`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
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`FILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
`NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/11/2023
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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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`Mark C. Rushfield, Esq.
`Shaw, Perelson, May & Lambert, LLP
`Kingston City School District
`21 Van Wagner Road
`Poughkeepsie, New York 12603
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`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, PLL
`255 Wall Street
`Kingston, New York 12401
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`Robert P. Louttit, Esq.
`Hurwitz Fine, P.C.
`575 Broad Hollow Road
`Melville, New York 11747
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`TO (via NYSECF):
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`FILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
`FILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
`NYSCEF DOC. NO. 161
`NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
`RECEIVED NYSCEF: 12/11/2023
`RECEIVED NYSCEF: 12/11/2023
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`EXHIBIT A
`EXHIBIT A
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`STATE OF NI,]W YORK
`COLTNTY OF ULSTER
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`JOHN DOE and JOHN DOE II,
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`STIPREME COURT
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`Plaintiffs.
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`DECISION and ORDER
`Index No.: EF2020- I I 89
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`-against-
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`WILLIAM J. DEDERICK and
`KINGSTON CITY SCHOOL DISTRICT,
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`[)ef'endants.
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`APPEARANCES: BUCHANAN INGERSOLL & ROONEY PC
`Attorneys for the Plaintiff
`Daniel R. Lazaro, Esq.
`640 Fifth Avenue. 9th Floor
`New York, New York 10019
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`WINSTON & STRAWN LLP
`Attorneys for Plaintiff John Doe
`Daniel T. Stabile, E,sq.
`200 South Biscayne Boulevard
`Miami. Florida 33131
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`BUCHANAN INGERSOLL & ROONEY PC
`Attomeys for Plaintiffs
`Miranda L. Soto, Esq.
`One Biscayne Tower, Suite 1500
`Miami. Florida 33 l3 1
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`CORBALLY, GARTLAND AND RAPPAIEYEA, LLP
`Attorneys for Plainti ffs
`Patrick T. Gartland, Esq.
`35 Market Street
`Poughkeepsie, New York 12601
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`SHAW, PERELSON, MAY & LAMBERT, LLP
`Attorneys for Defendant Kingston City School District
`Valentina Lumaj, Esq.
`445 Hamilton Avenue, #1102
`White Plains. New York 10601
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`SHAW, PERELSON, MAY & LAMBERT, LLP
`Attomeys for Defendant Kingston City School District
`Mark C. Rushfield, Esq.
`21 Van Wagner Road
`Poughkeepsie, New York 12603
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`O'CONNOR & PARTNERS, PLLC
`Attorneys for Defendant William J. Dederick
`Dylan S. Gallagher, Esq.
`255 Wall Street
`Kingston, New York 12401
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`ruSTIN CORCORAN. J.S.C.
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`This action is brought by pseudonymous plaintiffs pursuant to the Child Victims
`Act (CPLR 214-9 ["CYA"]) alleging they were sexually abused by the same teacher,
`defendant William J. Dederick, who was employed by defendant Kingston City School
`District ("the district"). Plaintiff John Doe alleges that from 1982 through 1984, when he
`was 14 to 16 years old, defendant Dederick sexually abused him at the district's high school
`and at the respective homes ofDoe and Dederick. John Doe II alleges that Dederick abused
`him in 1984 when he was fourteen years old during two private tutoring sessions. Plaintiffs
`allege that school faculty members and administrators widely knew that Dederick invited
`students to his house to drink alcohol and watch pomography, and that Dederick was
`involved in sexually inappropriate relationships with other minor male students of the
`district.
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`As against the district, John Doe asserts causes of action for negligence, negligent
`hiring and retention. and negligent supervision. John Doe II asserts one cause ofaction for
`negligent hiring and retention. Following joinder ofissue, plaintiffs sought production of
`records, including the entire personnel file of (1) four district employees who, by the
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`district's admission, were accused of sexual misconduct while employed by the school
`district and (2) three district employees (also involved in inappropriate behavior with
`students, but for whom the district has no record of formal complaints), and "notice
`witnesses" who purportedly knew about inappropriate conduct between teachers and
`students during the time plaintiffs were abused. These employees include (i) a teacher who
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`was close friends with Dederick and also hosted students at his home, provided them with
`alcohol, and showed them pornography; (ii) a district employee allegedly shifted from
`school to school because of inappropriate behavior with students; and (iii) a former teacher
`and union official whose personnel file may have information concerning allegations of
`abuse against union members and the district's response to those allegations.l
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`After engaging in the requisite good faith efforts to resolve the issues raised in the
`motion, plaintiffs now move pursuant to CPLR 3124 to compel production of records
`alleged to have been improperly withheld. Plaintiffs criticize how the district handled
`claims of sexual abuse against its staff and claim that it krew or should have known that
`Dederick had a propensity to engage in the sexual abuse ofchildren. Plaintiffs contend the
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`full personnel files ofother district employees accused of sexual misconduct are likely to
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`contain relevant information about the district's response to similar allegations against its
`employees, including whether the district maintained a pattern and practice ofnegligent
`hiring, retention, and supervision. Plaintiffs argue that access to these files is particularly
`necessary based on the district's representation that it does not possess 19 of Dederick's
`performance evaluations between 1973 through 1998.2 Plaintiffs believe the "missing"
`performance evaluations would shed light on how the district handled any allegations
`against Dederick. As this evidence is unavailable. plaintiffs maintain that the full personnel
`frles of others accused of misconduct is necessary and material to prove how the district
`handled similar allegations. With respect to the other requested personnel files, the district
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`I The full names ofthe employees have been redacted in the NYSCEF filings. The parties have provided the Court
`with unredacted versions oftheir papers for ease ofreference.
`r Specifically, the district lacks any personnel file for Dederick for the years 1973- 1983, 1984- 1986, l99l-1994, 1996,
`and 1998.
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`responded that its search yielded no relevant information; plaintiffs contend the district
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`should not be permitted to unilaterally determine what is relevant to their claims.
`The district objects to providing the disputed discovery, claiming plaintiffs' requests
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`are overbroad and nothing more than a fishing expedition which is not based on good faith
`or prior discovery. The district claims it has produced documents about the allegations of
`sexual abuse made against the four other accused employees, but objects to producing their
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`entire personnel files because the allegations against three of these employees were made
`in 2003, 2014 and 2020 respectively (long after the abuse alleged by plaintiffs) , and thus,
`are too attenuated to reveal how the district handled similar allegations during the period
`of alleged abuse in this case. The fourth employee complaint, however, concerns
`allegations of misconduct that occurred in 1984.
`The district further contends that it reviewed the complete personnel files of the
`other district employees, and they do not contain any information about Dederick's alleged
`propensity to sexually abuse students, either prior to his hiring or at any time during the
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`relevant period ofalleged abuse in this case. The district also contends that plaintiffs' broad
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`requests are unduly burdensome as these records contain hundreds ofpages which must be
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`reviewed and redacted to protect against the disclosure ofconfidential information such as
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`social security numbers and health information.l
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`Discussion
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`"New York has long favored open and far-reaching pretrial discovery." DiMichel v.
`South Buffalo Ry. Co., 80 NY2d 184, 193 (1992), cert denied sub nom Poole v.
`Consolidated Rail Corp.,510 US 816 (1993). "CPLR 3101 mandates full disclosure of all
`matter material and necessary in the prosecution or defense of an action. 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. If there is
`any possibility that the information is sought in good faith for possible use as evidence-in-
`chief or in rebuttal or for cross-examination. it should be considered evidence material in
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`r Plaintiffs contend that this confidential information is already shielded by the confidentiality agreement entered into
`between all parties. NYSCEF Doc. No. 105.
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`the prosecution or defense...The party seeking discovery bears the burden ofproving that
`the discovery request is reasonably calculated to yield material and necessary information."
`Harmon v. Diocese of Albany,204 AD3d 1270, l27l (3d Dept. 2022) (intemal citations
`and quotations omitted). Despite its broad scope, the right to disclosure is not unlimited.
`Forman v. Henkin,30 NY3d 656, 661 (2018); Geffier v. Mercy Med. Ctr., 83 AD3d 998,
`998 (2d Dept. 2011); Dolback v. Reeves,265 AD2d 625,625-626 (3d Dept. 1999). "It is
`incumbent on the party seeking disclosure to demonstrate that the method of discovery
`sought will result in the disclosure ofrelevant evidence or is reasonably calculated to lead
`to the discovery of information bearing on the claims." Mendives v. Curcio,174 4D3d796,
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`797-798 (2d Dept. 2019).
`Plaintiffs have failed to demonstrate that the personnel files of the former union
`official and the teacher rumored to have been shifted between schools are reasonably
`calculated to lead to the discovery of information bearing on their claims.a To require the
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`district to provide these files, even for in camera review, would open the door to almost
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`anyone who worked at an institution where an alleged abuser was employed on the theory
`that their files may contain relevant evidence. Plaintiffs are entitled to liberal discovery;
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`however, wholesale review ofthese two employees' entire personnel files, based on rumors
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`and speculation, is unwarranted.
`Plaintiffs' remaining requests relate to other district employees credibly accused of
`sexual misconduct. The Appellate Division, Third Department has held that the personnel
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`irles of other credibly accused members employed by the same institution as the alleged
`abuser may be relevant to whether the institution had constructive notice of the
`perpetrator's proclivities, and whether the institution maintained a practice of retaining
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`assailants credibly accused of child sexual abuse. Harmon v. Diocese of Albany, supra at
`1270; Melfe v. R.C. Diocese of Albany, 196 AD3d 811 (3d Dept 2021). Contrary to the
`district's contentions, simply because a document was prepared after plaintiffs' reported
`abuse does not foreclose the possibility that it contains information material to the claims
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`l These individuals are referenced in paragraphs l6 and t7 of plaintifls "affirmation in support of motion to compel
`discovery pursuant to CPLR 3124 and ofgood faith effort" (NYSCEF Doc. No. 149).
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`at issue. See McNierney v. Archdiocese of NY, _AD3d
`,2023 NY Slip Op 05792 (lst
`Dept.2023). The district claims it has already disclosed all records about the allegations of
`sexual abuse against the four formally accused individuals, and that the personnel file of
`the teacher who allegedly provided students with alcohol and showed them pomography,
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`revealed no relevant information. However, disclosure here must encompass all records
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`related to the district's response to these complaints, so that plaintiffs may discover the
`existence of an institutional practice or custom. The district's responses may already
`comply with this directive, but plaintiffs have established a factual predicate for discovery
`of relevant information in the personnel files of other credibly accused employees.
`Nonetheless, plaintiffs' demand for access to the entire files is overbroad.
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`ln light ofthe extensive previous motion practice and the limited amount of disputed
`material, the most efficient course of action is to review in camera the five disputed
`personnel files ofcredibly accused employees to determine their relevance to the issues of
`notice and institutional practice.s The Court will thereafter order production ofany records
`deemed relevant, subject to any appropriate redactions. Mindful that personnel files may
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`contain voluminous materials that are inarguably irrelevant to this dispute (such as health
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`insurance, employee compensation/benefits, and tax withholdings), the district may excise
`such records from its production for in camera review, subject to identihcation of such
`materials in its privilege log.
`Accordingly, plaintiffs' motion is GRANTED to the extent that the district is
`directed, within 21 days of the date of entry of this Order, to submit to the Court for iz
`camera review a Bates-stamped copy ofthe personnel files as outlined herein, noting which
`documents have already been disclosed to plaintiffs. The district may also prepare a list or
`a general description of its proposed redactions in the event the Court orders production of
`any of the records after iLs in camera review.
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`5 These individuals are referenced in paragraphs 8 and l5 ofplaintitl's "affirmation in support of motion to compel
`discovery pursuant to CPLR 3 124 and of good faith effort" (NYSCEF Doc. No. 149).
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`FILED: ULSTER COUNTY CLERK 12/07/2023 03:51 PMFILED: ULSTER COUNTY CLERK 12/11/2023 09:09 AM
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`NYSCEF DOC. NO. 160NYSCEF DOC. NO. 161
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`INDEX NO. EF2020-1189INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 12/07/2023RECEIVED NYSCEF: 12/11/2023
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`SO ORDERED.
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`ENTER.
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`Dated: December 5,2023
`Albany, New York
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`US n Corcoran
`Justice of the Supreme Court
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`Papers Considered: Papers 148-158 (motion sequence 16) filed electronically in the
`NYSCEF docket.
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`The Court has uploaded the original decision/order to the case record in this matter
`as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office
`of the Albany County Clerk. Plaintiffs are not relieved from the applicable provisions of
`CPLR2220 and 202.5b(h)(2) of the Uniform Rules of Supreme and County Courts insofar
`as they relate to service and notice ofentry ofthe filed document upon all other parties to
`the action, whether accomplished by mailing or electronic means, whichever may be
`appropriate dependent upon the hling status ofthe party.
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