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Dukes v. NYCERS

Deliberative Process Privilege Inapplicable, Subpoenas Not Quashed

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OPINION AND ORDER Defendant New York City Employees’ Retirement System (“NYCERS”)¹ and three doctors retained by NYCERS’ Medical Board, i.e., Joseph Bottner (“Bottner”), Vasilios Sierros (“Sierros”) and Theobald Reich (“Reich”) (collectively, the “Movants”), move to quash subpoenas served upon Bottner, Sierros and Reich² and for a protective order regarding Bottner’s handwritten notes that are contained in the NYCERS Administrative Record, based upon the deliberative process privilege. (See Letter Motion, ECF No. 67, at 1, 3.)For the following reasons, the Court DENIES the motion in its entirety. There is no deliberative process privilege that applies to this case, and Movants have not met their burden to establish that the subpoenas should be quashed or that a protective order should be entered.BACKGROUNDThis is an action by plaintiff, Cheryl Dukes (“Plaintiff”), against NYCERS and its Board of Trustees alleging violations stemming from her unsuccessful attempt to acquire accidental death benefits for the death of her husband, Ralph Dukes (the “Decedent”), whose death allegedly was caused by his work related to the aftermath of the September 11, 2001 terrorist attacks. See Dukes v. New York City Employees’ Ret. Sys., 361 F. Supp. 3d 358, 363 (S.D.N.Y. 2019). The Amended Complaint alleges a claim under Article 78 of the New York Civil Practice Law and Rules (“CPLR”) for a wrongful administrative act (“Article 78 Claim”); claims under 42 U.S.C. §1983 for deprivation of procedural and substantive due process; and a claim under the New York common law for breach of contract. (Am. Compl., ECF No. 39,

50-83.)The facts relevant to the pending motion are set forth in the Opinion and Order by District Judge Koeltl deciding Defendants’ motion to dismiss the Amended Complaint:In the summer of 2011, the plaintiff submitted an application to NYCERS for World Trade Center-related accidental death benefits for her husband’s death. Amended Compl.

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