Papers Considered: (1) NYSCEF Documents 3 to 17 and 20 to 40. In this action brought pursuant to the New York State Child Victims Act1 plaintiffs move for an order compelling defendant Roman Catholic Diocese of Albany, New York (the “Diocese”) to produce the personnel files of six former priests employed by the Diocese. Plaintiffs argue that, although those priests were not involved in the events at issue in this case, their personnel records are likely to demonstrate that the Diocese had a routine practice of retaining priests who had credibly been accused of child sexual abuse. The Diocese and defendant Bishop Howard J. Hubbard, DD (the “Bishop”) oppose the motion and the Diocese cross moves for a protective order.2 BACKGROUND Plaintiffs (who are siblings) allege that they were sexually assaulted as children by Fr. Melfe over a ten-year period and have asserted causes of action against Fr. Melfe for assault and against the Diocese and the Bishop for negligence. Plaintiffs claim that the Diocese and the Bishop had notice that Fr. Melfe was a pedophile, knew that he customarily stayed overnight in plaintiffs’ home, and were aware that he was assaulting the plaintiffs. Plaintiffs allege that the Diocese and the Bishop were negligent in their supervision of Fr. Melfe and that that negligence allowed him to continue assaulting them. Both defendants generally deny plaintiff’s allegations and assert that they “had no notice, either actual or constructive, of the allegations set forth by plaintiffs” (see the Diocese’s second and the Bishop’s eleventh affirmative defenses). The Diocese also alleges, in its eleventh affirmative defense, that its “actions were in conformity with professional best practices and with the available knowledge in the community and met applicable standards at the time” and the Bishop similarly asserts in his fourteenth affirmative defense that his “actions were in conformity with the available professional knowledge in the community and met applicable standards at the time.” Plaintiffs argue that defendants’ reliance on “applicable standards” and “professional best practices” as defenses entitles them to discovery as to what those standards and practices were. DISCLOSURE OF THE FILES IN QUESTION “CPLR 3101 broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action. A trial court, however, has broad discretion in supervising disclosure and may, on its own initiative or on the motion of a party, issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (DiCostanzo v. Schwed, 146 AD3d 1044, 1045 [3rd Dept 2017] [internal quotation marks and citations omitted]). Plaintiffs assert that the personnel files are likely to demonstrate defendants’ deliberate and repetitive practice of retaining priests credibly accused of child sexual abuse and, thereby, infer that that practice was employed as to Fr. Melfe. Defendants counter that plaintiffs’ demand is little more than a fishing expedition and seeks material completely unrelated to the issues in this case. Generally, evidence of a person’s habitual conduct is inadmissible to infer that the person acted in a similar manner at the time of the event at issue (see Ferrer v. Harris, 55 NY2d 285 [1982], amended on other grounds at 56 NY2d 737 [1982]). However, “where the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion” (Halloran v. Virginia Chems., 41 NY2d 386, 392 [1977]). Indeed, “proof of a business, professional or other institutional practice or custom [is admissible] as probative evidence that the practice or custom was or would have been followed under the same set of circumstances on a specific occasion” (Soltis v. State, 188 AD2d 201, 203 [3rd Dept 1993]). Here, plaintiffs assert that they have a good faith basis for believing that the six priests in question were retained by the Diocese and the Bishop after having received credible evidence that they had sexually abused minors. Specifically, they point to a 2002 newspaper article reporting that the Bishop summarily discharged the priests immediately following a national bishops’ conference at which a “zero-tolerance” policy for child sexual abuse was adopted. The Bishop is reported to have stated that those priests had engaged in abuse “more than 15 years ago” and had thereafter provided “decades of holy and productive ministry” (see Plaintiffs’ Exhibit E). Plaintiffs have demonstrated that the files may well contain evidence that the Diocese and Bishop had a practice or custom of retaining priests who had credibly been accused of child sexual abuse. Whether the files contain admissible evidence is a question to be decided in the future by the trial court. At this juncture, however, plaintiffs have demonstrated that disclosure of the files may lead to admissible evidence. Finally, the Diocese argues that the files may contain privileged information. That does not, however, justify a blanket denial of plaintiffs’ request. Rather, as in any situation involving records, some of which may be privileged, the Diocese can disclose those documents that it does not deem privileged and serve a privilege log as to the others. If this results in a dispute over whether specific documents are privileged, then the court can address that issue at that time. Accordingly, it is hereby ORDERED that plaintiffs’ motion to compel is GRANTED; and it is further ORDERED that the Diocese’s cross-motion for a protective order is DENIED. Dated: October 6, 2020
