JACQUELINE ABATE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF DONALD ABATE, DECEASED, PLAINTIFF-RESPONDENT,
COUNTY OF ERIE, ERIE COUNTY SHERIFF'S OFFICE, DEFENDANTS-APPELLANTS, ET AL., DEFENDANT.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (ANTHONY B.
TARGIA OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND
from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered May 4, 2016. The order granted the
motion of plaintiff to compel disclosure and denied the cross
motion of defendants County of Erie and Erie County
Sheriff's Office for a protective order.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
that County Law § 308 (4) poses no obstacle to the
court-ordered discovery of 911 records in a civil lawsuit.
unusually intense winter storm stranded plaintiff's
decedent inside his vehicle during the early morning hours of
November 18, 2014, in the Town of Alden, Erie County. The
decedent called 911 at 3:50 a.m. to report his predicament.
The dispatcher instructed the decedent to remain in his
vehicle, and assured him that help would be forthcoming. Help
did not arrive, however, until 1:37 a.m. on the following day
(November 19, 2014). By that point, it was too late - the
decedent had tragically died, still stranded inside his
thereafter commenced this action against, inter alia, the
County of Erie and the Erie County Sheriff's Office
(collectively, defendants). In her complaint, plaintiff
alleged that the decedent's death resulted from
defendants' negligent failure to rescue him during the
storm. According to plaintiff, defendants breached a special
duty to the decedent that attached as a result of his
communications with defendants' 911 service.
course of discovery, plaintiff sought disclosure pursuant to
CPLR article 31 of 911 records concerning the decedent and
his plight on November 18-19, 2014. Plaintiff also sought
disclosure of 911 records pertaining to other stranded
persons at eight specified locations in the decedent's
vicinity. Defendants voluntarily disclosed the decedent's
911 records, but they refused to disclose any 911 records
pertaining to other stranded persons. Plaintiff moved to
compel production. Defendants opposed the motion, arguing
principally that the 911 records of non-parties were
categorically exempt from disclosure by County Law § 308
(4). Supreme Court disagreed and granted plaintiff's
motion to compel. Defendants now appeal, and we conclude that
the order should be affirmed.
Law § 308 (4) provides, in full:
"Records, in whatever form they may be kept, of calls
made to a municipality's E911 system shall not be made
available to or obtained by any entity or person, other than
that municipality's public safety agency, another
government agency or body, or a private entity or a person
providing medical, ambulance or other emergency services, and
shall not be ...