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Abate v. County of Erie

Supreme Court of New York, Fourth Department

June 30, 2017

JACQUELINE ABATE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF DONALD ABATE, DECEASED, PLAINTIFF-RESPONDENT,
v.
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 NEMOYER, JJ.

          OPINION

          NeMOYER, J.

         Appeal 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.

         It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

         We hold that County Law § 308 (4) poses no obstacle to the court-ordered discovery of 911 records in a civil lawsuit.

         FACTS

         An 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 vehicle.

         Plaintiff 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.

         In the 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.

         DISCUSSION

         County 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 ...

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