Previous CPLR Cases of the Week
Two Child Victim Act Decisions Affirm Orders Directing Additional Disclosure
Two decisions last week in separate Child Victim Act cases affirmed orders requiring the defendant, in both cases the Archdiocese of New York, to provide additional disclosure; a further deposition in one case and the release of a report by the defendant church into the conduct of the priest accused of molesting the plaintiff in the other.
In V.K. v. Roman Catholic Archdiocese of New York, 2026 NY Slip Op 00056 (1st Dep’t 2026) the First Department held that the trial court had “providently exercised its discretion in directing the Archdiocese to produce an additional witness to be examined before trial.” Generally speaking, the producing party may designate witnesses who have material and relevant information to be deposed. However, a party may seek leave of the court to designate additional witnesses if that party can demonstrate the deposed witness lacked sufficient information about the action.
It is well-settled that a corporate entity has the right, in the first instance, to designate the employee of the entity to be deposed. See, Nunez v. Chase Manhattan Bank, 71 A.D.3d 967 (2d Dep’t 2014). In V.K., plaintiff established that the witness produced by the Archdiocese:
[H]ad insufficient knowledge and that his testimony was inadequate. The transcripts of the designated representative’s deposition indicate, among other things, that the witness was minimally prepared for his depositions, reviewed few documents in anticipation thereof, and did not know the extent to which the Archdiocese maintained files on its priests.
A witness with knowledge of the files maintained by the defendant was key as plaintiff was seeking secret files maintained by the Archdiocese about priests accused of abuse, and the witness produced:
[W]as not aware whether the Archdiocese ever maintained any sub secreto files about priests. The Archdiocese’s policy on creating, maintaining, and destroying such files, whether such a file pertaining to the alleged abuser in these cases ever existed, and the contents and whereabouts of such a file if one did exist — all subjects with which the Archdiocese’s designated representative was unfamiliar [and] all valid lines of inquiry that plaintiffs may pursue by deposing the individual specified.
In challenging plaintiff’s motion, defendants produced a Jackson affirmation[i] in which its Executive Director “denied that the Archdiocese ever maintained secret files on its clergy and that any such file ever existed for the alleged abuser in these cases.” However, the First Department held “[p]laintiffs are “not required to accept” the Archdiocese’s “say-so that no documents exist”; rather, they are “entitled to test that representation” themselves,” and affirmed the order directing the witness designated by plaintiff be produced for deposition.
In seeking an additional deposition, it helps if the moving party can show there exist witnesses who would have the material and relevant information sought by the moving party. See, also, Palermo v. Metro. Trans. Auth., 2026 NY Slip Op 00139 (2d Dep’t 2026):
Here, the plaintiff satisfied her burden of demonstrating that the representative produced by the LIRR for a deposition did not have sufficient knowledge of the area of the station that was allegedly owned by the LIRR and that there was a substantial likelihood that other employees possessed such knowledge. Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was to compel the LIRR to produce an additional witness for a deposition.
Sometimes courts take a broad view of what is discoverable pretrial. In John Doe J.P. v. Archdiocese of New York, 2026 NY Slip Op 00015 (1st Dep’t 2026), the Archdiocese had designated a Tribunal to “consider the issue of whether Stinner’s acts had violated ecclesiastical law,” which resulted in the Archdiocese laicizing (defrocking) the alleged abusive priest in 2005. Plaintiff sought an unredacted copy of the Tribunal’s proceedings, and the First Department affirmed the motion court’s order that it be produced without redaction:
Plaintiffs’ discovery demands are reasonably calculated to lead to the discovery of relevant and admissible evidence bearing upon whether Stinner engaged in a pattern of abuse, whether the Archdiocese knew or should have known of the danger Stinner posed, and whether the Archdiocese acted reasonably to protect children from sexual abuse.
The argument by the Archdiocese that “ information sought implicated canon law or sacramental issues that might give rise to a First Amendment issue,” was rejected by the First Department:
Although the records concern the church’s removal of Stinner from the priesthood, the actions underlying this appeal do not contest or address that decision, nor do they address the religious doctrine upon which the decision was based (citation omitted). Rather, plaintiffs seek the file’s contents to understand the Archdiocese’s support or justification for laicizing Stinner, and as a potential source of information about the extent and timing of the church’s knowledge.
Decision Date: January 6, 2026 (John Doe JP)
January 8, 2026 (V.K.)
Practical Practice Point
The Jackson affirmation mentioned in V.K. is shorthand for an affirmation attesting to the details of a search made for relevant documents by a party in an action. In Jackson v. City of New York, 185 A.D.2d 768 (1st Dep’t 1992) the First Department sanctioned defendant for failing to provide proof that a proper and thorough search had been conducted for records:[ii]
Here, after years of delay, the affidavit presented by the City made no showing as to where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found. In short, the affidavit provided the court with no basis to find that the search had been a thorough one or that it had been conducted in a good faith effort to provide these necessary records to plaintiff. Under such circumstances, the City’s failure to locate any maintenance records should not inure to its own benefit, particularly in light of the behavior of the City from the outset of this litigation in failing to cooperate with discovery and blatantly ignoring court orders.
The result was an order precluding the City from contesting notice of the defective condition at issue in the lawsuit.
All of the above cases reflect a broad view of discovery, when a party can establish the materials or testimony sought are material and relevant to the litigation. When seeking records, a party in New York is entitled to have a thorough and meaningful search conducted by the party from whom records are sought, and a Jackson affirmation should be requested when it is claimed records do not exist, or cannot be located. If necessary, a motion should be made to compel compliance.
In V.K., the court’s summary of the initial witnesses testimony, which revealed lack of preparation and knowledge, highlights the need to carefully, and thoroughly, question a witness who claims to have no, or inadequate knowledge in order to ascertain who would have relevant knowledge and to have that witness identified by name and/or job title or position.
Similarly, when a party professes not to have records, or that records cannot be located or no longer exist, it is critical to, again, carefully and thoroughly question a witness at deposition concerning the records, where and how they are, or would have been maintained, etc. When the response comes in the form of a Jackson affirmation and not a deposition, it is critical to scrutinize the affirmation to make certain it adequately addresses the criteria set forth in Jackson v. City of New York.
[i] Copies of the submitted affirmations can be found here: https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=c8Uz2UakLqEiXipJ9NsPiQ==
[ii] As noted in Jackson, supra, the City belatedly disclosed an affidavit of an employee attesting to the following:
I have made a search for building records for a building located at 970 Prospect Avenue, Bronx, New York, by searching for the address of that building in both the Central Files and Archive Files of the Department of Housing Preservation and Development. As a result of my search for said building records, no records have been found for a building located for the above-mentioned address.