Supreme Court, Nassau County, April 15, 2021

Novick & Associates, P.C., Huntington (Donald Novick, Kimberly Arlen Schechter and Albert Vincent Messina of counsel), for cross-petitioner.

Nassau County Department of Social Services, Uniondale (David Zachary Carl of counsel), for petitioner.

Rosenthal Law LLC, Garden City (Elisa Strassler Rosenthal of counsel), and Seltzer Sussman Habermann & Heitner LLP, Jericho (Brian R. Heitner of counsel), court-appointed counsel for Nancy K., respondent.

Edward Francis Cunningham, Garden City, Court Evaluator.

The Weinstein Group, P.C., Syosset (Lloyd Jeffrey Weinstein of counsel), Temporary Guardian.

The motion by the cross-petitioner, after the commencement of the hearing in this special proceeding, for an order directing the disclosure to him of the adult protective services (APS) file pertaining to the alleged incapacitated person, presents an issue of first impression on the extent of discovery permitted to an interested party in a guardianship proceeding within the context of the confidentiality mandates of Social Services Law § 473-e.

This proceeding, commenced by the Commissioner of the Nassau County Department of Social Services pursuant to article 81 of the Mental Hygiene Law, seeks a judgment appointing an independent guardian for the personal needs and property management of the alleged incapacitated person, Nancy K. (AIP). The 50-plus page petition is replete with allegations of elder abuse in the guise of financial exploitation and emotional abuse. The main focus of the petition is to set{**72 Misc 3d at 471} aside and void the advance directives executed on October 8, 2019, and to void the marriage entered into on November 6, 2020, between the AIP and the cross-petitioner, William McEnaney.

The cross-petition seeks an order dismissing the petition and permitting the cross-petitioner to care for the AIP using the advance directives put in place in 2019. The cross-petitioner alternatively seeks, if the court determines that an independent person should be appointed the guardian of the person and property of the AIP, that the temporary guardian, Lloyd Weinstein, Esq., be removed and not be appointed a permanent guardian, and that either the court appoint an independent guardian or appoint cross-petitioner as guardian of the person and property of the AIP, with the power to handle her property management affairs and determine her medical and personal care.

During an interlude in petitioner's direct case (to date a caseworker and her supervisor have testified), the cross-petitioner's counsel moved for the disclosure of the entire APS file pursuant to a proposed subpoena duces tecum. By order dated March 25, 2021 (Knobel, J.), this court held the motion in abeyance pending an in camera review of the APS file by the court.

The cross-petitioner contends that he is entitled to the disclosure of petitioner's proof that it may offer in support of its petition, to wit, "[a]ll reports, case notes, interviews, and memoranda that concern, refer or relate to the allege incapacitated person, Nancy K., . . . for the period of January 1, 2015, through February 19, 2021." The cross-petitioner argues that these documents are relevant and necessary on the ground that these documents

"bear upon the credibility of individuals who will give testimony in this matter, to establish a time line of events relevant to the complaint made to Adult Protective Services, to discover any admissions or statements concerning the capacity of Nancy K. and the actions of William McEnaney, the existence of any statements against interest from any party or witness in this action and to establish whether the relief in the cross-petition should be granted, i.e., the existence of admissible evidence concerning the propriety of William McEnaney to serve as guardian of the person and{**72 Misc 3d at 472} property of the alleged incapacitated person, Nancy K."

Petitioner and counsel for Nancy K. vehemently oppose any disclosure of the contents of the file to the cross-petitioner, contending, inter alia, that the records sought are confidential and not subject to disclosure to the cross-petitioner pursuant to Social Services Law § 473-e. Counsel for the AIP argues that this statute permits court-appointed counsel for the AIP and the temporary guardian to review the subject documents, and that the proposed subpoena duces [*2]tecum should not be signed by the court since the subpoena seeks, as in the Second Department case of Valdez v Sharaby (258 AD2d 458, 458 [2d Dept 1999]), records for the purpose of obtaining information to impeach the general credibility of witnesses.

Social Services Law § 473-e, titled "Confidentiality of protective services for adults' records," provides as follows:

"1. Definitions. When used in this section unless otherwise expressly stated or unless the context or subject matter requires a different interpretation:

"(a) 'Subject of a report' means a person who is the subject of a referral or an application for protective services for adults, or who is receiving or has received protective services for adults from a social services district.

"(b) 'Authorized representative of a subject of a report' means (i) a person named in writing by a subject to be a subject's representative for purposes of requesting and receiving records under this article; provided, however, that the subject has contract capacity at the time of the writing or had executed a durable power of attorney at a time when the subject had such capacity, naming the authorized representative as attorney-in-fact, and such document has not been revoked in accordance with applicable law; (ii) a person appointed by a court, or otherwise authorized in accordance with law to represent or act in the interests of the subject; or (iii) legal counsel for the subject.

"2. Reports made pursuant to this article, as well as any other information obtained, including but not limited to, the names of referral sources, written reports or photographs taken concerning such reports in the possession of the department or a social services district, shall be confidential and,{**72 Misc 3d at 473} except to persons, officers and agencies enumerated in paragraphs (a) through (g) of this subdivision, shall only be released with the written permission of the person who is the subject of the report, or the subject's authorized representative, except to the extent that there is a basis for non-disclosure of such information pursuant to subdivision three of this section. Such reports and information may be made available to:

"(a) any person who is the subject of the report or such person's authorized representative;

"(b) a provider of services to a current or former protective services for adults client, where a social services official, or his or her designee determined that such information is necessary to determine the need for or to provide or to arrange for the provision of such services;

"(c) a court, upon a finding that the information in the record is necessary for the use by a party in a criminal or civil action or the determination of an issue before the court;

"(d) a grand jury, upon a finding that the information in the record is necessary for the determination of charges before the grand jury;

"(e) a district attorney, an assistant district attorney or investigator employed in the office of a district attorney, a member of the division of state police, or a police officer employed by a city, county, town or village police department or by a county sheriff when such official requests such information stating that such information is necessary to conduct a criminal investigation or criminal prosecution of a person, that there is reasonable cause to believe that the criminal investigation or criminal prosecution involves or otherwise affects a person who is the subject of a report, and that it is reasonable to believe that due to the nature of the crime under investigation or prosecution, such records may be related to the criminal investigation or prosecution;

"(f) a person named as a court-appointed evaluator or guardian in accordance with article eighty-one of the mental hygiene law, or a person named as a guardian for the mentally retarded in [*3]accordance with article seventeen-A of the surrogate's court{**72 Misc 3d at 474} procedure act; or

"(g) any person considered entitled to such record in accordance with applicable law.

"3. The commissioner or a social services official may withhold, in whole or in part, the release of any information in their possession which he or she is otherwise authorized to release pursuant to subdivision two of this section, if such official finds that release of such information would identify a person who made a referral or submitted an application on behalf of a person for protective services for adults, or who cooperated in a subsequent investigation and assessment conducted by a social services district to determine a person's need for such services and the official reasonably finds that the release of such information will be detrimental to the safety or interests of such person."

The legislative history of the 1995 enactment of Social Services Law § 473-e reflects the legislature's intent to add confidentiality provisions related to adult protective services records and to increase protection of mentally or physically impaired dependent adults from financial, physical and emotional abuse, neglect, and other hazardous situations. Other elected officials urged the Governor to enact the proposed legislation:

"A new section 473-e of the Social Services Law is added, regarding confidentiality of records of Protective Services for Adults. It establishes that PSA reports on individuals cannot be released without the written permission of the subject of the report or his authorized representative. It also authorizes the Commissioner or a Social Services official to withhold information on a PSA subject if doing so would have a harmful effect.

"This legislation represents a necessary comprehensive approach to ending elder abuse. To successfully combat elder abuse, it must be addressed on several levels: education and outreach, increased protections for potential victims residing in long term care facilities, and preservation of confidentiality so that people who witness elder abuse are not deterred from reporting it." (Letter Recommending Approval from Rudolph W. Giuliani, Mayor of City of New York, Bill Jacket, L 1995, ch 395 at 28-29 [emphasis added].){**72 Misc 3d at 475}

In a special proceeding, such as the guardianship proceeding at bar, disclosure is available only by leave of the court in view of the need for a speedy adjudication, since permitting discovery could have the effect of delaying the proceeding (see Matter of Suit-Kote Corp. v Rivera, 137 AD3d 1361, 1364 [3d Dept 2016]; CPLR 408; Siegel & Connors, NY Prac § 555 at 1064-1065 [6th ed 2018]). Thus the trial court has broad discretion in granting or denying disclosure (see Matter of Beatrice R.H. [Dean E.H.—Penny F.H.], 131 AD3d 1059 [2d Dept 2015]). "Among the factors weighed are whether the party seeking disclosure has established that the requested information is material and necessary, whether the request is carefully tailored to obtain the necessary information and whether undue delay will result from the request" (Matter of Suit-Kote Corp. v Rivera at 1365 [citations omitted]).

The Court of Appeals in Forman v Henkin (30 NY3d 656, 665 [2018]) reiterated that

" '[t]he words, "material and necessary" [as codified in CPLR 3101 (a)] are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is [*4]one of usefulness and reason' (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000])" (Forman v Henkin, 30 NY3d 656, 661-662 [2018]).

The Court then discussed the limits on disclosure:

"The right to disclosure, although broad, is not unlimited. CPLR 3101 itself 'establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101 [b]); attorney's work product, also absolutely immune (CPLR 3101 [c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship' (Spectrum [Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371,] 376-377 [1991]). The burden of establishing a right to protection under these provisions is with the party asserting it—'the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity' (id. at 377)." (Forman v Henkin at 661-662; see also {**72 Misc 3d at 476}Wasserman v Amica Mut. Ins. Co., 193 AD3d 795 [2d Dept 2021].)

This court notes that the documents and information contained in the APS file are "confidential and, except to persons, officers and agencies enumerated in paragraphs (a) through (g) . . . , shall only be released with the written permission of the person who is the subject of the report [the alleged incapacitated person]" (Social Services Law § 473-e [2]). The cross-petitioner concedes that Nancy K. is incapacitated at this moment in time. However, the issue of whether the cross-petitioner should be found to be the "[a]uthorized representative of [the] subject of [the] report" will be ultimately determined at the conclusion of this proceeding. (Id. § 473-e [1] [b].)

After reviewing the APS file, the court finds that most of the information contained therein is either known by all parties or is a public record. For example, the documents submitted for in camera review contain public searches of Department of Motor Vehicles records, property deeds and bank account information. This information is readily available to cross-petitioner and his counsel. The documents also contain objective testing known as "Mini Mental Examinations" conducted by APS caseworkers. These examinations were previously exchanged between all parties and are currently in evidence. The photographs contained in the APS file were annexed as part of the petition and were uploaded to NYSCEF (New York State Courts Electronic Filing System). The APS file also includes affidavits from APS caseworkers in 2021 regarding their interaction and investigation of the AIP, and they are to be provided to the cross-petitioner, if they have not already been furnished.

However, as to the documents that are not known to all parties nor public record, there are a series of notes and reports contained in the APS file which do not mandate disclosure: (1) "Protective Services for Adults Referral to Office of Legal Affairs"; (2) intake disposition reports and (3) progress notes.

The court finds that the report labeled "Protective Services for Adults Referral to Office of Legal Affairs," which was sent to the Legal Unit from Shirley Rembert, CW III and Muriel Jeanty Petiote, SUP II, falls within the protective ambit of Social Services Law § 473-e, CPLR [*5]3101 (d), and analogous case precedent.

The disclosure of this information would identify persons who made a referral, and even after redaction, the release of this information may be detrimental to the safety or interests{**72 Misc 3d at 477} of the referral source, all of which is contrary to the intent and purpose of Social Services Law § 473-e. Moreover, as materials prepared in anticipation of litigation, these documents are subject to a conditional privilege (CPLR 3101 [d]). To demonstrate that this privilege is applicable, it must be shown that the material was prepared exclusively in anticipation of litigation (Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2d Dept 2004]; Agovino v Taco Bell 5083, 225 AD2d 569 [2d Dept 1996]).

This court further finds that this report, and any notes by APS employees (except what is directed to be disclosed below) also fall within the interagency and intra-agency exemption of Public Officers Law § 87 (2) (g) since the report and notes contain opinions, ideas or advice exchanged as part of the consultative or deliberative process of government decision-making:

"The intra-agency exemption applies to 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making' (Matter of Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]; see Public Officers Law § 87 [2] [g]; Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 [1993]; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [1985]). The purpose of such exemption is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Gould v New York City Police Dept., 89 NY2d at 276 [internal quotation marks and citations omitted]; see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]; Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 984 [2009], lv denied 12 NY3d 712 [2009])" (Matter of Smith v New York State Off. of the Attorney Gen., 116 AD3d 1209, 1210 [3d Dept 2014]; compare Mosey v County of Erie, 148 AD3d 1572 [4th Dept 2017]).

Accordingly, petitioner's counsel and counsel for the AIP have met their burden in demonstrating that this report is privileged, and thus this report will not be made available to cross-petitioner.

However, as to the documents labeled "intake disposition reports," any information which contains the names of the person(s) or agency or entity which referred the matter to APS{**72 Misc 3d at 478} shall be redacted, including all phone numbers and addresses related to the referring persona and or entity, and then furnished to the cross-petitioner's counsel on or before April 20, 2021. The documents labeled "progress notes" shall also be made available to cross-petitioner as these notes summarize each caseworker's visit with the AIP at the AIP's residence. There are other entries in the progress notes which refer to a caseworker's telephone contact with a referral source. There is no mention of the referral source's name and or identity in any of the entries. Social Services Law § 473-e (2) (c) permits the release of the records to the "court, upon a finding that the information in the record is necessary for the use by a party in a criminal or civil action or the determination of an issue before the court." The court finds that the progress notes contained in the file marked as section 2 for the court's review shall be turned over to cross-petitioner's counsel by April 20, 2021.

The court notes that this disclosure should not delay this proceeding, which is scheduled to continue today, April 15, 2021, at 2:00 p.m., with hearing testimony on the cross-petition, and continue on April 22, 28, and 30. In the event this proceeding has not concluded by April 30, in view of the personal and professional conflicts the attorneys who are involved in this matter have, this proceeding shall be adjourned on May 24, 2021, and continue daily until completion.

The request by the court-appointed attorney for the AIP for a copy of the APS file produced by petitioner is granted (see Social Services Law § 473-e [2] [a]); the court evaluator and temporary guardian may request the file from petitioner if they choose to do so (see Social Services Law § 473-e [2] [f]).

Accordingly, it is hereby ordered that the cross-petitioner's motion pursuant to CPLR 2307 for an order granting the issuance of a subpoena duces tecum is granted only to the extent that the petitioner shall provide to the cross-petitioner and other counsel the documents labeled "intake disposition notes" and "progress notes" as set forth above, as well as the 2021 affidavits by APS caseworkers or supervisors, on or before April 20, 2021, and it is further ordered that petitioner's counsel shall provide a copy of the APS file to the attorneys for the AIP on or before April 20, 2021.