Feger v. Warwick Animal Shelter

Spolzino, J. (concurring in part and dissenting in part).

Like my colleagues in the majority, I salute, on the basis of personal experience, the value and importance of pets in our lives. As I see it, however, this appeal is not, as the majority suggests, about protecting a pet’s adoptive owner from a meddling plaintiff who seeks maliciously to interfere with that relationship. Rather, assuming the allegations in the complaint to be true, the claim here is by a plaintiff who wants to be reunited with her stolen cat.

These circumstances, in my view, present no occasion to recognize new disclosure protections in favor of those who adopt pets at the expense of pet owners who may have lost them. Instead, our role here is to employ the rules normally applicable to disclosure pursuant to CPLR article 31 to facilitate the resolution of the factual issues upon which this dispute will turn. On that basis, I concur that the protective order was properly issued with respect to the plaintiffs demand for the identity of the adoptive owner, named in the complaint as “the Jones Family.” I do not agree, however, that the identity of the individual who initially brought the cat to the shelter, “Jane Roe,” is immaterial or should be protected as a matter of public policy. I therefore dissent in that regard, respectfully.

The overarching principle that governs disclosure in New York civil actions is the requirement of “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]). It is now axiomatic that the words “ ‘material and necessary’ ” 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 one of usefulness and reason” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).

Here, the plaintiff claims that the defendant Warwick Animal Shelter knowingly accepted a stolen cat for adoption, as we *74recognized when we reinstated some of the causes of action in the complaint (see Feger v Warwick Animal Shelter, 29 AD3d 515, 516 [2006]). I agree that in the absence of an argument that the identity of the adoptive owner must be known in order to enforce a judgment, which is not made here, it is difficult to comprehend how the identity of that owner is material and necessary to the prosecution of the plaintiffs claim. The complaint does not allege any wrongdoing on the part of the adoptive owner. To the extent that the identity of the cat remains at issue, the record discloses that the adoptive owner has cooperated with the investigation into the identity of the cat, and that further examination of the animal, if necessary, can be conducted without revealing the identity of the adoptive owner. The plaintiff has, in fact, conceded in her reply papers that, as an alternative remedy, the court could fashion an order that would provide the plaintiff with needed discovery without disclosing the identity of the adoptive owner. I therefore agree that the shelter defendants have demonstrated that the identity of the adoptive owner is not material and necessary to the plaintiffs case and that the order of the Supreme Court should be affirmed insofar as it granted their request for a protective order in that regard (see Beckles v Kingsbrook Jewish Med. Ctr., 36 AD3d 733 [2007]; Smith v Moore, 31 AD3d 628 [2006]).

The circumstances by which the cat came to the shelter are, by contrast, highly relevant to resolution of the dispute. The complaint alleges that “Jane Roe” wrongfully took the cat from New Jersey and illegally transported it to the shelter in New York. The complaint further alleges that the shelter defendants knew or should have known of the wrongful taking because, among other things, Jane Roe was “an employee of an agent, servant or service provider associated or otherwise employed by” the shelter. Since these claims turn on who Jane Roe is and what she did or did not do, the identity of Jane Roe clearly falls within the discoverable class of “facts bearing on the controversy which will assist preparation for trial” (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). In my view, therefore, absent a privilege, the Supreme Court should have denied that branch of the motion which was for a protective order in this regard (see U.S. Ice Cream Corp. v Carvel Corp., 190 AD2d 788, 788-789 [1993]).

Protection against disclosure is the exception, not the rule (see O’Neill v Oakgrove Constr., 71 NY2d 521, 532 [1988, Bellacosa, J., concurring]). Although “discovery determinations are discretionary” and “each request must be evaluated on a case-*75by-case basis with due regard for the strong policy supporting open disclosure” (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 747 [2000]), the party who seeks a protective order bears the burden of showing that a privilege applies or that discovery is otherwise improper (see Koump v Smith, 25 NY2d 287, 294 [1969]; Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 40 [1998]). Here, the shelter defendants have failed, in my view, to carry that burden.

I am not convinced, to begin with, of the factual underpinning of the majority’s argument—that an individual who finds a stray or abandoned animal will be less likely to surrender it at a shelter which can arrange for an adoption simply because his or her identity may become known. Neither do the authorities from other jurisdictions that have been cited by the majority establish such a public policy. In those cases, the plaintiffs sought only to learn the identities of the adoptive owners for the purpose of obtaining the return of their animals (see Lamare v North Country Animal League, 170 Vt 115, 743 A2d 598 [1999]; Johnston v Atlanta Humane Socy., 173 Ga App 416, 326 SE2d 585 [1985]), not the identity of the person surrendering the animal.

Even if the public policy upon which my colleagues in the majority predicate their determination were properly recognized, it would not apply here, where the plaintiff has alleged that Jane Roe unlawfully took her pet. While a pet owner’s interest is subject to the police power of the state where necessary to protect the public from stray animals, the law also protects the owner’s possessory interest in an animal from “loss by conversion in a situation where the police power is not involved” (Johnston v Atlanta Humane Socy., 173 Ga App at 417, 326 SE2d at 587). The “[p]ublic interest encompasses not only the needs of the government, but also the societal interests in redressing private wrongs and arriving at a just result in private litigation” (Cirale v 80 Pine St. Corp., 35 NY2d 113, 118 [1974]). Where, as here, an unlawful taking is alleged, the interest directly implicated is that of the owner in obtaining the return of the missing animal. Since the interest of the public in arranging the adoption of strays is necessarily secondary, a discovery protection intended to benefit that interest at the expense of the pet’s owner is, in my view, inappropriate.

Accordingly, I would allow the plaintiff to discover the identity of Jane Roe and I, therefore, respectfully dissent to the extent *76that the majority affirms the protective order with respect to Jane Roe.

Mastro, J.E, and Balkin, J., concur with Leventhal, J.; Spolzino, J., concurs in part and dissents in part, and votes to modify the order appealed from by denying that branch of the defendants’ motion which was to prevent disclosure of the identify of the donor of the cat, and otherwise affirming the order in a separate opinion.

Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the motion of the defendants Warwick Animal Shelter and Thomas Loughlan which was for a protective order as to the identity of the donor of the cat and substituting therefor a provision granting that branch of the motion only if the donor was not an employee of the defendant Warwick Animal Shelter, an employee of a service provider of Warwick Animal Shelter, or an individual employed by the law firm of Stage, Nathans & Ziobro in Warwick, New York; as so modified, the order is affirmed, without costs or disbursements.