Published on:

In order to determine whether OCSE is entitled to a protective order denying the disclosure of cancelled…

In order to determine whether OCSE is entitled to a protective order denying the disclosure of cancelled check records and financial data, the court should consider the same factors that would be considered on a motion for the issuance of a subpoenas duces tecum. As such, the movant must first satisfy the threshold requirement that the disclosure sought is “material and necessary,” whether the request is directed to a party or non-party (see CPLR §3101[a](1); [a][4]). The plaintiff claims the documents are necessary because the defendant denies receipt of the monies, and therefore, copies of the cancelled checks prove actual receipt so that they can proceed with their action to reclaim the alleged overpayment of child support. Generally, disclosure in New York civil actions is guided by the principle of “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR §3101(a)). The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for criminal 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]). The plaintiff’s need for the cancelled checks appears colorable under this standard because whether or not the funds were actually received is germane to the claim the plaintiff is pressing upon this court. Therefore the first prong of the standard set forth under CPLR § 3101(a)(4) appears to be satisfied.

Where a request for discovery from a nonparty is challenged solely on the ground that it exceeds the permissible scope of matters material and necessary in the prosecution or defense of the action, a motion to quash is properly denied if that threshold requirement is satisfied (see Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482, 483, [2d Dept. 2005) or properly

Page 3

granted if the discovery sought is not material and necessary (see Mendelovitz v Cohen, 49 AD3d 612.[2d Dept. 2008]). OCSE contends that the attempt to obtain the checks is beyond the scope of the child support matters.

OCSE also contends that the plaintiff request for cancelled checks should be denied because the information sought is confidential and precluded from release to third parties pursuant to Social Service Law §111- v(1) and 42 USCS §654.

42 USCS § 654 provides, in pertinent part, that:

A State plan for child and spousal support must—(26) have in effect safeguards, applicable to all confidential information handled by the State agency, that are designed to protect the privacy rights of the parties, including—

(A) safeguards against unauthorized use or disclosure of information relating to proceedings or actions to establish paternity, or to establish, modify, or enforce support, or to make or enforce a child custody determination;

New York Social Services Law § 111-v provides, in pertinent part that:

1. The department, in consultation with appropriate agencies including but not limited to the New York state office for the prevention of domestic violence, shall by regulation prescribe and implement safeguards on the confidentiality, integrity, accuracy, access, and the use of all confidential information and other data handled or maintained, including data obtained pursuant to section one hundred eleven-o of this article and including such information and data maintained in the automated child support enforcement system. Such information and data shall be maintained in a confidential manner designed to protect the privacy rights of the parties and shall not be disclosed except for the purpose of, and to the extent necessary to, establish paternity, or establish, modify or enforce an order of support.

Confidential information is any information relating to a specified individual or an individual who can be identified by reference to one or more factors specific to him or her, including but not limited to the individual’s social security number, residential and mailing addresses, employment information, and financial information.(45 CFR § 303.21). The Code of Federal Regulations § 307.13 limits the disclosure of confidential information to entities outside OCSE. SSL §111-v(4) and 18 NYCRR §347.10 (a)(1) and (f) provide for criminal sanctions for disclosure. Accordingly, OCSE asserts that pursuant to NY Social Service law § 111-v(1), disclosure of cancelled checks would provide the plaintiff with access to confidential information such as address and financial data and is thus, impermissible.

Here, the plaintiff’s subpoena sought the production of “copies of the back and front of all checks issued Denise McKinney ranging from January 13, 2009 through May 12, 2009” and all records “setting forth all monies garnished from plaintiff’s employer for the period from January 13, 2009 through December 22, 2009. The financial information being sought by the plaintiff may contain the address of the parties and financial information that is protected information described in the statute. Although the information being sought by the subpoena is “material and necessary” to the claim to prove overpayment of child support and within the scope of matters reasonable related to proving such a claim, this type of information is expressly protected by the New York statute and should not be released by OCSE.

Contact Information