State of New York
Supreme Court : County of Monroe

- against -

Index No. 2001/3494

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The underlying action here is by a tenant, who alleges that inadequate cleaning of mold in her apartment complex led to health troubles for her and her child. The motions before the court, though, deal primarily with wiretapping alleged to have been done by another tenant, John Marullo, who at relevant times was allegedly an employee of the defendants and who is also alleged to have participated in the inadequate cleanup. The plaintiff moves to amend her complaint to add a cause of action under 18 USC § 2511 et seq., which allows a private right of action for wiretapping; to add Mr. Marullo as a defendant because of this new cause of action; and for a preliminary injunction and/or suppression at discovery of the wiretap evidence.

The plaintiff also wants more time to serve Matco, one of the already-named defendants, with this amended complaint, and wants sanctions for a delay in revealing the existence of the wiretap evidence.

There is a two-year statute of limitations in the Federal law, which runs from the time the complainant first had a reasonable opportunity to discover the wiretapping. Plaintiff argues that this time was the defendant's delivery of the transcript of the conversations in January 2002; only then, her papers claim, could she determine the wiretapping violations.

The defendants reply that the plaintiff was fully apprised of the existence of the wiretapping in December 1998, when John Bansbach, then attorney for the defendants, told Gerald Manioci, then representing the plaintiff, that at least one such tape existed. The defendants reproduce a letter from Mr. Manioci suggesting that the two had agreed to turn over the tape; Mr. Bansbach wrote on the letter, "let's save the tape issue for another day." Further, the defendants argue that the plaintiff's motion for a preliminary injunction instead of a motion under CPLR 4506 is procedurally improper. Defendants also move for sanctions.

The court holds that the violation of the wiretapping law was reasonably known to plaintiff on December 2, 1998, the date of her attorney's letter. Plaintiff's counsel, in reply papers, argues that the 1998 exchange was evidence only of suspicions, and it therefore does not start the running of the limitations period. But not only does this contradict the language of the letter, which speaks clearly of a taped conversation done without apparent permission and by one of defendant's employees; it runs afoul of the language of the statute, which speaks of a "reasonable opportunity" to discover the wiretapping. That opportunity clearly and unequivocally presented itself in 1998. Although at that time the plaintiff might not have been aware of all the circumstances, it was clear that she knew or should have known that her conversations had been recorded without her consent. She, either personally or through counsel, had both a right and a duty to inquire as to the circumstances, and the delay of more than three years is chargeable to her.

Those branches of the motion seeking to amend the complaint and to add a party, and related issues, are therefore denied.

The defendants' argument about the procedure mandated for suppression of the material is correct; the plaintiff should have moved under CPLR 4506 instead of seeking a preliminary injunction. The reply papers contain such a motion, however, and in any event the court would be able to treat this as a motion under CPLR 4506, looking to substance rather than to form. This branch of the motion should be granted.

Defendants claim that more discovery needs to be done to determine the circumstances of the conversations and the wiretapping. However, it has been conclusively established that the tapes are of telephone conversations of the plaintiff that were recorded without her knowledge or consent. This is "mechanical overhearing of a conversation", defined as eavesdropping in Penal Law §§ 250.05 & 250.20, and this alone renders the conversations inadmissible. No further discovery could conceivably alter these facts.

The remaining questions are whether the suppression extends to EBTs and whether sanctions should be imposed. There are no cases on CPLR 4506 suppression at the discovery stage. The court notes that the section was amended to remove language that such evidence was suppressed for any use whatsoever; it now forbids its reception "in evidence in any trial, hearing or proceeding." Because of this amendment, wiretap evidence has been received under certain circumstances for impeachment purposes.

In spite of this amendment, it is unclear what use the defendants could make of this evidence at EBT that would ever be admissible at trial. If they are not in evidence, they cannot be read to the witness in whole or in any part. As the record now stands there is no basis for the use of these transcripts or tapes, and thus the court grants the motion under CPLR 4506 to the extent of forbidding their use in discovery as well as at trial.

Finally, while the delay in receipt of the tapes is unfortunate, a good deal of difficulty in this case has been caused by changes in attorneys. The court finds nothing in the conduct of either party that should be formally sanctioned. Those branches of motion and cross motion seeking sanctions are therefore denied. Mr. Finucane may prepare the order.

DATED: Rochester, New York

April 3, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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