Even If He Threw the Egg, It’s Privileged.

In Castiglione v. James F.Q., the plaintiff brought a civil action against the defendant alleging that, on Halloween, his son threw an egg that hit plaintiff’s daughter in the eye – causing her injuries. Criminal charges were filed and defendant’s son pleaded guilty to assault in the third degree and was adjudicated as a youthful offender.

At defendant’s son’s deposition in the civil case, he denied throwing the egg all together. He also refused to answer any questions regarding the youthful offender proceedings or his statements made to the police. Plaintiff’s attorney made a motion to compel defendant to answer the questions asked at his deposition and demanded an authorization for his complete police and court files.

The Supreme Court denied plaintiff’s motion and the Second Department affirmed. The Court held that pursuant to the penal law, a youthful offender adjudication is not a criminal conviction and the records are sealed. The Court noted that the purpose of the law is to avoid stigmatizing a youth for thoughtless acts. The Court held that the defendant’s son did not waive the privilege because he did not affirmatively place the information or conduct at issue, noting that he did not commence an action or assert counterclaims or cross claims in the civil action. Even the defendant’s son’s denial at his deposition that he threw the egg did not waive his statutory protections.

This case clearly establishes the value of knowing the extent of statutory privileges, but, it also is a lesson that sometimes asserting general cross claims and counter claims might not always be in your client’s best interest.

Special thanks to Anne Mulcahy for her contributions to this post. For more information, please contact Dennis Wade at .