Court Grants Protective Order in FDNY EMS Case

The mother of an infant who died while in state custody, has been granted a protective order against FDNY and other medical providers, mandating them to preserve documentation related to the incident. However, the court declined to grant the mother access to the medical information prior to her filing suit.

Diana Barahona brought the action in New York County Supreme Court as a special proceeding seeking pre-action discovery, allowed by New York’s rules of civil procedure. Her son, identified as J.D.B., died in January 2025 while in foster care. The suit names FDNY, NYPD, New York City’s Administration for Children’s Services, and Brookdale Hospital as respondents.

Quoting from the decision:

• Petitioner seeks pre-action discovery pursuant to CPLR §3102[c]… [for] records, documents, video and audio recordings, and 911 tapes relating to “injuries and/or death of the infant J.D.B. on or about January 5, 2025 and January 6, 2025.”
• Regarding pre-action production or disclosure, a party is not generally entitled to discovery and inspection of documents and things until an action has been commenced.
• Pre-action discovery “is not permissible as a fishing expedition to ascertain whether a cause of action exists” and is available … only “where a petitioner demonstrates that [it] has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong”
• In other words, “while pre-action disclosure may be appropriate to preserve evidence or to identify potential defendants, it may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing”.
• Stated differently, while such pre-action discovery may be permissible to frame a complaint, it may not be utilized to determine if a prospective plaintiff has a claim.
• Petitioner references that the infant decedent J.D.B was removed from her care by the Administration for Children’s Services (ACS), and placed with a foster care agency, and that there have been ongoing proceedings in Family Court.
• However, Petitioner does not provide any details or information about the basis for the removal, the allegations against Petitioner by ACS, whether there have been any determinations or orders made by Family Court, what Petitioner’s status or authority is in relation to the infant decedent, or what information or records she has requested or obtained in the Family Court proceeding regarding the death.
• Further, the petition demonstrates that Petitioner knows the date of the death of the infant decedent J.D.B., the address of the foster parent, the agencies and entities involved, and potential causes of action.
• Thus, she was in possession of facts sufficient to file a notice of claim and complaint and any claim that petitioner needs pre-action discovery is belied by petitioner’s own allegations. Petitioner provides no explanation for why she cannot commence an action and learn more information in the course of discovery.
• Thus, Petitioner conclusively demonstrates that they are not entitled to the discovery they seek because the petition contains sufficient information to frame a complaint.
• In any event, as the City notes, certain materials maintained by ACS, the Fire Department EMS, and the New York Police Department are not disclosable at this time pursuant to statute and/or without HIPAA authorization from the estate’s duly appointed representative.
• Petitioner has not claimed she has been granted letters of administration or presented HIPAA authorizations. Thus, the request to inspect the requested materials is premature.

The court then granted the request for a preservation order, but denied Barahona’s request to access the information sought was denied. Here is a copy of the decision.