The following e-filed documents, listed by NYSCEF document number (Motion 012) 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209 were read on this motion for DISCOVERYDECISION AND ORDER Upon the foregoing documents, it is ordered that this motion is granted.This is an action to recover upon a claim of gender-motivated violence. Plaintiff alleges that she met defendant at a film premiere while working as a publicist for her then-employer. At some time during the event, plaintiff alleges, that defendant offered her a ride home, and, during such ride, he insisted she go to his apartment. It is there, at defendant’s apartment, plaintiff alleges, that defendant raped and sexually assaulted her.Plaintiff now moves for an order, pursuant to CPLR 3101 and 3124, to compel defendant to produce a sample of his DNA. In opposition, defendant argues that his DNA will not prove what plaintiff seeks to establish. Defendant also cross-moves for a protective order barring plaintiff from seeking a sample of defendant’s DNA.In considering a motion to compel DNA, the court must determine (1) whether, under the circumstances, authority exists for ordering the requested DNA sample, (2) whether the competing interests weigh in favor of permitting the test, and (3) whether the party seeking to compel the test has established a prima facie showing of the reasonable possibility of a match (see Hargrave v. Brown, 783 So. 2d 497; see also McGrath v. Nassau Healthcare Corp., 209 F.R.D. 55 [citing Hargrave]).This application falls under the general disclosure provision of CPLR 3101 (a), which requires full disclosure of all matter material and necessary in the prosecution or defense of an action. To the extent a sample of defendant’s DNA, when compared with the semen and sperm allegedly recovered from plaintiff’s undergarments, may tend to rebut defendant’s stated denial that he engaged in any sexual conduct with plaintiff, such DNA sample would appear to be material and necessary to the prosecution of plaintiff’s case. Thus, CPLR 3101 (a) provides a mechanism for compelling the provision of such DNA sample.In determining whether competing interests weigh in favor of permitting the test, defendant’s privacy rights must be weighed against the state’s interest in providing a reasonable means or forum for its citizens to resolve disputes and in regulating litigation in the courts. Under the circumstances presented, the state’s interest outweighs defendant’s privacy rights. Notably, the method by which the sample would be taken as requested by plaintiff — a cheek swab — is a minimal intrusion on defendant’s privacy rights. Moreover, as observed above, the DNA sample sought herein is certainly relevant to this action, in that it could rebut a key allegation in defendant’s answer, and, in so doing, make it appear that plaintiff’s allegations are more probably true than not.Finally, whether DNA will be recovered from plaintiff’s undergarments (specifically tights) is not speculative. Plaintiff has presented expert proof that semen and sperm were recovered from tights belonging to plaintiff that she allegedly wore on the night of the complained of incident. The testing results purportedly also show that semen and sperm were recovered in such a quantity and of such quality to allow for accurate DNA analysis to be recovered from the sample. Moreover, In testing the tights, the lab purportedly found that the DNA sample recovered matched that of someone who had had a vasectomy, and, in her complaint, she alleges that, on the night of the incident, defendant stated to her that he had had a vasectomy. Thus, plaintiff has made a prima facie showing of the reasonable possibility of a match.Accordingly, it isORDERED that plaintiff’s motion to compel defendant to provide a sample of his DNA is granted; and it is furtherORDERED that, within 60 days of the date of this order, defendant’s counsel shall present defendant for DNA sample testing by means of oral/cheek swab application on a mutually agreeable date and time at a mutually agreeable location in New York City, Westchester County, or Nassau County; and it is furtherORDERED that defendant’s cross-motion for a protective order is denied; and it is furtherORDERED that counsel are directed to appear for a compliance conference in Part 43, located at 60 Centre Street, Room 412, on August 15, 2019 at 11:00 a.m.This constitutes the decision and order of the court.Dated July 9, 2019
