Opinion
INDEX NO. 156114/2019
11-19-2020
MAURA O'NEILL Petitioner, v. NEW YORK CITY POLICE DEPARTMENT, Respondent.
NYSCEF DOC. NO. 128 PRESENT: Hon. EILEEN A. RAKOWER Justice MOTION DATE
MOTION SEQ. NO. 1, 3, 6, 7, 8
MOTION CAL. NO.
Under Motion Sequence 1, Petitioner Maura O'Neill ("Petitioner") brings this action, pursuant to Article 78 of the New York Civil Practice Laws and Rules ("Article 78") for an Order annulling Respondent New York City Police Department's ("NYPD" or "Respondent") final determination denying Petitioner's Freedom of Information Law ("FOIL") Request #: FOIL-2019-056-02789. Petitioner also seeks an Order compelling Respondent to disclose the documents that were requested in Petitioner's FOIL Request. Respondent cross moves to dismiss the action.
Motion Sequence 2 and 5 were withdrawn.
Under Motion Sequence 3, Petitioner seeks an Order to serve and file an Amended Verified Petition pursuant to CPLR § 3025(b). Respondent opposes.
Under Motion Sequence 6 and 7, Petitioner seeks an Order granting sanctions against Respondent for making false statements that serve no purpose than to injure and harass Petitioner, and to strip Petitioner of a fair opportunity to respond. Respondent opposes.
Under Motion Sequence 8, Petitioner seeks an Order recusing the Honorable Eileen A. Rakower, J.S.C., from this action.
Relevant Background
Petitioner contends that from 2004 until 2007 she worked for Deutsche Bank Securities, Inc. ("DB") and during that time she alleges that she was sexually harassed by Christopher M. Wilder ("Wilder"), a credit trader. Petitioner asserts that in 2007 she left DB and started working at Lehman Brother, Inc. ("Lehman"). Petitioner contends that Wilder started stalking her at Lehman. Petitioner contends that Wilder stated to "at least" one of Petitioner's colleagues that he "intended to drug and rape" Petitioner and other women. Petitioner asserts that Wilder was fired from DB "as a result of his stalking and threat to drug and rape [Petitioner], and several other DB executives". (Verified Petition at 3). Petitioner asserts that on January 6, 2017, Wilder drugged Petitioner "for the first time" and broke into her home and raped her. Petitioner asserts that Wilder initially claimed that the events that took place on January 6, 2017 were a one-night stand and that Petitioner was drunk but Wilder changed his story after Petitioner reported Wilder's crimes to Respondent. Petitioner contends that "[a]t no time in my entire life have I ever been in a 'relationship' with Mr. Wilder, or even had a personal conversation with him for that matter." (Verified Petition at 4). Petitioner asserts that Wilder created a Google Voice account in Petitioner's name to impersonate her.
On April 12, 2017, Petitioner contends that she submitted a complaint to the Civilian Complaint Review Board ("CCRB") which "addressed Detective Biondi's misconduct when she attempted to report Mr. Wilder's first rape on January 6, 2017, as well as several other instances of police misconduct." (Verified Petition at 5). Petitioner contends that in April 2017, she was informed the matter was being referred to Internal Affairs Bureau ("IAB") division of Respondent and Respondent would open an investigation into the complaint.
On or about August 17, 2018, Petitioner submitted a FOIL Request ("First FOIL Request") requesting a "follow-up to CCRB complaint (Case No: 2017 02851). "On August 22, 2018, Lieutenant Richard Mantellino ("Lieutenant Mantellino") denied Petitioner's First FOIL Request. Lieutenant Mantellino stated that:
The Freedom of Information Law allows access to existing documents and does not necessitate the creation of a document. I am unable to provide access to these documents on the basis that your request does not reasonable describe a record in a manner that would enable
a search to be conducted by the New York City Police Department.(Verified Petition, Exhibit I).
On September 21, 2018, Petitioner appealed the denial, stating that there was a written record because IAB opened an investigation into the complaint. Furthermore, Petitioner asserted that the First FOIL Request "was for all documents pertaining to the IAB investigation". On October 8, 2018, Sergeant Mazur denied "access to any records (the 'CCRB Appeals Determination Letter')." (Verified Petition at 6). Sergeant Mazur stated:
The appeal is denied, first, pursuant to Public Officers Law (POL) Section 87(2)(a) in that such records consist of Police Officer personnel records and are therefore specifically exempted from disclosure under the provisions of New York state statute Civil Rights Law Section 50-a. The records that you have requested - specifically, for all records related to an IAB investigation - are used to evaluate the performance of a police officer in connection with continued employment or promotion and are therefore barred from disclosure. The appeal is further denied, because, absent a notarized authorization from the victim, the records requested are specifically exempted from disclosure by a separate state or federal statute [POL §87(2)(a)] - Civil Rights Law Section 50-b, which prohibits the disclosure of records that tend to identify the victim of a sex offense. Unfortunately, a signed letter sent via email cannot be relied upon to overcome the protections delineated in §50-b.(Verified Petition, Exhibit III).
On February 6, 2019, Petitioner submitted a Second FOIL Request seeking Respondent's records associated with:
a. The IAB record associated with the CCRB Complaint since the NYPD claimed the CCRB FOIL Request was denied because the requested information resided in an officer's personnel record; and
b. Any information about [Petitioner], including but not limited to, any information about any statements made about [Petitioner] (e.g. [Petitioner] took "psychiatric drugs" and went to therapy") by Beau Dietl & Associates, Margaret Watson, Esq. or any third party; and(Verified Petition at 7-8).
c. Any information or records associated with any of the police reports [Petitioner] filed, including, but not limited to, any email communication, letters, any telephone notes or records of telephone calls, handwritten notes, notes on any files, or any other notes, record, or communication from January 1, 2017 to present; and
d. Any information or records the NYPD has associated with [Petitioner], including, but not limited to, any instructions not to take or file any police reports; and
e. Any and all information the NYPD maintains that discuss, describe or convey any and all rationales the NYPD has for not investigating any crimes [Petitioner has] reported. According to the Atlanta police, the NYPD has determined that the NYPD does not have to investigate any crimes [Petitioner reported]; and
f. Any and all emails, text messages, letters or other forms of communication any third party claims [Petitioner] wrote or sent; and
g. Any and all copies of [Petitioner's] medical records or any medical information about [Petitioner].
On February 18, 2019, Lieutenant Mantellino denied Petitioner's Second FOIL Request. Lieutenant Mantellino stated "I must deny access to these records on the basis of Public Officers Law Section 87(2)(e)(iv), as such information, if disclosed, would reveal non-routine techniques and procedures." On March 16, 2019, Petitioner appealed the denial, stating that "the (1) FOIL Request did not seek details about NYPD's investigative techniques, (2) NYPD's Denial Letter lacked a particularized and specific justification for withholding the requested records, and (3) NYPD was required to redact information." (Verified Petition at 8). On March 18, 2019, Lieutenant Mantellino denied Petitioner's appeal stating:
The appeal is denied because your request is duplicative of your prior FOIL request that was assigned file number
2018-056-07188, in that these records were already requested on August 20, 2018 and denied by the RAO on August 22, 2018. Moreover, [Petitioner's] prior request was subsequently appealed to the undersigned (LB #5 1229-2018) on September 21, 2018 and denied on appeal on October 8, 2018.(Verified Petition, Exhibit VIII).
On July 16, 2019, Petitioner contends that Lieutenant Robert Corbett, Esq. ("Lieutenant Corbett") called and emailed Petitioner stating that Respondent would provide Petitioner with the records requested in the Verified Petition. In August 2019, Petitioner contends that Respondent provided two discs with redacted records.
Petitioner's Motion for Recusal (Motion Sequence 8)
"Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." People v. Moreno, 70 NY2d 403, 405 [1987]. "This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of nonjuridical data." Id. (internal quotes omitted).
Judiciary Law § 14 states in relevant part:
A judge shall not sit in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.
Petitioner's motion seeking an Order recusing the Honorable Eileen A. Rakower, J.S.C., from this action is denied. Petitioner argues that there were communications regarding Motion Sequence 6 and 7 from March 2020 to September 2020. Petitioner asserts that "I have been informed that the decisions for this case have already been made. The only way for decisions to be made and for other parties to know decisions have been made is through illegal ex parte communication." Petitioner's assertions are incorrect. Motion Sequence 6 and 7 were not fully submitted until October 6, 2020 and a Decision has not been made prior to this Decision. There have been no ex parte communications between the Court and Respondent and Corporation Counsel for the City of New York or any legal counsel, agent, representative, or other party beyond scheduling. Petitioner has failed to provide a ground for statutory disqualification
Petitioner's Motion to Amend the Complaint (Motion Sequence 3)
Pursuant to CPLR § 3025(b), "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences at any time by leave of court.... Leave shall be freely given upon such terms as may be just...." "CPLR 3025 allows liberal amendment of pleadings absent demonstrable prejudice" Atlantic Mut. Ins. Co. v. Greater New York Mut. Ins. Co., 271 A.D.2d 278, 280 [1st Dept. 2000]. Notwithstanding the absence of prejudice, leave to amend a pleading must be denied where the proposed amendment is plainly lacking in merit. See Bd. of Managers of Gramercy Park Habitat Condo. v. Zucker, 190 A.D.2d 636 [1st Dept. 1993].
Here, Petitioner is entitled to amend her Verified Complaint. There is nothing in the record indicating that any prejudice will result from amendment nor is the proposed amendment plainly lacking in merit. Accordingly, Petitioner's motion (Motion Sequence 3) to amend her Verified Complaint is granted.
This court will review Petitioner's Article 78 proceeding, Motion Sequence 1, and Respondent's cross-motion to dismiss as it relates to the Amended Verified Complaint.
Petitioner's Article 78 Proceeding (Motion Sequence 1)
Parties' Contentions
Petitioner contends that Respondent should immediately comply with 18 U.S.C.A § 3772(a)(2)(B) and "provide Petitioner with all of the results from her sexual assault collection kits, including DNA profile matches, toxicology reports, and other information collected as part of a medical forensic examinations ('Petitioner's Rape Kits')". (Petitioner's Aff. at 1). Petitioner argues that pursuant to Federal Law, 18 U.S.C.A § 3772(a)(2)(B), Respondent is required to disclose the results from Petitioner's Rape Kits. Petitioner asserts that the results of the rape kits are needed "to stop the on-going stalking, harassment, and rapes from Christopher M. Wilder." (Petitioner's Aff. at 3).
In Support of Motion Sequence 3, Petitioner contends that in August 2019, after filing the Verified Petition, Respondent provided Petitioner with responsive documents with material elements redacted. Petitioner further contends that documents that were provided to Petitioner were incomplete. Petitioner argues that "the proposed amendment[s] are sufficient and meritorious given the proposed amendments are due to events that transpired after the filing of the Verified Petition in June." (Petitioner's Aff. in Support at 3).
In opposition, Respondent submits the Affirmation of Corbett, an attorney in the office of Ernest F. Hart, Deputy Commissioner, Legal Matters, of Respondent. Corbett contends that after he "was assigned to this proceeding, [he] directed a diligent search for all records that would be responsive to Petitioner's FOIL Request." Corbett asserts that on August 9, 2019, he sent Petitioner a disc with 43 electronic records containing four of the five criminal complaints Petitioner reported and the law enforcement investigations. Corbett further asserts that on August 15, 2019, he sent Petitioner a second disc with 11 electronic records containing the fifth criminal complaint Petitioner reported and the law enforcement investigation. Corbett contends that there are "minimal redactions" of names, phone numbers and job titles of witnesses who participated in the investigations pursuant to POL §§ 87(2)(b) and 89(2)(b). Corbett further contends that eight electronic records containing the IAB log worksheets, investigative summary, BCATS worksheet, and disposition form were withheld pursuant to POL § 87(2)(a) and Civil Rights Law § 50-a.
Moreover, Respondent argues that the records are barred from disclosure pursuant to POL § 87(2)(e)(iv) because they were compiled for law enforcement purposes and reveal non-routine criminal investigative techniques. Respondent contends that "[t]he redacted section at issue here describes investigative methods utilized by detectives to investigate, identify, and locate a perpetrator, disclosure of which would permit circumvention of the law." (Respondent's Aff. in Opp. to Amend Caption at 5). Respondent argues that if the information is made public it would enable criminals to identify and prevent criminal investigations. Additionally, Respondent argues that the records are barred from disclosure pursuant to POL § 82(2)(i) because such disclosure would jeopardize Respondent's ability to guarantee the security of information technology assets. Respondent asserts that minor redactions were made to specific hypertext transfer protocol ("http") addresses at the bottom of some records that show where they were stored. Respondent argues that the http addresses allow access to confidential and sensitive police investigations.
Respondent argues that the proceeding is moot because a diligent search was conducted, and the requested records not withheld pursuant to FOIL exemptions were provided to Petitioner with minimal redactions. Moreover, Respondent asserts that the proceeding is time-barred pursuant to CPLR § 217(1). Respondent contends that Petitioner is attempting to challenge the determination made on October 8, 2018. Respondent argues that the October 8, 2018 determination was final and therefore, the four-month statute of limitation began to run. Respondent further argues that Petitioner's Second FOIL Request was duplicative of Petitioner's First FOIL Request and therefore does not extent the statute of limitations.
Respondent asserts that even if the proceeding is not time-barred certain records are exempt from disclosure. Respondent argues that the disciplinary records are barred from disclosure pursuant to POL § 87(2)(a) (records that are precluded by state or federal statute are exempt from disclosure) because Petitioner seeks records of internal investigations into allegation of misconduct by active officers. Respondent asserts that N.Y. Civil Rights Law § 50-a(1) precludes personnel records in the possession of the police agency that are used to evaluate performance toward continued employment and promotion from disclosure. Respondent argues that internal inquires into the alleged misconduct or rules violations by NYPD members were used to evaluate the performance and conduct of the members. Respondent further argues that NYPD members' "jobs were on the line and their continued employment and future promotion within the department depended upon the outcome of the investigations". (Respondent's Aff. at 14). Furthermore, Respondent asserts that Petitioner failed to join necessary parties. Respondent contends that Respondent does not represent the officers or detectives and therefore the officers and detectives must be joined to have the opportunity to be heard.
Legal Standard
An Article 78 proceeding "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner." CPLR § 217[1]; Matter of Yarborough v. Franco, 95 N.Y.2d 342 [2000]. An administrative determination is final and binding when the respondent unequivocally denies petitioner's request. Matter of Mazzilli v. New York City Fire Department, 224 AD2d 621, 622 [2nd Dept.1996]. The four-month statute of limitation is not extended when the Petitioner brings a FOIL Request that is duplicative of a prior FOIL Request. Kelly v. New York City Police Dep't, 730 N.Y.S.2d 84, 85 [1st Dept. 2001].
"All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions, which permit agencies to withhold certain records." Hanig v. State Dep't of Motor Vehicles, 79 N.Y.2d 106, 108 [1992] (citations omitted). "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption (Public Officers Law § 89 [4] [b])." Id. "[T]o invoke one of the exemptions of section 87 (2), the agency must articulate particularized and specific justification for not disclosing requested documents." Gould v. New York City Police Dep't, 89 N.Y.2d 267, 275 [1996]. Moreover, "an agency responding to a demand under [FOIL] may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information." Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals v. Mills, 18 NY3d 42, 45 [2011].
"Public Officers Law § 89(3) places the burden on petitioner to reasonably describe the documents requested so that they can be located." Mitchell v. Slade, 173 A.D.2d 226, 227 [1st Dept. 1991] (citation omitted). "When an agency is unable to locate documents properly requested under FOIL, Public Officers Law § 89(3) requires the agency to 'certify that it does not have possession of [a requested] record or that such record cannot be found after a diligent search.'" Rattley v. New York City Police Dep't, 96 N.Y.2d 873, 875 [2001]. "The statute does not specify the manner in which an agency must certify that documents cannot be located." Id. "Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required." Id.
Agencies may deny a FOIL Request pursuant to POL § 87(2)(a), where records "are specifically exempted from disclosure by state or federal statute". Brown v. New York City Police Dep't, 264 A.D.2d 558, 561 [1st Dept. 1999]. N.Y. Civil Rights Law §50-a(1) states in relevant part:
All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof ... shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, ... except as may be mandated by lawful court order.
Public Officers Law § 87(2)(b) states, in pertinent part, "[e]ach agency shall ... make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article ...". Pursuant to Public Officers Law § 87(2)(a), an agency is exempt from disclosing records that "are specifically exempted from disclosure by state or federal statute." N.Y. Social Services Law § 136(1) protects "[t]he names and addresses of persons applying for or receiving public assistance" from disclosure. Similarly, SSL § 136(2) states that "[a]ll communications and information relating to a person receiving public assistance . . . shall be considered confidential."
Public Officers Law § 89(2) contains a list of situations that would constitute an unwarranted invasion of personal privacy, including "i. disclosure of employment, medical or credit histories or personal references of applications for employment". "[I]t is clear that a record is not considered an 'employment history' merely because it records facts concerning employment ... the term 'employment history' for purposes of FOIL exemptions is not defined in the statute, nor well interpreted by case law". LaRocca v. Bd. of Educ. of Jericho Union Free Sch. Dist., 220 A.D.2d 424, 426-27 [2d Dept 1995]. "However, its companion term 'medical history' has been defined as 'information that one would reasonably expect to be included as a relevant and material part of a proper medical history'". Id. at 427. (citations omitted).
Agencies may deny a FOIL Request pursuant to POL § 87(2)(e), where "access to records that reveal criminal investigative techniques or procedures, except routine techniques and procedures". Fink v. Lefkowitz, 47 N.Y.2d 567, 568 [1979]. "Indicative, but not necessarily dispositive, of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel." Id. at 572
Discussion
Here, the application is time-barred. Petitioner made her First FOIL Request on August 17, 2018. On August 22, 2018, Lieutenant Mantellino denied Petitioner's First FOIL Request and on September 21, 2018, Petitioner appealed Lieutenant Mantellino's denial. On October 8, 2018, Respondent made a final and binding determination denying Petitioner's appeal. Matter of Mazzilli, 224 AD2d at 622. Petitioner had until February 22, 2019 to commence an Article 78 proceeding pursuant to CPLR § 217[1], and failed to do so. Petitioner instead made a duplicative FOIL Request on February 6, 2019, which does not extend the statute of limitations. Kelly, 730 N.Y.S.2d at 85.
Petitioner's Motion for Sanctions (Motion Sequence 6 and 7)
Petitioner brings Motion Sequence 6 and 7, for an Order granting sanctions against Respondent and its counsel Lana Koroleva ("Ms. Koroleva"), Assistant Corporation Counsel, New York City Law Department, for making false statements that serve no purpose than to injure and harass Petitioner, and to strip Petitioner of a fair opportunity to respond.
22 NYCRR § 130-1.1 authorizes the Court, in its discretion, to award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from "frivolous conduct" as defined in this Part. Furthermore, "[i]n addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part." 22 NYCRR § 130-1.1[a]. Conduct is "frivolous" within the meaning of § 130-1.1 if, "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;" if "it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;" or, if "it asserts material factual statements that are false." 22 NYCRR 6 130-1.1[c][1]-[3].
Petitioner fails to show how the conduct by Respondent and Ms. Koroleva "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;" if "it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;" or, if "it asserts material factual statements that are false." 22 NYCRR 6 130-1.1[c][1]-[3]. Respondent and Ms. Koroleva's statements were based on the pleadings and were in support of Respondent's opposition to the Petition. There is no indication that the statements were made in bad faith or were inappropriate. Therefore, Petitioner's motions for sanctions are denied.
Wherefore it is hereby
ORDERED that Motion Sequence 3 is granted and Petitioner is permitted to serve and file an Amended Verified Petition; and it is further
ORDERED that Respondent New York City Police Department's cross-motion (Motion Sequence 1) is granted and the Amended Verified Petition is denied and the Amended Verified Petition shall be dismissed and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that Motion Sequence 6, 7, and 8 are denied.
This constitutes the Decision and Order of the Court. All other relief requested is denied.
Dated: November 19, 2020
ENTER: /s/_________
J.S.C.