Opinion
13332, 108310/11.
10-28-2014
In re Masao YONAMINE, Petitioner–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents.
Masao Yonamine, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Masao Yonamine, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, FEINMAN, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 28, 2013, which denied petitioner's motion to hold respondents in civil contempt for disobedience of an order, same court and Justice, entered January 20, 2012, which, inter alia, required respondents to certify that they had disclosed all documents responsive to petitioner's Freedom of Information Law (FOIL) request and that a diligent search had been conducted for documents that could not be located, unanimously affirmed, without costs.
Petitioner failed to demonstrate by clear and convincing evidence that respondents disobeyed the January 2012 order, as required for a finding of civil contempt (see McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132 [1994] ; Tener v. Cremer, 89 A.D.3d 75, 78, 931 N.Y.S.2d 552 [1st Dept.2011] ; Judiciary Law § 753 ). Respondent police department complied with the order by submitting an affirmation by its counsel that counsel had reviewed the Detective Squad's folders maintained in the precinct for information relating to the 1986 homicide investigation that culminated in petitioner's conviction that would be responsive to petitioner's FOIL request, and that those folders were the only places where such records might reasonably have been located. Counsel affirmed that no additional documents were located pursuant to her search, except for one additional page of questionable responsiveness, which was produced. This affirmation and the search complied with the January 2012 order, which merely required respondents to comply with FOIL (see Public Officers Law § 89[3] ; Matter of Rattley v. New York City Police Dept., 96 N.Y.2d 873, 730 N.Y.S.2d 768, 756 N.E.2d 56 [2001] ; Matter of Franklin v. Schwartz, 57 A.D.3d 338, 870 N.Y.S.2d 248 [1st Dept.2008], lv. dismissed 12 N.Y.3d 880, 883 N.Y.S.2d 174, 910 N.E.2d 1003 [2009] ).
A hearing was not required because petitioner did not request one and his submission raised no factual dispute warranting a hearing (see Cashman v. Rosenthal, 261 A.D.2d 287, 690 N.Y.S.2d 251 [1st Dept.1999] ). Supreme Court properly considered the contempt petition, rather than transferring the matter to this Court, because petitioner did not seek substantial evidence review of a determination made “as a result of a hearing held, and at which evidence was taken, pursuant to direction by law” (CPLR 7803[4] ; 7804 (g); see e.g. Matter of Storman v. New York City Dept. of Educ., 95 A.D.3d 776, 945 N.Y.S.2d 281 [1st Dept.2012], appeal dismissed 9 N.Y.3d 1023, 951 N.Y.S.2d 718, 976 N.E.2d 247 [2012] ).