State of New York Supreme Court, Appellate Division Third Judicial Department
December 6, 2012
IN THE MATTER OF EDDIE GOMEZ, APPELLANT,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
Appeals (1) from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered November 21, 2011 in Chemung County, which, among other things, in a proceeding pursuant to CPLR article 78, denied petitioner leave to serve a supplemental petition, and (2) from a judgment of said court, entered December 21, 2011, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review, among other things, a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
MEMORANDUM AND ORDER
Calendar Date: October 29, 2012
Before: Peters, P.J., Rose, Lahtinen, Malone Jr. and McCarthy, JJ.
After a sharp, folded piece of metal was found during a search of petitioner's cell, he was charged in a misbehavior report with violating the prison disciplinary rule prohibiting the possession of a weapon. He was found guilty as charged following a tier III disciplinary hearing, and that determination was affirmed upon administrative appeal. Petitioner also filed numerous requests pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) that were denied in part. He thereafter commenced this CPLR article 78 proceeding to challenge both the determination of guilt and the denial of his FOIL requests. After issue was joined, petitioner attempted to append additional documents to his petition via a supplement, and Supreme Court refused to consider the documents. Supreme Court thereafter granted the petition to the limited extent of directing respondent to certify that a diligent search for various requested documents had been conducted and that they were unavailable. Petitioner now appeals.*fn1
Contrary to petitioner's assertion, leave of court is indeed required to supplement a pleading absent the stipulation of all parties (see CPLR 3025 [b]; 7804 [d]; Altman v Broadway Realty Co., 101 AD2d 83, 86 ; Patrick Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:9). Petitioner did not obtain that leave and, given his failure to explain why he did not include the documents as part of his initial petition, we find no abuse of discretion in Supreme Court refusing to consider them (see Nelson v State of New York, 67 AD3d 1142, 1143 ; Industrial Natl. Mtge. Co. v Shreve, Lamb & Harmon Assoc., 70 AD2d 774 ).
Turning to petitioner's arguments regarding the disciplinary determination, while an inmate is ordinarily entitled to observe a search of his or her cell, the Hearing Officer credited the testimony of a correction sergeant that petitioner's presence presented a potential threat to the safety and security of the facility given his agitated demeanor (see Matter of Cody v Fischer, 84 AD3d 1651, 1651 ; Matter of McKethan v Selsky, 297 AD2d 840, 840-841 ).
Petitioner's additional contentions that he was deprived of the right to call or question witnesses are without merit.
While we further agree with Supreme Court that respondent properly redacted an unusual incident report to remove intra-agency "communications exchanged for discussion purposes not constituting final policy decisions" (Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 ; see Public Officers Law § 87  [g]), remittal is nevertheless required to deal with other aspects of petitioner's FOIL requests. Respondent concedes that further proceedings are necessary so that Supreme Court may determine if a diligent search for certain requested documents has occurred. Upon remittal, Supreme Court must also obtain and conduct an in camera review of several documents -- namely, a Family Reunion Program application and a memorandum prepared by a correction sergeant who investigated a claim filed by petitioner -- to determine if part or all of those documents were exempt from disclosure pursuant to Public Officers Law § 87 (2) (g) (see Matter of Fink v Lefkowitz, 47 NY2d 567, 571 ; Matter of Grune v New York State Dept. of Correctional Servs., 166 AD2d 834, 835-836 ).
To the extent that petitioner seeks counsel fees, we note that this relief was not previously requested and, therefore, is not properly before this Court.
Peters, P.J., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur.
ORDERED that the appeal from the order is dismissed, without costs.
ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as found that certain documents or parts thereof were exempt from disclosure pursuant to Public Officers Law § 87 (2) (g); matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Robert D. Mayberger Clerk of the Court