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In re Application of Loevy & Loevy

Supreme Court, New York County

October 10, 2013

In the Matter of the Application of Loevy & Loevy, Petitioner,
New York City Police Department, Respondent. For a Judgment under Article 78 of the Civil Practice Law and Rules,

Unpublished Opinion

Doris Ling-Cohan, J.

Respondent moves for reargument or renewal of this court's order and decision, dated January 9, 2013 (Order) (Matter of Loevy & Loevy v New York City Police Department, 38 Misc.3d 950 [Sup Ct, NY County 2013]), denying respondent's cross-motion to dismiss the petition.


This proceeding is brought, pursuant to CPLR Article 78, to compel respondent New York City Police Department to provide petitioner Loevy & Loevy with certain documents, pursuant to a request brought under New York Public Officers Law (POL) § 84 et seq., commonly known as the Freedom of Information Law (FOIL). In this proceeding, petitioner seeks to obtain the file pertaining to the police investigation of a rape and murder which occurred in 1987, in Long Island City, New York. Petitioner first requested the file on April 12, 2011. The FOIL request was denied, and petitioner filed an administrative appeal.

Respondent denied petitioner's appeal on January 20, 2012. The instant proceeding was commenced by a petition dated January 17, 2012 (three days before the appeal was actually decided), and was filed on January 25, 2012. Respondent opposed the petition, because it claims that the requested file was exempt from disclosure, and that the proceeding was allegedly moot, as it was brought before the appeal was decided. Respondent cross-moved to dismiss the petition.

The court notes that respondent has provided an inaccurate procedural history of this proceeding in its moving papers. Such papers were affirmed: "[U]pon information and belief, based upon information contained in the records of this matter maintained by the NYPD and upon information provided by employees of the NYPD, which... [is believed] to be true and accurate, and upon my personal knowledge of my own actions taken in connection with this matter." Affirmation of support of OSC, ¶ 6, by Yvette Cheng, Esq. It is apparent from the submissions that such affirmant had no personal knowledge of what transpired during the several conferences which the court had with counsel, as she was not, in fact, present, and thus the court will recite what took place, which affirmant was not a party to. After several conferences with this court on the motion and cross-motion, petitioner was permitted, on consent, to correct the procedural defect in the timing of the petition by serving and submitting a verified amended petition (Amended Petition) with the Part directly (instead of Motion Support, as the proceeding was before the Part, not in Motion Support). In fact, both sides agreed to a schedule for the Amended Petition and the respondent's responsive papers were to be submitted to the court as follows: Amended Petition to be served and submitted directly to this Part in the courtroom on July 3, 2012; with responsive papers by respondent due on July 10, 2012, submitted to this Part. The court then adjourned the proceeding to July 10, 2012 for receipt of the papers in the Part. The court's computer reflects that such proceeding/petition was adjourned to July 10, 2012 in Part 36, and that the petition was marked submitted on that day. Thus, when this Part only received the Amended Petition by July 10, 2012, the petition was submitted on default of respondent. However, the court considered the previously submitted affidavit from Detective Daniel Autera (Detective Autera), which had been submitted as part of the initial cross-motion, and the initial cross-motion.

Therefore, in its Order, this court determined that the matter was not moot, and that the issue of the production of the records could be addressed.

In the Order, this court determined that respondent had failed to establish that the documents were exempt from disclosure under POL § 87 (2) (e) (i), which would have required respondent to "articulate a factual basis for the exemption, " as set forth in Matter of Lesher v Hynes (19 N.Y.3d 57, 67 [2012]) (Lesher). Respondent had produced a mere five-paragraph affidavit from Detective Autera, in which he stated, conclusorily, that "[t]he homicide is the subject of an open and active law enforcement investigation" (Matter of Loevy & Loevy v New York City Police Department, 38 Misc.3d 950, 954 [Sup Ct, NY County 2013]), and that "NYPD continues to actively monitor this case, periodically review the detective folder, and search for new evidence and new leads in order to solve this homicide." Id. This court held that the affidavit enunciated only a "blanket exception" to the requested records (id.), and failed to "provide any information on the generic types of documents, or categories of documents" which were exempt, as required by Lesher. Id.

In the initial cross-motion (Affirmation, ¶ 22), the respondent requested in the Affirmation that the Court seal the record in this matter in order to prevent future public disclosure of the victim, pursuant to New York Civil Rights Law (CRL) § 50-b, as the verified petition included the purported name of the victim. Given that sealing of court records is governed by 22 NYCRR § 216.1(a), the Order addressed such issue nonetheless by stating that it would, at that juncture, be improvident to seal the requested records pursuant to CRL § 50-b, since respondent failed to show the required "good cause" to warrant sealing a record, and that respondents failed to explain why the victim's name could not be protected by redaction. Id. at 955.

Curiously, the respondent in its motion to reargue interprets this part of the Order as a decision to "foreclose the Respondent from arguing, in its verified answer, ...its right to make a particularized showing that CRL § 50-b bars disclosure of the requested records." Cheng Affirmation ¶¶ 19-20. This is not the case, as this court's Order applied to respondent's request as to the "sealing" of this court file. Having cleared up the "confusion", the court moves on to the substantive basis of respondent's current motion to reargue.

Motion to Reargue

Here, reargument is sought by respondent, based on (1) this court's alleged misapprehension of the burden an agency faces to provide evidence of an exemption to a FOIL request, and its interpretation of CRL § 50-b; and (2) on the alleged procedural issues associated with approval of the filing of the Amended Petition with the Part directly, without such Petition being "filed" with the Clerk, and the alleged inability of respondent to file its cross-motion to dismiss the Amended Petition, discussed below. However, this court has not misapprehended the law or the facts. The Order was clear that, based on the prior submissions, respondent failed to "identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents." Lesher, 19 ...

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