Borukhova v City of New York

[*1] Borukhova v City of New York 2017 NY Slip Op 51676(U) Decided on December 5, 2017 Supreme Court, New York County St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 5, 2017
Supreme Court, New York County

Mazaltov Borukhova, Petitioner,

against

The City of New York; Office of the Chief Medical Examiner Leslie K. Kaelhar, Records Access Officer, Maureen Paulino, Records Access Officer, Respondents.



101901/2016



Attorneys for Petitioner: Andrew Citron, Esq., 30 Wall Street, New York, New York 10005 (Petitioner initially appeared pro se)

Attorneys for Respondent: Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room 2-301, New York, New York, 10007, by Christopher Ferreira, Assistant Corporation Counsel
Carmen Victoria St. George, J.

Petitioner Mazaltov Borukhova (petitioner) brings this Article 78 proceeding challenging respondent the City of New York Office of the Chief Medical Examiner's (OCME) denial of her Freedom of Information (FOIL) request, whose decision denied her the right to access records relating to OCME's examination of her husband's death. Petitioner, a Queens doctor, was convicted in 2009 of hiring a relative to fatally shoot her husband outside of a playground in front of their 4-year-old daughter, admits a bitter custody battle. Post-conviction, she seeks various records pertaining to her husband and his death. In lieu of an answer, respondents cross-move for an order dismissing the petition on several grounds. For the reasons stated below, the petition is denied.

Factual Background

/i>

Petitioner is presently an inmate of Bedford Hills Correctional Facility, in Bedford, New York. She petitions this Court after an unsuccessful attempt to obtain records relating to the death of her husband via a FOIL request to the OCME, dated March 31, 2016. Petitioner [*2]specifically requested a number documents including but not limited to blood sample results, ballistic testing, hair and fiber analysis or comparison, urinalysis results, saliva testing results, DNA testing, and a full toxicology. By letter dated April 13, 2016, the OCME Records Access Officer Maureen Paulino denied petitioner's request pursuant to New York City Charter § 557(g) which prohibits public inspection of records where there is any indication of criminality without the consent of the appropriate district attorney's office. As petitioner was seeking records in connection with a case designated a homicide by the medical examiner, the OCME needed the approval of the Queens District Attorney's Office, which declined to release the requested records.

On May 31, 2016, petitioner appealed the denial of her FOIL request presumably relying on County Law § 677, on the grounds that she is exempt from the provision requiring prosecutorial approval because the records she is seeking are those of her husband's. She also maintained that the District Attorney's denial of all records was conclusory as it was devoid of proper citation or applicable law. Petitioner's FOIL appeal was thereafter denied on June 24, 2016, citing Law § 87(2)(a) and New York City Charter § 557(g). Records Appeals Officer and named respondent, Leslie Kaelhar explained that the records petitioner requested fall under the Public Officer's Law § 87(2)(a) which provides that an agency may deny access to records that are specifically exempted from disclosure by State or Federal statute. Records relating to the investigation of a homicide are specifically exempt from public disclosure, including family members, under New York City Charter § 557(g). As a result of this denial, petitioner commenced this Article 78 proceeding.

Relevant Statutes

Public Officer's Law § 87 (2)(a), provides in relevant part:

"Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions there of that [a] are specifically exempted from disclosure by state or federal statute."

Public Officer's Law § 87 (2)(a).

New York City Charter § 557(g) provides:

"The chief medical examiner shall keep full and complete records in such form as may be provided by law. He shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection."

NY City Charter § 557(g).

County Law § 677, states, in relevant part:

"[Coroner or medical examiner reports of any autopsy or other examination] shall be open to inspection by the district attorney of the county. Upon application of the personal representative, spouse or next of kin of the deceased to the coroner or medical examiner, a copy of the autopsy report, as described in subdivision two of this section shall be furnished to such applicant. Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or upon application of any person having a substantial interest therein, an order may be made by a court of record, or by a justice of the [*3]supreme court, that the record of that investigation be made available for [her] inspection or that a transcript be furnished to [her], or both."

NY County Law §677 (3)(b).

Petitioner's Claim

Petitioner seeks a reversal of the OCME determination. First, she asserts that she is entitled to the records under County Law § 677 which allows access to medical examiners' records upon a showing of good cause, including a person having a substantial interest, next of kin, or a person who may be affected in a civil or criminal action by the contents of the record (County Law § 677). Petitioner claims she satisfies all three of these prongs because she is seeking records relating to her husband's death and intends to include such records in her post-conviction appeal. Second, petitioner contends that New York City Charter § 557(g) is unconstitutional and violates equal protection. She maintains that because New York City Charter § 557(g) creates jurisdictional differences between the counties of the City of New York and the counties outside New York City concerning disclosure of medical examiners' records, the provision violates her constitutional right to equal protection by limiting her access to records that would otherwise be afforded to her if she were in another county. Further, petitioner asserts that New York City Charter § 557(g) is inconsistent with the legislative intent behind The Home Rule Amendment to the New York State Constitution [FN1] , which is principled in the adoption of the local government provided it does not violate the following constitutional provisions: protection, order, conduct, safety, health and well-being of persons or property. She maintains that New York City Charter § 557(g) violates all of the above-mentioned constitutional provisions. Lastly, petitioner argues that the current practice precluding her from obtaining OCME records is arbitrary and capricious.

Respondents' Position

In opposition, respondents argue that the OCME's denial of petitioner's FOIL request was neither arbitrary or capricious, but rather proper as it had the legal authority to do so pursuant to Public Officer's Law § 87(2)(a) and New York City Charter § 557(g). Public Officer's Law § 87(2)(a) exempts "records or portions thereof that are specifically exempted from disclosure by state or federal statute." The New York City Charter mandates that the OCME "promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection" (New York City Charter § 557[g]). Further, respondents maintain that County Law § 677 does not apply in this jurisdiction citing Matter of Mitchell v Borakove, 225 AD2d 435 (1st Dept 1996). Respondents state that, contrary to petitioner's interpretation, the Home Rule constitutes an affirmative grant of power to local [*4]governments to manage their own affairs, and that this express grant of power gives New York City Charter § 557(g) the full force and effect of state law.

Importantly, respondents point out that courts in this jurisdiction have previously rejected constitutional challenges to New York City Charter § 557(g) that argue the provision imposes greater restrictions on the disclosure of records of medical examiners in New York City than in other parts of the state (Matter of Johnson v Kelly, 116 AD3d 605, 606 [1st Dept 2014]; See also Matter of Lovacco v Hirsch, 250 AD2d 416 [1st Dept 1998], citing Matter of Mitchell, 225 AD2d at 435; Gardner v Michigan, 199 US 325 [1905]).

Discussion

In an Article 78 proceeding, the court reviews agency decisions to determine whether an action violates lawful procedures, is arbitrary or capricious, or is affected by an error of law (Pell v Bd. of Educ., 34 NY2d 222, 231 [1974]). The agency withholding disclosure bears the burden of proving the exception applies (Mulgrew v Bd. of Educ., 87 AD3d 506, 507 [1st Dept 2011]). Where an issue is limited to "pure statutory interpretation," a court is not required to defer to an administrative agency but rather should consider the plain language of the statute (Dunne v Kelly, 95 AD3d 563, 564 [1st Dept 2012]); see also County of Westchester v Bd. of Trustees, 9 NY3d 833, 835-836 [2007] [administrative agency's regulations must not conflict with state statute or that statute's underlying purposes]).

Under the Freedom of Information Law, records which must otherwise be made available to applicants need not be if they are specifically exempted from disclosure by state or federal statute (Public Officers Law 87 § (2)[a]). Generally, under FOIL, "government records are 'presumptively open,' statutory exemptions are 'narrowly construed,' and the City must articulate a 'particularized and specific justification' for non-disclosure" (New York Civ. Liberties Union v Schenectady, 2 NY3d 657, 661 [2004]). The agency seeking to prevent disclosure has the burden to establish the applicability of an exemption (See Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]). Withholding disclosure requires that "the material requested falls squarely within the ambit of one of these statutory exemptions" (Matter of Gould, 89 NY2d at 275).

Here such exemption exists with regard to the records sought by petitioner, under New York City Charter § 557(g). New York City Charter § 557(g) provides:

"The chief medical examiner shall keep full and complete records in such form as may be provided by law. He shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection."

NY City Charter § 557(g).

It is well established that the City Charter has the same force and effect of a state statute (Matter of Mitchell, 225 AD2d at 440 ["duly adopted rules and regulations under the City Charter have the force and effect, and are as binding, as an enactment of the Legislature"].

Petitioner seeks disclosure of records in connection with her husband's death which has been deemed a homicide by the OCME. In accordance with New York City Charter § 557(g), the OCME is prevented from releasing records concerning homicide cases without the approval of the district attorney's office of the county of death. The Queens County District Attorney denied approval for the release of the requested records thereby necessitating the OCME's decision to [*5]reject petitioner's FOIL request.

In the present case, however, petitioner argues that she is entitled to records relating to her husband's murder investigation under County Law § 677. County Law § 677, states, in relevant part:

[Coroner or medical examiner reports of any autopsy or other examination] shall be open to inspection by the district attorney of the county. Upon application of the personal representative, spouse or next of kin of the deceased to the coroner or medical examiner, a copy of the autopsy report, as described in subdivision two of this section shall be furnished to such applicant. Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or upon application of any person having a substantial interest therein, an order may be made by a court of record, or by a justice of the supreme court, that the record of that investigation be made available for [her] inspection or that a transcript be furnished to [her], or both.

NY County Law §677 (3)(b).

Neither caselaw nor statute supports petitioner's contention. The First Department has previously held that County Law § 677 did not apply in New York City when it reversed a New York County Supreme Court order involving facts similar to those in this case (Matter of Mitchell, 225 AD2d at 435). In Matter of Mitchell v. Borakove, the appellate court reversed the lower court's order pursuant to CPLR Article 78 directing the OCME to provide petitioner with records he requested under FOIL pertaining to the autopsy of the murder victim whom petitioner was convicted of murdering. The lower court granted the petition based on the standard set forth in County Law § 677(3)(b) and the Court of Appeals decision Diaz v. Lukash, 82 NY2d 211 (1993) [holding that petitioner had established the requisite substantial interest in the Chief Medical Examiner's records to entitle him to the release of those records, based on article 17-A of the County Law, specifically § 677(3)(b)] (Matter of Mitchell, 225 AD2d at 438). The appellate court dismissed the petition finding that the court's reliance on Diaz v. Lukash was improper "since the petitioner in that case was proceeding under § 677 (3)(b) of the County Law, which under County Law § 2, has no application to New York City, whose counties are wholly contained within a city" (id., citing Matter of Scott v. Chief Medical Examiner of the City of New York, 179 AD2d 443 [1st Dept 1992]). The appellate court ultimately concluded that County Law § 677 did not apply and New York City Charter § 557(g) was the appropriate exemption which meant that petitioner was not entitled to the autopsy records as they were indicative of criminality (id. at 435).

The concurring opinion in Matter of Mitchell provides additional support on why County Law § 677 was not the operative law in Mitchell and why it does not apply here. County Law § 670 provides that the provisions of article 17-A shall not be applicable if they are in conflict with a county charter or charter law adopted pursuant to the municipal home rule law (id. at 438). County Law § 677 falls within the provisions of article 17-A and directly conflicts with the statutory language of New York City Charter § 557(g). Under the City Charter, access to OCME records involving a death which is indicative of criminality are exempt from public inspection even to someone involved in a criminal action that may be affected by the contents of the records and thus, has a substantial interest in them (id.). Moreover, "County Law § 2(a) clearly and expressly provides that New York County, where the records in question herein were allegedly [*6]generated and are allegedly stored, is wholly contained within a City and therefore, beyond the jurisdiction of the County Law, rendering it inapplicable to the matter at bar" (id.; see also Matter of Scott, 179 AD2d at 444). The same statutory framework applies in this case. The operative law in this case is City Charter § 557(g) as this is a New York County case. As such, petitioner's reliance on County Law § 677 is misplaced and New York City Charter § 557(g) is the applicable exemption to petitioner's FOIL request.

Additionally, New York City Charter § 557(g) has also been previously challenged, as petitioner attempts to argue herein, on equal protection grounds. Notably, the First Department has consistently upheld the Charter provision (Matter of Mitchell, 225 AD2d at 435; Matter of Lovacco v Hirsch, 259 AD2d 416 [1st Dept 1998] [holding petitioner's equal protection argument based on the jurisdictional differences in the regulation of OCME records to be without merit]; Matter of Johnson v Kelly, 116 AD3d 605 [1st Dept 2014]. In Matter of Johnson v Kelly, the petitioner challenged the constitutionality of New York City Charter § 557(g) "on the ground that it restricts the disclosure of public records to a greater extent than in other parts of New York State," — virtually the same argument that petitioner is raising here (Matter of Johnson, 116 AD3d at 606). The First Department rejected petitioner's constitutional challenge finding that the distinctions in the City Charter and the law of non-New York City counties regarding access to OCME records, though significant, does not violate equal protection (see Matter of Lovacco, 250 AD2d at 416, citing Gardner v Michigan, 199 US 325, 334 [1905] [holding that equal protection is not violated by any difference in the law between counties within a state if all persons under like circumstances within the territorial limits of their respective jurisdictions are treated equally]. Consequently, this Court finds that petitioner's right to equal protection has not been violated because the governing law in New York City provides a lesser right to access to OCME records than the law applicable in non-New York City counties, because New York City Charter § 557(g) and County Law § 677 apply equally to all individuals within each respective jurisdiction. In the same vein, the OCME's decision to deny petitioner's FOIL request was not arbitrary or capricious as the outcome would be the same for any person seeking records relating to a death with some indicia of criminality within the counties comprising the City of New York.

To the extent that petitioner argues that New York City Charter § 557(g) is inconsistent with the legislative intent behind the Home Rule Amendment to the New York State Constitution, this Court considers petitioner's argument and finds it unavailing. The court in Matter of Mitchell, supra, addressed this position and refuted petitioner's contention in its detailed discussion of the principles behind the Home Rule and the Legislature's intent behind County Law § 677 and New York City Charter § 557(g) (Matter of Mitchell, 225 AD2d at 439-441). The First Department therein made clear that the legislative body intended to defer to the City Charter the regulation of records within its jurisdictional bounds:

The Legislature's intent to preempt local legislation may be inferred from the nature of the subject matter being regulated and the purpose and scope of the State's legislative scheme (Vatore v. Commissioner of Consumer Affairs of the City of New York, 83 NY2d 645 [1994]). The enactment of County Law 2 and 670, which exempt the application of County Law 677, in permitting inspection of autopsy records by any person having a substantial interest therein, to the City of New York, is a clear indication that the Legislature intended to give the City government the autonomy to regulate the release of autopsy records as it sees fit

(id. at 440).

The Court in Mitchell further emphasized that "to endorse the petitioner's position would result in all of the New York City Chief Medical Examiner's files being open to any and all requests under FOIL with no safeguards whatsoever" (Matter of Mitchell, 225 AD2d at 440-441). This Court similarly rejects petitioner's position permitting access to the records in these circumstances, as it would open the floodgates to the OCME files, and therefore adversely impact and negatively reflect on the efficient, expeditious, safe and fair dispersion of justice.

In view of the foregoing, the petitioner has not shown that the OCME acted arbitrarily and capriciously in denying her FOIL request as it was legally obligated to do so under New York City Charter § 557(g). Accordingly, it is

ORDERED that respondents' cross-motion to dismiss is granted; and it is further

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed in its entirety; and it is further

ORDERED that counsel for respondents must serve a copy of this order with notice of entry on County Clerk's office, which is directed to dismiss the petition.

This constitutes the decision and order of the court.

Dated: December 5, 2017

ENTER:

_______________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1:The present home rule provision in the Constitution provides, in pertinent part: "[E]very local government shall have the power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government (10) [t]the government, protection, order, conduct, safety, health and well-being of persons or property therein." NY Const., Art IX, 2, [c][ii][10].