Matter of Lynch v City of Troy
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Matter of Lynch v City of Troy 2011 NY Slip Op 34299(U) September 7, 2011 Supreme Court, Rensselaer County Docket Number: 234897 Judge: Michael C. Lynch Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* CASE#: 1] 2010-234897 09/26/2011 DECISION & ORDER STATE OF NEW YORK SUPREME COURT Image: 1 of 6 COUNTY OF RENSSELAER In the Matter of the Application of GRACE LYNCH, Received t.:ount!:t Clerks Off 1i:e Petitioner, Seo 26r2011 !0•18A Rensselaer Count~ Frank J Merola For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules -againstTHE CITY OF TROY, Repondent. (Supreme Court, Rensselaer County Index No. 234897 RJ! No. 41-1265~2010) (Justice Michael C. Lynch, Presiding) APPEARANCES: CARUSO, POPE, SMITH, EDELL, PICINI, PC Attorneys for Petitioner (Timothy R. Smith, Esq., of Counsel) 60 Route 46 East Fairfield, New Jersey 07004 CITY OF TROY OFFICE OF THE CORPORATION COUNSEL Attorneys for Respondent (Jaime B. Thomas, Esq., of Counsel) City Hall 1776 Sixth Avenue Troy, New York 12180 LYNCH,J.: By Decision and Order (Lynch, J.) dated June 21, 2011, the Court directed Respondent to submit the records pertaining to the December 16, 2008 death of '! [* 2] CASE#: 2010-234897 09/26/2011 DECISION & ORDER Image: 2 of 6 John Frances Curry to the Court for an in camera review. The records were delivered to the Supreme Court Clerk's Office under cover ofletter dated July 22, 2011 from respondent's counsel. The Court acknowledges that petitioner's counsel, by letter dated April 7, 2011, has offered to be bound by a confidentiality agreement governing the requested release of the records, and consents to any necessary redactions to prevent disclosure of any confidential source. Having sow reviewed the file, the Court finds that a release of the file to petitioner would not interfere with or compromise respondent's "open" investigation, especially given the confidentiality provisions noted above. Notably,'·petitioner has received a copy of the medical examiner's February 13, 2009 "Final Autopsy Report" describing the "manner of death"' as a "homicide". lrl so finding, the medical examiner observed that there was "no evidence of po\\rder tattooing or charring" on the decedent's jacket;· and further "no evidence of contact or close range discharge". Respondent's file documents an active investigation into July, 2009. During July 2009, respondent received the results of a lab analysis concerning gun shot residue (GSR). Information was also provided through the NYS Police concerning the proximity of the fatal gunshot. Thereafter, the file does not document any further activity, with the exception of a few supplemental lab 2 [* 3] CASE#: 2010-234897 09/26/2011 DECISION & ORDER Image: 3 of 6 reports received in late 2010, based on items obtained in December, 2008. Given the above, respondent has failed to demonstrate with any particularity how the release of this file would interfere with their investigation. While the investigation may be considered "open", the file does not reveal an active, continuing investigation after July, 2009 (see Matter of Feerick v. Safu, 297 AD2d 212; Brown v. 'Town of Amherst, 195 AD2d 979). Accordingly, the petition is granted and respondent is directed to provide the requested records to petitioner within twenty (20) days, subject to an appropriate confidentiality agreement and the redaction of any confidential sources. Given th~ above, the Court further finds that respondent did not demonstrate a reasonable ba'sis for the blanket denial of petitioner's request and that petitioner is entitled to an award of counsel fees (Public Officers Law §89[4]; In the Matter ofNew York Civil Liberties Union v. City of Saratoga Springs. et al.,_ AD3d _ [7/7/11, 3ro Dept.]). Petitioner's counsel may submit an affirmation of . services provided on or before September 30, 2011; any responding papers must be filed on or before October 21, 2011. Finally, ~hile petitioner's request for the return of her son's personal belongings is not directly before the Court, the Court reiterates the suggestion 3 '· ··1· .,. 'I [* CASE#: 4] 2010-234897 09/26/2011 DECISION & ORDER Image: 4 of 6 made at oral argument on March 24, 2011, that respondent renew the discussion with petitioner.concerning this request. \ This Memorandum constitutes the Decision and Order of the Court. This ' original Decision and Order is being returned to the attorney for petitioner. The below referenced original papers are being mailed to the Rensselaer County Clerk. The signing of this Decision and Order shall not constitute entry or filing under Cl>LR 2220. Counsel is not relieved from the provision of that rule regarding: filing, entry, or notice of entry. Received Dated: Count• Cl.er ks orr ice Seo 26r2011 10•18A Rensselaer Count" 7, September 2011 Albany, New York Frank J Merola . Papers Considered: ., (I) Swrunons.dated November I, 201 O; Verified Petition dated November I, 2010 with Exhibits "A"·"K"; Notice of Petition dated December 8, 2010; (2) Verified Answer dated January 6, 2011; Affidavit in Support of Verified Answer sworn January 11, 2011 (Deputy Chief of Police McEvoy); (3) Correspondence dated February 16, 2011 with Affidavit in further support sworn February 3, 2011 (Edward Fitzgerald); (4) Correspo~\fence (5) Correspondence dated March 16, 2011, with Affidavits in further Suppqrt sworn March 15,ZOl l (Grace Lynch, Peter Lynch, Josephine Grace Curry, and Dr. Karen Webb); dated February 23, 2011 (Jaime B. Thomas, Esq.); 4 r , .I
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