Matter of Guitt v David

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Matter of Guitt v David 2013 NY Slip Op 32362(U) October 3, 2013 Supreme Court, New York County Docket Number: 400610/2013 Judge: Eileen A. Rakower Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY i~aLL?ivcI/- PRESENT: PART 13 Justice MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 t o were read on this motion torfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: IUpon Yes No the foregoing papers, it is ordered that this motion UNF~ILED JUDGMENT judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room '41Q w v) a o n \ --. . I * - . - -. h' * f + - * . ". .' ,. z 0 iz 0 Dated: 1~~~~~ s Check one: 0 FINAL DISPOSITION I NQN-FINAL DlSPOSlTlQN 0 DO NOT POST 0 REFERENCE I Check if appropriate: [* 2] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 15 PRESENT: Hon. EILEEN A. RAKOWER Justice IN THE MATTER OF THE APPLICATION OF ADOLF GUITT, Petitioners, INDEX NO. 400610/20 13 For Judgment Under Article 78 of the CPLR -v- MOTION DATE JONATHAN DAVID, RECORD ACCESS APPEALS OFFICER NYCPD, 1 MOTION SEQ. NO. MOTION GAL. NO. Respondent. Notice of Motion/ Order to Show Cause Answer - Affidavits Cross-Motion: - Affidavit9 - Exhibits X Yes - Exhibits ... 1 2 No Petitioner brings this CPLR Article 78 proceeding for an order directing that the New York City Police Department ( NVD ) provide him with access to records pertaining to the investigation leading up to his arrest and conviction under indictment number 179-2005, in New York County, pursuant to the N.Y. Public Officers Law (POL) $84 et seq., also known as the Freedom of Information Law ( FOIL ). Respondent cross-moves to dismiss the proceeding on the grounds that: (1) the petition is moot and academic inasmuch as all records located pursuant to a diligent search have been disclosed to Petitioner; (2) at all times that preceded the disclosure of records to Petitioner, the records sought have been exempt pursuant to N.Y. Public Officers Law Sect. 87(2)(e)(i) which proscribes the disclosure of law enforcement records where such disclosure would interfere with a pending judicial proceeding; 1 [* 3] and (3) the Court lacks subject matter jurisdiction over a portion of Petitioner s claim in that Petitioner commenced this Article 78 proceeding prior to exhausting administrative remedies with regard to a portion of the claims, rendering those claims premature. On June 2, 2009, Petitioner was convicted of Assault in the 2ndDegree and Attempted Assault in the lstDegree for a stabbing at a Manhattan Nightclub which took place on January 8,2005. Petitioner filed a Notice of Appeal for the foregoing conviction on June 11,2009. By order dated December 4,2012, Petitioner s appeal was denied. Petitioner sought leave to appeal that denial to the N.Y. Court of Appeals on January 3,20 13. On March 11,2013, Petitioner s application for leave to appeal to the N.Y. Court of Appeals was denied. By letters dated October 13, 2012, Petitioner filed requests for access to all statements recorded during the course of the investigation of Copacabana Night club stabbing incident on Jan. 8th,2005, regarding docket # 2005NY002159 and Ind. # 179/05 and all records, reports, and statements pertaining to docket #2005-0 1000140. On November 27, 2012, the Records Access Officer granted Petitioner access to ten pages of certain records, including Petitioner s arrest report, an aided report, and the complaint report. By letter dated December 23, 2012, Petitioner appealed to Respondent the denial of access to a portion of the previously requested records. Respondent denied Petitioner s appeal on January 14,2013. In this October 13,20 12 letter, Petitioner also filed a request for access to all videotape or DVD recordings as well as the chain of custody of said videos relating to the January 8,2005 Copacabana Night Club incident. On November 26, 2012, the Records Officer denied Petitioner access to such records on the basis of POL §87(2)(f), as such records/information would endanger the life or safety of witnesses. Petitioner s appeal of the Record Officer s determination, dated December 5,2012, was denied by Respondent on January 4,2012, pursuant to POL $8 87(2)(e)(i), 87(2)(b), 89(2)(a), and 87(2)(f) in that the release of records would interfere with a judicial proceeding, result in an unwarranted invasion of personal privacy, and could endanger the life or safety of any person, respectively. On December 23,20 12, Petitioner filed a request for twenty-six categories of records compiled under indictment number 179/05. The Records Officer denied Petitioner s request by letter dated February 1,2013, in that the requested documents 2 [* 4] were previously requested by Petitioner and were thus denied as a duplicative request. On February 11, 2013, Petitioner appealed the denial of access to these requested documents. Respondent denied Petitioner s appeal on April 4, 20 13. Accordingly, Petitioner commenced this Article 78 proceeding on April 5,2013. Respondent asserts that upon receipt of the Article 78 Petition and upon learning of the conclusion of Petitioner s criminal appeal, it directed that a diligent search be conducted for records responsive to Petitioner s 2012 FOIL requests. Respondent indicates that it directed searches for records at the 1Oth Precinct, where Petitioner s arrest was processed, the 1Oth Precinct Detective Squad, the Detective Bureau Manhattan ( Night Watch ) Squad, the Patrol Borough Manhattan South Specialized Unit, the Criminal Records Section and the records of the police officers who arrested Petitioner and his co-defendant. Pursuant to this search, ten pages of responsive documents were located and access was provided to Petitioner, including: property clerk invoices #4677496 and #467497, Detective Kevin Cannon s memobook entry fiom 1/8/05, Sergeant Marc Burkhardt s memobook entry fiom 1/8/05, a Sprint Report, Complaint #2005-0 1000140, and NYPD Arrest ID Form: M05602072. An agency s obligations pursuant to FOIL §89(3) are satisfied when the agency certifies that the all responsive documents had been disclosed and a diligent search had been conducted for the requested documents it could not locate. (See Matter of Rattley v. New York City Police Dept., 96 N.Y. 2d 873,875 [ lstDept. 20011). Public Officers Law $89(3) does not specifL the manner in which an agency must certify that documents cannot be located, nor does it require a detailed description of the search conducted. (Id.) Furthermore, an agency is not required to provide documents that it does not possess or maintain, pursuant to §89(3). (Matter of Davidson v. Police Dept. o f c i t y of NY:, 197 A.D.2d 466,467 [lstDept. 19931). When a Respondent produces records responsive to the Petitioner s FOIL request (even with minimal redactions) as part of a motion to dismiss an Article 78 proceeding or at any time during the pendency of litigation, along with a certification that certain specific requested records were not able to be located after a diligent search, the petition is rendered moot. Matter of Taylor v. New York Ct Police Dept. FOIL Unit,25 A.D.3d iy 347 [ lstDept. 20061); Matter of Tellier v. New York City Police Dept., 267 A.D.2d 9, 10 [ 1st Dept. 19991; Matter of Malerba v. Kelly, 2 11 A.D. 2d 479 [ 1st Dept. 19951). 3 [* 5] While Respondent directed a diligent search, Respondent fails to provide a certification that the records requested by Petitioner which were not provided were not able to be located after a diligent search. Wherefore, it is hereby, ORDERED and ADJUDGED that this Petition is remanded to Respondent to either provide the documents requested or to provide a certification that certain specific requested records were not able to be located after a diligent search. This constitutes the decision and order of the court. All other relief requested is denied. Dated: October 2, 2013 Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST REFERENCE u &!!!.I 3UDGMENT LED r k jUdgfflWt has not been entered by the County Clerk h4 hhd hetic%Of entry cannot be served based hereon. To 6Bkirj Wfr;lc, counsel or authorized representative must Qpp?,Brin pers0n at the Judgment Glerk's De& (Room 141&#),* -r, -- C- d l , 'I ..L ae c . ...., 4 . % . .

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