Matter of Jeffryes v Vance

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[*1] Matter of Jeffryes v Vance 2017 NY Slip Op 27325 Decided on September 20, 2017 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 20, 2017
Supreme Court, New York County

In the Matter of the Application of Arminta Jeffryes and CRISTINA WINSOR, Petitioners, For a Judgment and Order Pursuant to Article 78 and Section 3001 of the C.P.L.R.

against

Cyrus R. Vance, Jr., Esq., the District Attorney of New York County; CITY OF NEW YORK; NEW YORK POLICE DEPARTMENT; and HON. GUY MITCHELL, a Judge of the New York City Criminal Court, Respondents.



ARMINTA JEFFRYES and CRISTINA WINSOR, Plaintiffs

against

CYRUS R. VANCE, JR., ESQ., the District Attorney of New York County; CITY OF NEW YORK; and NEW YORK POLICE DEPARTMENT,Defendants.



101836/2016



For Petitioners-Plaintiffs

Martin R. Stolar Esq.

305 Broadway, New York, NY 10007

Gideon Orion Oliver Esq.

277 Broadway, New York, NY 10007

Elena L. Cohen Esq.

365 5th Avenue, New York, NY 10016

Jonathan Wallace Esq.

P.O. Box 728, Amagansett, NY 11930

For Respondent-Defendant Vance

Patricia J. Bailey, Assistant District Attorney

1 Hogan Place, New York, NY 10013 For Respondents-Defendants City of New York and New York City Police Department

Adam Moss, Assistant Corporation Counsel

New York City Law Department

100 Church Street, New York, NY 10007
Lucy Billings, J.

Respondent Vance, New York County District Attorney, moves to dismiss this hybrid action and proceeding against him based on another action pending seeking the same relief and based on petitioners' failure to allege a claim entitling petitioners to relief in this proceeding. C.P.L.R. § 3211(a)(4) and (7). Respondents City of New York and New York City Police Department separately move to dismiss petitioners' claims against these respondents on the same grounds and also based on the court's lack of subject matter jurisdiction over petitioners' claims. C.P.L.R. § 3211(a)(2). In this proceeding as well as in pending criminal prosecutions against petitioners, they seek to prohibit the District Attorney from delegating his prosecutorial authority to attorneys of the Police Department.

In the pending criminal prosecutions, petitioners moved to disqualify the Police Department attorneys from prosecuting the criminal actions. V. Pet. & Compl. ¶ 17. Petitioners based their motion on the District Attorney's unlawful delegation and on the Police Department attorneys' conflict of interest between representing the interests of the Police Department and its officers involved in petitioners' arrests, who may be subject to civil liability for the arrests and prosecutions, and the interests of the people of the county. The New York City Criminal Court in New York County (Mitchell, J.) determined that the delegation was lawful and did not entail an impermissible conflict of interest and denied petitioners' motions. Id. ¶ 18, Ex. B. Petitioners have not sought to take an intermediate appeal, but concede that they may appeal the Criminal Court's denial of their motions after any conviction in the criminal actions. Petitioners now seek a determination by this court of the very issues that the Criminal Court already determined and that the Appellate Term may review upon either of petitioners' conviction of any of the offenses with which petitioners are charged. Cayuga Indian Nation of NY v. Gould, 14 NY3d 614, 633-34 (2010); Morgenthau v. Erlbaum, 59 NY2d 143, 149 (1983). See Hurrell-Harring v. State of NY, 15 NY3d 8, 16 (2010).



I. PETITIONERS' FACTUAL ALLEGATIONS

According to a Memorandum of Understanding (MOU) between the District Attorney and the Police Department, V. Pet. & Compl. Ex. A, the District Attorney delegated to the Police Department the authority to prosecute all violations when the defendant is required to appear in the Criminal Court's Summons Part or appeals a conviction for a violation from the Summons Part to the Appellate Term. The District Attorney may delegate "the prosecution of petty crimes and offenses" to other public officers, as long as he remains aware of all delegated prosecutions. People v. Soddano, 86 NY2d 727, 728 (1995). The MOU requires the Police Department to provide to the District Attorney a monthly report of all delegated prosecutions. V. Pet. & Compl. Ex. A ¶ 2.

On March 7, 2016, respondent Police Department issued a summons to petitioner Jeffryes charging her with crossing a city roadway against a pedestrian traffic signal, a violation of 34 R.C.NY § 4-03(c)(3). On the same day respondent Police Department issued two summonses to petitioner Winsor. One charged her with disorderly conduct by congregating in a public place and refusing to comply with a police officer's order to disperse, a violation of New York Penal Law § 240.20(6). A second charged her with walking on a city roadway adjacent to a sidewalk available for safe use, a violation of New York Vehicle and Traffic Law § 1156(a).

Petitioners allege that police officers are the complainants and sole witnesses to the alleged offenses charged in the summonses and that no prosecutor interviewed these complainants and arrived at an independent judgment whether to prosecute the charges. V. Pet. & Compl. ¶¶ 19, 25-27. At demonstrations and protests such as where the alleged offenses by [*2]petitioners occurred, Police Department attorneys themselves also may be witnesses, are at the scene providing legal advice to the police officers regarding arrests, and then undertake the District Attorney's function preparing the charges, a function for which the Police Department may be sued by persons claiming they were unlawfully arrested or prosecuted. Id. ¶¶ 42-43. These attorneys advise the Police Department on policies, procedures, and practices to prevent civil liability; defend the Police Department and officers against civil liability for their conduct in connection with their arrests; and, even if not the attorneys who appear for the prosecutions initiated, work closely with them. Id. ¶¶ 44-46.

Petitioners further allege that the Police Department prosecutors in the criminal actions against petitioners, in exchange for an adjournment in contemplation of dismissal (ACD), C.P.L. § 170.55, demanded their allocutions on the record that the circumstances gave the police officers probable cause to arrest petitioners for the offenses charged. V. Pet. & Compl. ¶ 62. The Police Department prosecutors' demands for petitioners' admissions that will insulate the Police Department and officers from civil liability for their conduct in connection with petitioners' arrests and prosecutions allegedly are due to the prosecutors' allegiance to their employer, the Police Department, and their co-employees, the complaining and arresting officers. Id. ¶¶ 44-45, 47, 49-51. Demanding admissions of probable cause for arrests contravenes the purpose of ACDs, which is to treat the arrest as "a nullity" and restore defendants to their status before the arrest, as if it never occurred, not as if it occurred with probable cause. C.P.L. § 170.55. Had respondent District Attorney prosecuted these charges, petitioners claim, he would not have exacted any allocution or admission in exchange for offering an ACD, because he has no interest in protecting against the Police Department's and officers' civil liability and has an interest only in achieving justice for the people of the county. V. Pet. & Compl. ¶¶ 38-39. See Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787, 810 (1987); People v. Adams, 20 NY3d 608, 613 (2013); Cowles v. Brownell, 73 NY2d 382, 387 (1989).

Along with exacting admissions to protect the Police Department and officers from civil liability in exchange for an ACD in prosecutions arising from demonstrations and protests, petitioners allege that Police Department prosecutors selectively, almost exclusively, prosecute charges arising from demonstrations and protests among all the charges covered by the MOU. The Police Department prosecutors prosecute few, if any, charges arising from other circumstances, even though the MOU authorizes those prosecutions. For persons who frequently or regularly participate in demonstrations or protests, the prospect of such selective prosecutions may form the basis for a declaratory judgment, C.P.L.R. § 3001; National Union Fire Ins. Co. of Pittsburgh, PA v. Compaction Sys. Corp. of N.J., 136 AD3d 594, 594-95 (1st Dep't 2016); Big Four LLC v Bond St. Lofts Condominium, 94 AD3d 401, 402-403 (1st Dep't 2012); Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 35 AD3d 253, 253 (1st Dep't 2006); 40-56 Tenth Ave. LLC v 450 W. 14th St. Corp., 22 AD3d 416, 417 (1st Dep't 2005), or injunctive relief. Hurrell-Harring v. State of NY, 15 NY3d at 21, 26-27; McCain v. Koch, 70 NY2d 109, 118 (1987); Likokas v. 200 E. 36th St. Corp., 48 AD3d 245, 245 (1st Dep't 2008). See Steingut v. Gold, 42 NY2d 311, 315 (1977); Dondi v. Jones, 40 NY2d 8, 14 (1976).



II. THE RELIEF PETITIONERS SEEK

As long as petitioners may raise and receive an adjudication of the unlawful delegation of prosecutorial authority and the delegee prosecutors' impermissible conflict of interest in petitioners' criminal prosecutions, this court may not prohibit the prosecutions or the adjudication of those issues there, nor determine them for purposes of the criminal actions. Cayuga Indian Nation of NY v. Gould, 14 NY3d at 633-34; Morgenthau v. Erlbaum, 59 NY2d at 147, 149; Steingut v. Gold, 42 NY2d at 315. See Hurrell-Harring v. State of NY, 15 NY3d at 16. Although the determinations in the criminal actions were adverse to petitioners, "in the event of a conviction," they may appeal those adverse determinations. Cayuga Indian Nation of NY v. Gould, 14 NY3d at 634. See Dondi v. Jones, 40 NY2d at 13-14.

If petitioners are not convicted, however, they will have suffered prosecutions that they no longer may contest through an appeal of those determinations. At that point, the evidentiary [*3]record will have expanded, potentially to show more fully whether or not the delegation was unlawful and entailed an impermissible conflict and what harms petitioners have suffered as a result: a record different from the one on which the Criminal Court based its determinations. See Hurrell-Harring v. State of NY, 15 NY3d at 17-18; Schumer v. Holtzman, 60 NY2d 46, 56 (1983). At that point or, if petitioners are convicted, but the Appellate Term reverses the convictions, petitioners may be entitled to a determination of respondents' liability for those harms, Morgenthau v. Erlbaum, 59 NY2d at 147-48; Dondi v. Jones, 40 NY2d at 14, and the amount of petitioners' damages, even if only incidental to the determination of unlawfulness and liability. C.P.L.R. § 7806; Gross v. Perales, 72 NY2d 231, 236 (1988); Hughes Village Restaurant, Inc. v. Village of Castleton-on-Hudson, 46 AD3d 1044, 1047 (3d Dep't 2007). See Metropolitan Taxicab Bd. of Trade v. New York City Taxi & Limousine Commn., 115 AD3d 521, 522 (1st Dep't 2014).

Notably, respondents do not move to dismiss this action and proceeding based on res judicata or collateral estoppel. C.P.L.R. § 3211(a)(5). Nor may the criminal prosecutions determine respondents' liability or petitioners' damages.

Petitioners allege claims entitling them to relief. They claim that City respondents are acting in a prosecutorial capacity in excess of a prosecutor's authorized power because they are pursuing objectives in criminal prosecutions that place these respondents' own interests in conflict with the interests of the people of the county in achieving justice. Cowles v. Brownell, 73 NY2d at 386. See Morgenthau v. Erlbaum, 59 NY2d at 147. As long as the criminal prosecutions proceed without interference, petitioners' claims here do not impede the orderly progress and speedy disposition of the criminal actions. Hurrell-Harring v. State of NY, 15 NY3d at 24 & n.6. See Morgenthau v. Erlbaum, 59 NY2d at 149, 151-52. Depending on those dispositions, however, petitioners may be deprived of an adequate remedy for the harms suffered if those prosecutions are determined to have been unlawful. C.P.L.R. § 7803(3); Dondi v. Jones, 40 NY2d at 13. See Lipari v. Owens, 70 NY2d 731, 732-33 (1987).

If after the criminal actions' disposition petitioners still claim harm from unlawful prosecutions and respondents' liability for those unlawful actions and the harm caused, Hurrell-Harring v. State of NY, 15 NY3d at 27; Dondi v. Jones, 40 NY2d at 14, petitioners may be entitled to a judgment declaring their rights, respondents' obligations, and respondents' liability for violating petitioners' rights, C.P.L.R. § 3001; Morgenthau v. Erlbaum, 59 NY2d at 151; National Union Fire Ins. Co. of Pittsburgh, PA v. Compaction Sys. Corp. of N.J., 136 AD3d at 594-95; Big Four LLC v Bond St. Lofts Condominium, 94 AD3d at 402-403; 40-56 Tenth Ave. LLC v 450 W. 14th St. Corp., 22 AD3d at 417, and to damages based on that liability. C.P.L.R. § 7806; Gross v. Perales, 72 NY2d at 236; Hughes Village Restaurant, Inc. v. Village of Castleton-on-Hudson, 46 AD3d at 1047. If petitioners are subject to further prosecution delegated by respondent District Attorney to respondent Police Department, petitioners may be entitled to injunctive relief, Weinreb v. 37 Apts. Corp., 97 AD3d 54, 56 (1st Dep't 2012); Lemle v. Lemle, 92 AD3d 494, 500 (1st Dep't 2012); Mini Mint Inc. v. Citigroup, Inc., 83 AD3d 596, 597 (1st Dep't 2011), to assure prospectively what constitutional due process and the New York County Law guarantee. Hurrell-Harring v. State of NY, 15 NY3d at 21; Morgenthau v. Erlbaum, 59 NY2d at 152; Steingut v. Gold, 42 NY2d at 315-16. See Veloz v. Rothwax, 65 NY2d 902, 904 (1985); Dondi v. Jones, 40 NY2d at 14; Goldstone v. Gracie Terrace Apt. Corp., 110 AD3d 101, 105-106 (1st Dep't 2013). These issues will not be determined further in the pending criminal actions if there are no convictions. Hurrell-Harring v. State of NY, 15 NY3d at 16; Cayuga Indian Nation of NY v. Gould, 14 NY3d at 633 n.8. See Veloz v. Rothwax, 65 NY2d at 904; Morgenthau v. Erlbaum, 59 NY2d at 152. In those circumstances, even if this court determines the issues in petitioners' favor, such a determination will supply neither a basis to prevent the prosecutions from proceeding, as they will have ended, nor a basis to attack any conviction collaterally, as none will have occurred. Hurrell-Harring v. State of NY, 15 NY3d at 24; Cayuga Indian Nation of NY v. Gould, 14 NY3d at 633 n.9.



III. PETITIONERS' CLAIMS UPON WHICH THE RELIEF SOUGHT IS BASED

At minimum, petitioners' allegations state a claim for a violation of lawful procedure, C.P.L.R. § 7803(3), if not for a prosecution in excess of the lawful authority of the quasi-judicial body, the District Attorney, both by the body exercising that excessive authority, respondent Police Department, and by the body delegating that excessive authority, respondent District Attorney. C.P.L.R. § 7803(2); Morgenthau v. Erlbaum, 59 NY2d at 147; Steingut v. Gold, 42 NY2d at 315-16; Dondi v. Jones, 40 NY2d at 13, 15. See Schumer v. Holtzman, 60 NY2d at 51, 54. Petitioners' allegations show that respondent District Attorney allows respondent Police Department attorneys complete authority to determine whether, whom, and how to prosecute all charges brought in the Summons Part, without any supervision by the District Attorney, the only public officer elected to exercise those prosecutorial powers. Schumer v. Holtzman, 60 NY2d at 52; Dondi v. Jones, 40 NY2d at 15. Because respondent Police Department issues the summonses through which violations are charged, rather than through an accusatory instrument that would not be brought in the Summons Part, the Police Department itself determines which violations it will prosecute and which ones will not be prosecuted at all, without respondent District Attorney's input.

Although the MOU requires respondent Police Department to report which charges it has prosecuted, against whom, and how, the inferences from petitioners' allegations are that the District Attorney does not influence the reports' contents—what charges are prosecuted, against whom, and how—nor influence future prosecutions in response to reports received. Schumer v. Holtzman, 60 NY2d at 53-54. See Haggerty v. Himelein, 89 NY2d 431, 436-37 (1997). Even if respondent District Attorney may delegate prosecutorial appearances to other public officers, any failure by him to "retain the ultimate, nondelegable responsibility for prosecuting all crimes and offenses," People v. Soddano, 86 NY2d at 728, abdicates his "duty . . . to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he . . . shall have been elected." NY County Law § 700(1); People v. Soddano, 86 NY2d at 728. See NY Const. art. XIII, § 13; Schumer v. Holtzman, 60 NY2d at 50, 53; Dondi v. Jones, 40 NY2d at 19.

In fact petitioners maintain that the MOU's only purpose is to avert the Police Department's civil liability because, for years before the MOU, the District Attorney never appeared in the Summons Part to prosecute violations, and many charges against frequent and regular protesters were being dismissed, allowing them to sue for damages from the arrests and initiated prosecutions. Only after the MOU has any prosecutor, one from the Police Department, appeared to prosecute violations against protesters. V. Pet. & Compl. ¶¶ 24-25, 28-29, 31, 33, 48-50. The fact that Police Department prosecutors demand allocutions of probable cause for an arrest, rather than guilt of the offense charged, supports the claimed purpose of the MOU.

The alleged potential for Police Department prosecutors' conflict of interest set forth above, whether or not framed as an overstepping of authority, violates the accuseds' federal and state constitutional rights to procedural due process, because the potential conflict undermines "the reliability of the adversary process through which criminal justice is . . . dispensed." Hurrell-Harring v. State of NY, 15 NY3d at 25-26. The potential conflict raises a claim that the Police Department prosecutors are not "exercising pretrial discretion in an evenhanded manner, based on the merits of the case or other legitimate prosecutorial concerns." People v. Adams, 20 NY3d at 613. The relief petitioners seek is "to preserve our means of criminal adjudication from the inevitably corrosive effect and unjust consequences of an unfair adversary process." Hurrell-Harring v. State of NY, 15 NY3d at 26. See People v. Adams, 20 NY3d at 612-13. Petitioners emphasize that they do not seek to prohibit respondent District Attorney from pursuing his duties and exercising all the powers of his office, as demonstrated by petitioners' motion only to disqualify the Police Department prosecutors in the criminal actions, not to dismiss those actions based on the prosecutors' identity. Schumer v. Holtzman, 60 NY2d at 54; Dondi v. Jones, 40 NY2d at 12.

Nevertheless, it surely is unfair if the prosecutors are concerned about protecting their employer and co-employees from civil liability, rather than being solely concerned about achieving justice for the people of the county, who elected the District Attorney to accomplish [*4]that objective above all else. Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. at 810; People v. Adams, 20 NY3d at 613; Cowles v. Brownell, 73 NY2d at 387. This interest in protecting the Police Department from civil liability for damages thus may be viewed as a pecuniary interest of the prosecuting attorney's employer, superiors, and co-employees, quite apart from any economic benefits through achieving justice and serving the public. The District Attorney, of course, is not and may not be burdened with such separate interests in insulation from civil liability.

Under New York County Law § 700(8), the District Attorney must "give his whole time to his duties and shall not engage in the practice of law . . . which interferes with the performance of his duties as district attorney." Attorneys' advice or services to protect the Police Department and officers from civil liability constitute the practice of law separate from the District Attorney's duties, which petitioners allege interferes with these duties when delegated to respondent Police Department.

This restriction does not apply to nonattorneys, such as police officers or state troopers who have been permitted to prosecute offenses that these public officers observed. People v. Soddano, 86 NY2d at 728; People v. Murphy, 29 Misc 3d 79, 81 (App. Term 2d Dep't 2010). Those decisions, moreover, indicate no potential civil liability of the public officers from which they were interested in protecting themselves.

In contrast, the District Attorney is not permitted to delegate the prosecution of offenses to attorneys who represent the victims of those offenses. Sedore v. Epstein, 56 AD3d 60, 67-68 (2d Dep't 2008); People v. Robinson, 27 Misc 3d 635, 636-37 (Sup. Ct. Kings Co. 2010). See Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. at 790, 802, 809. Just as respondent District Attorney's delegee prosecutors may not represent the victims of offenses charged, so, too, may they not represent the complainants of offenses, the police officers. "In the case of the prosecutor, all . . . obligations flow not to the complainant, but to the public, which is the client." Sedore v. Epstein, 56 AD3d at 63, 67. See Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. at 790, 802, 809; People v. Zimmer, 51 NY2d 390, 393 (1980).

A prosecutor "is the representative. . . of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern . . . and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. at 803; Sedore v. Epstein, 56 AD3d at 66. See People v. Zimmer, 51 NY2d at 393. "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. at 803. Respondent District Attorney represents the people of New York County, not any party that may benefit from the prosecution or conviction of a criminal offense, and therefore must pursue only the public interest, without any interest in any objective other than the propriety of criminal charges and without even the potential or opportunity for such an influence. Id. at 804-805, 810-11.

Thus, "when a conflict of interest potentially impairs the prosecutor's obligation to do justice," even when respondent District Attorney is authorized to delegate the prosecution to respondent Police Department, People v. Soddano, 86 NY2d at 728, that authority must yield to avoid the conflict. People v. Zimmer, 51 NY2d at 394. That potential readily arises in determining who are to be targets of criminal charges, for what offenses, whether to enter a plea bargain, and on what terms, all determinations in which the prosecutor exercises considerable and unsupervised discretion. Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. at 806-807, 813. If respondent District Attorney himself required defendants' release from civil liability of the Police Department or officers in exchange for dismissal of the charges, a consideration "unrelated to the merits of the People's case," and not within the prosecutor's duties, that conduct would violate

The prosecutor's obligation . . . to represent the People and to that end, to exercise independent judgment in deciding to prosecute or refrain from prosecution. This obligation cannot be fulfilled when the prosecutor undertakes also to represent a police [*5]officer for reasons divorced from any criminal justice concern.

Cowles v. Brownell, 73 NY2d at 387. Respondents have not shown why the result is any different when the District Attorney delegates prosecutorial functions.

IV. DISPOSITION OF THE PENDING MOTIONS

Because petitioners plead viable claims within this court's subject matter jurisdiction, the court denies respondents' motions to dismiss the petition based on C.P.L.R. § 3211(a)(2) and (7). That subject matter jurisdiction, giving the court authority to adjudicate those claims, however, is premised in part on this court's noninterference with respondents' ongoing criminal prosecutions against petitioners. As petitioners move only for a stay of their pending criminal prosecutions and not for any interim relief that would allow the District Attorney to proceed with them pending the disposition of this proceeding, see Dondi v. Jones, 40 NY2d at 20, the court denies petitioners' motion for a stay. C.P.L.R. § 2201; Somoza v. Pecknik, 3 AD3d 394, 394 (1st Dep't 2004); Lessard v. Architectural Group, P.C. v. X & Y Dev. Group, LLC, 88 AD3d 768, 770 (2d Dep't 2011); Tribeca Lending Corp. v. Crawford, 79 AD3d 1018, 1020 (2d Dep't 2010). Such interim relief also would collaterally attack the denial of disqualification already determined by the Criminal court. Cayuga Indian Nation of NY v. Gould, 14 NY3d at 633-34; Morgenthau v. Erlbaum, 59 NY2d at 147, 149; Steingut v. Gold, 42 NY2d at 315. Petitioners remain free to seek a stay or adjournment of their pending criminal prosecutions from the Criminal Court.

Upon respondents' motions to dismiss the petition pursuant to C.P.L.R. § 3211(a)(4), based on another pending action, the statute specifically provides that "the court need not dismiss based on this ground, but may make such order as justice requires." SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d 65, 65 (1st Dep't 1994); Mercado v. City of New York, 68 AD3d 730, 731 (2d Dep't 2009). See Posada v. New York State Dept. of Health, 54 AD3d 1100, 1102 (3d Dep't 2008); 342 W. 30th St. Corp. v. Bradbury, 30 Misc 3d 132, 2011 WL 135257, at *2 (App. Term 1st Dep't 2011). An available alternative is to stay this action pending resolution of the other action, here the criminal prosecutions. AIG Fin. Prods. Corp. v. Penncara Energy, LLC, 83 AD3d 495, 495 (1st Dep't 2011); SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d at 65-66; Flintkote Co. v. American Mut. Liab. Ins. Co., 103 AD2d 501, 507 (2d Dep't 1984); 342 W. 30th St. Corp. v. Bradbury, 30 Misc 3d 132, 2011 WL 135257, at *2.

There is sufficient identity of parties and claims in this proceeding and the criminal actions that those actions may collaterally estop and thus resolve the claims here if the Appellate Term or the Court of Appeals ultimately agrees with the Criminal Court's determination of petitioners' motions to disqualify the Police Department attorneys. AIG Fin. Prods. Corp. v. Penncara Energy, LLC, 83 AD3d at 495; SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d at 66; 342 W. 30th St. Corp. v. Bradbury, 30 Misc 3d 132, 2011 WL 135257, at *2. Moreover, this proceeding was commenced after the criminal actions, AIG Fin. Prods. Corp. v. Penncara Energy, LLC, 83 AD3d at 495, in response to them, as signaled by petitioners' claims for declaratory and injunctive relief. Id. at 496; L-3 Communications Corp. v. SafeNet, Inc., 45 AD3d 1, 9 (1st Dep't 2007).

On the other hand, the criminal prosecutions may be resolved in ways that will not bar the continuation of this proceeding. SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d at 65-66. See Mercado v. City of New York, 68 AD3d at 731; Posada v. New York State Dept. of Health, 54 AD3d at 1102. It is more comprehensive than the criminal prosecutions, because, if petitioners are acquitted or their convictions are reversed, it will address respondents' liability for any harms petitioners may have suffered from their prosecutions, respondents' obligations for and petitioners' rights to prosecutions free of conflict, and petitioners' entitlement to damages. SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d at 65-66; Walsh v. Goldman Sachs & Co., 185 AD2d 748, 749 (1st Dep't 1992); Zirmak Invs. v. Miller, 290 AD2d 552, 553 (2d Dep't 2002); Spector v. Zuckermann, 287 AD3d 704, 706 (2d Dep't 2001). See AIG Fin. Prods. Corp. v. Penncara Energy, LLC, 83 AD3d at 495. It also [*6]will permit petitioners to pursue their claims for injunctive relief if petitioners are subject to further prosecution tainted by conflict. SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d at 66; 342 W. 30th St. Corp. v. Bradbury, 30 Misc 3d 132, 2011 WL 135257, at *2. See Goldman v. A & E Club Props., LLC, 89 AD3d 681, 683 (2d Dep't 2011); Flintkote Co. v. American Mut. Liab. Ins. Co., 103 AD2d at 507-508.

Consequently, the court grants respondents' motions based on C.P.L.R. § 3211(a)(4) to the extent of staying this proceeding, after service of answers and any reply, pending resolution of the criminal actions, but otherwise denies their motions. AIG Fin. Prods. Corp. v. Penncara Energy, LLC, 83 AD3d at 495; SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d at 65-66; 342 W. 30th St. Corp. v. Bradbury, 30 Misc 3d 132, 2011 WL 135257, at *2. Respondents shall serve and deliver to Part 46 their answers to the petition within 30 days after service of this order with notice of entry. See C.P.L.R. §§ 3012(a), 3211(f), 7804(c)-(f). Petitioners shall serve and deliver to Part 46 any reply to the answer within 20 days after service of the answer. C.P.L.R. §§ 3012(a), 7804(c), (d), and (f). Any party may move to lift the stay of this proceeding and serve a re-notice of the petition upon resolution of either of the pending criminal actions involving petitioners or if either petitioner is subject to another prosecution delegated by respondent District Attorney to respondent Police Department.



DATED: September 20, 2017

_____________________________

LUCY BILLINGS, J.S.C.