Manna Lu-Wong v City of New York

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Manna Lu-Wong v City of New York 2021 NY Slip Op 32942(U) December 7, 2021 Supreme Court, New York County Docket Number: Index No. 153614/2020 Judge: Dakota D. Ramseur 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. [*FILED: 1] NEW YORK COUNTY CLERK 02/07/2022 04:17 PM NYSCEF DOC. NO. 96 INDEX NO. 153614/2020 RECEIVED NYSCEF: 02/07/2022 SUPRE ME COURT OF THE STATE OF NEW YORK NEW YORK COUNT Y PRESENT: HON. DAKOTA RAMSEUR 05 PART Justice -----------------------------------------------------X INDEX NO. MANNA LU-WONG, MANNA LU-WONG, MOTION DATE Plaintiff, MOTION SEQ. NO. - V - THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF SANITATI ON, GLEN PUSEY, 153614/20 20 10/28/2021, 10/28/2021 003 004 DECISIO N + ORDER ON MOTION Defendant. ------------ ------------ ------------ ------------ -----X 48, 49, 50, The following e-filed documents , listed by NYSCEF document number (Motion 003) 46, 47, 51,52,53, 62,63, 70, 71, 72, 73, 74, 75 RENEW/R EARGUE/ RESETTL E/RECON SIDER . were read on this motion to/for 56, 57, 58, The following e-filed documents, listed by NYSCEF document number (Motion 004) 54, 55, 59,68, 76, 77, 78 REARGUM ENT/REC ONSIDER ATION were read on this motion to/for This is an action seeking damages for wrongful death. In motion sequence 003, plaintiffs, Manna Lu-Wong as Administ rator of the Estate of Hon Wing Lu, and Manna Lu-Wong , individually (plaintiffs), now move pursuant to CPLR 2221 to reargue this Court's decision and order filed on Septembe r 29, 2021, denying the branches of plaintiffs ' motion seeking: I) to unseal records and documen ts sealed pursuant to CPL 160.55 related to the individual defendant, Glen Pusey's (individual defendant), arrest and prosecution stemming from the January 25, 2020 motor vehicle accident; and 2) permitting "the plaintiff to serve subpoena s on the Manhatta n District Attorney' s Office, New York Police Department, Collision Investiga tion Squad and all other entities in possessio n of records relating to the investigation, arrest and prosecuti on [of the individual defendant]." In motion sequence 004, co-defendant, the City of New York and New York City Departme nt of Sanitation (collectively, the City), also moves to reargue the portion of the previous decision granting the branch of plaintiff's motion to compel the City to produce a witness to testify at a depositio n concerning certain investigation documen ts. Both motions are opposed. For the following reasons, and after oral argument on Decembe r 7, 2021, plaintiffs ' motion is denied, and the City's motion is granted, and upon reargume nt, the Court denies the branch of plaintiff's underlyin g motion to compel the City to produce a witness to testify concerning the investigation documents. According to plaintiffs, the decedent was killed when the vehicle operated by the individual defendant collided into the decedent while decedent was crossing the street at the intersection of Canal Street and Elizabeth Street, in the County, City and State of New York. At the time of the accident, the individual defendant was an employee of the City and operating a City-owned vehicle. 153614/2020 LU-WONG, MANNA vs. CITY OF NEW YORK Motion No. 003 004 1 of 4 Page 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 02/07/2022 04:17 PM NYSCEF DOC. NO. 96 INDEX NO. 153614/2020 RECEIVED NYSCEF: 02/07/2022 As a result of the accident, the individual defendant was arrested. According to the certificate of disposition, the individual defendant was charged with, first, a violatio~ of Administrative Code § J9-190(b). That provision states, in relevant part, that any driver who fails to yield to a pedestrian when said pedestrian has the right of way and "[ w ]hose motor vehicle causes contact with a pedestrian ... and thereby causes physical injury shall be guilty of a misdemeanor." And second, Vehicle and Traffic Law (YTL) § l 146 ( c ), which states that where a driver of a motor veh.icle's failure to exercise due care results in serious physical injury, the driver shall be guilty of a traffic infraction. The individual defendant plead guilty to both charges. The certificate of disposition indicates that only the charge under the YTL was sealed pursuant to CPL 160.55. Plaintiffs sought and received at least some of the individual defendant's criminal file . On April 26, 2021, the Records Access Appeals Officer assigned to process plaintiffs' request under the Freedom of Information Law disclosed parts of the investigative file related to this accident, including the complaint report and collision investigation squad case file. According to the affirmation of Rob<;:rt F. Fodera (Fodera), the Managing Attorney of the Subpoena Litigation Unit of the New York City Police Department, the release of those records was the product of an oversight. Fodera affirms that all of the documents related to the investigation, arrest, and prosecution of the individual defendant concerning the accident arc sealed (NYSCEF doc. no. 57 at~ 4). Fodera further affirms that the subject records remained sealed under New York State Office of Court Administration's records (id.). As a result, Fodera aflirms, "J have been unable to produce the records to the New York City Law Department absent submission of a written authorization from the fonner employee, a document which, to date, has not be provided to the undersigned" (id.). Notably, Fodera states that the Freedom oflnfonnation Law Unit, the unit that released the individual defendants' records to plaintiffs, indicated that the NYPD files were "not properly marked as sealed," and that the Unit "[d)id not take the subsequent step that the Subpoena Litigation Unit takes in confirming the status of the records in official OCA records before producing records to any party upon their request or pursuant to a subpoena or order of a court" (id. at~ 5). CPLR 2221 ( d) permits a party to move for leave to reargue a decision upon a sho\ving that the court overlooked or misapprehended the law, but shall not include any matters of fact not offered on the prior motion ( William P. Pahl Equip. Cnrp. v Kassis, 182 AD2d 22, 27 [ I st Dept 1992]; Pezhman v Chanel Inc., 126 AD3d 497 !'1st Dept 2015]). "A motion for reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted" (Matter o(Seffers v Al Props. And Dev.1·. (USA) Cmp., 139 AD3d 492 [1st Dept 2016]). In support of their motion, plaintiffs argue that the sealing provision of CPL 160.55 does not apply to individual defendant's criminal conviction because he was convicted of a misdemeanor, as opposed to a noncriminal offence such as a violation or plea to a traffic 153614/2020 LU-WONG, MANNA vs. CITY OF NEW YORK Motion No. 003 004 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 02/07/2022 04:17 PM INDEX NO. 153614/2020 RECEIVED NYSCEF: 02/07/2022 -- - - ·------- NYSCEF DOC. NO. 96 infraction. Plaintiffs also argue at Jength that the Court incorrectly analyzed plaintiffs' application under 160.50. "Under CPL 160.55, when a criminal action or proceeding against an individual is terminated by conviction of, or guilty plea to, a traffic infraction or a violation, 'all official records and papers relating to the arrestor prosecution ... on file with the divisiqn of criminal justice services, police agency, or prosecutor' s qffice shall be scaled and not made available to any person or public or pri Vate agency', " (People v FB., 155 AD3d 1, 4 [ I st Dept 201 7], quoting CPL 160.55[1 ][c]). Herc, the criminal charges against the individual defendant arise from the same event and are intertwined to the extent that it would be impossible to parse the records related to each charge. Plaintiffs do not cite to any statute or caselaw permitting access to records and documents concerning a criminal investigatio n, where there are two criminal charges, and one charge is scaled, but the other is not, and both charges occurred as a result of the identical incident and were presumably investigated simultaneou sly_.Furthe r. a review of the previous decision reveals that CPL 160.50 was neither mentioned, nor used ~s the statutory means to deny plaintiffs' motion. Accordingl y, the Court finds that it did not misapply, overlook, or misapprehe nd the law in the previous decision as it relates to plaintiffs' motion. As for the City's motion, the Court finds that it erred in granting the branch of plaintiffs' motion to compel the City lo produce witness to testify at a deposition concerning the investigatio n documents plaintiffs received pursuant to the FOIL request. In light of the Court's determinati on that th~ subject records are sealed, it would be contradicto ry to direct the City to produce a witness to expbin those very same records. Accordingl y, it is hereby ORDERED that plaintiffs' motion for leave to reargue is granted, and that on reargument , the Court adheres to its previous decision denying the branch of plaintiffs' motion seeking ce11ain records and documents concerning the individual defendant's arrest and prosecutj_on; and · it is further ORDERED that the City's motion for leave to reargue is granted. and on that argument, the Court denies the branch of plaintiffs' motion seeking to depose a witness from the City concerning certain investigatio n documents; and it is fu~ther ORDERED that plaintiff shall serve a copy of this decision and order upon all parties, · with notice of entry, within fourteen (14) days of entry. This constitutes the decision and order of the Court. · 153614/2020 LU-WONG, MANNA vs. CITY OF NEW YORK Motion No. 003 004 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 02/07/2022 04:17 PM NYSCEF DOC. NO. 96 INDEX NO. 153614/2020 RECEIVED NYSCEF: 02/07/2022 121712021 DATE DAKOTA D. RAMSEUR, J.S.C. CHECK ONE: APPLICATION ; CASE OISPOSEO • • . NON-FINAL DISPOSITION · GRANTED '· SETTLE ORDER SUBMIT ORDER INCLUOES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT CHECK IF APPROPRIATE : DENIED X GRANTED IN PART • • OTHER REFERENCE .. t.a ' ' '~- ·' .. ·:--. 153614/2020 LU.WONG, MANNA vs. CITY OF NEW YORK Motion No. 003 004 · 4 of 4 Page 4 of 4

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