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PLAINTIFF SUED THE CITY AND POLICE UNDER 42 USC 1983 ALLEGING THE CITY AND POLICE HAD AN UNCONSTITUTIONAL POLICY OR PRACTICE ALLOWING POLICE OFFICERS TO FILE FALSE CHARGES, TESTIFY FALSELY AND FALSIFY EVIDENCE WITHOUT CONSEQUENCES; PLAINTIFF WAS ENTITLED TO RECORDS OF SIMILAR COMPLAINTS OR INVESTIGATIONS PURSUANT TO THE CPLR DISCOVERY PROVISIONS AND WAS NOT RESTRICTED TO A FOIL REQUEST (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s request for certain police records should not have been denied. Plaintiff sued the city under 42 USC 1983 alleging an unconstitutional policy or practice by the police which allows officers to swear out false criminal charges, testify falsely at trial and falsify evidence without consequences. Plaintiff sought records of complaints and investigations of similar conduct by officers in a specific task force. Because plaintiff is suing the city, his requests could be brought both pursuant to the Freedom of Information Law (FOIL) and the CPLR discovery provisions. Supreme Court should not have restricted plaintiff’s access to records to that available under the FOIL:

Supreme Court improvidently exercised its discretion with respect to plaintiff’s requests seeking records of complaints and investigations of allegedly similar conduct by officers in the same task force, as those requests did not, in fact, constitute a fishing expedition … . Plaintiff limited his requests to officers assigned only during the six months before his arrest … , and his reference to lawsuits, investigations by the Internal Affairs Bureau, and complaints to the Civilian Complaint Review Board also sufficiently identified documents sought with “reasonable particularity” (CPLR 3120[2] …). Without allowing disclosure of allegations of misconduct by other officers, it is unlikely that plaintiff could demonstrate “that the municipality had a custom or practice that was both widespread and reflected a deliberate indifference to its citizens’ constitutional rights” … .

… Supreme Court should not have imposed a limitation precluding plaintiff from seeking records directly from defendants instead of under FOIL. “When a public agency is one of the litigants, . . . it has the distinct disadvantage of having to offer its adversary two routes into its records” … , and the availability of FOIL does not replace the concomitant right to disclosure under the CPLR. Badia v City of New York, 2023 NY Slip Op 01582, First Dept 3-23-23

Practice Point; Here plaintiff sued the police under 42 USC 1983 alleging an unconstitutional policy to allow the police to file false charges, testify falsely and falsify evidence. Because plaintiff was suing the police, he was entitled to records of similar complaints under the CPLR discovery provisions and was not restricted to FOIL requests.

 

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