Civil Forfeiture – New York Appellate Digest

Appeals, Civil Forfeiture, Freedom of Information Law (FOIL), Municipal Law

THE QUESTIONNAIRES FILLED OUT BY APPLICANTS FOR CITY JUDICIAL POSITIONS WERE PROTECTED FROM THE FOIL REQUEST BY THE PERSONAL PRIVACY EXEMPTION; AN APPELLATE COURT DOES NOT HAVE THE AUTHORITY TO CONSIDER AN UNPRESERVED ISSUE IN AN ARTICLE 78 PROCEEDING (FIRST DEPT).

The First Department, reversing Supreme Court, determined judicial questionnaires filled out by applicants for city judicial positions were protected from the FOIL request by the personal privacy exemption. The First Department noted that it did not have the authority in an article 78 proceeding to consider an unpreserved issue in the interest of justice:

… [T]he City properly applied the personal privacy exemption (Public Officer’s Law § 89[2][a]) to deny petitioner’s FOIL request in its entirety, as the City sustained its burden of establishing that disclosure of the records sought in this case — “all Uniform Judicial Questionnaires for applicants . . . under review by the Mayor’s Advisory Committee on the Judiciary” as of October 21, 2020 — would “constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87[2][b] …). Disclosure of the questionnaire, which states the word “CONFIDENTIAL” in upper-case letters and boldface near the top of its first page, would undermine the assurances of confidentiality provided to candidates for judicial office … .

Moreover, disclosure would create a chilling effect, thus potentially diminishing the candor of applicants and causing others to decide against applying for judicial positions. The questionnaire contains extensive questions touching on highly personal and sensitive matters, such as personal relationships, reasons for leaving jobs, reasons for periods of unemployment, substance abuse, arrests, criminal convictions, testifying as a witness in criminal cases, and reasons for anticipated difficulty in handling the stresses involved in being a judge, as well as a catch-all question at the end of the questionnaire asking for any other information, specifically including unfavorable information, that could bear on the evaluation of the judicial candidate. In addition to the particular contents of the questionnaires, disclosure of the very fact that certain candidates submitted the questionnaires could harm those persons’ reputations by revealing that they sought to leave their jobs, or were unsuccessful in their applications for judicial positions … . Matter of Fisher v City of N.Y. Off. of the Mayor, 2023 NY Slip Op 05468, First Dept 10-31-23

Practice Point: Here the questionnaires filled out by applicants for city judicial positions were protected from the FOIL request by the personal privacy exemption.

Practice Point: In an article 78 proceeding an appellate court cannot consider an unpreserved issue in the interest of justice.

October 31, 2023

Civil Forfeiture, Evidence, Negligence

IN THIS SLIP AND FALL CASE WHERE COGNITIVE IMPAIRMENT WAS ALLEGED, DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM CONDUCTING A NEUROPSYCHOLOGICAL EXAMINATION (NPE) OF PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants were entitled to a neuropsychological examination (NPE) of the plaintiff pursuant to CPLR 3121:

… [W]e agree with defendants that the preclusion order sought by plaintiff is not warranted inasmuch as the NPE is material and necessary to defend against plaintiff’s claims that he sustained head injuries and cognitive impairment ”’ . Here, plaintiff placed his mental and physical condition in controversy by alleging in the verified complaint, as amplified by the verified bills of particulars, that he injured, inter alia, his head, neck, spine, left wrist and left elbow and suffered “emotional and psychological pain . . . with related mental anguish, stress, and anxiety” as a result of the accident. Furthermore, defendants’ submissions in opposition to the motion established, inter alia, that plaintiff’s neurologist and psychologist had both ordered neuropsychological evaluations of plaintiff that had not been conducted, and that the requested NPE differs significantly from neurologic and neurosurgical examinations. In particular, defendants submitted an affidavit from the neuropsychologist who would conduct the NPE, who averred that he would utilize a different methodology, would administer a different battery of psychological tests, and would complete more detailed cognitive testing to determine the existence of any mood or behavioral deficits resulting from plaintiff’s alleged injuries, whereas the testing done by neurologists and neurosurgeons generally focuses on physical abnormalities and physical manifestations of those abnormalities. Pokorski v FDA Logistics, 2021 NY Slip Op 03770, Fourth Dept 6-11-21

June 11, 2021

Civil Forfeiture, Civil Procedure, Debtor-Creditor

NONPARTY BANK SHOULD NOT HAVE BEEN AWARDED POSSESSION OF A CAR SUBJECT TO CIVIL FORFEITURE PROCEEDINGS. (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty banks should not have been awarded possession of cars subject to civil forfeiture proceedings brought by plaintiff:

The plaintiff commenced this civil forfeiture action pursuant to chapter 420, article II of the Code of Suffolk County, seeking forfeiture of a vehicle owned by the defendant Mary A. Nolie, and operated by an individual who was under the influence of an illegal substance. Thereafter, nonparty Santander Consumer USA, Inc. (hereinafter Santander), which held a lien on the vehicle, moved for summary judgment declaring that it was entitled to take possession of the vehicle, free and clear of any claims, and the plaintiff cross-moved for summary judgment awarding civil forfeiture of the vehicle. … In a judgment … , the court directed that the vehicle be released to Santander, upon demand, free and clear of any claims. …

Contrary to Santander’s contention, it was not named in this action as a noncriminal defendant against whom the County sought to “recover” seized property … . Thus, the plaintiff was not required to establish that Santander “engaged in affirmative acts which aided, abetted or facilitated the conduct of [a] criminal defendant” in order to obtain forfeiture of the subject property … . Further, an innocent lienholder is not entitled to immediate possession of a vehicle which is the subject of a civil forfeiture action, but rather is merely entitled to “satisfy its lien from the proceeds of the property after the forfeiture ha[s] been adjudicated against the guilty party” and to seek any deficiency from the debtor … . Thus, Santander failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court should have denied its motion for summary judgment declaring that it is entitled to take possession of the vehicle, free and clear of any claims. Brown v A 2014 Honda, Vin No. 5J6RM4H74EL039078, 2020 NY Slip Op 07024, Second Dept 11-25-20

November 25, 2020

THE QUESTIONNAIRES FILLED OUT BY APPLICANTS FOR CITY JUDICIAL POSITIONS WERE PROTECTED FROM THE FOIL REQUEST BY THE PERSONAL PRIVACY EXEMPTION; AN APPELLATE COURT DOES NOT HAVE THE AUTHORITY TO CONSIDER AN UNPRESERVED ISSUE IN AN ARTICLE 78 PROCEEDING (FIRST DEPT).

IN THIS SLIP AND FALL CASE WHERE COGNITIVE IMPAIRMENT WAS ALLEGED, DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM CONDUCTING A NEUROPSYCHOLOGICAL EXAMINATION (NPE) OF PLAINTIFF (FOURTH DEPT).

NONPARTY BANK SHOULD NOT HAVE BEEN AWARDED POSSESSION OF A CAR SUBJECT TO CIVIL FORFEITURE PROCEEDINGS. (SECOND DEPT).

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