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THE ALLEGATION A PLASTIC SURGEON POSTED BEFORE AND AFTER PHOTOGRAPHS OF PLAINTIFF WITHOUT PERMISSION STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Egan, determined plaintiff stated causes of action for both a violation of privacy pursuant to the Civil Rights Law, and breach of a fiduciary duty. Plaintiff alleged defendant plastic surgeon posted before and after photographs of the plaintiff without her consent. The breach of a fiduciary duty claim did not duplicate the violation of privacy claim. Physicians have a fiduciary duty not to disclose a patient’s medical records without authorization:

Plaintiff instead alleges that defendants all had a physician-patient relationship with her and that they breached a distinct duty arising out of that relationship by publicly disclosing photographs of her that had been taken in the course of treatment without her agreement … . “It is well established that a patient may maintain a cause of action for breach of fiduciary duty against his or her physician resulting from the physician’s unauthorized disclosure of the patient’s medical records,” broadly defined as essentially any information acquired by the physician that relates to the patient’s diagnosis or treatment, as such disclosure violates “the implied covenant of trust and confidence that is inherent in the physician patient relationship” … . A claim for breach of fiduciary duty, based as it is upon the well-established duty a physician owes to his or her patient as opposed to a purported right of privacy, may be viable where claims based upon a generalized invasion of privacy are not … . Perry v Rockmore, 2025 NY Slip Op 01141, Third Dept 2-27-25

Practice Point: Here the allegation defendant plastic surgeon posted before and after photographs of plaintiff stated distinct causes of action for a violation of privacy pursuant to the Civil Rights Law, and breach of fiduciary duty (unauthorized disclosure of medical records).

 

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THE FOIL PERSONAL PRIVACY EXEMPTION DOES NOT PROVIDE A BLANKET EXEMPTION FOR CIVILIAN COMPLAINTS AGAINST POLICE OFFICERS, INCLUDING UNSUBSTANTIATED COMPLAINTS; WHETHER SUCH A DOCUMENT SHOULD BE REDACTED OR WITHHELD MUST BE DETERMINED DOCUMENT-BY-DOCUMENT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the personal privacy exemption in FOIL did not provide a blanket exemption for civilian complaints against police officers, including unsubstantiated complaints. Rather, whether the personal privacy exemption applies must be determined on a record-by-record basis:

FOIL’s personal privacy exemption permits an agency to withhold from public access any record that “if disclosed would constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]). We agree with respondents that FOIL, as amended in conjunction with the repeal of Civil Rights Law § 50-a, does not deny law enforcement officers the benefit of this exemption. However, the Appellate Division correctly concluded—consistent with uniform appellate precedent—that there is no categorical or blanket personal privacy exemption for records relating to complaints against law enforcement officers that are not deemed substantiated … . * * *

Rather than withhold all such records, Public Officers Law § 87 (2) requires an agency to evaluate each record individually and determine whether “a particularized and specific justification” exists for denying access on the ground that disclosing all or part of the record would constitute an unwarranted invasion of privacy … . Where redactions would prevent such an invasion and can be made without unreasonable difficulty, the agency must disclose the record with those necessary redactions … . The Appellate Division properly directed respondents to undertake this process, subject to further judicial review … . Matter of New York Civ. Liberties Union v City of Rochester, 2025 NY Slip Op 01010, CtApp 2-20-25

Practice Point: The personal privacy exemption in FOIL does not provide a blanket exemption for civilian complaints against police officers, even unsubstantiated complaints. Whether a document should be redacted or withheld under the personal privacy exemption must be determined document-by-document.​

 

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THE FORMER EXEMPTION FROM A FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS WAS REPEALED IN 2020; THE REPEAL APPLIES RETROACTIVELY SUCH THAT DISCIPLINARY RECORDS CREATED PRIOR TO THE REPEAL ARE NO LONGER EXEMPT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Halligan, determined that the repeal of the exemption from a FOIL request for police disciplinary records applies retroactively to documents created before the repeal:

… [W]e conclude that the Legislature intended for the statutory repeal to have retroactive effect. For starters, there is no indication that the repeal was intended to affect the usual manner in which FOIL operates. FOIL requires agencies to “make available for public inspection and copying all records” (Public Officers Law § 87 [2]), and it defines “records” with reference to whether an agency possesses information, but without reference to the date the information was created (id. § 86 [4] [defining “record” as “any information kept” or “held . . . in any physical form whatsoever”]). The amendments impose various redaction requirements and personal privacy protections for law enforcement disciplinary records specifically, yet they do not, for example, single out records created before a certain date for special treatment, or direct that disclosure of any record is tethered to the date it was created. Had the Legislature intended to deviate from FOIL’s presumption that information kept or held by an agency is disclosable by exempting records created prior to the repeal, or to mandate that an agency responding to a FOIL request ascertain and apply the law that governed when each responsive record was created, then surely it would have said as much. Matter of NYP Holdings, Inc. v New York City Police Dept., 2025 NY Slip Op 01009, CtApp 2-20-25

Practice Point: The exemption from a FOIL request for police disciplinary records was repealed in 2020. The repeal applies retroactively to police disciplinary records created prior to the repeal.

 

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THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO 18 USC 1983 AGAINST INDIVIDUAL POLICE OFFICERS FOR DEPRIVING PLAINTIFF OF HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO BE FREE FROM CONTINUED DETENTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined several 42 USC 1983 causes of action against individual police officers should not have been dismissed. The Second Department noted allegations that individual police officers violated plaintiff’s constitutional rights need not be based upon a municipal policy or custom. Plaintiff alleged the officers fabricated evidence and conspired with the district attorney’s office to deprive him of his right to a fair trial and his right to be free from continued detention:

The plaintiff alleged … that the individual defendants, with knowledge that the plaintiff was not guilty, improperly caused the neup witness to identify the plaintiff as the shooter and thereafter caused him to be prosecuted. … [T]he allegations in the complaint were sufficient to plead the personal involvement of the individual defendants in the deprivation of the plaintiff’s right to a fair trial … . Moreover, the Supreme Court improperly concluded that this cause of action was defective for failing to satisfy the “policy or custom” standard. Since the plaintiff was asserting a cause of action against the individual defendants in their individual capacities for an alleged constitutional violation … he was not required to allege facts satisfying that standard … . * * *

… [T]he complaint sufficiently stated a viable cause of action alleging a violation of the plaintiff’s right to be free from continued detention insofar as asserted against the individual defendants. The complaint alleged that the individual defendants knowingly concealed, among other things, evidence regarding the improper lineup identification, thereby “suppress[ing] evidence that was favorable to the plaintiff during the criminal proceeding” … . …

[U]nder the intra-corporate or intra-enterprise conspiracy doctrine,” and subject to certain exceptions, employees of “a public entity generally cannot conspire with [other] employees or agents” of the same entity, since “all are considered a single entity” … . Here, however, the doctrine is inapplicable because the plaintiff alleged that the individual defendants, members of the New York City Police Department, conspired with employees of a distinct governmental entity, the Queens County District Attorney’s Office … . Pressley v City of New York, 2024 NY Slip Op 06563, Second Dept 12-24-24

Practice Point: Causes of action asserting the violation of constitutional rights by individual police officers, as opposed to by the police department as a municipal entity, need not allege the violations were pursuant to a department policy or custom.

Practice Point: Although a conspiracy to violate constitutional rights cannot be based upon an agreement among police officers in a single department, it can be based upon an agreement among police officers and district attorneys.

 

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THE 18 USC 1983 CAUSE OF ACTION AGAINST THE POLICE AND MUNICIPALITY WAS PROPERLY DISMISSED BECAUSE THE DOCTRINE OF REPONDEAT SUPERIOR DOES NOT APPLY AND THERE WAS NO EVIDENCE THE POLICE WERE ACTING PURSUANT TO A MUNICIPAL CUSTOM OR POLICY WHEN THEY ALLEGEDLY PUSHED PLAINTIFF TO THE GROUND, HANDCUFFED HER AND TASED HER; HOWEVER THE BATTERY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the battery cause of action in this Civil Rights Law (18 USC 1983) case should not have been dismissed. The lawsuit stemmed from the police allegedly pushing plaintiff to the ground, striking her, handcuffing her and tasing her. The 18 USC 1983 cause of action was properly dismissed because plaintiff did not prove the police were acting pursuant to a municipal custom or policy. However, the battery cause of action should not have been dismissed:

However … a jury could rationally conclude that the defendants are liable for battery. “‘To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature'” … . “[A]n assault and battery cause of action may be based on contact during an unlawful arrest” … .

At trial, the plaintiff presented evidence from which the jury could rationally conclude that the detention was not privileged under Mental Hygiene Law § 9.41, and the trial evidence showed that the officers engaged in contact with the plaintiff during the allegedly unlawful detention. The trial evidence, viewed in the light most favorable to the plaintiff, was sufficient to allow the jury to rationally conclude that the two officers were acting within the scope of their official duties at the relevant time. Accordingly, the defendants were not entitled to dismissal of the cause of action alleging battery … . Mac v County of Suffolk, 2024 NY Slip Op 06330, Second Dept 12-18-24

Practice Point: A municipality cannot be held liable pursuant to 18 USC 1983 for the actions of police officers under a respondeat superior theory. The plaintiff must show the police were acting pursuant to a municipal custom or policy.

Practice Point: A municipality may be liable for battery committed by police officers acting within the scope of their employment.

 

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THE MOTION TO AMEND THE COMPLAINT TO IDENTIFY “JOHN DOE” “JANE DOE” DEFENDANTS AS POLICE OFFICERS IN THIS CIVIL RIGHTS CASE SHOULD NOT HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD EXPIRED AND THE RELATION-BACK DOCTRINE DOES NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to identify police officers as the “John Doe, Jane Doe” defendants in this 18 USC 1983 false arrest and unlawful search case should not have been granted. The statute of limitations had expired and the relation-back doctrine did not apply—police officers are not united in interest with the city:

CPLR 1024 provides that a “party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.” “Yet, ‘parties are not to resort to the “Jane Doe” procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so. Any failure to exercise due diligence to ascertain the “Jane Doe’s” name subjects the complaint to dismissal as to that party'” … .

Here, the statute of limitations had expired by the time the defendants were identified in the second amended complaint. Contrary to the plaintiff’s contention, the relation-back doctrine does not apply, because the defendants are not united in interest with the City … . The City “cannot be held vicariously liable for its employees’ violations of 42 USC § 1983, and there is no unity of interest in the absence of a relationship giving rise to such vicarious liability” … . Additionally, the plaintiff failed to demonstrate that he made diligent efforts to ascertain the defendants’ identities prior to the expiration of the statute of limitations or that the City hindered any such efforts … . Contrary to the plaintiff’s contentions, the Supreme Court’s prior orders allowing the plaintiff to amend the complaint to add the then-unknown defendants by name within a certain time period are not binding on these issues. The doctrine of the law of the case does not bind an appellate court … . Agosto v Maria, 2024 NY Slip Op 05950, Second Dept 11-27-24

Practice Point: Here the motion to amend the complaint to identify “John Doe” and “Jane Doe” defendants as police officers should have been denied because the statute of limitations had expired and the relation-back doctrine did not apply because police officers are not united in interest with the city which employs them.

 

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THE DEFAMATION ACTION AGAINST A REPORTER AND A MEDIA COMPANY WAS PROPERLY DISMISSED PURSUANT TO THE ANTI-SLAPP STATUTE; PLAINTIFFS FAILED TO DEMONSTRATE THE SUIT HAD A “SUBSTANTIAL BASIS IN LAW;” CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, over a two-justice concurrence, determined plaintiffs failed to demonstrate their defamation action against a reporter and a media company had a “substantial basis in law” under the anti-SLAPP law. Therefore the complaint was dismissed pursuant to CPLR 3211 [g] [1] and defendants were entitled to attorney’s fees and costs. The articles published by defendants concerned plaintiff Karl Reeves’ divorce and custody dispute. The facts are too detailed to fairly summarize here:

… [T]he anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a defendant in a SLAPP suit moves pursuant to CPLR 3211(a)(7) to dismiss the complaint. Upon such a motion, the defendant bears the initial burden of showing that the action or claim is a SLAPP suit (see CPLR 3211[g][1]). Once the defendant makes that showing, the burden shifts to the plaintiff to demonstrate that the claim has a “substantial basis in law” (id.). If the claim is dismissed, the defendant recovers a mandatory award of attorneys’ fees.

This case presents the issue of what constitutes a “substantial basis in law” under the anti-SLAPP law. We hold, based on our reading of CPLR 3211(g) and (h), that “substantial basis” under the anti-SLAPP law means “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , a phrase drawn from the relevant legislative history. We further find that, because the complaint in this case fails to survive ordinary CPLR 3211(a)(7) analysis, plaintiffs have failed to meet the higher burden under CPLR 3211(g) of showing that their SLAPP suit has a substantial basis in law. Accordingly, defendants — a media entity and a reporter — are entitled to mandatory costs and attorneys’ fees pursuant to Civil Rights Law § 70-a. We remand the case solely for calculation of those costs and fees.  Reeves v Associated Newspapers, Ltd., 2024 NY Slip Op 04286, First Dept 8-22-24

Practice Point: To overcome a motion to dismiss a defamation action under the anti-SLAPP statute, the plaintiff must demonstrate the action has a “substantial basis in law.” This decision fleshes out the meaning of that phrase.

 

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DEFAMATORY STATEMENTS RELATING TO ISSUES OF BROAD PUBLIC INTEREST POSTED ON FACEBOOK MAY BE ENCOMPASSED BY THE ANTI-SLAPP STATUTE; HERE, HOWEVER, THE STATEMENTS (ALLEGATIONS OF SEXUAL ABUSE) RELATED TO A PURELY PRIVATE MATTER AND, THEREFORE, WERE NOT ENCOMPASSED BY THE STATUTE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Love, determined (1) Facebook is a “public forum” within the meaning of the anti-SLAPP statute, and (2) the allegedly defamatory statements defendants posted on Facebook involved a “purely private matter,” not an issue of broad public interest, and therefore was not encompassed aby the anti-SLAPP statute. Therefore plaintiff’s defamation per se cause of action properly survived dismissal:

… [T]he defendants … posted a series of responses to a post on the personal Facebook page of the plaintiff … alleging that the plaintiff had sexually abused [one of the defendants] approximately 17 years prior when she was 4 years old … . * * *

Based upon the intent of the Legislature to redefine New York’s anti-SLAPP statute as broadly as possible, and the interpretation in decisions by other state courts of their similar state anti-SLAPP statutes defining Facebook and other social media applications as public forums, we conclude that Facebook is a public forum within the meaning of Civil Rights Law § 76-a(1). …

… [T]his action is not subject to the anti-SLAPP statute because the defendants’ statements published on the plaintiff’s Facebook page concerned “a purely private matter” … and were “directed only to a limited, private audience” … . Although the defendants made generic reference to issues of broad public interest, their primary focus was not an issue of broad public interest. Nelson v Ardrey, 2024 NY Slip Op 04147, Second Dept 8-7-24

Practice Point: Facebook is a “public forum” within the meaning of the anti-SLAPP statute.

Practice Point: Statements which relate to purely private matters, here Facebook posts alleging sexual abuse, as opposed to statements relating to a broad public interest, are not encompassed by the anti-SLAPP statute.

 

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RECORDS OF POLICE DISCIPLINARY PROCEEDINGS WHICH DID NOT RESULT IN DISCIPLINARY ACTION ARE PROPER SUBJECTS OF A FOIL REQUEST (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined records of police disciplinary proceedings which did not result in disciplinary action were a proper subject of petitioner’s FOIL request. The records had been denied on the ground disclosure would constitute an unwarranted invasion of personal property pursuant Public Officers Law 87(2)(b). Petitioner, who prevailed, was entitled to attorney’s fees:

… [C]ontrary to the respondents’ contention, the withheld records were not categorically exempt from disclosure. “[T]here is no categorical exemption from disclosure for unsubstantiated allegations or complaints of police misconduct” … . “Upon repealing Civil Rights Law § 50-a, the Legislature amended . . . Public Officers Law to specifically contemplate the disclosure of ‘law enforcement disciplinary records,’ which it defines to include ‘complaints, allegations, and charges against an employee'” … . “If the Legislature had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much” … . “It did not, and instead included ‘complaints, allegations, and charges’ in its definition of disciplinary records, along with ‘the disposition of any disciplinary proceeding,’ without qualification as to the outcome of the proceeding” … .

Accordingly, disclosure of the withheld records was required unless those records “‘[fell] squarely within the ambit of one of [the] statutory exemptions … . Matter of New York Civ. Liberties Union v Village of Freeport, 2024 NY Slip Op 03824, Second Dept 7-17-24

Practice Point: Records of police disciplinary proceedings which did not result in disciplinary action are not exempt from a FOIL request.​

 

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PLAINTIFF MODEL SUFFICIENTLY ALLEGED PHOTOSHOOTS DONE WHEN SHE WAS 16 AND 17 FOR A SUNTANNING-PRODUCT MARKETING CAMPAIGN CONSTITUTED “SEXUAL PERFORMANCES” TRIGGERING THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined certain causes of action against the modeling agency which represented plaintiff and the seller of suntanning products which used the photos of plaintiff should not have been dismissed as time-barred under the extended statute of limitations in the Child Victims Act [CVA] (CPLR 214-g). The photoshoots took place when plaintiff was 16 and 17. One of the issues was whether the complaint adequately alleged the photoshoots constituted a “sexual performance” with triggered the applicability of the CVA. After a comprehensive discussion too detailed to summarize here, the First Department held the complaint stated causes of action based on the “sexual performance” criteria in Penal Law 263.05:

At the pleading stage, as to both defendants, we find that a reasonable inference to be drawn from plaintiff’s allegations regarding the photographing of her while she was unclothed is that the resulting photographs may have captured plaintiff’s genitalia, thus satisfying the “sexual conduct” component of a Penal Law § 263.05 sexual performance. It is not merely the allegation of nudity that suffices, but the permissible inference that nudity occasioned the exhibition of genitalia, lewdly, in a photographic performance. We need not and do not reach whether plaintiff will ultimately be successful … , and at this stage, in light of the allegations contained in the complaint and the reasonable inferences to be drawn therefrom, we need not confine our analysis of the allegations to photographs that were ultimately used in Cal Tan’s marketing campaign, as submitted on the appeal.  * * *

We … find that a plaintiff’s age at the time of the alleged acts, so long as under 18 years of age, does not prevent application of the CVA to revive claims otherwise meeting CPLR 214-g’s requirements. Thus, plaintiff adequately pleaded that, with respect to her age at the time of the alleged acts, the CVA applies to her. Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 03081, First Dept 6-6-24

Practice Point: Here photoshoots for a suntanning-product marketing campaign were sufficiently alleged to constitute “sexual performances’ triggering the extended statute of limitations in the Child Victims Act.

 

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