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PETITIONER’S APPLICATION TO CHANGE THE DESIGNATION OF HIS RACE/NATIONALITY PROPERLY DENIED; EX PARTE ORDERS ARE NOT APPEALABLE, NOTICES OF APPEAL TREATED AS APPLICATIONS FOR REVIEW PURSUANT TO CPLR 5704 (a) (SECOND DEPT).

The Second Department determined petitioner’s application to change his race/nationality from “black/African American” to “Moor/Americas Aboriginal” was properly denied. The court noted that an ex parte order is not appealable but deemed the notices of appeal applications pursuant to CPLR 5704 (a):

“An ex parte order is not appealable … . However, under the circumstances of this case, we deem it appropriate to treat the instant notices of appeal as applications for review pursuant to CPLR 5704(a) … .

We agree with the Supreme Court’s denial of that branch of the petition which was to change the petitioner’s race/nationality, as the petitioner presented no authority for the court to grant him such relief. Article 6 of the Civil Rights Law, which governs petitions for leave to assume another name, does not provide such authority. Further, a person’s race is a matter of self-identification. As to nationality, the sole means by which the petitioner may renounce his nationality as a United States citizen is to satisfy one of the conditions set forth in 8 USC § 1481(a) … . The petitioner made no showing that he met any of these conditions. Matter of Keis, 2019 NY Slip Op 04944, Second Dept 6-19-19

 

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THE CITY AND DEFENDANT CORRECTION OFFICER ARE NOT UNITED IN INTEREST BECAUSE THE CITY IS NOT VICARIOUSLY LIABLE FOR ITS EMPLOYEES’ VIOLATION OF 42 USC 1983, THEREFORE THE RELATION-BACK DOCTRINE CAN NOT BE RELIED UPON TO SUBSTITUTE THE CORRECTION OFFICER FOR “JANE DOE” AFTER THE STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the relation-back doctrine could not be relied upon to substitute the name of a correction officer for “Jane Doe” in the complaint in this 42 USC 1983 action. The correction officer and the city are not “united in interest.” The city cannot be held vicariously liable for its employees’ violation of 42 USC 1983:

In this action alleging a claim of deliberate indifference under the Eighth Amendment and 42 USC § 1983, plaintiff did not serve the Jane Doe correction officer defendant before the statute of limitations ran. Although the claims against the intended defendant arise out of the same transaction as the claims alleged in the complaint, plaintiff cannot rely on the relation-back doctrine. The correction officer and defendant City are not “united in interest” because “the City cannot be held vicariously liable for its employees’ violations of 42 USC § 1983” … . Nor can plaintiff’s more than two-year delay in seeking to add the new defendant as a party after learning her identity be characterized as a mistake for relation-back purposes … .

Plaintiff’s reliance on CPLR 1024 is unavailing, as he does not demonstrate diligence in seeking to identify the unknown correction officer prior to the expiration of the statute of limitations … . Burbano v New York City, 2019 NY Slip Op 03937, First Dept 5-21-19

 

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UNUSUAL INCIDENT REPORTS, USE OF FORCE REPORTS, AND MISBEHAVIOR REPORTS KEPT BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES (DOCCS) RE: INCIDENTS IN PRISONS ARE NOT PERSONNEL RECORDS PURSUANT TO CIVIL RIGHTS LAW 50-a, THEREFORE PETITIONER WAS ENTITLED TO UNREDACTED COPIES PURSUANT TO HIS FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, in a matter of first impression, determined that records kept by the Department of Corrections and Community Supervision (DOCCS) regarding incidents in prisons were not personnel records pursuant to Civil Rights Law 50-a. Therefore petitioner was entitled to unredacted copies pursuant to his Freedom of Information Law (FOIL) request:

… [U]nusual incident reports, use of force reports and misbehavior reports have distinct characteristics. However, they share several important commonalities. To begin with, each category of report is, at its core, a written memorialization of an event that occurred at a DOCCS facility. Additionally, and significantly, each type of report is authored, as a mandatory component of their job duties, by staff members with knowledge of the underlying event. The reports do not arise out of inmate allegations or grievances … . Nor are they written documentation of disciplinary proceedings or disciplinary action taken against a correction officer … . Given their factual nature and that each is written by a witness or witnesses with knowledge of the underlying facility event, we find unusual incident reports, use of force reports and misbehavior reports to be more akin to arrest reports, stop reports, summonses, accident reports and body-worn camera footage, none of which is quintessentially “personnel records” … . * * *

… [W]hile it is relevant that unusual incident reports and use of force reports may be used in employee performance evaluations, that factor alone is not determinative. Otherwise, any employee work product or record documenting an employee’s on-duty actions would classify as a personnel record with the justification that it could be used to evaluate work performance and would, thus, result in a situation in which the exception swallows the rule … .

… [W]ith regard to the legislative objective of Civil Rights Law § 50-a, respondents have not demonstrated a “substantial and realistic potential” for the unredacted reports to be used against the officers in a harassing or abusive manner … . Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 03421, Third Dept 5-2-19

 

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POLICE BODY-WORN-CAMERA FOOTAGE DOES NOT CONSTITUTE A PERSONNEL RECORD AND IS NOT THEREFORE PROTECTED FROM RELEASE TO THE PUBLIC BY CIVIL RIGHTS LAW 50-a (FIRST DEPT).

The First Department determined police officers’ body-worn-camera footage did not constitute a personnel record within the meaning of Civil Rights Law 50-a. Therefore the Patrolmen’s Benevolent Assn. of the City of N.Y.’s petition for a preliminary injunction prohibiting release of the footage was properly denied:

We find that given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of § 50-a … . The purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.

Although the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes. New York Civil Liberties Union v New York City Police Department (__NY3d__, 2018 NY Slip Op 8423 [2018]), which involved disciplinary matters, does not constrain this analysis. The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability. Matter of Patrolmen’s Benevolent Assn. of the City of N.Y. v De Blasio, 2019 NY Slip Op 03265, First Dept, 4-30-19

 

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MEDICAL RECORDS OF THE VICTIM OF SEXUAL ASSAULT SHOULD NOT HAVE BEEN MADE AVAILABLE TO THE PETITIONER, WHO WAS CONVICTED OF THE SEXUAL ASSAULT, PURSUANT TO PETITIONER’S FREEDOM OF INFORMATION LAW (FOIL) REQUEST, THE RECORDS ARE PROTECTED FROM DISCLOSURE BY THE PUBLIC HEALTH LAW, THE CIVIL RIGHTS LAW AND THE PUBLIC OFFICERS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical records of the victim of sexual assault could not be disclosed to the petitioner, who was convicted of the sexual assault, pursuant to a Freedom of Information Law (FOIL) request. The medical records were protected from disclosure by the Public Health Law, the Civil Rights Law and the Public Officers Law:

“All government records are presumptively open for public inspection unless specifically exempt from disclosure” … . Public Officers Law § 87(2)(a) provides that an agency may deny access to records that are specifically exempted from disclosure by state or federal statute … . Here, the medical records of the victim sought by the petitioner are exempted from disclosure by Public Health Law §§ 2803-c(3)(f) and 2805-g(3) … . Also, the medical records are exempt from disclosure pursuant to Civil Rights Law § 50-b, which, with exceptions not relevant here, prevents any public officer from disclosing documents that would identify the victim of a sex offense … . Further, the records are exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i) … . Matter of Crowe v Guccione, 2019 NY Slip Op 03044, Second Dept 4-24-19

 

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RECORDS OF COMPLAINTS ABOUT A FORMER DETECTIVE MADE TO THE CIVILIAN COMPLAINT REVIEW BOARD (CCRB) PROTECTED FROM DISCLOSURE BY THE CIVIL RIGHTS LAW (SECOND DEPT).

The Second Department determined the records of complaints about a now-retired detective (Scarcella) made to the Civilian Complaint Review Board (CCRB) were protected by Civil Rights Law 50-a and not subject to disclosure pursuant to the Freedom of Information Law (FOIL) (Public Officers Law 87):

The CCRB’s records of civilian complaints, “regardless of where they are kept,” could be used to harass or embarrass police officers, which is exactly what Civil Rights Law § 50-a was intended to prevent … . Indeed, the Court of Appeals has recently held that disciplinary records arising from civilian complaints against police officers are the very sort of record presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law § 50-a … . …

A retired police officer might “still [be] involved in an open or pending case and . . . , in that context, the requested documents have the potential to be used to degrade, harass, embarrass or impeach his integrity” … . Here, the petitioner’s own submissions show that Scarcella has been called to testify numerous times since his retirement. The CCRB met its burden of showing a substantial and realistic potential for the abusive use of the requested material against Scarcella … . Matter of Hughes Hubbard & Reed, LLP v Civilian Complaint Review Bd., 2019 NY Slip Op 02875, Second Dept 4-17-19

 

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CHILD’S NAME CHANGE TO THE HYPHENATED SURNAMES OF BOTH PARENTS, WHO ARE NOT MARRIED, AFFIRMED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the petition to change the child’s last name was properly granted to the extent that the hyphenated surnames of both parents, who are not married, were assigned to the child:

The parties have joint legal custody and the mother has always had primary physical custody of the child. Because he was overseas on active military duty, the father was not present at the time of the child’s birth. Prior to the child’s birth, however, the father had strongly expressed to the mother that the child should have his surname. Nevertheless, the mother gave the child her surname, Bafumo. The father commenced this proceeding in November 2016 under Civil Rights Law article 6 to change the surname of the child from Bafumo to Weinhofer, his surname. …

A petition to change the surname of a child shall be granted as long as the opposing party does not have a reasonable objection to the proposed name change and “the interests of the [child] will be substantially promoted by the change” (Civil Rights Law § 63). Although it appears that Supreme Court rendered its determination based solely on the second element — whether the child’s interests would be substantially promoted by the name change — given that the record is sufficiently developed as to the first element — whether the mother’s objections to the father’s petition were reasonable — it is unnecessary to remit the matter for a new hearing … . That said, we find that the mother’s objections were not reasonable. Matter of Bafumo, 2019 NY Slip Op 02767, Third Dept 4-10-19

 

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STOP AND ARREST OF PLAINTIFF PURSUANT TO NYC’S STOP AND FRISK POLICY STATED VALID CAUSES OF ACTION PURSUANT TO 42 USC 1983 AGAINST THE POLICE OFFICERS AND THE CITY (FIRST DEPT).

The First Department determined the allegations describing the stop and arrest of the plaintiff pursuant to NYC’s stop and frisk policy stated causes of action pursuant to 42 USC 1983 against the individual officers and the city:

The complaint, as amplified by plaintiff’s opposition papers, alleges that, on February 13, 2013, plaintiff and a friend, both black men, were driving in a luxury sports car in the Bronx. They were not driving recklessly or violating any traffic laws. Nevertheless, they were pulled over by the police, and five or six officers, including the individual defendants, removed them from the car and searched them and the car. The police found marijuana in the friend’s pocket, but recovered no other contraband, either in the car or on plaintiff’s person. Nevertheless, plaintiff was arrested and held for two days. Charges against him were dismissed in October 2013.

The complaint alleges further that, during this time period, the New York City Police Department employed a “stop and frisk” policy, pursuant to which every year the police stopped hundreds of thousands of overwhelmingly and disproportionately minority persons, including black men, and subjected them to searches, for no reason other than that they were in supposedly high-crime areas. The complaint alleges that the “stop and frisk” policy, rather than some constitutionally cognizable cause, was the reason plaintiff was detained, searched, and arrested. To prove the existence of this policy, plaintiff submitted, among other things, the New York City Bar Association’s 24-page “Report on the NYPD’s Stop-and-Frisk Policy,” dated May 2013, which examined the policy and made recommendations for its reform and the protection of city residents’ civil liberties.

The foregoing states a cause of action under 42 USC § 1983 against the individual defendants … . At this procedural juncture, it is not necessary for plaintiff to allege that any of the individual defendants did any more than participate in his unlawful arrest.

By alleging the existence of an extraconstitutional municipal “stop and frisk” policy, and that the individual defendants unlawfully arrested plaintiff pursuant to that policy, the complaint states a cause of action under 42 USC § 1983 against the City … . Smith v City of New York, 2019 NY Slip Op 01828, First Dept 3-14-19

 

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POLICE DOG RELEASED TO TRACK SUSPECTS WENT OUT OF THE HANDLER’S SIGHT AND BIT PLAINTIFF, 42 USC 1983, NEGLIGENCE AND BATTERY ACTIONS SURVIVED SUMMARY JUDGMENT, QUESTION OF FACT WHETHER POLICE OFFICER ENTITLED TO QUALIFIED IMMUNITY, CITY ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE PROFESSIONAL JUDGMENT RULE (THIRD DEPT).

The Third Department determined several causes of action property survived summary judgment in this case where a police officer (Ashe) released his K-9 partner (a trained police dog named Elza) which bit plaintiff as he was walking to his car. After Elza was released she ran out of Ashe’s sight. Ashe was attempting to use Elza to track suspects who had just robbed a gas station. The Third Department held, inter aliia, that the 42 USC 1983 action properly survived summary judgment, Ashe was not entitled to qualified immunity as a matter of law, the battery action properly survived summary judgment, and the city was entitled to summary judgment on the common-law negligence action based on the professional judgment rule:

There is at least a question of fact as to whether a reasonable police officer, aware that the dog could not differentiate a suspect from an innocent bystander, would allow the dog to search off leash and out of sight of the handler. Moreover, the record contains evidence from which a jury could find that the City “fail[ed] to train its employees in a relevant respect [that] evidences a deliberate indifference to the rights of its inhabitants[, which] can . . . be properly thought of as a city policy or custom that is actionable under [42 USC] § 1983” … . …

… [P]laintiffs’ expert … opined in his affidavit that Ashe failed to comply with standard police practice, including keeping the K-9 within visual range and providing audible warnings. Based on the foregoing, there are triable issues of fact that preclude summary judgment on the issue of Ashe’s entitlement to qualified immunity … . …

… [T]he City was entitled to dismissal of the common-law negligence claims based on the professional judgment rule. ” That rule ‘insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions’ … . Relf v City of Troy, 2019 NY Slip Op 01287, Third Dept 2-21-19

 

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FOOTAGE FROM A POLICE OFFICER’S BODY-WORN CAMERA IS NOT A PERSONNEL RECORD AND THEREFORE IS NOT PROTECTED FROM DISCLOSURE BY CIVIL RIGHTS LAW 50-a (FIRST DEPT).

The First Department determined that footage from a police officer’s body-worn camera was not a “personnel record” protected from disclosure by Civil Rights Law 50-a:

While we recognize petitioner’s valid concerns about invasion of privacy and threats to the safety of police officers, we are tasked with considering the record’s general “nature and use,” and not solely whether it may be contemplated for use in a performance evaluation. Otherwise, that could sweep into the purview of § 50-a many police records that are an expected or required part of investigations or performance evaluations, such as arrest reports, stop reports, summonses, and accident reports, which clearly are not in the nature of personnel records so as to be covered by § 50-a.

We find that given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of § 50-a … . The purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.

Although the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with any pending disciplinary charges or promotional processes. New York Civil Liberties Union v New York City Police Department, __NY3d__, 2018 NY Slip Op 8423 [2018], which involved disciplinary matters, does not constrain this analysis. The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability. Matter of Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 2019 NY Slip Op 01170, First Dept 2-19-19

 

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