Opinion
Index No. 621982/2021
11-21-2023
Newsday LLC, Petitioner, v. Suffolk County Police Department, Respondent.
PETITIONER'S ATTORNEY BALLARD SPAHR, LLP RESPONDENT'S ATTORNEY DENNIS BROWN, ACTING SUFFOLK COUNTY ATTORNEY By: LISA AZZATO, ASSISTANT COUNTY ATTORNEY
Unpublished Opinion
PETITIONER'S ATTORNEY BALLARD SPAHR, LLP
RESPONDENT'S ATTORNEY DENNIS BROWN, ACTING SUFFOLK COUNTY ATTORNEY By: LISA AZZATO, ASSISTANT COUNTY ATTORNEY
Maureen T. Liccione, J.
Upon the e-filed documents numbered 1 through 25, 28 through 41, 43, 44, 47 through 49, and 51 through 57 and upon due deliberation, it is:
ORDERED AND ADJUDGED that the petition (motion sequence no. 001) is granted, in part, to the extent that Respondent is directed to release records responsive to each of the FOIL requests which are the subject of this proceeding in accordance with the requirements set forth herein, on a rolling basis, beginning 30 days from service of this order and judgment with notice of entry via NYSCEF, subject to any redactions or exemptions from disclosure authorized by statute or because of a possibility of endangerment to non-SCPD individuals; and it is further
ORDERED that Respondent shall provide a log to Petitioner justifying each claimed redaction and exemption from disclosure stating who prepared the record, the nature of the item redacted or claimed to be exempt and stating the specific statutory basis invoked or the basis for claiming endangerment to non-SCPD individuals, in a manner that would allow for judicial review; and it is further
ORDERED that in the event Petitioner claims that exemptions or redactions are improper, Petitioner will provide the Court, on notice to Respondent, a detailed list of the objections and request an in camera review of the unredacted records; and it is further
ORDERED that counsel for the parties are directed to appear on December 14, 2023 at 10:00 a.m., at the Supreme Court Courthouse, One Court Street, Riverhead, to present their positions on the release of the requested database records, redaction of audio records and to set a schedule for the rolling release of records; and it is further
ORDERED AND ADJUDGED that insofar as the petition attempts to seek a declaratory judgment is dismissed; and it is further
ORDERED that the motion for leave to file an amicus brief (motion sequence no. 002) is denied.
This is a special proceeding by Newsday LLC (Newsday or Petitioner) against the Suffolk County Police Department (SCPD or Respondent) which Petitioner claims is brought pursuant to Article 78 of the Civil Practice Law and Rules (CPLR), the Freedom of Information Law, Public Officers Law §§ 84, et seq. (POL or FOIL) and CPLR 3001. Newsday's petition seeks a judgment "vacating, overruling and prohibiting the enforcement of the final administrative decisions" by the SCPD FOIL appeals officer denying appeals related to Newsday's FOIL requests; "directing SCPD to provide Newsday with immediate access to the requested records" in Newsday's FOIL requests; and awarding Newsday attorney's fees and litigation costs pursuant to POL 89 (4) (c) (NYSCEF Doc No. 1, ¶ 1). The SCPD has answered and submitted a certified transcript of the proceedings (Return).
Although the petition asserts that it also seeks a declaratory judgment pursuant to CPLR 3001, there is no claim for declaratory relief in the "wherefore clause" and there is no summons or complaint or combined petition/complaint. Consequently, insofar as the petition seeks a declaratory judgment, it is dismissed.
This proceeding arises from the SCPD's denial, in whole or in part, of ten FOIL requests for various SCPD records. Newsday administratively appealed the denials, which were denied, in whole or in part. The FOIL requests and appeals are denominated by the parties as the: 13 Officers Request; Fedden Request; Drzal Request; Bay Shore Request; Kirby Request; Santamaria Request; Drayton Request; Simmons Request; Moroughan Request; and Database Request and are referred to accordingly herein.
The petition was filed and served in late November 2021. The SCPD served the answer, Return and papers in opposition on February 25, 2022 (motion sequence no. 1). Prior to the SCPD serving the answer, on January 10, 2022, the Suffolk County Police Benevolent Association (PBA) filed a motion for leave to file an amicus curiae brief together with a proposed brief (motion sequence no. 2). Neither Newsday nor the SCPD opposed the amicus motion.
The verification of the petition was notarized remotely by a notary located in Pennsylvania while the verifying attorney was in New York City (NYSCEF Doc No. 1). Remote notarization was not permitted in New York at that time. The Governor's Executive Order (EO 202.7) authorizing remote notarization during the Covid-19 pandemic emergency expired on July 5, 2021 (EO 202.110). The legislation amending New York Executive Law to allow remote notarization did not become effective January 31, 2023 (Senate Bill 1780C) and requires the notary taking a remote signature to be physically present in New York State. The improper verification was not raised by Respondent (see CPLR 3022; see also Hulse v Wirth, 175 A.D.3d 1276 [2d Dept 2019], citing Rosenblatt v St. George Health and Racquetball Associates, LLC, 119 A.D.3d 45 [2d Dept 2014]).
Thereafter, in December 2022, the judge previously assigned to this matter adjourned the return date of this proceeding, as well as the motion for amicus relief, and ordered the parties and the PBA to make additional submissions addressing the impact of the November 2022 decision in Matter of New York Civil Liberties Union v City of Syracuse, 210 A.D.3d 1401 [4th Dept 2022] which might have "a substantial bearing on the issues raised" in this proceeding (NYSCEF Doc No. 46) (Judge Luft Order). Those submissions were filed on January 31, 2023. Newsday submitted additional and more recent relevant case law by letter dated June 7, 2023. The proceeding then was assigned to this Court in September 2023.
The New York Civ. Liberties decision addressed the most common reason for SCPD's denials of access because it involved records related to allegations of police officer misconduct which were found to be "unsubstantiated", "unfounded", or where the police officer(s) were "exonerated" (collectively, Unsubstantiated). The SCPD premised these denials and redactions on POL 87 (2) (b) and asserted that disclosures of these records would constitute unwarranted invasions of personal privacy.
In addition, records were withheld or redacted because they contained information regarding sex offenses, which the SCPD alleged were exempt from FOIL pursuant to Civil Rights Law § 50-b. Records regarding 911 calls were redacted completely or withheld pursuant to County Law § 308.4. Arrest records that have been sealed and references to such records were redacted or withheld. Finally, records were withheld or redacted to eliminate references to non-police individuals.
Since the SCPD's alleged justifications for withholding documents fell into these five main categories, this decision will state the general mandates of FOIL and then the rules governing each of the five categories. The questions of fact surrounding release of audio recordings and the Database requisition will be considered separately.
Newsday's Article 78 Proceeding / Motion Sequence No. 1
General FOIL Requirements
FOIL "proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" (Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571 [1979]). "By permitting access to official information long shielded from public view, the act permits the electorate to have sufficient information in order to make intelligent, informed choices with respect to both the direction and scope of governmental activities" (id. at 571; see Matter of Friedman v Rice, 30 N.Y.3d 461 [2017]. "FOIL requires that public agencies 'make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions'" (Matter of Kosmider v Whitney, 34 N.Y.3d 48 [2019]). "[Courts] typically construe exemptions narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'" (Matter of Kosmider v Whitney, 34 N.Y.3d 48, 54, 108 [2019]), quoting Matter of Capital Newspapers Division of Hearst Corporation v Burns, 67 N.Y.2d 562, 566 [1986]. All documents in the possession of an agency are presumed to be open to the public under FOIL unless the agency can identify a specific statutory exemption (Matter of Data Tree, LLC v Romaine, 9 N.Y.3d 454, 462 [2007]; see also Matter of New York Times Company v City of New York Office of Mayor, 194 A.D.3d 157 [1st Dept 2021], lv to app den'd, 37 N.Y.3d 913 [2021]).
Unsubstantiated Misconduct Allegations
The petition alleges that the 2020 repeal of Civil Rights Law § 50-a, which had shielded from disclosure law enforcement "personnel records used to evaluate performance towards continued employment or promotion" now requires access to all law enforcement disciplinary records, even where allegations of misconduct were found to be Unsubstantiated. As noted above, the SCPD rejected Newsday's arguments and denied the administrative appeals citing POL 87 (2) (b). The SCPD also asserted it was denying disclosure in reliance upon Committee on Open Government (COOG), FOIL Advisory Opinion 19775 [7/27/2020]. The SCPD answer to the petition also cites to COOG FOIL Advisory Opinion 19785 [3/19/2021]. The SCPD contends that these two opinions advised that notwithstanding the repeal of Civil Rights Law § 50-a, law enforcement disciplinary records involving Unsubstantiated complaints must be withheld completely under the personal privacy exemption provisions of POL 87 (2) (b). The answer also relies upon the decision in Matter of Newsday LLC v Nassau Cnty Police Dept. [Index No. 601813/2021, Rademaker, J., Sup Ct, Nassau Cnty, Nov 3, 2021]) which held that the "repeal of [Civil Rights Law] § 50-a does not require documents related to unsubstantiated claims against police officers to be released."
Miscited by the SCPD in several administrative appeal denials as Advisory Opinion 17195.
Subsequent to the SCPD's appeal denials and the filing of the petition herein, the Appellate Division ruled that the personal privacy exemption under POL 87 (2) (b) "'does not... categorically exempt... documents from disclosure even in a case where a FOIL request concerns release of unsubstantiated allegations or complaints of professional misconduct" against police officers (Matter of New York Civil Liberties Union v City of Syracuse, 210 A.D.3d 1401, 1404 [internal citations omitted]). Since police misconduct records are not categorically exempt, "[i]n order to invoke the personal privacy exemption... respondents must review each record responsive to petitioner's FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of... officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner" (Matter of New York Civil Liberties Union v City of Syracuse, 210 A.D.3d at 1404-1405 [4th Dept 2022]; see also Matter of McDevitt v Suffolk Cnty, 78 Misc.3d 1239 (A) [Sup Ct, Suffolk Cnty, 2023]; Matter of Lockwood v Nassau Cnty Police Dept., 78 Misc.3d 1219 (A) [Sup Ct, Nassau Cnty, 2023]).
Later in 2023, subsequent to the parties' filings made pursuant to Judge Luft's Order, the Appellate Division, First Department, issued a similar ruling in Matter of New York Civil Liberties Union v New York City Department of Correction, 213 A.D.3d 530, 530-531 [1st Dept 2023], and held that POL 87 (2) "does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct "[D]ocuments concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"(id.).
It is axiomatic that principles of stare decisis require this Court to follow the precedents set by the Fourth and First Departments of the Appellate Division, unless or until either the Second Department or the Court of Appeals rules otherwise. "The Appellate Division is a single state-wide court divided into departments for administrative convenience" (Maple Med., LLP v Scott, 191 A.D.3d 81 [2d Dept 2020], aff'd sub nom. Columbia Mem. Hosp. v Hinds, 38 N.Y.3d 253 [2022], citing Mountain View Coach Lines v Storms, 102 A.D.2d 663 [2d Dept 1984]). "While the Supreme Court is bound to apply the law as promulgated by the Appellate Division in its own department, where the issue has not been addressed within that department, the Supreme Court is obligated to follow the precedent set by the Appellate Division of another department until its home department or the Court of Appeals pronounces a contrary rule" (id. at 90, citing Phelps v Phelps, 128 A.D.3d 1545 [4th Dept 2015]; see D'Alessandro v Carro, 123 A.D.3d 1 [1st Dept 2014]). "In applying an Appellate Division precedent, it is not open to the Supreme Court to consider whether the precedent was correctly established-that is a matter that may be considered by another department or by the Court of Appeals" (Maple Med., LLP, 191 A.D.3d at 90). [T]rial courts are "bound by the doctrine of stare decisis to apply precedent established in another Department, [if] no relevant precedent [is] available from this Court or the Court of Appeals" Matter of Wayne Ctr. for Nursing & Rehab., LLC v Zucker, 197 A.D.3d 1409, 1412 [3d Dept 2021], lv to app den'd sub nom. Richmond Ctr. for Rehab. & Specialty Healthcare v Zucker, 37 N.Y.3d 919 (2022), and lv to app den'd, 37 N.Y.3d 919 [2022]; see also Rivas v Seward Park Hous. Corp., 219 A.D.3d 59 fn 3 [1st Dept 2023]; Shoback v Broome Obstetrics & Gynecology, P.C., 184 A.D.3d 1000, 1001 [3d Dept 2020]). Accordingly, there is no blanket exemption for unsubstantiated allegations. The records must be released together with a log listing particularized statutory exemptions in accordance with the terms of this order.
The County argues that records were withheld or redacted under Civil Rights Law § 50-b which mandates that:
The identity of any victim of a sex offense... or of an offense involving the alleged transmission of the human immunodeficiency virus, shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section.
The Court of Appeals has interpreted § 50-b (1) narrowly and ruled that it does not require wholesale withholding or redaction of all records involving sex crimes:
While Civil Rights Law § 50-c mandates caution by imposing civil liability upon governmental entities that disclose the identity of a sex crime victim in violation of section 50-b, that fact does not justify a blanket denial of a request for any documents relating to a sex crime. If a requested document does not contain information that tends to identify the victim of a sex crime, and the FOIL request is otherwise valid, the document must be disclosed. In those cases where there is a legitimate dispute as to whether the information contained in any given document tends to identify the victim, the police still bear the burden of making a particularized showing as to why it should not be disclosed.(Matter of Fappiano v New York City Police Dep't, 95 N.Y.2d 738,748 [2001] [ internal citations omitted ]; see also Matter of Mazza v Vill. of Croton-on-Hudson, 140 A.D.3d 878, 880 [2d Dept 2016] ["The agency [claiming an exemption from FOIL] must make a particularized showing that the statutory exemption from disclosure pursuant to Civil Rights Law § 50-b (1) applies to all the records that the petitioner seeks"]).
Accordingly, there is no blanket exemption for these records. Any records not released are to be produced together with a log listing particularized exemptions in accordance with the terms of this order.
911 Call Records
County Law § 308 (4) provides that:
Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services.
"That section shields only those records of calls made to an emergency 911 system, not all 911 records generally. As exemptions are to be narrowly construed, [the police department is] not entitled to redact or withhold records except those which were of the calls themselves" (Newsday LLC v Nassau Cnty. Police Dept, 42 Misc.3d 1215(A) [Sup Ct, Nassau Cnty, 2014], citing Matter of Gould v New York City Police Department, 89 N.Y.S.2d 267 [1996]). "Records of a municipality's own dispatches which may have resulted from those calls... have to be produced, and redaction [may] be made only to the extent that the logs or other records contained actual call content" (id.). Accordingly, the records are to be released together with a log listing particularized exemptions in accordance with the terms of this order.
Sealed Criminal Records
POL 87 (2) (a) provides that an agency may deny access to records that "are specifically exempted from disclosure by state or federal statute." Criminal Procedure Law § 160.50 (1) is a state statute which provides, in general, that "[u]pon the termination of a criminal action or proceeding against a person in favor of such person... the record of such action or proceeding shall be sealed" (CPL 160.50[1]). Accordingly, absent a waiver by the defendant, such sealed records are not subject to disclosure under FOIL (Matter of New York Times Co. v Dist. Att'y of Kings Cnty., 179 A.D.3d 115 [2d Dept 2019]).
Non-SCPD Individuals Mentioned in Records
The SCPD has asserted a blanket and conclusory confidentiality exemption for records identifying non-SCPD individuals including crime victims, injured parties, bystanders and witnesses, without regard to any of the relevant circumstances. As the Court of Appeals has held, "a blanket exemption for any statement made to law enforcement on the ground that it is inherently confidential admits of absurd results" (Matter of Friedman v Rice, 30 N.Y.3d 461, 477 [2017]).
"There is no basis to assume that every person who communicates with law enforcement in the course of a criminal investigation expects that their name and each and every statement they make will be held in confidence. So interpreted, the exemption would cover even an innocuous statement to a police officer or a comment that 'relates,' but is obviously insignificant, to a criminal investigation. Consider, for example, a non-testifying witness who avers merely that 'I did not see anything,' or a witness who merely corroborates undisputed and uncontroversial facts.(id., at 477); see Matter of Jewish Press, Inc. v New York City Dept of Investigation, 193 A.D.3d 461[1st Dept 2021]; In re Matter of Exoneration Initiative v New York City Police Dept, 114 A.D.3d 436, 438 [1st Dept 2014] [the public safety exemption of POL § 87 (2) (f) does not warrant a blanket exception to police records that reveal the identity of individuals]). The agency must demonstrate "a possibility of endanger[ment]" in order to invoke a FOIL exemption for witness information]). Accordingly, "[s]tatements by a witness must be disclosed absent a showing that [the witness] was a confidential informant or requested or was promised anonymity" (id., see also Lane v Port Washington Police Dist., No. 2021-07546, 2023 WL 7363744 [2d Dept, Nov. 8, 2023]).
Accordingly, records identifying non-SCPD persons must be released unless there is a possibility of endangerment to the person. A log will be provided in accordance with the terms of this order.
Audio Recordings
In some of its FOIL requests Newsday sought production of audio recordings, particularly of police personnel interviews. The SCPD responded by indicating that it lacks the technology to redact these recordings and suggested that Newsday pay the costs associated with a vendor performing the redactions. The record does not contain any evidence as to the SCPD's lack of technical capability or any cost estimates. Nor it does not demonstrate whether Newsday would agree to paying these costs. Accordingly, questions of fact remain on this issue (see Matter of Time Warner Cable News NY1 v New York City Police Dept, 53 Misc.3d 657 [Sup Ct, NY Cnty, 2016], reargument granted in part, denied in part, 2017 NY Slip Op 30707(u) [Sup Ct, NY Cnty, 2017]), Database Request
Newsday has requested "digital or electronic records 'created in furtherance' of disciplinary proceedings involving sworn members of the SCPD from the oldest available in the county's electronic systems to the most recent data available when the request is fulfilled" (petition ¶ 57, NYSCEF Doc No. 1). The record is confused here because Newsday claims the SCPD did not respond to this request or to its administrative appeal, while the SCPD asserts that "in view of the County's rolling production of responsive documents, Newsday has agreed that there is no need to adjudicate this portion of the Petition at this time" (Respondent's affirmation is opposition ¶ 10, NYSCEF Doc No. 33). Given these contradictions, there are questions of fact which much be addressed.
Proper Exemptions and Redactions
"FOIL is based on a presumption of access to [agency] records, and an agency... carries the burden of demonstrating that [an] exemption applies to the FOIL request. [An agency] must meet this burden in more than just a plausible fashion. In order to deny disclosure, the [agency] must show that the requested information falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access. If the [agency] fails to prove that a statutory exemption applies, FOIL compels disclosure, not concealment. In short, the burden of proof rests solely with the [agency] to justify the denial of access to the requested records" (Matter of Data Tree, LLC v Romaine, 9 N.Y.3d 454, 462-463 [2007]). "[B]lanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (Matter of Gould v New York City Police Dept., 89 N.Y.2d 267 [1996]; see also Matter of Thomas v New York City Dept. of Educ., 103 A.D.3d 495 [1st Dept 2013]; Matter of New York State Defenders Assn. v New York State Police, 87 A.D.3d 193, 196 [3d Dept 2011]), and the agency must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Police Benevolent Ass'n of New York State, Inc. v State of New York, 145 A.D.3d 1391 [3d Dept 2016], citing Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 N.Y.2d at 566 [1986]; Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 N.Y.3d 882, 885 [2009]). In "a CPLR article 78 proceeding, the agency 'shall have the burden of proving that [a] record falls within the provisions of' a statutory exception by articulating a particularized and specific reason for denying access to the record (Matter of Suhr v New York State Dep't of Civ. Serv., 193 A.D.3d 129, 131-32 [3d Dept 2021, lv to app den'd, 37 N.Y.3d 907 (2021)] [ internal citations omitted ]. In sum, the applicable "burden requires identifying the types of documents, their general content, and the risk associated with that type of content" (Rebello v Thomas Dale Com'r Nassau Cnty Police Dept., Index No. No. 1190613, 2014 WL 2511379, at *5 [Sup. Ct. Nassau Cnty, Mar. 18, 2014], citing Matter of Lesher v Hynes, 19 N.Y.3d 57 [2012]).
In view of the Appellate Division rulings, which are binding precedent on this Court, the records involving Unsubstantiated police misconduct complaints must be released. Any redactions and claimed exemptions must be for particularized reasons and the specific statutory exemption or claims of endangerment to non SCPD individuals must be provided in accordance with the caselaw cited above.
The record reveals that the Respondent previously fell short of the requirements for particularizing the statutory exemptions it relied upon in withholding or redacting each particular record. Notably, given that public documents, including Federal and State Court pleadings, Newsday articles and SCPD news releases were redacted, raises questions as to the appropriateness of all Respondent's redactions. Consequently, each redaction must be reexamined, and each statutory justification must be itemized in a log which specifies the nature of the contents of the exempt or redacted document, who prepared record and the statutory basis for the exemption or redaction (see e.g., Matter of Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434 [2003]).
Attorney's Fees and Litigation Costs
Newsday has requested an award of attorney's fees and litigation costs pursuant to POL 89 (4) (c). That section provides that a court has the discretion to assess fees and litigation costs reasonably incurred by a petitioner which has substantially prevailed in an Article 78 proceeding challenging a denial of access where the respondent failed to respond to a request or appeal within the statutory time. The same section mandates that a court shall assess such fees and costs where a petitioner has substantially prevailed, and the court finds that the agency had no reasonable basis for denying access.
Consideration of attorney's fees is premature at this juncture and will be considered at the conclusion of the rolling release of records and based upon the appropriateness of the redactions and exemptions proffered by the SCPD.
PBA's Motion for Leave to File an Amicus Curiae Brief / Motion Sequence No. 2.
As noted above, the PBA has moved for leave to file an amicus curiae brief. The PBA's motion sets forth its opposition to the release of unredacted Unsubstantiated misconduct complaint records (affirmation in support of motion to file amicus ¶5, NYSCEF Doc No. 29). In so doing the PBA relies upon Supreme Court cases decided prior to the Appellate Division decisions in Matter of New York Civ. Liberties Union v City of Syracuse and Matter of New York Civ. Liberties Union v New York City Dept. of Corr. Further, the PBA's brief in response to Judge Luft's Order makes the same untenable argument as the SCPD's, i.e., that this Court can contradict the Appellate Division.
Neither Newsday nor the Appellate Division has suggested, as the PBA argues, that unredacted disciplinary records be released (see Matter of New York Civ. Liberties Union v City of Syracuse, 210 A.D.3d 1401,1404 ["Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"]; Matter of New York Civ. Liberties Union v New York City Dept. of Corr. 213 A.D.3d 530 -531[Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"]).
The CPLR does not set a standard for allowing amicus briefs. The governing caselaw, however, has held that "the function of an' amicus curiae' is to call the court's attention to law or facts or circumstances in a matter... that might otherwise escape its consideration; it is a privilege and not a right" (Columbus Monument Corp. v City of Syracuse, 73 Misc.3d 967, 971 [Sup Ct, Onondaga Cnty [2021], quoting Kruger v Bloomberg, 1 Misc.3d 192, (Sup Ct, NY Cnty, 2003] and Kemp v Rubin, 187 Misc. 707 [Sup Ct, Queens Cnty, 1946]).
Key among the considerations for whether to grant a motion for leave to file an amicus brief are whether the parties are capable of a full and adequate presentation of the relevant issues and, if not, whether the proposed amici could remedy this deficiency and whether the proposed brief identifies law or arguments that might otherwise escape the court's consideration or would otherwise be of assistance to the court (see Columbus Monument Corp. v City of Syracuse, 73 Misc.3d 967, 971, citing Anschutz Exploration Corp. v Town of Dryden, 35 Misc.3d 450, 454, [Sup. Ct., Tompkins Cnty, 2012]).
Here, the parties are capable of making a full presentation. Further, the proposed brief does not present legal arguments that might be overlooked, since it misstates that Petitioner is seeking wholly unredacted records of misconduct complaints. Because the proposed brief relies upon superseded Supreme Court decisions, it is not of assistance to the Court. In sum, this Court is without jurisdiction to overrule the Appellate Division. Accordingly, the PBA's amicus brief would be more appropriately addressed to the various appellate courts which are considering the application of FOIL records to Unsubstantiated police misconduct complaints. Accordingly, the PBA's motion is denied.
The parties' and movant's remaining contentions are either without merit or are unnecessary to this determination.
The foregoing constitutes the Order and partial Judgment of the Court.