New York Legal Update

Challenge to Freedom Of Information Law's Copying Fee Found Frivolous

New York's Freedom of Information Law (FOIL) allows the agency which is subject to a FOIL request to charge $0.25 per photocopy for copies made to comply with a FOIL request (see Public Officers Law § 87 [1][b][iii]).

Last week in Matter of Fenstermaker v Edgemont Union Free School Dist., 2008 NY Slip Op 01343, the Second Department held that an article 78 proceeding to challenge the fee collecting practice allowed by Public Officers Law § 87 [1][b][iii] constituted frivolous litigation. In that case, the petitioner challenged the FOIL fee collecting practices of the respondent Edgemont Union Free School District. The Second Department held that the Supreme Court was within its discretion for imposing costs, including an attorney's fee, against the petitioner for commencing a frivolous proceeding. The petitioner was ordered to pay $15,960.

Court Reporter Dismissed For Committing Identity Theft

Court Reporters or Stenographers are officers of the Court charged with the responsibility of producing a true, accurate and complete record of court proceedings. In thus stands to reason that if a Court Reporter is involved in criminal activity demonstrating fraud or dishonesty he/she could lose his/her job as a Court Reporter. Indeed, yesterday in Matter of Association of Surrogates, & Supreme Ct. Reporters v State of New York Unified Ct. Sys., 2008 NY Slip Op 01014, the First Department held that a Court Reporter was properly dismissed for being convicted of identity theft and credit card fraud in New Jersey. While the Court Reporter argued that she was being discriminated against, the Court stated that Correction Law §§ 752, 753 permits the discharge of employees where, "there is a direct relationship between the criminal offense and the specific employment." And the Court stated that it was rational to conclude that there was such a direct relationship between the Court Reporter's convictions and her employment.

Action Challenging LIPA Rate Increases Dismissed As Time-Barred

In 1986, the New York State Legislature created the Long Island Power Authority (LIPA) to replace the privately-owned Long Island Lighting Company to provide electricity in Nassau County, Suffolk County, and a portion of Queens. In 2006, several LIPA consumers commenced actions against LIPA to recover rate increases LIPA imposed as fuel surcharges between 2001 and 2005. The actions alleged breach of contract, unjust enrichment, and deceptive trade practices in violation of General Business Law § 349. After the actions were consolidated, LIPA moved to dismiss the actions as time-barred.

Yesterday in Matter of Long Is. Power Auth. Ratepayer Litig., 2008 NY Slip Op 00662, the Second Department affirmed dismissal of the actions as time-barred. The Court held that since LIPA was a public authority and the complaint essentially alleged that rate increases were made in violation of lawful procedure, affected by an error of law, or were arbitrary and capricious or an abuse of discretion, the proper way to challenge the rate increases was with a proceeding pursuant to CPLR article 78. Article 78 proceedings are governed by a four-month statute of limitations, and thus, the actions were untimely.

Department Of Corrections May Not Impose Postrelease Supervision

Who has the authority to impose a sentence on a criminal defendant? Is there any part of a sentence which may be imposed by the Department of Correctional Services? In two decisions from the Third Department last week, the Court held that only a judge may impose all parts of a sentence - Matter of Dreher v Goord, 2007 NY Slip Op 10430 and Matter of Quinones v New York State Dept. of Correctional Servs., 2007 NY Slip Op 10435.

In both cases the defendants had been convicted of various crimes and the court imposed determinate sentences. In doing so, however, the court failed to impose a required period of post release supervision (Penal Law § 70.45[1], [2]). Instead, in both cases, the Department of Correctional Services took it upon itself to add periods of post release supervision to the defendants' sentences.

The Third Department held that this was impermissible. In article 78 proceedings commenced by the defendants, the Court stated that the only cognizable sentence is one imposed by a judge, and that any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect. The Court thus vacated the periods of post release supervision imposed by the Department of Correctional Services. It should be noted that in doing so, the Third Department stated that its prior decisions reaching different conclusions should not be followed.   

Will Your Neighbor's Deed Be Available Online?

More and more public records are being made available online. This is a generally a good development. After all, who wants to trudge on down to the County Clerk's Office and deal with the clerk or the microfiche reader. Various commercial enterprises are seeking to put this public data online seeking to make a buck. One such company is Data Tree, LLC.

On Tuesday the Court of Appeals had before it an interesting Freedom of Information request by Data Tree to get access to Suffolk County land records in order to put them online - Matter of Data Tree, LLC v Romaine, 2007 NY Slip Op 09906. 

Data Tree is a national company that provides online public land records such as deeds, mortgages, liens, judgments, releases and maps, and maintains a database of nearly two billion documents, providing its customers with immediate electronic access to the information. Its customers are those entities who purchase, sell, finance and insure property. Data Tree obtains the public land records by requesting them from county clerks, or other public officials who have the responsibility of recording and archiving such documents, throughout the country.

In January 2004, Data Tree, pursuant to the Freedom of Information Law (FOIL) [Public Officers Law § 84 et. seq.] wrote the Suffolk County Clerk's Office requesting copies of public land records from January 1, 1983 to the present. Data Tree requested the records in TIFF images or in images in the electronic format used by the County, on CD-Rom or other electronic storage medium regularly used by the County.

The Clerk denied the request on three grounds: (1) the FOIL request would require re-writing and reformatting of the data; (2) disclosure would constitute an unwarranted invasion of personal privacy due to the volume of the records requested and the commercial nature of Data Tree's business; and (3) the records were available for copying and/or downloading from the computer terminals at the Clerk's Office.

After the Clerk denied the request, Data Tree commenced an Article 78 proceeding directing the Clerk to provide the records. Both the Supreme Court and the Appellate Division granted summary judgment to the County denying Data Tree's request.

However, the Court of Appeals reversed and found that questions of fact existed as to whether compliance with Data Tree's request would require the Clerk to disclose private information exempt from FOIL, and whether the Clerk had the ability to comply with the request in the format sought by Data Tree.

The Court of Appeals stated that Data Tree's commercial motive for seeking the records was irrelevant; Data Tree was not seeking a list of names and addresses to solicit any business. Rather, Data Tree was seeking public land records for commercial reproduction online. The Court acknowledged that some of the documents could contain private information, such as social security numbers and dates of birth etc. However, the Court stated that there were questions whether such private information could be redacted and thus remitted the matter to Supreme Court to determine whether such information could be redacted. The Court also found that there was conflicting affidavits, and thus questions of fact, as to whether Data Tree's request could be fulfilled by merely retrieving information already maintained electronically by the Clerk's office or whether complying with Data Tree's request would require creating a new record.

The march of public data to online sources is likely unstoppable. The more appropriate question might be whether we should require all public agencies to put all data online easily accessible to all? Or should we rely on commercial enterprises like Data Tree to provide such information?   

Inmates Not Entitled To Smokeless Tobacco

What's an inmate to do? Current regulations do not permit inmates in special housing units to have any tobacco products (see 7 NYCRR 302.2 [e]; 303.2, 303.3). Today the Third Department affirmed dismissal of such an inmate's article 78 petition challenging the denial of his grievance requesting smokeless tobacco (Matter of O'Keefe v Goord, 2007 NY Slip Op 07036). The Third Department found that the denial of the inmate's request for smokeless tobacco did not violate his constitutional rights, nor was the denial arbitrary and capricious.   

Trooper's Personal Copy Of Training Manual Is Not Brady Material

The U.S. Supreme Court's decision in Brady v Maryland, 373 U.S. 83 [1963] requires the People to turn over evidence which is material either to the defendant's guilt or to punishment. Last week in Matter of Phillips v Ramsey, 2007 NY Slip Op 06045, the Second Department held that a state trooper's personal copy of a police training manual does not constitute Brady material. The matter arose from a DWI prosecution. At a pretrial hearing in a City Court, defense counsel cross-examined the arresting trooper with respect to his performance of a series of standardized field sobriety tests on the defendant at the arrest scene. Defense counsel then called for the production of the trooper's personal copy of the DWI Detection and Field Sobriety Testing Manual, a police training manual, on the basis that it constituted Brady material. The trooper had testified that a failure to administer a field sobriety test in the manner prescribed by the police training manual rendered the test invalid and, therefore, defense counsel argued that, "if we can show that any of those tests are invalid, that would affect the basis for probable cause to arrest." The hearing judge ordered the People to produce the manual.

The People then commence an article 78 proceeding in the nature of prohibition to prohibit the hearing judge from enforcing his order. In finding that the trooper's personal copy of the training manual was not Brady material, the Second Department noted that CPL 240.20(1)(k) provides that the People shall disclose any written report or document concerning, inter alia, a physical examination made by a public servant engaged in law enforcement activity. However, that statute granted no statutory right entitling a defendant to compel a trooper to turn over his personal copy of a police training manual. In addition, the Second Department noted that since the trooper was not a party to the underlying criminal proceeding, the hearing judge from the City Court had no authority to direct him to produce a document at the hearing in the absence of a properly issued subpoena, which under CPL 610.20(3) and CPLR 2307 must be issued by a Justice of the Supreme Court. Thus, since the hearing judge was only from a City Court, he had no authority to issue such a subpoena.

New York City Process Server May Lose License For Filing False Affidavit Of Service Outside New York City

The New York City Department of Consumer Affairs (DCA) licenses process servers in the City. What happens if a process server files a false affidavit of service outside of the City. Can the Department of Consumer Affairs take away his license? Last week, the Second Department in Matter of Laureiro v New York City Dept. of Consumer Affairs, 2007 NY Slip Op 05509 held that it could. The process server at issue had served process in Connecticut relating to a matrimonial action in Westchester County. In response to a complaint that the process server filed a false affidavit of service, the DCA requested a written explanation from the process server and issued a subpoena commanding him to appear before it and to bring copies of certain records. The process server's counsel responded with letters contesting DCA's jurisdiction over issues related to service of process occurring in Connecticut in connection with a Westchester County action. The process server then failed to appear pursuant to the subpoena. DCA then sent the process server a notice of hearing which outlined the charges against him and directed him to appear and show cause why his license should not be revoked.

Prior to the hearing date, the process server commenced a CPLR article 78 proceeding seeking to prohibit DCA from conducting the hearing, based on its alleged lack of jurisdiction over the matter, among other challenges. The Supreme Court declined to issue a temporary restraining order and DCA rescheduled the hearing. The process server failed to appear at the hearing, and the Hearing Officer found him guilty, upon default and revoked his license. The petitioner then amended his article 78 petition to seek review of the DCA determination.

On appeal in the Second Department, the Court rejected the process server's argument that the DCA lacked jurisdiction to revoke his license. The Court noted that the DCA was charged with the maintenance of standards of integrity, honesty, and fair dealing among persons engaging in licensed activities (see Administrative Code of City of NY § 20-101). And it stated that the filing of a false affidavit of service in any location was relevant to a licensee's fitness to serve process in the City of New York. Moreover, it noted that pursuant to Administrative Code § 20-104, the Commissioner of DCA was authorized, upon due notice and a hearing, to impose penalties:

for the violation of . . . any of the provisions of any . . . law, rule or regulation, the enforcement of which is within the jurisdiction of the department . . . provided that such violation is committed in the course of and is related to the conduct of the business, trade or occupation which is required to be licensed (NYC Admin Code § 20-104 [e][1]).

It stated that the filing of a false affidavit of service was a violation of DCA Rules committed "in the course of" and "related to" the conduct of the occupation of process server, regardless of which county the affidavit is filed in or where the service allegedly occurred. Thus, DCA had the jurisdiction to hold the hearing into the process server's continued fitness to hold his DCA license and to issue its determination upon the process servers' default.

Division Of Human Rights May Investigate Walmart For Firing Convicted Criminals

Even criminals have human rights. What is one of their most important rights? Working at Walmart of course. At least that appears to be what the Fourth Department implies in its June 8th decision in Matter of Wal-mart Stores, Inc. v State of New York, Exec. Dept., Div. of Human Rights, 2007 NY Slip Op 05025. In that case Walmart had terminated three employees because they were convicted criminals. The criminals complained to the Division of Human Rights that were being discriminated against (no kidding). The Division thus commenced an investigation. Walmart then commenced an CPLR Article 78 proceeding in the nature of a writ of prohibition seeking to prohibit the Division from taking further action on the complaints on the ground that the investigation was in excess of Division's jurisdiction. While the Supreme Court granted Walmart's petition, the Fourth Department reversed and dismissed the petition. The Fourth Department found that a writ of prohibition did not lie to challenge the Division's initial acceptance of jurisdiction over the complaint. Rather, Walmart's proper course of action would be to wait for the Division's determination on the merits and then challenge it if necessary. And the Court stated that Walmart would suffer no irreparable harm  by waiting to challenge the Division's findings.

The Fourth Department's decision is probably a correct application of the law. And I know that some out there love to hate Walmart, but is this really the type of thing we need the Division of Human Rights to be investigating? I thought I remember learning in law school that unless there is a contract of employment, all employment is at will meaning that an employer can fire an employee at any time for any reason or no reason at all. So, what would be the point of the Division's investigation here? Does the Division lack the authority to decline to investigate a complaint?  Of course I bet that if Walmart had fired 300 non-criminals on the same day as the criminals the Division would have nothing to do with it.