section 50 personnel record in New York

2019As this Court and the Appellate Division, First Judicial Department, have previously held, the "records of the CCRB relating to complaints and proceedings against police officers are exempt from disclosure under Civil Rights Law § 50-a(1)" ( Matter of Luongo v Records Access Officer , 161 AD3d 1079 , 1081; see Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd. , 150 AD3d 13, 20-23 ). "[W]hether a document qualifies as a personnel record under Civil Rights Law § 50-a(1) depends upon its nature and its use in evaluating an officer's performance — not its physical location o

2016Furthermore, “ ‘whether a document qualifies as a personnel record under Civil Rights Law § 50-a (1) depends upon its nature and use in evaluating an officer’s performance’ ” (Matter of Capital Newspapers Div. of Hearst Corp., 63 AD3d at 1338 , quoting Matter of Prisoners’ Legal Servs. of N.Y., 73 NY2d at 32 ).

2017Here, in light of the widespread notoriety of Mr. Garner’s death and Officer Pantaleo’s role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD’s Threat Assessment Unit to order around-the-clock police protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo’s safety nonetheless demonstrate that disclosure carries a “substantial and realistic potential” for harm, particularly in the form of “harassment and reprisals,” and that nondis

2003Employee Training Records Further, although we find that the employee training records are personnel records within the meaning of Civil Rights Law § 50-a (1) in that they are clearly relied upon to evaluate performance toward continued employment or promotion, respondent’s failure, in the record before us, to adequately “demonstrate a substantial and realistic potential * * * for [their] abusive use against the [correction officers]” (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 159 [1999], supra), in our view, mandates their disclosure.

2016An exemption of personnel records under Civil Rights Law § 50-a has been permitted when the request has been “neutral” and for a limited purpose involving an examination of overtime and sick leave abuses (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986]).

1998Finding later interpretation of its decision in Matter of Capital Newspapers Div. v Burns ( 67 NY2d 562 ) misguided, the Court of Appeals clarified that the request made therein by a newspaper for FOIL access to attendance and sick leave records of correction officers was permitted because those materials “did not constitute the kind of personnel records protected under section 50-a” (Matter of Prisoners’ Legal Servs. v New York State Dept, of Correctional Servs., supra, at 33), not because statutory protection was limited to pending litigation.

2026With this evidence in hand, an effective defense attorney could have investigated publicly available records to uncover additional complaints against Detective Rodriguez FN3 and subpoenaed the CCRB for an in camera inspection of the underlying CCRB records pursuant to Civil Rights Law § 50-a (2) FN4 and CPL 610.25 ( see People v Gissendanner , 48 NY 2d 543, 550 [1979] [the defendant must set forth "in good faith . . . some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw"

2017In People v Gissendanner ( 48 NY2d 543 [1979]), the Court of Appeals set out a framework for analyzing a defendant’s application to subpoena police records under section 50-a.

2015More importantly, its holding only pertained to the issues of notice to the officer (which it found was lacking), and his status as a necessary party to the action. 5 (Telesford, 27 AD3d at 329-330 .) Accordingly, this court finds that respondents have therefore failed to meet their burden to establish that the summary, which would be generated by CCRB — a city agency independent of the NYPD — is a personnel record under Civil Rights Law § 50-a.

2015It has been held, and this court also so finds here, that each of the detectives whose confidential records are being sought is an “interested party” who must be given an opportunity to be heard by the court upon an application for disclosure of such records under Civil Rights Law § 50-a (see Telesford v Patterson, 27 AD3d 328, 330 [1st Dept 2006]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834-835 [3d Dept 2001], lv denied 96 NY2d 710 [2001]).

2013As the petition was improperly dismissed for failure to state a cause of action, respondent must be afforded the opportunity to serve and file an answer (see CPLR 7804 [f]; Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [2000]; see also Matter of Timmons v Green, 57 AD3d 1393, 1394-1395 [2008]).

2013As the petition was improperly dismissed for failure to state a cause of action, respondent must be afforded the opportunity to serve and file an answer (see CPLR 7804 [f]; Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [2000]; see also Matter of Timmons v Green, 57 AD3d 1393, 1394-1395 [2008]).

2013Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[ ] squarely within the exemption” (M atter of Daily Gazette Co. v City of Schenectady, 93 NY2d at 159 ; see Matter of Beyah v Goord, 309 AD2d 1049, 1049 [2003]; Matter of City of Newark v Law Dept, of City of N.Y., 305 AD2d 28, 34 [2003]; see generally Matter of West Harlem Bus.

2013Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[ ] squarely within the exemption” (M atter of Daily Gazette Co. v City of Schenectady, 93 NY2d at 159 ; see Matter of Beyah v Goord, 309 AD2d 1049, 1049 [2003]; Matter of City of Newark v Law Dept, of City of N.Y., 305 AD2d 28, 34 [2003]; see generally Matter of West Harlem Bus.

2013Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[ ] squarely within the exemption” (M atter of Daily Gazette Co. v City of Schenectady, 93 NY2d at 159 ; see Matter of Beyah v Goord, 309 AD2d 1049, 1049 [2003]; Matter of City of Newark v Law Dept, of City of N.Y., 305 AD2d 28, 34 [2003]; see generally Matter of West Harlem Bus.

2013Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[ ] squarely within the exemption” (M atter of Daily Gazette Co. v City of Schenectady, 93 NY2d at 159 ; see Matter of Beyah v Goord, 309 AD2d 1049, 1049 [2003]; Matter of City of Newark v Law Dept, of City of N.Y., 305 AD2d 28, 34 [2003]; see generally Matter of West Harlem Bus.

2013Moreover, as respondent moved to dismiss the petition prior to answering, the record is devoid of any affidavit or other evidence specifying the types of responsive records that exist and establishing that any such documents “were ‘used to evaluate performance toward continued employment or promotion,’ as required by that statute” (M atter of Capital Newspapers Div. of the Hearst Corp. v City of Albany, 15 NY3d 759, 761 [2010], modfg 63 AD3d 1336 [2009], quoting Civil Rights Law § 50-a [1]; see Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept, of Correctional Servs., 73 NY2d 26,

2013Moreover, as respondent moved to dismiss the petition prior to answering, the record is devoid of any affidavit or other evidence specifying the types of responsive records that exist and establishing that any such documents “were ‘used to evaluate performance toward continued employment or promotion,’ as required by that statute” (M atter of Capital Newspapers Div. of the Hearst Corp. v City of Albany, 15 NY3d 759, 761 [2010], modfg 63 AD3d 1336 [2009], quoting Civil Rights Law § 50-a [1]; see Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept, of Correctional Servs., 73 NY2d 26,

2013As the petition was improperly dismissed for failure to state a cause of action, respondent must be afforded the opportunity to serve and file an answer (see CPLR 7804 [f]; Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [2000]; see also Matter of Timmons v Green, 57 AD3d 1393, 1394-1395 [2008]).

2013As the petition was improperly dismissed for failure to state a cause of action, respondent must be afforded the opportunity to serve and file an answer (see CPLR 7804 [f]; Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [2000]; see also Matter of Timmons v Green, 57 AD3d 1393, 1394-1395 [2008]).

2017Indeed, it has been held that applicability of the statute ‘cannot be determined simply on the basis of where the information is stored’ ” (Prisoners' Legal Servs., 73 NY2d at 32 , quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 95 [3d Dept 1985], affd 67 NY2d 562 [1986]).

1988Indeed, it has been held that applicability of the statute "cannot be determined simply on the basis of where the information is stored” (Matter of Capital Newspapers v Burns, 109 AD2d 92, 95 , affd 67 NY2d 562 , supra; see also, Matter of Gannett Co. v James, supra).

2026With this evidence in hand, an effective defense attorney could have investigated publicly available records to uncover additional complaints against Detective Rodriguez FN3 and subpoenaed the CCRB for an in camera inspection of the underlying CCRB records pursuant to Civil Rights Law § 50-a (2) FN4 and CPL 610.25 ( see People v Gissendanner , 48 NY 2d 543, 550 [1979] [the defendant must set forth "in good faith . . . some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw"

2026With this evidence in hand, an effective defense attorney could have investigated publicly available records to uncover additional complaints against Detective Rodriguez FN3 and subpoenaed the CCRB for an in camera inspection of the underlying CCRB records pursuant to Civil Rights Law § 50-a (2) FN4 and CPL 610.25 ( see People v Gissendanner , 48 NY 2d 543, 550 [1979] [the defendant must set forth "in good faith . . . some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw"

2019As this Court and the Appellate Division, First Judicial Department, have previously held, the "records of the CCRB relating to complaints and proceedings against police officers are exempt from disclosure under Civil Rights Law § 50-a(1)" ( Matter of Luongo v Records Access Officer , 161 AD3d 1079 , 1081; see Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd. , 150 AD3d 13, 20-23 ). "[W]hether a document qualifies as a personnel record under Civil Rights Law § 50-a(1) depends upon its nature and its use in evaluating an officer's performance — not its physical location o

2015It has been held, and this court also so finds here, that each of the detectives whose confidential records are being sought is an “interested party” who must be given an opportunity to be heard by the court upon an application for disclosure of such records under Civil Rights Law § 50-a (see Telesford v Patterson, 27 AD3d 328, 330 [1st Dept 2006]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834-835 [3d Dept 2001], lv denied 96 NY2d 710 [2001]).

2015Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, 818 [2015]; Doe v Lake Grove Sch., 107 AD3d 841 , 842-843 [2013]), an application for records under Civil Rights Law § 50-b (2) (b) must be made directly to “a court having jurisdiction over the alleged offense.” Civil Rights Law § 50-b (2) (b) permits disclosure of material that identifies the victim of a sex offense to “ [a] ny person who . . . demonstrates to the satisfaction of the court that good cause exists for disclosure to that person.” Civil Rights Law § 50-b (3) provides that “[t]he court. . . may order any restric

2009Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145 [1999]; Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26 [1988]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986]; Matter of Argentieri v Goord, 25 AD3d 830 [2006]; Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494 [1996]).

2009Documents pertaining to an officer’s misconduct are the type of records specifically intended to be kept confidential under the statute, mainly to prevent use of the records in litigation to harass, embarrass, degrade or impeach an officer’s integrity (see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 157-158 [1999]; Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d at 31-32 ; Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 497-498 [1996]; see also Matter of Argentieri v Goord, 25 AD3d at

1988Indeed, it has been held that applicability of the statute "cannot be determined simply on the basis of where the information is stored” (Matter of Capital Newspapers v Burns, 109 AD2d 92, 95 , affd 67 NY2d 562 , supra; see also, Matter of Gannett Co. v James, supra).