Petitioning this Court for relief under Article 78 of the Civil Practice Law and Rules ("CPLR") is Lieutenant Kieran Crowe ("Crowe"). Crowe seeks an order directing Respondents, the New York City Police Department and the City of New York (collectively "NYPD"), to produce the disciplinary records of Sergeants Dominic Coppola ("Coppola") and Sean Gallagher ("Gallagher") for Crowe's use in impeaching Coppola and Gallagher in an upcoming hearing at the NYPD on disciplinary charges against him. The charges at the hearing include highly stigmatizing sexual misconduct, based in large part on complaints by Coppola and Gallagher. The NYPD has cross-moved to dismiss the petition pursuant to §3211(a), subd. (2), (7), and (10), and §7804(f) of the CPLR, alleging lack of subject matter jurisdiction, failure to state a cause of action, and failure to join necessary parties. Crowe has opposed the motion.

BACKGROUND

Underlying this proceeding is a disciplinary proceeding pending against Crowe at the NYPD. Crowe, a 44-year-old law school graduate and twenty-year veteran of the NYPD with a spotless record, is hoping to exonerate himself before he retires from police service to pursue employment in the private sector. Crowe also happens to be openly gay. The charges in the disciplinary proceeding include, but are not limited to, "engag[ing] in a continuing course of conduct prejudicial to the good order, efficiency, and discipline of the [NYPD] " and "engag[ing] in a continuing course of sexual harassment by creating an intimidating, hostile or offensive work environment and by unreasonably interfering with the work performance of his [*2]subordinates." In addition, based on specific allegations by Coppola and Gallagher, Crowe has been charged with making sexual gestures in the presence of, and in some cases directed toward, Coppola and Gallagher. The final amended charges are dated December 21, 2004 and reference various periods of time ranging from December 1, 2001 through June 4, 2004.

During the disciplinary hearing, Crowe moved to compel the NYPD to produce the disciplinary records of Coppola and Gallagher. Crowe had been the supervisor of the two sergeants when they had all worked together in the NYPD's Office of Equal Employment Opportunity beginning in October 2001, and in that capacity, he had read and was familiar with the sergeants' personnel records. Crowe asserts that the records relating to the prior discipline of the sergeants for offenses that implicate their integrity and willingness to tell the truth are relevant to an evaluation of the credibility of these witnesses at the hearing. In the factual proffer supporting his motion for disclosure at the disciplinary hearing, Crowe alleged numerous facts relating to the prior discipline of Coppola and Gallagher, including dates, circumstances, and the nature of the offenses charged, all gleaned in good faith by Crowe in his capacity as the sergeants' supervisor. Specifically, Crowe contended that: (1) Coppola had received Charges and Specifications in or around 1995 for falsifying a report of an on-duty altercation in which he had been involved while assigned to a precinct in Queens, to which he had pleaded guilty; and (2) Gallagher, while assigned as a supervisor to the Legal Bureau in or around 1998, had been the subject of an internal investigation that had substantiated allegations that he had falsified time records, stolen time, and illegally used his Department parking placard to secure free passage over a toll road while off duty, for which he had received a Schedule "B" Command Discipline and a transfer from the Command.

By letter dated March 9, 2005, the NYPD Assistant Deputy Commissioner-Trials ("hearing officer") denied Crowe's motion for the disclosure of Coppola's and Gallagher's relevant disciplinary records following an in camera inspection of those records by the hearing officer, stating:

[T]he Deputy Commissioner of Trials has no authority to set aside the confidentiality protections granted to Police Personnel Records by Civil Rights Law 50-a and conduct an in camera inspection of the confidential personnel files of Sergeants Coppola and Gallagher and to make those files available to the respondent [Crowe] during his disciplinary proceeding.

The cited Civil Rights Law §50-a states in relevant part that:

Following the hearing officer's denial of his application, Crowe brought this Article 78 proceeding. He seeks an order from this Court directing the NYPD to produce Coppola's and Gallagher's personnel files for in camera inspection so the Court may thereafter make the relevant parts available to Crowe for use at his hearing. The NYPD has moved to dismiss, as indicated above. The underlying disciplinary proceeding has been stayed, by agreement of the parties, pending the disposition of the instant proceeding.

PROCEDURAL HISTORY

In its motion to dismiss this proceeding, the NYPD argued that Crowe had failed to join as necessary parties the individual police officers whose disciplinary records Crowe was seeking to have disclosed; i.e., Coppola and Gallagher. In an interim decision dated April 15, 2005, this Court held that, pursuant to the above-quoted Civil Rights Law §50-a(2), Coppola and Gallagher were "interested parties" entitled to an opportunity to be heard on Crowe's application. It is against this backdrop that Coppola and Gallagher have submitted papers supporting the NYPD's motion to dismiss the Article 78 petition.^[FN1]

Respondents first urge dismissal on the grounds that Crowe has not exhausted his administrative remedies and that this Court lacks the jurisdiction to interfere in a pending administrative hearing. Specifically, they assert that the hearing officer's determination that the disciplinary records are confidential under Civil Rights Law §50-a is interlocutory in nature and not reviewable by this Court while the underlying disciplinary hearing is still pending. Crowe asserts that this Court has jurisdiction to proceed because no further administrative remedies are available, and in any event, he meets an exception to the exhaustion of administrative remedies rule.

Respondents further argue that Crowe has failed to state a cause of action in that he has failed to show any factual predicate for his request for disclosure and that the information allegedly contained within the confidential personnel files is material and relevant to the issues being litigated in the underlying disciplinary proceeding. Crowe vigorously disagrees, insisting that he has satisfied the requirements in Civil Rights Law §50-a to make "a clear showing of facts sufficient to warrant the judge to request records for review [and thereafter] make those parts of the record found to be relevant and material available to the persons so requesting."

DISCUSSION

A. Exhaustion of Administrative Remedies

As the Court of Appeals aptly explained in Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52, 57 (1978):

It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being [*4]permitted to litigate in a court of law ...

This doctrine furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ..., preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its "expertise and judgment" .... The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury (citations omitted, emphasis added).

In the case at bar, Crowe is clearly objecting to "the act of an administrative agency," thereby triggering the "exhaustion of administrative remedies" rule. However, as Crowe correctly asserts, exceptions to the exhaustion rule apply here. First, resort to an administrative remedy would be futile. Crowe has already sought the personnel records in question by application to the hearing officer in the administrative proceeding, and the hearing officer has issued a written decision denying the requested relief. The parties agree that no further administrative appeal is available to Crowe. Simply put, resorting to an administrative remedy would be futile because there is no administrative remedy for Crowe, short of proceeding with the hearing. As the hearing officer himself noted in his decision, and as Civil Rights Law §50-a expressly provides, the personnel records are not subject to disclosure at the hearing absent a court order. Further, the strict application of the exhaustion rule would not serve any of the "salutary goals" of the rule, as discussed by the Watergate court above, because the administrative agency has decided to defer to the court pursuant to the statute.

Coppola and Gallagher misplace their reliance on Matter of Doe v. Axelrod, 71 NY2d 484 (1988) to support their argument that a final administrative determination must be made before this Article 78 petition can be brought. They mistakenly argue that Axelrod is controlling because its facts are strikingly similar to those here, insofar as both cases concern Article 78 proceedings brought regarding the petitioner's request for the production of confidential documents for use in the cross-examination of prosecution witnesses at a disciplinary hearing. Axelrod involved a disciplinary hearing before the State Board for Professional Medical Conduct of a psychiatrist charged with sexual abuse of several of his patients. The psychiatrist had requested the production at the hearing of any written complaints which the four complaining [*5]witnesses had filed against him. The hearing officer struck the testimony of the four complaining witnesses when the Board declined to produce the requested documents. The State Commissioner of Health reversed that determination, held that the documents should remain confidential, and remanded for the completion of the hearing. The psychiatrist then commenced an Article 78 proceeding to annul the Commissioner's determination. The Court of Appeals ultimately upheld the authority of the Commissioner to reverse the hearing officer's determination and maintain the confidentiality of the records, and held that petitioner's challenge to the Commissioner's actions had to await the final outcome of the hearing.

However, litigation in Axelrod continued for at least six more years, until the Court of Appeals decided McBarnette v. Sobol, 83 NY2d 333 (1994), essentially with opposite results. Reviewing the matter after a finding of misconduct at the conclusion of the hearing, the McBarnette court sent the matter back to the administrative agency to permit the accused psychiatrist to receive the documents at issue and use them for his cross-examination of the witnesses against him. The Court emphasized that the issue which had been decided in Axelrod had been a procedural one, directed to the authority of the Commissioner to reverse evidentiary rulings made by hearing officers (83 NY2d at 336); the substantive issue of the right to obtain the confidential documents had not been addressed at all in Axelrod. In contrast, the McBarnette court discussed the substantive issues at great length and upheld the disclosure of the records, stating that: "This Court cannot ignore the prejudice to the [accused] where he is forced, without access to the predicate complaints, to confront complainants who have made charges against him ..." Id. at 339.

It matters not that the McBarnette documents were the written complaints themselves, whereas here the documents are the complaining witnesses' personnel records. In both cases, the disclosure of the records is necessary to ensure the accused's fundamental right to confront the complaining witnesses who have made charges against him. As the McBarnette court stated: "It is settled that even where administrative proceedings are at issue, 'no essential element of a fair trial can be dispensed with unless waived'... ." Id. at 339 (citations omitted.)

Considering all the circumstances, this Court finds that it is appropriate in this case to apply the futility exception to the rule regarding exhaustion of administrative remedies to ensure that Crowe receives a fair trial. Crowe is aware that the two sergeants, the chief witnesses against him, were previously disciplined for integrity-related offenses: Coppola has pleaded guilty to falsifying a report of an on-duty altercation, and Gallagher has been disciplined for falsifying time records, stealing time, and illegally using his Department parking placard to secure free passage on a toll road. Crowe needs the documents related to these offenses to effectively confront the witnesses on cross-examination and examine their credibility. If a witness denies specific acts and Crowe has no access to the relevant documents, any further inquiry will effectively be foreclosed because "the witness would have it within his power to render futile most cross-examination," and Crowe could be denied a fair trial. People v. Sorge, 301 NY 198, 201 (1950). What is more, in a police disciplinary action where the rules of evidence are not strictly applied, the possibility also exists that such records could be admitted into evidence.

Although Crowe need only satisfy one exception to the exhaustion rule, this Court finds that the irreparable harm exception applies as well. The charges against Crowe, a law school graduate and a lieutenant with a record of unblemished service to the NYPD, are highly [*6]inflammatory and stigmatizing in nature. The consequences of proceeding with a hearing without an adequate opportunity to contest the charges may result in irreparable harm, as Crowe will be denied a full and fair opportunity to defend himself against charges that may well harm his future career in the private or public sector.

Indeed, fundamental notions of fairness and due process may be violated if Crowe is unable to adequately contest the charges against him. Respondents like Crowe in police disciplinary proceedings are entitled to a fair hearing and due process of law. See Matter of Sowa v. Looney, 23 NY2d 329 (1968). Where, as here, the case rises or falls on the reliability of witnesses, the failure to disclose information that goes to the credibility of those witnesses might constitute a violation of due process and reversible error. See People v. Puglisi, 44 NY2d 748 (1978). As the Court of Appeals explained in Sowa:

Generally, all relevant, material and reliable evidence which will contribute to an informed result should be admissible in disciplinary proceedings for there is a public interest in ascertaining the truth of charges brought against public employees . Nevertheless, no essential element of a fair trial can be dispensed with unless waived without rendering the administrative determination subject to reversal upon review .

Crowe has not waived any essential element to a fair trial in his administrative disciplinary proceeding, and he has a right to due process. If he were prohibited from raising this issue before a court of law until the completion of the hearing, he might well suffer immediate and irreparable harm because he could be found guilty of the charges without an adequate opportunity to defend. In the interest of ascertaining the truth of charges brought against Crowe as a public employee, and in the interest of avoiding irreparable harm, the disciplinary records must be produced for an in camera inspection by the Court at this time so the relevant records may be disclosed for use by Crowe at his hearing.

B. Failure to State a Cause of Action

As to the second ground for the NYPD's motion, this Court finds that Crowe has adequately demonstrated that portions of Coppola's and Gallagher's personnel records may well be material and relevant to the issues being litigated at his disciplinary hearing. Respondents' reliance on People v. Gissendanner, 48 NY2d 543 (1979) to argue to the contrary is wholly misplaced. Although the Court of Appeals in Gissendanner did uphold the trial court's denial of the defendant's request for access to police personnel records for use in the cross-examination of the police witnesses against her, the facts of the case are materially different from the facts in the case at bar.

The defendant in Gissendanner had been charged with the illegal sale of cocaine to an undercover police investigator at the defendant's home. In addition to the testimony of the investigator, the prosecution sought to introduce the testimony of another officer who had allegedly observed the investigator enter and leave the defendant's home. The trial court denied [*7]the defendant's request for a subpoena duces tecum requiring the production of the personnel records of the two officers for use in impeaching them, and the Appellate Division affirmed (65 AD2d 938), as did the Court of Appeals (48 NY2d 543).

Significantly, however, the Court of Appeals recognized that the right of confrontation can take "primacy over the State's interest in safeguarding the confidentiality of police personnel records." 48 NY2d at 548. Nevertheless, based on the facts presented, including the defendant's failure to renew her request after arguably conflicting testimony had been adduced from a third officer and from the defendant herself, and based on the defendant's failure to request an in camera inspection, the Court concluded that the denial was proper because the defendant had presented "nothing better than conjecture" in support of her broad request for confidential police records. Id. at 550. The Court explained its rationale as follows:

[T]hough access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific 'biases, prejudices or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand' ..., or when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial ..., there is no such compulsion when requests to examine records are motivated by nothing more than impeachment of witnesses' general credibility.

In a lengthy and well-reasoned opinion, the Court of Appeals in Gissendanner discussed the guidelines which the trial court should follow when determining an accused's application for the disclosure of confidential records to be used in the cross-examination of the witnesses against him. The Court first noted that the decision regarding the introduction of extrinsic proof on collateral matters "rests largely on the exercise of a sound discretion by the trial court ..." Id. at 548 (citations omitted). As a general rule, however, while evidence of prior bad acts is not admissible to impeach general credibility, such evidence may be disclosed after an in camera inspection for use in cross-examination "when a defendant shows a likelihood that the witness' prior criminal or disciplinary record may provide a motive to falsify [or] when prior bad acts allegedly contained within disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant's case." Id. at 549.

Regarding the showing which must be made by the person seeking the disclosure, the Court of Appeals stated as follows:

[E]ntitlement to access on no more than a bare allegation that the inspection is sought as fodder for an untracked attack on credibility would render the principle of confidentiality meaningless for all practical purposes.

The thread that runs through these cases does not indicate that a defendant must make a preliminary showing that the record actually contains information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends. The decisions erect no inviolable shield to prevent the discovery of what might turn out to be relevant and exculpatory material. What they do call for is the putting forth in good faith of 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.

The Court concluded its analysis by pointing out that the Legislature had recently codified the procedure for the disclosure of confidential records in Civil Rights Law §50-a. It implicitly commended the legislative enactment as consistent with the "pre-existing judicial consensus" that upon a clear showing of sufficient facts, the Court should review the confidential records in camera and reveal those found to be material and relevant to the case before it. Id. at 551. Although the factual showing in Gissendanner was found insufficient because no specific facts at all had been alleged, the tenor of the decision favored disclosure when the proper showing had been made.

In the instant case, Crowe has made a sufficient showing to warrant an in camera inspection of the personnel records relating to Coppola and Gallagher in that he has put forth in good faith a factual predicate, as detailed above, for the conclusion that the records contain information material and relevant to Crowe's defense at his disciplinary hearing. And by providing these specific facts, Crowe has adequately demonstrated that the records are likely to reveal information regarding the sergeants' integrity and truth telling which could be significant to the cross-examination of these witnesses. An examination of the sergeants' credibility is essential to Crowe's defense in the disciplinary proceeding because it appears that the only evidence against Crowe is the testimony of these witnesses. In other words, here there is no "smoking gun." Rather, each of the charges against Crowe rests upon the credibility of the individual complainant, as compared to the credibility of Crowe. While information already known may be used to pose general questions, supporting documents are necessary in order to confront these witnesses should they give false or evasive answers. Furthermore, the personnel records of Gallagher and Coppola may reveal specific biases, prejudices or ulterior motives that relate directly to issues or personalities in the case, which would merit disclosure under Gissendanner. Id. at 548.

Finally, another reason exists why the credibility of Coppola and Gallagher is at issue here. It appears that Coppola and Gallagher may have an economic interest in the outcome of Crowe's disciplinary proceeding. The sergeants have filed complaints of sexual harassment against the NYPD, independent of the disciplinary proceeding, with the United States Office of Equal Employment Opportunity. Such complaints are the procedural equivalent of Notices of Claim and are precursors of lawsuits seeking money damages. Therefore, the outcome of the disciplinary hearing may have a substantial impact on the merits of the sergeants' case and on any damages awarded. A finding against Crowe in the disciplinary proceeding could be used by the sergeants to favor their claims in the sexual harassment case against the Department.

This Court is not, however, suggesting that Crowe have unlimited access to the personnel records of Coppola and Gallagher. Rather, pursuant to Civil Rights Law §50-a, the records should be submitted to this Court for an in camera inspection. After reviewing the records, this Court will determine which of the records should be disclosed to Crowe based on their relevance to the issues in the case. Then Crowe will not, to use appropriate imagery, be "handcuffed" during his cross-examination of Coppola or Gallagher if either sergeant denies that disciplinary action has ever been taken against him for prior acts.

I find it is more appropriate for this Court, rather than the hearing officer, to conduct the in camera review. The hearing officer wears many hats and is, in essence, both the judge and the [*9]jury. Therefore, to preserve the hearing officer's impartiality and to avoid any prejudice, judicial review is preferable. Such a result is wholly consistent with Civil Rights Law §50-a, which expressly provides that "the judge" must review the file and make a determination as to whether the records are relevant and material in the action before it, following which the relevant records will be disclosed to the accused as "mandated by lawful court order."

Accordingly, it is hereby

ORDERED AND ADJUDGED that the cross-motion by NYPD to dismiss is denied; and it is further

ORDERED AND ADJUDGED that the petition of Lieutenant Kieran Crowe is granted to the extent that the NYPD is directed to produce for in camera inspection by this Court a complete certified copy of the personnel records maintained by the Department relating to Sergeants Dominic Coppola and Sean Gallagher on or before September 12, 2005, following which this Court will issue an appropriate order regarding disclosure.

This constitutes the decision, order and judgment of this Court.

Dated: August 16, 2005________________________

J.S.C.