[*1]
Matter of G. B. R. v Town of Clarkstown
2007 NY Slip Op 50636(U) [15 Misc 3d 1113(A)]
Decided on March 29, 2007
Supreme Court, Rockland County
Weiner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 29, 2007
Supreme Court, Rockland County


In the Matter of G. B. R., by his Mother and Natural Guardian, B. B., and N. B., by his Mother and Natural Guardian, D. B., Plaintiffs,

against

Town of Clarkstown, Through its Agent, Clarkstown Police Department., Defendant.




1234/56



Miller, Miller & Shandler

Attorneys for Plaintiffs

Town Attorney for the Town of Clarkstown Attorney for Defendant

by Richard A. Glickel, Esq.

Of Counsel

Alfred J. Weiner, J.



This is the second Article 78 proceeding commenced by Plaintiffs to expunge certain records made by the Juvenile Aid Bureau of the Clarkstown Police Department.[FN1] The records concern their investigation of an incident that involved the infant plaintiffs.

Defendants now move to dismiss[*2] this second proceeding contending that the proceeding is time-barred and that Plaintiffs have failed to state a cause of action.

Plaintiff opposes Defendant's motion to dismiss contending "...there is not a Statute of Limitations bar to my action for Mandamus under Article78 herein;..."[FN2] since Plaintiff is under the disability of infancy. Plaintiffs further contend that since the infant Plaintiffs were five year olds' they could not have the mens rea to have a criminal record. Therefore, Plaintiffs argue, the proceeding should go forward.

Plaintiff's complaint contains a total of 14 paragraphs. Paragraphs 1 through 4 set forth the procedural "background" of this matter and paragraphs 5 through 7 set forth Plaintiff's intention in this proceeding, i.e. "... to blot out the names and addresses of the parents of the infants aged five years old as well as the criminal files consisting of a one page entry for each plaintiff..."

Paragraphs 8 through 10 are allegations regarding the content of the Police Department's records.

Paragraph 11 recognizes that the Police Department's records in issue is "a legitimate record required to be kept by all Police Departments...." and declares that except for the names of the people involved should be maintained.

Paragraph 12 acknowledges a "Clarkstown Police regulation" regarding the maintaining of records of "teen-aged infants" alleged criminal activities.

Paragraphs 13 and 14 state that no offense was found, no investigation was carried out, and that there were no further activities by any complainant.

Plaintiff's complaint then demands judgment expunging "...that part of the investigation resulting in needless aggravation and expense to the Plaintiff's herein."

On a motion to dismiss pursuant to CPLR §3211, a pleading is to be afforded a liberal construction (CPLR §3026). Arnav Industries v. Brown, Raysman, Millstein, Felder & Steiner, LLP (96 NY2d 300, (2001). Consequently, this Court will accept the facts as alleged in Plaintiff's complaint as true [*3]and will accord Plaintiffs the benefit of every possible favorable inference. The issue then for this Court is to determine whether the facts as alleged fit within any cognizable legal theory keeping in mind that there is no right to have a record expunged unless such right is conferred by statute. Peabody v Francke (4 AD2d 962, 2nd Dept., 1957)

Under certain circumstances official records relating to an arrest or prosecution can be expunged pursuant to statutory authority. However, the records involved here do not relate to an arrest or prosecution. The records in issue are notations of Defendant's official investigation of an incident. It follows, therefore, that the making of a record of such investigation is a reasonable and legitimate function of government. Consequently, for Plaintiff to prevail it is incumbent upon Plaintiffs to establish their entitlement to such relief. After a careful review of Plaintiff's complaint, however, the Court finds that Plaintiff's have failed to set forth a prima facie cause of action tending to establish their entitlement to the relief requested. Additionally, the Court is unaware of any statutory authority that would permit the granting of the relief requested. Accordingly, Defendant's motion is GRANTED and the complaint is dismissed.



Having determined that Plaintiff's have not established a cause of action, the Court need not address the other contentions of counsel.

Dated:New City, New York

March 29, 2007

E n t e r :

________________________

HON. ALFRED J. WEINER

Justice of the Supreme Court





In examining Plaintiff's complaint the Court is mindful of the case of Arnav Industries, Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, LLP (96 NY2d 300, (2001), in which the Court of Appeals quoted from its prior decision in Leon v. Martinez, stating "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). This Court accepts the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. * * * [D]ismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (84 NY2d 83)
Footnotes


Footnote 1: The prior Article 78 proceeding was dismissed on jurisdictional grounds when Petitioners failed to properly effect service as required by CPLR §311(a)(5).

Footnote 2: October 12, 2006 affirmation of Daniel Miller, Esq., paragraph 11.