By order to show filed on February 19, 2010, under motion sequence number four, [*2]defendant /third-party plaintiffs Clarkson Realty (hereinafter "Clarkson") and Dzemail Capani LLC (hereinafter "Dzemail") jointly move pursuant to Article 6 of the Public Officers Law for 1) the issuance of a so-ordered subpoena upon the New York City Police Department (NYPD), Document Production Unit, for all records pertaining a shooting that occurred on September 30, 2007 at 106 Clarkson Avenue, Brooklyn, New York; 2) the issuance of a so-ordered subpoena upon the Kings County District Attorney's Office to obtain its complete file regarding the criminal investigation and prosecution in this matter; and 3) an order directing compliance with the so-ordered subpoenas within ten days. The Kings County District Attorney's office opposes the motion. NYPD did not appear or oppose the motion..

Plaintiff Erica Williams, as mother and natural guardian of Christopher Williams, her infant son, brought this action against Clarkson, Dzemail and Tristan Strokes to recover for personal injuries that Christopher allegedly sustained, on September 30, 2007, as a result of a shooting which occurred at a building located at 106 Clarkson Avenue, Brooklyn, New York. Clarkson owns the building in question.

Clarkson joined issue by filing its verified answer with the Kings County Clerk's office. On February 2, 2009, Clarkson commenced a third-party action against Tristan Strokes by filings a third-party summons and complaint bearing index number 75157/2009. Tristan Strokes did not answer the third-party complaint. By order of part 52 of this court dated November 9, 2009, Clarkson was granted a default judgment against Tristan Strokes.

Dzemail joined issue by filing a verified answer dated September 25, 2008. On September 18, 2009, Clarkson's counsel substituted in as counsel for Dzemail and filed a Consent to Change Attorney with the Kings County Clerk's office indicating same.

Annexed to the movants' order to show cause are their attorney's affirmation and six exhibits labeled A through F. Exhibit A contains copies the summons and complaint as well as Clarkson's answer. Exhibit B is a pediatric inpatient consultation report from Kings County Hospital Center. Exhibit C contains a copy of the third-party summons and complaint. Exhibit D is the November 9, 2009 order of part 52 of this court granting Clarkson's motion for a default judgment against third-party defendant Tristan Strokes. Exhibit E contains two subpoenas duces tecum, one served on the Kings County District Attorney and the other served on the NYPD. Exhibit F is an order of part 52 of this court denying a prior order to show cause which sought identical relief.

The Kings County District Attorney's Office submitted an attorney's affirmation in opposition and a memorandum of law.

New York's Freedom of Information Law is set forth within Public Officers §§ 84- 90. In pertinent part, § 84 states, "The legislature... declares that government is the [*3]public's business and that the public... should have access to the records of government in accordance with the provisions of this article."

In pertinent part, § 87 (2) states, "Each [state] agency shall, in accordance, with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: (a) are specifically exempted from disclosure by state or federal statute."

New York's Criminal Procedure Law § 160.50 mandates that upon termination of a criminal action in favor of the accused, all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, of any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency (See, C.P.L.§ 160.50 [1][c]).

C.P.L. § 160.50 [1] [d] provides further that such records shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor... or (ii) a law enforcement agency... or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns... or (iv) the New York State division of parole... or (v) any prospective employer of a police officer or peace officer... or (vi) the probation department...

In 1993, the Court of Appeals asserted that, except where sealed records are sought in connection with attorney disciplinary proceedings, the statutory requirements for unsealing criminal records must be adhered to by the courts of this state (Matter of Joseph M, 82 NY2d 128 [1993]). As Peter Preiser noted in his 1994 Supplementary Practice Commentary to § 160.50, "the Court [in Matter of Joseph M.] cabined opportunity for growth of the doctrine that courts have inherent authority over their own records to disclose sealed matters in the public interest... by limiting it to the one case where it had been directly applied (the Appellate Division's Responsibility for discipline of attorneys pursuant to Judiciary Law § 90). Absent this somewhat unique exception, courts thus far have held they are bound by the specific narrowly defined unsealing authorization set forth in paragraph (d) of subdivision one of [C.P.L. § 160.50]." Thus, the Court of Appeals, in Matter of Joseph M., strictly construed this list of persons and agencies that may have access to these sealed records.

Notwithstanding the fact that this list is strictly construed, sealing is considered a statutory privilege which may be waived by subsequent action of the formerly criminally accused person, as where that person sues on a civil cause of action related to his/her arrest (See, Commercial Union Ins. Co. V. Jones, 216 AD2d 967 [4th Dept. 1995]). In other words, where the formerly criminally accused person places in issue in a subsequent litigation the contents of records sealed to protect his/her rights pursuant to C.P.L. § 160.50, that person is deemed to have waived his/her statutory privilege and the records may be unsealed (See, Rodriguez v. Ford Motor Co., 301 AD2d 372 [1st Dept. 2003], "Where... an individual affirmatively places the underlying conduct at issue by bringing a [*4]civil suit, the courts have consistently held that the statutory protection is waived. The privilege of C.P.L. § 160.50 may note be used as a sword to gain an advantage in a civil action [internal citations omitted]").

The movants state in paragraph 26 of their attorney's affirmation that their basis for seeking an order that the sealed records be produced as follows: "In the event the criminal charges against Tristan Stokes were dropped or if he was acquitted of the crime of shooting [plaintiff] Christopher Williams, the District Attorney's records pertaining to their criminal investigation into the shooting, and prosecution, if any, will nevertheless assist the movants... in the defense of this civil action... It is believed that both the police department and the District Attorney's Office are possessed of essential and material evidentiary materials... and other information about the crime scene."

It is abundantly clear, however, that no matter how material the records held by the NYPD and Kings County DA's office may be to the instant civil action, the movants may not on their own motion compel access to these records via the Freedom of Information Law.

Public Officer's Law § 87 (2) is perfectly clear in exempting from the Freedom of Information Law's disclosure requirement such records which are protected from disclosure by state statute. C.P.L. § 160.50 is just such a state statute which mandates that records relating to the prosecution of criminally accused persons who are found not guilty be sealed. Furthermore, the court notes that the rationale behind C.P.L. § 160.50, that those who are vindicated through the criminal justice system are entitled to have the process through which they were found to be innocent be shielded from the curiosity of the general public, is fundamental to integrity of the process (See generally, Matter of Joseph M, 82 NY2d 128 [1993], in which the Court of Appeals states, "The purpose in adding... [this provision] to the Criminal Procedure Law was to ensure that the protections provided to exonerated accuseds be consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law" [internal quotation marks and citation omitted]).

The movants do not fall within any of the narrowly defined categories of persons or agencies listed within C.P.L. § 160.50 (1) (d) that may access such sealed records. Nor are they the formerly criminally accused who would now waive the statutory privilege conferred by C.P.L. § 160.50 by placing in issue the contents of the sealed records. The movants are merely defendants in a civil action which has no right whatsoever to access records held under seal pursuant to C.P.L. § 160.50 pertaining to the prosecution of Tristan Strokes.

The court notes that had Tristan Strokes himself placed in issue the contents of the sealed records, then he would have waived the statutory privilege and the records may have been unsealed However, Tristan Strokes has not placed anything in issue. In fact, Tristan Strokes has defaulted in Clarkson's third party action against him, as evidenced by [*5]Exhibit D to Clarkson's own attorney's affirmation in support of its instant application for relief.

In summary, the movants' application is denied.

The foregoing constitutes the decision and order of the court.

Enter:

J.S.C.

Enter Forthwith:

J.S.C.