[*1]
LaFortune v City of New York
2024 NY Slip Op 50306(U) [82 Misc 3d 1214(A)]
Decided on March 4, 2024
Supreme Court, Kings County
Abadi, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2024
Supreme Court, Kings County


Steven LaFortune, Plaintiff,

against

The City of New York, JOSH KLINEMAN, INDIVIDUALLY, PETER GUIDO, INDIVIDUALLY, DANE VARRIANO, INDIVIDUALLY, AND SILVIA SANDSETH, INDIVIDUALLY, Defendants.




Index No. 518970/2022

Gina Abadi, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Papers    NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 27 - 35
Opposing Affidavits (Affirmations) 38 — 42
Reply Affidavits (Affirmations) 43
Other 44

Upon the foregoing cited papers and after oral argument, in this action to recover damages for discrimination, defendant City of New York (the "City"), together with defendants Assistant Deputy Commissioner-Trials Joshua Klineman (incorrectly sued herein as Josh Klineman) ("Hearing Officer Klineman"), Sergeant Peter Guido ("Guido"), Lieutenant Dane Varriano ("Varriano"), and Sergeant Silvia Sandseth ("Sandseth"), in each instance, individually (collectively with the City, "defendants"), jointly move, pre-answer, for an order, pursuant to (among other statutory provisions) CPLR §§ 3211 (a)(5) and (7), dismissing the entirety of the eleven-count amended complaint, dated January 24, 2023 (the "Amended Complaint" or "AC"). Plaintiff Steven LaFortune ("plaintiff"), while opposing defendants' motion, does not object to the dismissal of the entirety of Counts IX, X, and XI of his Amended Complaint as against [*2]defendants Guido, Varriano, and Sandseth (collectively, the "officer defendants").[FN1] Thus, the Court shall only consider the viability of Counts I through VIII of the Amended Complaint.

Background

In the evening of July 3, 2019, plaintiff, then an off-duty 18-year NYPD veteran, was involved in a domestic dispute with his wife in their family residence in Staten Island, New York (the "underlying incident"). In the course of the underlying incident, plaintiff displayed his service weapon initially to his wife, and subsequently to his then 15-year-old son. No one was physically hurt in the underlying incident.

Later the same evening (or in the early morning of the following day), plaintiff was taken by EMS to a medical facility where he was hospitalized for two days. Meanwhile, the officer defendants took statements from plaintiff's wife at a nearby NYPD precinct regarding the underlying incident (collectively, the "post-incident interview").

On release from the medical facility and after his ensuing month-long suspension was over, plaintiff returned to the NYPD where he was charged with three separate misdemeanors in connection with the underlying incident: (1) Menacing in the Third Degree (Penal Law § 120.15); (2) Endangering the Welfare of a Minor (Penal Law § 260.10); and (3) Harassment either in the First or Second Degree (Penal Law § 240.25 or § 240.26, respectively). AC, ¶¶ 94, 113. Shortly thereafter, plaintiff was arraigned before a criminal court judge and released on his own recognizance. AC, ¶¶ 108-109. In February 2020, all charges against plaintiff in connection with the underlying incident were dismissed, and the record of his criminal case was sealed, pursuant to CPL § 160.50 ("Order upon termination of criminal action in favor of the accused"). AC, ¶¶ 124-125, 130. In March 2020, plaintiff underwent a "GO-15" interview.[FN2] AC, ¶ 133. At some point (but unclear when from the Amended Complaint), plaintiff was placed either on "restricted duty as a result of his psychological status" or, alternatively, on "modified duty as punishment for his mental health episode." Compare AC, ¶ 134 with AC, ¶ 140. From that day forward, he "met with [the NYPD] Psychological Services [Section] on a monthly basis."[FN3] AC, ¶ 135.

Thereafter, in August 2021, plaintiff appeared before the NYPD's Medical Board Police Pension Fund Article II (the "Medical Board") as a consequence of the underlying incident.[FN4] AC, ¶ 148. The Medical Board "found [plaintiff] to be unfit for duty."[FN5] AC, ¶ 149. The [*3]Medical Board further found that plaintiff should be "psychologically surveyed off of the job."[FN6] AC, ¶ 149.

Following plaintiff's refusal to retire (either with or without disability),[FN7] the NYPD's Advocate's Office (i.e., the NYPD's discipline unit) conducted an administrative trial on two Charges and Specifications which it previously had served on plaintiff in connection with the underlying incident; namely:

(1) Charge and Specification #1. Plaintiff allegedly "engaged in conduct prejudicial to the good order, efficiency and discipline of the Department": (a) in violation of Patrol Guide Procedure No. 203-10, page 1, ¶ 5 ("Public Contact - Prohibited Conduct"), and (b) which misconduct further constituted a crime of Menacing in the Second Degree (Penal Law § 120.14).[FN8]

(2) Charge and Specification #2. Plaintiff allegedly "fail[ed] and neglect[ed] to safeguard his firearm" in violation of Patrol Guide Procedure No. 204-08, page 2, ¶ 7 ("Firearms — General Regulations").[FN9] Charges and Specifications #1 and #2 are collectively referred to herein as the "disciplinary charges."

An administrative trial to adjudicate the foregoing disciplinary charges was held on October 12, 2021 and October 21, 2021 before Hearing Officer Klineman in the NYPD Trial Room (the "disciplinary hearing"). NYSCEF Doc Nos. 31-32. The disciplinary hearing bore many of the indicia of a state-court proceeding, such as representation of plaintiff by private counsel of his own choosing, presentation of witnesses (including testimony by plaintiff and by his then-former wife in his defense), and examination of evidence, which included (but was not limited to) the audiotape and transcript of the post-incident interview.[FN10] By its nature, however, the disciplinary hearing was limited to the adjudication of the NYPD employment matters; [*4]namely, plaintiff's continued employment with the NYPD following (and despite) the underlying incident.

On December 8, 2021, Hearing Officer Klineman issued his report and recommendation concluding that plaintiff should be found guilty of both disciplinary charges and that he should be dismissed from the NYPD (with certain monetary penalties). AC, ¶¶ 186-187, 190. Thereafter, plaintiff's counsel submitted a letter to the Police Commissioner (known as a Fogel letter [FN11] ), objecting to Hearing Officer Klineman's report and recommendation. AC, ¶¶ 191-193. The Police Commissioner, while approving the guilty findings, modified the monetary penalties by recommending that plaintiff "immediately file for service retirement" (subject to certain adjustments to the monetary penalties by way of a post-hearing negotiated settlement).[FN12] After plaintiff refused to accept the Police Commissioner's recommendation, the Police Commissioner dismissed him from the NYPD effective February 14, 2022,[FN13] or approximately twenty years and seven months after he had joined the NYPD on July 2, 2001.[FN14]

Plaintiff did not challenge his dismissal from the NYPD in a CPLR article 78 proceeding.[FN15] Nor did plaintiff file a notice of claim against the City.[FN16] Rather, on July 1, 2022 (when the filing of a CPLR article 78 proceeding would have been time-barred), he brought the instant action seeking (for the most part) "compensatory damages for the back pay, front pay, pain, suffering, emotional distress, loss of dignity, humiliation, and damages to reputation and livelihood endured by [him]."[FN17] Broadly speaking, plaintiff's claims can be categorized into [*5]three groups: (1) the disability-discrimination claims under the New York City Human Rights Law (Administrative Code § 8-107, et seq.) ("City HRL"), as against all defendants, as pleaded in Counts I and II (collectively, the "disability-discrimination claims"); (2) the arrest-history discrimination claims under the New York State Human Rights Law (Executive Law § 296, et seq.) ("State HRL") and the City HRL, as against all defendants, as pleaded in Counts III, IV, and V (collectively, the "arrest-history discrimination claims"); and (3) the claims predicated on the alleged violation of CPL § 160.50 and its allied provisions, as well as for the related (and concurrent) alleged violation of the due-process clause of Art. 1, § 6 of Constitution of the State of New York, as against the City and Hearing Officer Klineman, as pleaded in Counts VI, VII, and VIII (collectively, the "improper evidence claims"). As noted, defendants have moved for an order, pursuant to (among other statutory provisions) CPLR §§ 3211 (a) (5) and (7), dismissing all of plaintiff's claims.



Discussion

(1)

"It is well established that determinations which are made within the jurisdiction of the official or body concerned, stand unless they are avoided by a direct attack where the infirmity is alleged to be that the action has been arbitrary or capricious." Matter of Foy v Schechter, 1 NY2d 604, 612 (1956). Such "direct attack" takes the form of a CPLR article 78 proceeding which is commenced within four months of the challenged act, pursuant to CPLR § 217. See e.g. Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 20 AD3d 28, 36 (1st Dept 2005).

Here, it is undisputed that plaintiff failed to commence a CPLR article 78 proceeding in connection with his separation from the NYPD. Although plaintiff frames this action as a disability and arrest-record discrimination lawsuit under the State and City HRLs, the crux of his Amended Complaint is a challenge to the Police Commissioner's dismissal of plaintiff from the NYPD, and the relief sought by plaintiff is an order awarding him back pay for the period since his dismissal. Such an order "necessarily depends upon a reversal of" the Police Commissioner's dismissal of plaintiff, and in seeking it, he is, in essence, requesting that the Court annul such dismissal. See Horne v New York State Dept. of Health, 287 AD2d 940, 941 (3d Dept 2001). Inasmuch as plaintiff failed to do so within the applicable four-month statute of limitations period of CPLR § 217, this action is time-barred, pursuant to CPLR § 3211 (a) (5). See Steen v Quaker State Corp., 12 AD3d 989, 990 (3d Dept 2004); State v Butti, 304 AD2d 917, 918 (3d Dept 2003); Cahill v Harter, 277 AD2d 655, 656 (3d Dept 2000); Charwat v Kustas, 233 AD2d 288, 289 (2d Dept 1996); Brawer v Johnson, 231 AD2d 664 (2d Dept 1996); Willis v City of NY Police Dept., 2015 WL 5192461 (Sup Ct, NY County 2015, Kotler, J.) ("While plaintiff argues that this is an action arising from unlawful discriminatory employment practices and brought pursuant to the New York City Human Rights Law, the court disagrees. The nature of the underlying dispute is plaintiff (officer)'s challenge to the NYPD's determination to discipline her despite the fact that the criminal charges had been dismissed. The underlying facts make it clear that plaintiff's claims should have been brought as an Article 78 proceeding. Since the nature of plaintiff's claims are a challenge to an administrative agency's determination, this action is subject to a four-month Statute of Limitations. (Because) (t)his action was brought more than four months after the discipline became final, it is untimely.") (internal citations [*6]omitted).[FN18]


(2)

"Pursuant to General Municipal Law § 50-e (1) (a), a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within 90 days after the claim arises." Dutra v City of NY, — AD3d —, 2024 NY Slip Op 00627, *1 (2d Dept 2024). Plaintiff's failure to serve a notice of claim requires dismissal of the improper evidence claims (Counts VI, VII, and VIII of the Amended Complaint), pursuant to CPLR § 3211 (a) (5). See Mirro v City of NY, 159 AD3d 964, 966 (2d Dept 2018); Kassapian v City of NY, 155 AD3d 851, 854 (2d Dept 2017).


(3)

On a motion pursuant to CPLR § 3211 (a) (7) to dismiss for failure to state a cause of action, "the court will accept 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." Tsinias Enters. Ltd. v Taza Grocery, Inc., 172 AD3d 1271, 1272 (2d Dept 2019) (internal quotation marks omitted). "It is, however, . . . axiomatic that factual allegations which fail to state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or unequivocally contradicted by documentary evidence, are not entitled to such consideration." Leder v Spiegel, 31 AD3d 266, 267 (1st Dept 2006), affd 9 NY3d 836 (2007).


Disability-Discrimination Claims (Counts I and II)

Plaintiff's disability-discrimination claims are predicated on the principal allegations that: (1) the Police Commissioner's dismissal of him as the result of the underlying incident was excessive (particularly after the criminal case against him had been dismissed) and was further discriminatory (as compared to several other named officers who had been penalized, but had not been dismissed, for domestic violence and other misconduct);[FN19] and (2) plaintiff was capable of performing the essential functions of his job as a tenured Grade III Detective with reasonable accommodation without any undue hardship to the NYPD.[FN20]

Plaintiff's disability-related allegations miss the crucial point. The Police Commissioner's dismissal of plaintiff from the NYPD (in lieu of, for example, permitting him to [*7]stay with the NYPD with an accommodation for his disability) is an administrative determination that is not reviewable through the prism of the State or City HRLs. Further, a reviewing court "has no discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed by the Police Commissioner." Matter of Kelly v Safir, 96 NY2d 32, 38 (2001), rearg denied 96 NY2d 854 (2001). In light of plaintiff's dismissal from the NYPD after an exhaustive (and fully exhausted) administrative process, his disability-discrimination claims are "based upon nothing but bare allegations of fact and conclusory legal arguments" insufficient to state a cause of action. See Leder, 31 AD3d at 268.


Arrest-History Discrimination Claims (Counts III, IV, and V)

Plaintiff's arrest-history discrimination claims are grounded on the principal allegations that: (1) he was dismissed from the NYPD because of his arrest history for the underlying incident; and (2) he was otherwise discriminated against and subjected to hostile work environment, once again because of his arrest history for the underlying incident. AC, ¶¶ 337-342; 345-350; 353-361. Once again, these claims (irrespective of their label) impermissibly attempt to challenge the propriety of the Police Commissioner's dismissal of plaintiff from the NYPD. For the same reasons stated above, plaintiff's arrest-history discrimination claims (akin to his disability-discrimination claims) fail to state a cause of action.


Improper Evidence Claims (Counts VI, VII, and VIII)

Plaintiff's last category of claims, those denominated herein as the "improper evidence claims," are predicated on the principal allegations that: (1) the use of the sealed evidence (i.e., his wife's post-incident interview with the NYPD) at the disciplinary hearing was per se improper; and (2) the admission of the post-incident interview into the record of the disciplinary hearing (which interview was part of the sealed criminal case) so infected the entire hearing that Hearing Officer Kleinman's resulting recommendation (as was subsequently adopted by the Police Commissioner) violated both the Criminal Procedure Law and the due process clause of the State Constitution. Plaintiff's improper evidence claims are devoid of merit as a matter of law.

It is well established that "the mere reception of erroneously unsealed evidence at [a] disciplinary hearing does not, without more, require annulment of respondent's determination." Matter of Charles Q. v Constantine, 85 NY2d 571, 575 (1995).[FN21] "In [*8]administrative proceedings the burden of proving guilt beyond a reasonable doubt is not applicable and the judicial scope of review is limited to determining whether the agency's finding of guilt is supported by substantial evidence in the record." Id. Likewise, "a violation of CPL [§] 160.50, without more, does not require suppression of such evidence or implicate constitutional considerations such as due process, or warrant annulment of a respondent's determination of termination despite a prior acquittal of the same or similar charges in a criminal proceeding." Matter of Tillery v Department of Educ. of City of NY, 52 Misc 3d 1203(A), 2016 NY Slip Op 50979(U), *5 (Sup Ct, NY County 2016); see also Clapper v Ragonese, 274 AD2d 654, 654 (3d Dept 2000) ("Inasmuch as a violation of CPL (§) 160.50 does not implicate constitutional considerations, it cannot form the basis for a constitutional tort action") (internal quotation marks and citations omitted), appeal dismissed 95 NY2d 958 (2000).[FN22]

Equally important, the admission of the wife's post-incident interview into the record of the disciplinary hearing did not prejudice plaintiff for two reasons; first, because she was called to (and did extensively) testify as a witness in plaintiff's defense at the disciplinary hearing;[FN23] and, second, because the transcript of her post-incident interview served to refresh her recollection and, where appropriate, afforded her an opportunity to correct (and she did correct) her post-interview transcript at the disciplinary hearing.[FN24]

There is another point that deserves consideration in this connection. Although the Amended Complaint (in ¶¶ "a" and "b" of the "Wherefore" clause) purports to seek "[i]njunctive relief to end the [City's and, by extension, NYPD's] use of sealed records . . . for any purpose" (including "in the [course of the] NYPD Administrative Law disciplinary hearings"), the essence of plaintiff's improper evidence claims is to vindicate his own private rights, rather than directly affect or vindicate the rights of others. See 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 493 (1986), cert denied 481 US 1008 (1987); Mills v County of Monroe, 59 NY2d 307, 312 [*9](1983), cert denied 464 US 1018 (1983).[FN25]

The Court has considered the parties' remaining contentions and found them either moot in light of the foregoing determination or devoid of merit.


Conclusion

Accordingly, it is

ORDERED that the branches of defendants' motion for an order, pursuant to CPLR §§ 3211 (a) (5) and (7), dismissing the Amended Complaint are granted, the Amended Complaint is dismissed in its entirety as against all defendants without costs or disbursements, and remaining branch of defendants' motion which is for dismissal, pursuant to CPLR § 3211 (a) (1), is denied as moot; and it is further

ORDERED that the Corporation Counsel is directed to electronically serve a copy of this Decision, Order, and Judgment on plaintiff's counsel and to electronically serve an affidavit of service thereof with the Kings County Clerk; and it is further

ORDERED that the Compliance Conference which is currently scheduled for September 24, 2024 in Part 22, CDCCP, is canceled.

The foregoing constitutes the Decision, Order, and Judgment of this Court.

E N T E R,
HON. GINA ABADI

Footnotes


Footnote 1: Memorandum of Law in Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint, dated Jan. 19, 2024, Point V. NYSCEF Doc No. 39.

Footnote 2: "A GO-15 is an interview in connection with allegations of serious misconduct or corruption." Mullins v City of NY, 626 F3d 47, 50 (2d Cir 2010).

Footnote 3: The Psychological Services Section "screens prospective candidates to determine their suitability for service." Nelson v City of NY, 2013 WL 4437224, *4 (SD NY 2013).

Footnote 4: The Medical Board "makes recommendations on whether NYPD officers should be retired on medical disability." Dellavolpe v City of NY, 673 F Supp 2d 111, 114 (ED NY 2009).

Footnote 5: The Psychological Services Section "uses a separate and distinct process from the . . . Medical Board for determining [an individual's] suitability to serve [or to continue to serve] as an officer." Nelson, 2013 WL 4437224, *4.

Footnote 6: "Surveyed off of the job" means that an NYPD officer is "forced to retire based on his [or her] disability." Greenidge v City of NY, 2023 NY Slip Op 33506(U), *3 (Sup Ct, NY County 2023).

Footnote 7: AC, ¶¶ 145-147 (alleging that plaintiff refused to accept a settlement offer of retirement).

Footnote 8: As noted, plaintiff had been initially charged with Menacing in the Third Degree (Penal Law § 120.15), which charge (along with the companion criminal charges arising from the underlying incident) was subsequently dismissed.

Footnote 9: Charges & Specifications, dated July 8, 2019, endorsed (by first endorsement of the applicable Commanding Officer) on Sept. 3, 2019, and personally served on plaintiff on Oct. 1, 2019. NYSCEF Doc No. 30.

Footnote 10: In particular, Exhibits 1A and 1B, constituting the audio recording and the transcript of the 911 call, respectively, were admitted into evidence at the disciplinary hearing by stipulation with plaintiff's counsel. Hearing Tr. at page 3, line 21 to page 4, line 10. Exhibits 2A and 2B, constituting the audio recording and the transcript of the post-incident interview, respectively, were admitted into evidence at the disciplinary hearing over plaintiff's counsel's objection. Hearing Tr. at page 14, line 21 to page 15, line 3; page 187, line 17 to page 188, line 3.

Footnote 11: "A Fogel letter [named after Matter of Fogel v Board of Ed. of City of NY, 48 AD2d 925 (2d Dept 1975)] is a letter from a disciplined employee and addressed to the [Police] Commissioner, who determines what weight the employee's position should be given in determining whether to accept or reject [the hearing officer's] findings and recommendations [concerning that employee]." Bey v City of NY, 2009 WL 2924429, *22 n 25 (SD NY 2009), affd 576 Fed Appx 22 (2d Cir 2014), cert denied 574 US 1185 (2015).

Footnote 12: AC, ¶¶ 194-195; Second Endorsement from Inspector Lourdes Soto to First Deputy Commissioner, dated Jan. 14, 2022. See NYSCEF Doc No. 33.

Footnote 13: The Police Commissioner's power to discipline police officers includes dismissal. See Administrative Code § 14-115 (a).

Footnote 14: AC, ¶¶ 196-197; First, Second, and Third Endorsements, with the NYPD Commissioner's stamped and signed approval, dated Jan. 14, 2022; Charges & Specifications, page 1. See NYSCEF Doc No. 33 and 30.

Footnote 15: Compare Matter of Marks v City of NY, Index No. 158886/2021 (Sup Ct, NY County), transferred to First Judicial Department, pursuant to CPLR § 7804 (g), Docket No. 2022-05171 (1st Dept) (cited by plaintiff in Point Three of his memorandum of law in opposition at NYSCEF Doc No. 39).

Footnote 16: Affidavit of Samantha J. Williamson, a Paralegal in the Office of the Corporation Counsel of the City of New York, Labor & Employment Law Division, dated Nov. 24, 2023, ¶ 4. NYSCEF Doc No. 34.

Footnote 17: AC, "Wherefore" clause, ¶ "c."

Footnote 18: In a CPLR article 78 proceeding, the reviewing court would have assessed the discipline of plaintiff's dismissal from the NYPD as to whether it was "so disproportionate to the [underlying incident] as to be shocking to one's sense of fairness." Matter of Alfieri v Murphy, 38 NY2d 976, 977 (1976) (internal quotation marks omitted). "This calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general." Matter of Kelly v Safir, 96 NY2d 32, 38 (2001), rearg denied 96 NY2d 854 (2001). As noted, plaintiff never commenced a CPLR article 78 proceeding in connection with his dismissal from the NYPD.

Footnote 19: AC, ¶¶ 209-261. None of plaintiff's so-called comparators displayed or used their service weapons in an off-duty confrontation, as was the instance here.

Footnote 20: AC, ¶ 276 ("In fact, from the moment Plaintiff was arrested until the date of his termination, the Defendants accommodated Plaintiff."); AC, ¶¶ 277-281.

Footnote 21: Plaintiff's reliance on Garcia v City of NY, 2023 NY Slip Op 32966(U) (Sup Ct, NY County, Sweeting, J.), is misplaced because no disciplinary hearing was held, and no dismissal occurred, in that case. Rather, plaintiff in Garcia was allegedly discriminated against in terms of assignments and overtime following his arrest and plea — both subsequently sealed — for disorderly conduct in connection with a domestic dispute. Likewise unavailing is plaintiff's citation to Pesantez v City of NY, 2023 NY Slip Op 32249(U) (Sup Ct, NY County 2023, Moyne, J.) (a LOD injury case); Balcacer v City of NY, Index No. 154587/2022, Short-Form Order, dated May 3, 2023, at NYSCEF Doc No. 17 in that case (Sup Ct, NY County 2023, Moyne, J.) (another LOD injury case); Brown v City of NY, Index No. 508124/2022, Decision/Order, dated June 15, 2023, at NYSCEF Doc No. 41 in that case (Sup Ct, Kings County 2023, Abadi, J.) (a non-LOD injury case); Wright v City of NY, 2022 NY Slip Op 33942(U) (Sup Ct, NY County 2023, Kim, J.) (a non-LOD injury case). Other than sharing the same able counsel, plaintiff here has nothing in common with any of the individuals suing in the foregoing cases.

Footnote 22: Plaintiff's citation to Matter of Marks v City of NY, Docket No. 2022-05171 (1st Dept), and Index No. 158886/2021 (Sup Ct, NY County), is unavailing. The only substantive determination rendered to date in the Marks matter is the lower court's decision/order, dated Sept. 26, 2022 (at NYSCEF Doc No. 50 under Index No. 158886/2021) to transfer the CPLR article 78 proceeding to the First Judicial Department for disposition, pursuant to CPLR § 7804 (g). To date, the First Judicial Department has not rendered a determination in the Marks matter (see electronic Docket No. 2022-05171) (last accessed Feb. 23, 2024). In any event, the facts and procedural history of that matter (as gleaned from the Record on Appeal at NYSCEF Doc No. 3, Docket No. 2022-05171) are completely inapposite to plaintiff's case.

Footnote 23: Hearing Tr at page 125, line 19 to page 141, line 19. NYSCEF Doc No. 32.

Footnote 24: Hearing Tr at page 151, line 16 to page 156, line 8; page 163, lines 11-17; page 166, lines 3 to 23; page 172, line 23 to page 174, line 14.

Footnote 25: Plaintiff's reliance in that regard on RC v City of NY, 2023 NY Slip Op 34007(U), *1 (Sup Ct, NY County, Mar. 2, 2023, Lyle, J., NYSCEF Doc No. 42) ("Judge Lyle's initial order"), is misplaced for three reasons. First, Justice Lyle's initial order addressed the narrow issue of whether "the public dissemination of sealed arrest information by certain New York City officials on [a particular date of] August 3, 2022, to discuss recidivism" was proper. Second, Justice Lyle's initial order explicitly relied on his predecessor, Justice Tisch's preliminary injunction order (64 Misc 3d 368 [Sup Ct, NY County, Apr. 29, 2019]) (the "PI order"). Third and finally, Justice Lyle subsequently approved a global "implementation plan" governing the disclosure of sealed information, pursuant to the PI order (see RC v City of NY, 2023 NY Slip Op 34008 [Sup Ct, NY County, Mar. 29, 2023]) ("Judge Lyle's subsequent order"). On April 28, 2023, the City appealed Judge Lyle's subsequent order to the First Judicial Department (see RC v City of NY, Index No. 153739/2019 [Sup Ct, NY County], NYSCEF Doc Nos. 294 and 297). Pursuant to CPLR § 5519 (a) (1), all proceedings to enforce Judge Lyle's subsequent order (which incorporates the PI order) have been automatically stayed pending resolution of the City's appeal to the First Judicial Department.