Matter of Law Offs. of Adam D. Perlmutter, P.C. v. New York City Police Dept. , 999 N.Y.S.2d 26 ( 2014 )

Matter of Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept. (2014 NY Slip Op 08722)

Matter of Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept.

2014 NY Slip Op 08722

Decided on December 11, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 11, 2014
Gonzalez, P.J., Tom, Friedman, Acosta, Moskowitz, JJ.

13749 100220/13

[*1] In re The Law Offices of Adam D. Perlmutter, P.C., Petitioner-Respondent,

v

New York City Police Department, et al., Respondents-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Drake A. Colley of counsel), for appellants.

Law Offices of Adam D. Perlmutter, P.C., New York (Daniel A. McGuinness of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 23, 2013, which insofar as appealed from as limited by the briefs, granted the petition brought pursuant to CPLR article 78 seeking, among other things, to annul respondent's determination, dated December 3, 2012, denying petitioner's Freedom of Information Law request (FOIL), and directed respondents to disclose the records requested, unanimously affirmed, without costs.

Petitioner seeks all calibration and maintenance records for all Intoxilyzer machines owned or maintained by respondent New York City Police Department since January 2008. Contrary to respondents' contention, the records sought are not exempt from FOIL on the ground that they "are compiled for law enforcement purposes and . . . , if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings" (Public Officers Law § 87[2][e][i]). Respondents' conclusive assertions that such records are often requested in DWI cases involving Intoxilyzer test results, and that thousands of such cases are pending in New York City, do not meet the burden of "identify[ing] . . . the generic risks posed by disclosure of these categories of documents" (Matter of Lesher v Hynes, 19 NY3d 57, 67 [2012]; see also Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 490-491 [2005]).

Respondents' argument that the records sought "are specifically exempted from disclosure by state . . . statute" (Public Officers Law § 87[2][a]) is not properly before us, since that exemption to FOIL was not cited by respondents at the administrative level (see Matter of Natural Fuel Gas Distrib. Corp v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368 [2011]). Were we to review it, we would reject it on the merits, since the statute cited by respondents does not exempt the records from disclosure (CPL 240.20[1][k]; see also Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 11, 2014

CLERK