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Due Diligence - FOIL for Civil Rights Violations

In Hayes v. City of New York, 2020 NY Slip Op 30672 - NY: Supreme Court 2020, the Court evaluates whether a Civil Rights Plaintiff, (a Person in New York City whose Civil Rights were violated), took reasonable efforts in locating the names of the bad actors, the New York City Police Department Police Officers, who violated Plaintiff's Civil Rights through false arrest and malicious prosecution:

Plaintiff commenced this false arrest/malicious prosecution action against the City of New York (the "City") and two "John Doe" defendants representing the officers who ordered Plaintiff's arrest and questioned Plaintiff, respectively. NYPD officers arrested Plaintiff on January 15, 2015 at 113th Street and Madison Avenue in New York, New York for Criminal Possession of a Controlled Substance. Plaintiff was released on January 21, 2015, and the charges were dismissed on April 8, 2015.

Strict Time Limitations apply to New York Civil Rights Claims; however, recently, the New York State Legislator repealed Civil Rights Law Section 50-a, something that protects the misconduct records of police as opposed to the Civil Rights of the persons for whom the police are to protect.

FOIL: Using the Public Officers Law, Freedom of Information Law, or FOIL, one can now request those police misconduct records previously withheld on the basis of Civil Rights Law Section 50-a. While the police agency, here the New York City Police Department (NYCPD), may ask for a year to respond, at least there is some time table and recognition that Defendant is hiding the ball, not playing fair; here we have: New York City Police Department Civil Rights Violations and New York City Civil Rights Violations that mus be addressed. However, the Court finds that the Plaintiff did not make such an effort here.

The Court notes that the "Plaintiff argues, in sum and substance, that substantial efforts were undertaken to identify the arresting officers, that the City should be compelled to identify the officers, and that Plaintiff should then be entitled to amend the Complaint to name the officers." The New York City Defendants argued that the Plaintiff knew, that it responded to discovery divulging the names of the officers. Mind you, the New York City Defendants could simply state who was present, involved and who was not, etc., or provide something more than a list of police officers and otherwise but may assist in accountability to the detriment of their clients. New York City Defendants did not.

Often in New York Civil Rights Cases and especially New York City Civil Rights Cases, the New York City Law Department will provide paperwork that may divulge the responsible officer's name but not the misconduct, finding, or actual involvement of the police officer. With a police force larger than most other countries' standing armies, an attorney can easily get lost in the abyss of paperwork that results from the filing of a Civil Rights Complaint against the New York City Police Department. The Court notes the standard that applies in such a matter when it comes to the naming of the New York City Civil Rights Violators

To employ the "John/Jane Doe" procedure authorized by CPLR 1024, parties must, in addition to sufficiently describing the unidentified party, "exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name" (Bumpus v New York City Tr. Auth.,66 AD3d 26, 29-30[2d Dept 2009];see also Holmes v City of NY,132 AD3d 952, 954 [2d Dept 2015] [dismissing action where there was "no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests," or "sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run" and rejecting contention that delay was caused by pending investigation by the NYPD's Internal Affairs Bureau]).

It appears that no preaction discovery was done here - something provided by the New York Civil Practice Law and Rules - and no Freedom of Information Law Request, FOIL, was made here - something that can be done before a Notice of Claim is filed via electronic mail or the New York City Website. The New York City Supreme Court, allowing these purported police who violate the civil rights of civilians off the hook, details its reasons for doing so:

Where a plaintiff cannot show that the failure to identify defendants was a mistake, or that the plaintiff conducted a diligent inquiry prior to the statute of limitations running, amendment is not permitted (Diaz v City of New York,160 AD3d 457[1st Dept 2018], citingHolmes v City of New York,132 AD3d 952, 953[2d Dept 2015] [affirming denial of substitution of named officers for "John Doe" defendants made 8 months after expiration of statute of limitations where plaintiffs did not diligently seek to learn identities of the officers before the statute of limitations had run,e.g.engage in pre-action disclosure, make any Freedom of Information Law requests, or seek assistance from Criminal or Supreme Court];Tucker v Lorieo,291 AD2d 261, 262[1st Dept 2002] [reversing permission to substitute where "plaintiff did not request decedent's hospital records until 10 months after the filing of the summons and complaint and did not move to amend the caption until more than one year after commencement, long after the Statute of Limitations had expired"];see alsoCruz v Brown,129 AD3d 455[1st Dept 2015], citingMiller v Cohen,93 AD3d 424[1st Dept 2012] ["[O]n a motion for leave to amend a pleading, movant need not establish the merit of the proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit."]).

For Police Misconduct, use the Freedom of Information Law, FOIL. Do not let bad actors get away with Civil Rights Violations.

The case is Hayes v. City of New York, 2020 NY Slip Op 30672 - NY: Supreme Court 2020. Cory H. Morris, Esq. New York and Florida, Criminal Defense, Police Accountability, Access to Records, FOIL, Appeals and Complex Litigation, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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