Preview
FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ANTHONY ZAPPIN,
Petitioner,
VERIFIED PETITION AND
- against - COMPLAINT
ATTORNEY GRIEVANCE COMMITTEE Index No. _________________
FOR THE FIRST JUDICIAL DEPARTMENT,
JORGE DOPICO,
Respondents.
------------------------------------------------------------- X
Petitioner Anthony Zappin, proceeding pro se, hereby brings this hybrid Article 78
proceeding and alleges the following in this Verified Petition and Complaint:
INTRODUCTION
1. Petitioner brings this hybrid Article 78 proceeding to primarily obtain records
properly subject to New York’s Freedom of Information Law (“FOIL”). Petitioner filed a FOIL
request on December 26, 2023 with the New York Attorney Grievance Committee for the First
Judicial Department (“AGC”) seeking public records in its sole possession relating primarily to
two (2) unrelated attorney disciplinary matters brought by Respondents against Petitioner:
The “Sua Sponte” Investigation of Anthony Zappin initiated on October 1,
2015 with a Docket No. of 2015.18911 (hereinafter, the “Zappin Sua Sponte
Investigation”); and
1
Respondents abandoned this “sua sponte” investigation. During a hearing before the First
Department, Principal Staff Attorney Kevin M. Doyle admitted that they had no basis to pursue any
disciplinary charges against Petitioner with respect to this investigation. (See
https://www.youtube.com/watch?v=5rxZl3veHus.)
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The collateral estoppel disciplinary proceeding styled Matter of Zappin
filed in the First Department that resulted in a March 8, 2018 disciplinary
decision2 (hereinafter, the “Zappin Collateral Estoppel Matter”). See 73
N.Y.3d 182 (1st Dept. 2018).
(See Zappin Aff. at Ex. 1, December 26, 2023 FOIL Request (hereinafter, “December 26 FOIL
Request”)). The December 26 FOIL Request also sought records in Respondents’ exclusive
possession, custody and/or control relating to their involvement in other matters, including
Petitioner’s personal divorce matters (Zappin v. Comfort, Index No. 301568/14 (N.Y. Sup. Ct.)
and Zappin v. Comfort, Case No. 2013 DRB 3821 (D.C. Sup. Ct.)), a criminal matter lodged
against Petitioner partially at the behest of Respondents (People v. Zappin, Case No.
2017NY019016 (N.Y. Crim. Ct.)), a reciprocal disciplinary proceeding in the District of Columbia
and a reciprocal disciplinary proceeding in West Virginia. (See id.) Respondents have refused to
produce records responsive to Petitioner’s December 26 FOIL Request and instead have
erroneously and unlawfully stating that “[t]he Attorney Grievance Committee… is part of the
Judiciary and therefore, not subject to FOIL.” As set forth below and in the accompanying
memorandum, Respondents have no lawful basis to withhold the requested records from Petitioner
under FOIL.
2
After realizing that there was no basis to bring disciplinary charges against Petitioner based on
the allegations in the “sua sponte” investigation, Principal Staff Attorney Kevin M. Doyle decided to bring
an unconstitutional collateral estoppel disciplinary against Petitioner – where he was afforded no charges
or a hearing on the merits of the disciplinary accusations as required by New York law – based on the child
custody decision in Zappin v. Comfort written by former Justice Matthew F. Cooper. As shown in the
supporting memorandum, the findings relied by Mr. Doyle and the AGC not only lacked any evidence in
the child custody record, but were wholly fabricated and manufactured out of thin air with the sole and
ostensible purpose of enabling Mr. Doyle and the AGC to bring a collateral estoppel disciplinary proceeding
against Petitioner.
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2. Alternatively, Petitioner seeks a writ of mandamus pursuant to CPLR 7803(1),
relief under New York’s common law right of access and declaratory judgment pursuant to CPLR
3001 et seq. that the records requested from Respondents must be produced via the common law
right of access to court and judicial records. On March 4, 2024, Petitioner sent a request to
Respondents seeking essentially the same records contained in his December 26 FOIL Request
citing New York’s common law right of access to judicial and court records. (See Zappin Aff. at
Ex. 2, March 4, 2024 Common Law Right of Access Request (hereinafter, “March 4 CLRA
Request”). Respondents have refused to respond to Petitioner’s request, despite their legal duty
under the common law right of access, and have no lawful basis to withhold the requested records.
3. Notably, this is Petitioner’s only course to obtain these documents. During the
Zappin Sua Sponte Investigation and, more importantly, the Zappin Collateral Estoppel Matter,
the AGC failed to produce even a single document of discovery, despite it being required to do so.
(See, e.g., 22 NYCRR 1240.7(c) and 22 NYCRR 1270.8(a)(3).) Despite the fact that it was clear
that (bogus) attorney grievance complaints were filed against Petitioner, Respondents (through
their Principal Staff Attorney Kevin M. Doyle) have repeatedly lied to conceal these complaints
asserting that their investigation was “sua sponte” and that the unrelated Zappin Collateral
Estoppel Matter had no complainant. Indeed, a recent document from the New York District
Attorney’s Office confirms that former Justice Cooper – the judge who presided over Petitioner’s
divorce Zappin v. Comfort – made apparent witness statements that he filed the grievance
complaint that led to the Zappin Collateral Estoppel Matter. Yet, when Petitioner sought this
grievance complaint during the pendency of the Zappin Collateral Estoppel Matter, the AGC’s
Principal Staff Attorney Kevin M. Doyle perjured himself, lying under oath that no complaint
has been filed and that the AGC’s database had no complaints against Petitioner.
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4. Petitioner believes that the requested records will not only contain exculpatory
information with respect to the Zappin Collateral Estoppel Matter – which Respondents have
essentially conceded to – but that they will also show egregious misconduct and repeated criminal
acts on the part of the AGC’s Principal Staff Attorney Kevin M. Doyle, along with others outside
of the AGC. There is no basis under the law for Respondents to withhold the requested records
other than to perpetuate a cover-up and conceal unethical and likely criminal conduct. Petitioner
has a legal right to the requested records and asks that this Court direct Respondents to produce all
responsive records to the December 26 FOIL Request and/or the March 4 CLRA Request.
JURISDICTION
5. With respect to Petitioner’s Article 78 claims, the Court may conduct “special
proceedings” pursuant to Article 78 of New York’s Civil Practice Law and Rules. See CPLR
7801-7806. Petitioner seeks review of Respondents’ constructive denial December 26 FOIL
Request and subsequent appeal, pursuant to CPLR 7803(5).
6. Petitioner seeks a writ of mandamus pursuant to CPLR 7803(1) compelling
Respondent Jorge Dopico to produce records responsive to his March 4 CLRA Request.
7. Respondent New York Attorney Grievance Committee for the First Judicial
Department is a “body” subject to judicial review pursuant to Article 78 of New York’s Civil
Practice Law and Rules. See CPLR 7802(a).
8. Respondent Jorge Dopico is the Chief Attorney for the New York Attorney
Grievance Committee for the First Judicial Department is therefore an “officer” subject to a writ
of mandamus under Article 78 of New York’s Civil Practice Law and Rules. See CPLR 7802(a).
9. With respect to Petitioner’s common law right of access claim, jurisdiction in this
Court is proper pursuit to CPLR 301, and all other applicable provisions of the CPLR.
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10. As to Petitioner’s declaratory relief claim, jurisdiction in this Court is proper
pursuant to CPLR 3001, and all other applicable provisions of the CPLR, including CPLR 301.
VENUE
11. Venue is proper in New York County as New York County is Respondents
principal place of business and the place where the adverse agency determinations were made. See
CPLR 7804(b) and 506(b).
PROCEDURAL HISTORY
The December 26 FOIL Request
12. On December 26, 2023, Petitioner submitted a FOIL request seeking public records
related to two (2) unrelated attorney disciplinary proceedings brought by Respondents against
Petitioner, the Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter. (See
Zappin Aff. at Ex. 1, December 26, 2023 FOIL Request). The December 26 FOIL Request also
sought records in Respondents’ exclusive possession, custody and/or control relating to their
involvement in other matters, including Petitioner’s personal divorce matters (Zappin v. Comfort,
Index No. 301568/14 (N.Y. Sup. Ct.) and Zappin v. Comfort, Case No. 2013 DRB 3821 (D.C. Sup.
Ct.)), a criminal matter lodged against Petitioner partially at the behest of Respondents (People v.
Zappin, Case No. 2017NY019016 (N.Y. Crim. Ct.)), a reciprocal discipline proceeding in the
District of Columbia and a reciprocal disciplinary proceeding in West Virginia. (See id.)
13. Respondents failed to respond within five (5) business days as required by N.Y.
Public Officers Law § 89(3)(a) and constructively denied Petitioner’s December 26 FOIL Request.
14. On January 10, 2024, Petitioner appealed Respondents’ constructive denial of
Petitioner’s December 26 FOIL Request. (See Zappin Aff. at Ex. 3, FOIL Appeal.)
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15. On January 26, 2024, Respondents sent a letter responding to Petitioner’s FOIL
appeal stating that: “The Attorney Grievance Committee… is part of the Judiciary and therefore,
not subject to FOIL.” (See Zappin Aff. at Ex. 4, NYAGC’s January 26, 2024 Response.)
16. Petitioner has now filed the instant Article 78 proceeding seeking review of an
adverse agency decision. This Article 78 proceeding is timely pursuant to CPLR 217(1) and N.Y.
Gen. Construction Law § 25-A.
Common Law Right of Access
17. On March 4, 2024, Petitioner sent a request to Respondents seeking essentially the
same records contained in his December 26 FOIL Request citing New York’s common law right
of access to judicial and court records. (See Zappin Aff. at Ex. 2, March 4, 2024 Common Law
Right of Access Request (hereinafter, “March 4 CLRA Request”). As set forth in that request,
Petitioner believes that there is exculpatory evidence related to the Zappin Sua Sponte
Investigation and the Zappin Collateral Estoppel Matter in those records. Moreover, there are
records requested – which Respondents acknowledge existed – that should have been produced to
Petitioner during the two (2) attorney disciplinary proceedings as a matter of right (see e.g., 22
NYCRR 1240.7(c) and 22 NYCRR 1270.8(a)(3)), which were not produced and unlawfully
withheld from Petitioner that could have otherwise assisted in his defense.
18. As of the filing of this Verified Petition, Respondents have failed to respond or
acknowledge Petitioner’s March 4 CLRA Request.
19. Petitioner has now filed the instant action seeking a write of mandamus as to
Respondent Jorge Dopico, declaratory judgment and other relief related to his March 4 CPRA
Request. This proceeding has been timely filed as to those claims.
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NEW YORK FOIL STANDARD
20. The Freedom of Information Law, codified in New York Public Officers Law §§
84-90, expresses New York’s strong commitment to open government and public accountability
and imposes a broad standard of disclosure upon the State and its agencies. See Capital
Newspapers v. Burns, 67 N.Y.2d 562, 565 (N.Y. 1986). FOIL affords all citizens the means to
obtain information concerning the day-to-day functioning of State and local government, thus
providing the public the sufficient information to make intelligent, informed choices with respond
to both the direction and scope of government. See id. at 565-566. FOIL is also an effective tool
for exposing waste, negligence, abuse and even outright corruption on the part of government
officers. Id. at 566.
21. FOIL provides that all records of a public agency are presumptively open to public
inspection and copying unless otherwise specifically exempted. See Capital Newspapers, 67
N.Y.2d at 566. Indeed, “FOIL is based on the presumption of access in accordance with the
underlying premise that the public is vested with an inherent right to know and that official secrecy
is anathematic to our form of government.” Madeiros v. N.Y.S. Educ. Dept., 30 N.Y.3d 67, 73
(N.Y. 2017). “FOIL was enacted to provide the broadest possible access to government records.”
Irving Bank Corp. v. Considine, 525 N.Y.S.2d 770, 772 (N.Y. Sup. Ct. 1988). Exemptions are to
be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure
carries the burden of demonstrating that the requested material falls squarely within a FOIL
exemption by articulating a particularized and specific justification for denying access. See
Capital Newspapers, 67 N.Y.2d at 566.
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THE ATTORNEY GRIEVANCE COMMITTEE IS A HYBRID BODY SUBJECT TO
FOIL WHEN IT IS NOT PERFORMING “ADJUDICATORY FUNCTIONS”
22. Without citing a single case in support of its position, the AGC refused to provide
records in response to Petitioner’s December 26 FOIL Request and instead made the conclusory
statement that: “The Attorney Grievance Committee… is part of the Judiciary and therefore, not
subject to FOIL.” This position is simply not supported by New York law. Much like the Office
of Court Administration and the Nassau County Traffic and Parking Agency, the AGC is a hybrid
body or agency within the court system that is subject to FOIL when performing “non-adjudicatory
functions” or “prosecutorial functions.”
23. The AGC is an agency very much analogous to the Nassau County Traffic and
Parking Agency (“TPVA”). The Court of Appeals has held that the TPVA is an “arm of the
District Court.” See Dolce v. Nassu Cnty. Parking Violations Agency, 7 N.Y.3d 492, 497 (N.Y.
1996). However, the Second Department went on to hold that it was subject to FOIL with respect
to its prosecutorial or non-adjudicatory functions:
Without citing a single case in support of its position, the AGC refused to provide
records in responsive to Petitioner’s December 26 FOIL Request stating that: “The
Attorney Grievance Committee… is part of the Judiciary and therefore, not subject
to FOIL.” This position is simply not supported by New York law. Much like the
Office of Court Administration, the AGC is a hybrid body or agency within the
court system that is subject to FOIL when performing “non-adjudicatory
functions.”
Law Offices of Corey H. Morris v. Cnty. Of Nassau, 72 N.Y.S. 95, 96 (2nd Dept. 208); see also
Daily News v. Office of Court Administration, 718 N.Y.S.2d 800 (N.Y. Sup. Ct. 2000) (holding
that the Office of Court Administration, while part of the Judiciary, is subject to FOIL with respect
to its administrative functions).
24. Similar to the TVPA, the mere fact that the AGC is an arm of or part of a court
(here, the First Department) does not exempt it from FOIL. The AGC has little, if any,
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adjudicatory responsibilities as its primary responsibilities are non-adjudicatory: namely
investigating and prosecuting attorney misconduct before the First Department. As a result, the
AGC is clearly a hybrid agency, much like the TVPA and the Office of Court Administration, that
is subject to FOIL with respect to its non-adjudicatory responsibilities.
25. Here, all of Petitioner’s requests in his December 26 FOIL Requests seek records
obtained, created and/or maintained while the AGC was performing non-adjudicatory functions.
Specifically, during the Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel
Matter, the AGC was performing the non-adjudicatory functions of investigating and prosecuting
alleged attorney misconduct. Indeed, nothing the AGC did with respect to Petitioner was
adjudicatory in nature in any way whatsoever. This is particularly so with respect to the Zappin
Collateral Estoppel Matter in which the entire matter was adjudicated by the First Department and
merely prosecuted by the AGC.
26. Respondents have raised no other objections or exemptions with respect to
disclosing records responsive to Petitioner’s December 26 FOIL Request. As a result, any other
exemption or objection has been waived.
27. In light of these facts, the Court must hold that the AGC is a hybrid agency subject
to FOIL for its non-adjudicatory functions. Failing to do so would effectively prevent any
mechanism to hold the AGC accountable to the public. It would no doubt have the potential to
create perverse incentives for the AGC and its attorneys to engage in unlawful, unethical and even
criminal behavior in a judicially created cloak of secrecy that has no legal mechanism to be pierced.
The Court should err on the side of transparency, follow the law and direct the AGC to produce
all responsive records to Petitioners December 26 FOIL Request.
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IF THE ATTORNEY GRIEVANCE COMMITTEE IS EXEMPT FROM FOIL AS
PART OF THE JUDICIARY, IT MUST PRODUCE THE REQUESTED
RECORDS PURSUANT TO THE COMMON LAW RIGHT OF ACCESS
28. The AGC has claimed that it is part of the judiciary. (See Zappin Aff. at Ex. 4,
NYAGC’s January 26, 2024 Response.). To the extent that the AGC is exempt from FOIL as part
of the judiciary, it must therefore be necessarily subject to the common law right of access with
respect to court and judicial records. Any other result would be an absurdity as the public would
have no mechanism whatsoever to compel the AGC to produce public records, which again would
create perverse incentives and prevent the public from scrutinizing or otherwise holding
accountable the AGC, its attorneys and staff.
29. It is well-settled under New York law “that the public has a common law right to
inspect and copy records and documents, including judicial records and documents.” Herrick v.
Town of Colonie, 179 N.Y.S.3d 443, 445 (3rd Dept. 2022) (citing Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978)). Courts have held that this common law right
to access public records is distinct from statutory rights. See, e.g., Carter v. Doe, 230 N.J. 258,
281-282 (N.J. 2018) (“The common law right of access remains a distinct basis upon which to
access public records.”). Moreover, “[u]nder New York law, there is a broad presumption that the
public is entitled to access to judicial proceedings and court records.” Mosallem v. Bereson, 905
N.Y.S. 575, 576 (1st Dept. 2010).
30. It should be noted that judicial records have been defined very broadly as any
document “relevant to the performance of the judicial function and useful in the judicial process.”
U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995).
31. Here, under its own theory that the AGC is “part of the Judiciary” in the First
Department, the requested records in Petitioner’s March 4 CLRA Request are clearly public
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judicial records subject to disclosure. They are all maintained by the “judiciary,” i.e., the AGC.
Likewise, they were all relevant to the judicial process and the judicial proceedings investigating
and prosecuting Petitioner in Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel
Matter, respectively. And, there is no confidentiality associated with the records under Judiciary
Law § 90(10) since Petitioner was publicly disciplined on March 8, 2018 and Petitioner has
repeatedly waived any confidentiality associated with the records. (See Zappin Aff. at Ex. 2,
March 4, 2024 Common Law Right of Access
32. If the AGC is going to claim that it is part of judiciary in order to avoid FOIL, then
it must act like a part of the judiciary. This includes providing the public access to records in its
possession, custody and/or control in accordance with the common law right of access like any
other court or judicial body must do. The AGC has no legal basis to conceal or otherwise refuse
to produce public records not otherwise subject to confidentiality.
33. Should the Court determine that the AGC is exempt from FOIL as “part of the
Judiciary,” it must then grant Petitioner access to the requested records in his March 4 CLRA
Request pursuant to the common law right of access.
COUNT 1 – APPEAL OF ADMINISTRATIVE DECISION
(All Respondents)
34. Petitioner hereby incorporates paragraphs 1-33 as if fully set forth herein.
35. On December 26, 2023, Petitioner submitted a valid FOIL request seeking public
records from Respondents. That request was constructively denied.
36. On January 10, 2024, Petitioner timely appealed the constructive denial of his
December 26, 2023 Request. On January 26, 2024, the Attorney Grievance Committee for the
First Judicial Department denied Appellant’s request and appeal stating that it was exempt from
FOIL as it is “part of the Judiciary.”
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37. Respondents have asserted no other exemption, privilege or basis for withholding
the requested public records in Petitioner’s December 26, 2023 FOIL Request.
38. Respondents’ basis for refusing to produce responsive records to Petitioner’s
December 26, 2023 FOIL Request is baseless and has no support in the law. The Attorney
Grievance Committee is a hybrid agency (or committee) of the First Department and is subject to
FOIL with respect to its non-adjudicatory functions.
39. All the public records requests in Petitioner’s December 26, 2023 FOIL Request
were obtained, created and/or maintained by the Attorney Grievance Committee while performing
non-adjudicatory functions (i.e., investigative and prosecutorial functions) or in its non-
adjudicatory capacity.
40. As a result, the Court must overrule Respondents’ denial of Petitioner’s December
26, 2023 FOIL Request and direct that Respondents produce all responsive records to Petitioner
forthwith.
COUNT 2 – APPEAL OF ADMINISTRATIVE DECISION
(Respondent Dopico)
41. Petitioner hereby incorporates paragraphs 1-40 as if fully set forth herein.
42. On March 4, 2024, Petitioner requested that Respondents produce public judicial
records pursuant to the common law right of access.
43. Respondents has refused to respond or even acknowledge Petitioner’s March 4,
2024 request. Nonetheless, Respondents have acknowledged in their FOIL denial discussed above
that the Attorney Grievance Committee is “part of the Judiciary.”
44. Petitioner has a clear legal right to the requested records in Petitioner’s March 4,
2024 letter request pursuant to New York’s common law right of access to public and judicial
records.
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45. Respondent Jorge Dopico as Chief Attorney for the Attorney Grievance Committee
has a clear legal duty under the law to provide the requested records in Petitioner’s March 4, 2024
letter request.
46. Respondent Jorge Dopico has failed to perform and has shirked his legal duty to
provide access to the requested records in Petitioner’s March 4, 2024 letter request.
47. Consequently, the Court must issue a write of mandamus directing and compelling
Respondent Jorge Dopico to perform his legal duty under the law to produce any and all records
responsive to Petitioner’s March 4, 2024 letter request in accordance with New York’s common
law right of access to public and judicial reports.
COUNT 3 – COMMON LAW RIGHT OF ACCESS
(All Respondents)
48. Petitioner hereby incorporates paragraphs 1-457as if fully set forth herein.
49. Petitioner seeks records from Respondents in accordance with New York’s
common law right of access.
50. New York provides a common law right of access to all public record and judicial
records.
51. Respondents assert and acknowledge that the Attorney Grievance Committee is
“part of the Judiciary,” thereby making it subject to the common law right of access.
52. Petitioner seeks all records in his March 4, 2024 letter to Respondents pursuant to
the common law right of access. The requested records in Petitioner’s March 4, 2024 letter request
are clearly public records and public judicial records subject to disclosure under the common law
right of access. They are all maintained by the judiciary, i.e., the AGC. Likewise, they were all
relevant to the judicial process and the judicial proceedings investigating and prosecuting
Petitioner in Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter,
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respectively. And, there is no confidentiality associated with the records under Judiciary Law §
90(10) since Petitioner was publicly disciplined on March 8, 2018 and Petitioner has repeatedly
waived any confidentiality associated with the records.
53. As a result, Petitioner is entitled to the records requested in his March 4, 2024 letter.
The Court must enter an order directing Respondents to produce all responsive records to
Petitioner forthwith.
COUNT 4 – COMMON LAW RIGHT
OF ACCESS (DECLARATORY JUDGMENT)
(All Respondents)
54. Petitioner hereby incorporates paragraphs 1-53 as if fully set forth herein.
55. Petitioner seeks declaratory judgment pursuant to CPLR 3001 et seq.
56. Specifically, Petitioner seeks a declaration from this Court that the Respondents’
refusal to provide the records requested in Petitioner’s March 4, 2024 letter request violations New
York’s common law right of access to public and judicial records.
57. Respondents assert and acknowledge that the Attorney Grievance Committee is
“part of the Judiciary,” thereby making it subject to the common law right of access.
58. The requested records in Petitioner’s March 4, 2024 letter request are clearly public
records and public judicial records subject to disclosure under the common law right of access.
They are all maintained by the judiciary, i.e., the AGC. Likewise, they were all relevant to the
judicial process and the judicial proceedings investigating and prosecuting Petitioner in Zappin
Sua Sponte Investigation and the Zappin Collateral Estoppel Matter, respectively. And, there is
no confidentiality associated with the records under Judiciary Law § 90(10) since Petitioner was
publicly disciplined on March 8, 2018 and Petitioner has repeatedly waived any confidentiality
associated with the records.
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59. There is a justiciable controversy. Petitioner made a request on March 4, 2024 to
Respondents for the requested records pursuant to the New York’s common law right of access.
Respondents have ignored and effectively denied Petitioner’s request.
60. Petitioner requests that the Court enter declaratory judgment against Respondents
that Respondents must produce to Petitioner any and all records responsive to the records requests
made in his March 4, 2024 letter request.
DEMAND FOR RELIEF
61. No prior application has been made for the relief sought herein.
WHEREFORE, Petitioner respectfully requests that the Court issue a judgment as follows:
a. Direct that Respondents to comply with its obligations under New York’s Freedom
of Information Law;
b. Direct that Respondent conduct a diligent search for the records sought in
Petitioner’s FOIL requests at-issue;
c. Direct that Respondent produce any and all records responsive to Petitioner’s FOIL
requests that not subject to any exemption not previously waived by Respondent;
d. Issuing a writ of mandamus directing Respondent Jorge Dopico to conduct a
diligent search for all records responsive to Petitioner’s common law right of access
request and to produce all such records to Petitioner;
e. Directing to conduct a diligent search for all records responsive to Petitioner’s
March 4, 2024 letter requests and produce all such records to Petitioner pursuant to
New York’s common law right of access to public and judicial records;
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f. Declaring that Petitioner has a legal right to the records requested in his March 4,
2024 letter pursuant to the common law right of access and declaring that
Respondents must produce any and all responsive records to Petitioner pursuant to
that right;
g. Award fees and costs in accordance with New York Freedom of Information Law;
and
h. Award any other relief that the Court deems just and proper.
Dated: May 28, 2024
_________________________________
ANTHONY ZAPPIN
P.O. Box 443
North Myrtle Beach, SC 29582
anthony.zappin@gmail.com
(304) 730-4463
Petitioner
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VERIFICATION
Texas
STATE OF ______________________ )
: ss
COUNTY OF ____________________
Tarrant )
ANTHONY ZAPPIN, being duly sworn, deposes and says:
I am the Petitioner in the above-captioned proceeding. I have read the foregoing Verified
Petition and know its contents. It is true to my own knowledge, except as to the matters therein
stated to be alleged on information and belief, and as to those matters I believe them to be true.
Dated: May 28, 2024
_________________________________
ANTHONY ZAPPIN
Sworn to before me this
28th day of May, 2024
Notary Public, State of Texas
______________________ + John DClark
Notary Public ID NUMBER
133N917-9
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FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------- X ANTHONY ZAPPIN, Petitioner, VERIFIED PETITION AND - against - COMPLAINT ATTORNEY GRIEVANCE COMMITTEE Index No. _________________ FOR THE FIRST JUDICIAL DEPARTMENT, JORGE DOPICO, Respondents. ------------------------------------------------------------- X Petitioner Anthony Zappin, proceeding pro se, hereby brings this hybrid Article 78 proceeding and alleges the following in this Verified Petition and Complaint: INTRODUCTION 1. Petitioner brings this hybrid Article 78 proceeding to primarily obtain records properly subject to New York’s Freedom of Information Law (“FOIL”). Petitioner filed a FOIL request on December 26, 2023 with the New York Attorney Grievance Committee for the First Judicial Department (“AGC”) seeking public records in its sole possession relating primarily to two (2) unrelated attorney disciplinary matters brought by Respondents against Petitioner: The “Sua Sponte” Investigation of Anthony Zappin initiated on October 1, 2015 with a Docket No. of 2015.18911 (hereinafter, the “Zappin Sua Sponte Investigation”); and 1 Respondents abandoned this “sua sponte” investigation. During a hearing before the First Department, Principal Staff Attorney Kevin M. Doyle admitted that they had no basis to pursue any disciplinary charges against Petitioner with respect to this investigation. (See https://www.youtube.com/watch?v=5rxZl3veHus.) 1 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 The collateral estoppel disciplinary proceeding styled Matter of Zappin filed in the First Department that resulted in a March 8, 2018 disciplinary decision2 (hereinafter, the “Zappin Collateral Estoppel Matter”). See 73 N.Y.3d 182 (1st Dept. 2018). (See Zappin Aff. at Ex. 1, December 26, 2023 FOIL Request (hereinafter, “December 26 FOIL Request”)). The December 26 FOIL Request also sought records in Respondents’ exclusive possession, custody and/or control relating to their involvement in other matters, including Petitioner’s personal divorce matters (Zappin v. Comfort, Index No. 301568/14 (N.Y. Sup. Ct.) and Zappin v. Comfort, Case No. 2013 DRB 3821 (D.C. Sup. Ct.)), a criminal matter lodged against Petitioner partially at the behest of Respondents (People v. Zappin, Case No. 2017NY019016 (N.Y. Crim. Ct.)), a reciprocal disciplinary proceeding in the District of Columbia and a reciprocal disciplinary proceeding in West Virginia. (See id.) Respondents have refused to produce records responsive to Petitioner’s December 26 FOIL Request and instead have erroneously and unlawfully stating that “[t]he Attorney Grievance Committee… is part of the Judiciary and therefore, not subject to FOIL.” As set forth below and in the accompanying memorandum, Respondents have no lawful basis to withhold the requested records from Petitioner under FOIL. 2 After realizing that there was no basis to bring disciplinary charges against Petitioner based on the allegations in the “sua sponte” investigation, Principal Staff Attorney Kevin M. Doyle decided to bring an unconstitutional collateral estoppel disciplinary against Petitioner – where he was afforded no charges or a hearing on the merits of the disciplinary accusations as required by New York law – based on the child custody decision in Zappin v. Comfort written by former Justice Matthew F. Cooper. As shown in the supporting memorandum, the findings relied by Mr. Doyle and the AGC not only lacked any evidence in the child custody record, but were wholly fabricated and manufactured out of thin air with the sole and ostensible purpose of enabling Mr. Doyle and the AGC to bring a collateral estoppel disciplinary proceeding against Petitioner. 2 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 2. Alternatively, Petitioner seeks a writ of mandamus pursuant to CPLR 7803(1), relief under New York’s common law right of access and declaratory judgment pursuant to CPLR 3001 et seq. that the records requested from Respondents must be produced via the common law right of access to court and judicial records. On March 4, 2024, Petitioner sent a request to Respondents seeking essentially the same records contained in his December 26 FOIL Request citing New York’s common law right of access to judicial and court records. (See Zappin Aff. at Ex. 2, March 4, 2024 Common Law Right of Access Request (hereinafter, “March 4 CLRA Request”). Respondents have refused to respond to Petitioner’s request, despite their legal duty under the common law right of access, and have no lawful basis to withhold the requested records. 3. Notably, this is Petitioner’s only course to obtain these documents. During the Zappin Sua Sponte Investigation and, more importantly, the Zappin Collateral Estoppel Matter, the AGC failed to produce even a single document of discovery, despite it being required to do so. (See, e.g., 22 NYCRR 1240.7(c) and 22 NYCRR 1270.8(a)(3).) Despite the fact that it was clear that (bogus) attorney grievance complaints were filed against Petitioner, Respondents (through their Principal Staff Attorney Kevin M. Doyle) have repeatedly lied to conceal these complaints asserting that their investigation was “sua sponte” and that the unrelated Zappin Collateral Estoppel Matter had no complainant. Indeed, a recent document from the New York District Attorney’s Office confirms that former Justice Cooper – the judge who presided over Petitioner’s divorce Zappin v. Comfort – made apparent witness statements that he filed the grievance complaint that led to the Zappin Collateral Estoppel Matter. Yet, when Petitioner sought this grievance complaint during the pendency of the Zappin Collateral Estoppel Matter, the AGC’s Principal Staff Attorney Kevin M. Doyle perjured himself, lying under oath that no complaint has been filed and that the AGC’s database had no complaints against Petitioner. 3 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 4. Petitioner believes that the requested records will not only contain exculpatory information with respect to the Zappin Collateral Estoppel Matter – which Respondents have essentially conceded to – but that they will also show egregious misconduct and repeated criminal acts on the part of the AGC’s Principal Staff Attorney Kevin M. Doyle, along with others outside of the AGC. There is no basis under the law for Respondents to withhold the requested records other than to perpetuate a cover-up and conceal unethical and likely criminal conduct. Petitioner has a legal right to the requested records and asks that this Court direct Respondents to produce all responsive records to the December 26 FOIL Request and/or the March 4 CLRA Request. JURISDICTION 5. With respect to Petitioner’s Article 78 claims, the Court may conduct “special proceedings” pursuant to Article 78 of New York’s Civil Practice Law and Rules. See CPLR 7801-7806. Petitioner seeks review of Respondents’ constructive denial December 26 FOIL Request and subsequent appeal, pursuant to CPLR 7803(5). 6. Petitioner seeks a writ of mandamus pursuant to CPLR 7803(1) compelling Respondent Jorge Dopico to produce records responsive to his March 4 CLRA Request. 7. Respondent New York Attorney Grievance Committee for the First Judicial Department is a “body” subject to judicial review pursuant to Article 78 of New York’s Civil Practice Law and Rules. See CPLR 7802(a). 8. Respondent Jorge Dopico is the Chief Attorney for the New York Attorney Grievance Committee for the First Judicial Department is therefore an “officer” subject to a writ of mandamus under Article 78 of New York’s Civil Practice Law and Rules. See CPLR 7802(a). 9. With respect to Petitioner’s common law right of access claim, jurisdiction in this Court is proper pursuit to CPLR 301, and all other applicable provisions of the CPLR. 4 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 10. As to Petitioner’s declaratory relief claim, jurisdiction in this Court is proper pursuant to CPLR 3001, and all other applicable provisions of the CPLR, including CPLR 301. VENUE 11. Venue is proper in New York County as New York County is Respondents principal place of business and the place where the adverse agency determinations were made. See CPLR 7804(b) and 506(b). PROCEDURAL HISTORY The December 26 FOIL Request 12. On December 26, 2023, Petitioner submitted a FOIL request seeking public records related to two (2) unrelated attorney disciplinary proceedings brought by Respondents against Petitioner, the Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter. (See Zappin Aff. at Ex. 1, December 26, 2023 FOIL Request). The December 26 FOIL Request also sought records in Respondents’ exclusive possession, custody and/or control relating to their involvement in other matters, including Petitioner’s personal divorce matters (Zappin v. Comfort, Index No. 301568/14 (N.Y. Sup. Ct.) and Zappin v. Comfort, Case No. 2013 DRB 3821 (D.C. Sup. Ct.)), a criminal matter lodged against Petitioner partially at the behest of Respondents (People v. Zappin, Case No. 2017NY019016 (N.Y. Crim. Ct.)), a reciprocal discipline proceeding in the District of Columbia and a reciprocal disciplinary proceeding in West Virginia. (See id.) 13. Respondents failed to respond within five (5) business days as required by N.Y. Public Officers Law § 89(3)(a) and constructively denied Petitioner’s December 26 FOIL Request. 14. On January 10, 2024, Petitioner appealed Respondents’ constructive denial of Petitioner’s December 26 FOIL Request. (See Zappin Aff. at Ex. 3, FOIL Appeal.) 5 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 15. On January 26, 2024, Respondents sent a letter responding to Petitioner’s FOIL appeal stating that: “The Attorney Grievance Committee… is part of the Judiciary and therefore, not subject to FOIL.” (See Zappin Aff. at Ex. 4, NYAGC’s January 26, 2024 Response.) 16. Petitioner has now filed the instant Article 78 proceeding seeking review of an adverse agency decision. This Article 78 proceeding is timely pursuant to CPLR 217(1) and N.Y. Gen. Construction Law § 25-A. Common Law Right of Access 17. On March 4, 2024, Petitioner sent a request to Respondents seeking essentially the same records contained in his December 26 FOIL Request citing New York’s common law right of access to judicial and court records. (See Zappin Aff. at Ex. 2, March 4, 2024 Common Law Right of Access Request (hereinafter, “March 4 CLRA Request”). As set forth in that request, Petitioner believes that there is exculpatory evidence related to the Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter in those records. Moreover, there are records requested – which Respondents acknowledge existed – that should have been produced to Petitioner during the two (2) attorney disciplinary proceedings as a matter of right (see e.g., 22 NYCRR 1240.7(c) and 22 NYCRR 1270.8(a)(3)), which were not produced and unlawfully withheld from Petitioner that could have otherwise assisted in his defense. 18. As of the filing of this Verified Petition, Respondents have failed to respond or acknowledge Petitioner’s March 4 CLRA Request. 19. Petitioner has now filed the instant action seeking a write of mandamus as to Respondent Jorge Dopico, declaratory judgment and other relief related to his March 4 CPRA Request. This proceeding has been timely filed as to those claims. 6 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 NEW YORK FOIL STANDARD 20. The Freedom of Information Law, codified in New York Public Officers Law §§ 84-90, expresses New York’s strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies. See Capital Newspapers v. Burns, 67 N.Y.2d 562, 565 (N.Y. 1986). FOIL affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government, thus providing the public the sufficient information to make intelligent, informed choices with respond to both the direction and scope of government. See id. at 565-566. FOIL is also an effective tool for exposing waste, negligence, abuse and even outright corruption on the part of government officers. Id. at 566. 21. FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted. See Capital Newspapers, 67 N.Y.2d at 566. Indeed, “FOIL is based on the presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.” Madeiros v. N.Y.S. Educ. Dept., 30 N.Y.3d 67, 73 (N.Y. 2017). “FOIL was enacted to provide the broadest possible access to government records.” Irving Bank Corp. v. Considine, 525 N.Y.S.2d 770, 772 (N.Y. Sup. Ct. 1988). Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access. See Capital Newspapers, 67 N.Y.2d at 566. 7 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 THE ATTORNEY GRIEVANCE COMMITTEE IS A HYBRID BODY SUBJECT TO FOIL WHEN IT IS NOT PERFORMING “ADJUDICATORY FUNCTIONS” 22. Without citing a single case in support of its position, the AGC refused to provide records in response to Petitioner’s December 26 FOIL Request and instead made the conclusory statement that: “The Attorney Grievance Committee… is part of the Judiciary and therefore, not subject to FOIL.” This position is simply not supported by New York law. Much like the Office of Court Administration and the Nassau County Traffic and Parking Agency, the AGC is a hybrid body or agency within the court system that is subject to FOIL when performing “non-adjudicatory functions” or “prosecutorial functions.” 23. The AGC is an agency very much analogous to the Nassau County Traffic and Parking Agency (“TPVA”). The Court of Appeals has held that the TPVA is an “arm of the District Court.” See Dolce v. Nassu Cnty. Parking Violations Agency, 7 N.Y.3d 492, 497 (N.Y. 1996). However, the Second Department went on to hold that it was subject to FOIL with respect to its prosecutorial or non-adjudicatory functions: Without citing a single case in support of its position, the AGC refused to provide records in responsive to Petitioner’s December 26 FOIL Request stating that: “The Attorney Grievance Committee… is part of the Judiciary and therefore, not subject to FOIL.” This position is simply not supported by New York law. Much like the Office of Court Administration, the AGC is a hybrid body or agency within the court system that is subject to FOIL when performing “non-adjudicatory functions.” Law Offices of Corey H. Morris v. Cnty. Of Nassau, 72 N.Y.S. 95, 96 (2nd Dept. 208); see also Daily News v. Office of Court Administration, 718 N.Y.S.2d 800 (N.Y. Sup. Ct. 2000) (holding that the Office of Court Administration, while part of the Judiciary, is subject to FOIL with respect to its administrative functions). 24. Similar to the TVPA, the mere fact that the AGC is an arm of or part of a court (here, the First Department) does not exempt it from FOIL. The AGC has little, if any, 8 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 adjudicatory responsibilities as its primary responsibilities are non-adjudicatory: namely investigating and prosecuting attorney misconduct before the First Department. As a result, the AGC is clearly a hybrid agency, much like the TVPA and the Office of Court Administration, that is subject to FOIL with respect to its non-adjudicatory responsibilities. 25. Here, all of Petitioner’s requests in his December 26 FOIL Requests seek records obtained, created and/or maintained while the AGC was performing non-adjudicatory functions. Specifically, during the Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter, the AGC was performing the non-adjudicatory functions of investigating and prosecuting alleged attorney misconduct. Indeed, nothing the AGC did with respect to Petitioner was adjudicatory in nature in any way whatsoever. This is particularly so with respect to the Zappin Collateral Estoppel Matter in which the entire matter was adjudicated by the First Department and merely prosecuted by the AGC. 26. Respondents have raised no other objections or exemptions with respect to disclosing records responsive to Petitioner’s December 26 FOIL Request. As a result, any other exemption or objection has been waived. 27. In light of these facts, the Court must hold that the AGC is a hybrid agency subject to FOIL for its non-adjudicatory functions. Failing to do so would effectively prevent any mechanism to hold the AGC accountable to the public. It would no doubt have the potential to create perverse incentives for the AGC and its attorneys to engage in unlawful, unethical and even criminal behavior in a judicially created cloak of secrecy that has no legal mechanism to be pierced. The Court should err on the side of transparency, follow the law and direct the AGC to produce all responsive records to Petitioners December 26 FOIL Request. 9 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 IF THE ATTORNEY GRIEVANCE COMMITTEE IS EXEMPT FROM FOIL AS PART OF THE JUDICIARY, IT MUST PRODUCE THE REQUESTED RECORDS PURSUANT TO THE COMMON LAW RIGHT OF ACCESS 28. The AGC has claimed that it is part of the judiciary. (See Zappin Aff. at Ex. 4, NYAGC’s January 26, 2024 Response.). To the extent that the AGC is exempt from FOIL as part of the judiciary, it must therefore be necessarily subject to the common law right of access with respect to court and judicial records. Any other result would be an absurdity as the public would have no mechanism whatsoever to compel the AGC to produce public records, which again would create perverse incentives and prevent the public from scrutinizing or otherwise holding accountable the AGC, its attorneys and staff. 29. It is well-settled under New York law “that the public has a common law right to inspect and copy records and documents, including judicial records and documents.” Herrick v. Town of Colonie, 179 N.Y.S.3d 443, 445 (3rd Dept. 2022) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). Courts have held that this common law right to access public records is distinct from statutory rights. See, e.g., Carter v. Doe, 230 N.J. 258, 281-282 (N.J. 2018) (“The common law right of access remains a distinct basis upon which to access public records.”). Moreover, “[u]nder New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records.” Mosallem v. Bereson, 905 N.Y.S. 575, 576 (1st Dept. 2010). 30. It should be noted that judicial records have been defined very broadly as any document “relevant to the performance of the judicial function and useful in the judicial process.” U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). 31. Here, under its own theory that the AGC is “part of the Judiciary” in the First Department, the requested records in Petitioner’s March 4 CLRA Request are clearly public 10 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 judicial records subject to disclosure. They are all maintained by the “judiciary,” i.e., the AGC. Likewise, they were all relevant to the judicial process and the judicial proceedings investigating and prosecuting Petitioner in Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter, respectively. And, there is no confidentiality associated with the records under Judiciary Law § 90(10) since Petitioner was publicly disciplined on March 8, 2018 and Petitioner has repeatedly waived any confidentiality associated with the records. (See Zappin Aff. at Ex. 2, March 4, 2024 Common Law Right of Access 32. If the AGC is going to claim that it is part of judiciary in order to avoid FOIL, then it must act like a part of the judiciary. This includes providing the public access to records in its possession, custody and/or control in accordance with the common law right of access like any other court or judicial body must do. The AGC has no legal basis to conceal or otherwise refuse to produce public records not otherwise subject to confidentiality. 33. Should the Court determine that the AGC is exempt from FOIL as “part of the Judiciary,” it must then grant Petitioner access to the requested records in his March 4 CLRA Request pursuant to the common law right of access. COUNT 1 – APPEAL OF ADMINISTRATIVE DECISION (All Respondents) 34. Petitioner hereby incorporates paragraphs 1-33 as if fully set forth herein. 35. On December 26, 2023, Petitioner submitted a valid FOIL request seeking public records from Respondents. That request was constructively denied. 36. On January 10, 2024, Petitioner timely appealed the constructive denial of his December 26, 2023 Request. On January 26, 2024, the Attorney Grievance Committee for the First Judicial Department denied Appellant’s request and appeal stating that it was exempt from FOIL as it is “part of the Judiciary.” 11 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 37. Respondents have asserted no other exemption, privilege or basis for withholding the requested public records in Petitioner’s December 26, 2023 FOIL Request. 38. Respondents’ basis for refusing to produce responsive records to Petitioner’s December 26, 2023 FOIL Request is baseless and has no support in the law. The Attorney Grievance Committee is a hybrid agency (or committee) of the First Department and is subject to FOIL with respect to its non-adjudicatory functions. 39. All the public records requests in Petitioner’s December 26, 2023 FOIL Request were obtained, created and/or maintained by the Attorney Grievance Committee while performing non-adjudicatory functions (i.e., investigative and prosecutorial functions) or in its non- adjudicatory capacity. 40. As a result, the Court must overrule Respondents’ denial of Petitioner’s December 26, 2023 FOIL Request and direct that Respondents produce all responsive records to Petitioner forthwith. COUNT 2 – APPEAL OF ADMINISTRATIVE DECISION (Respondent Dopico) 41. Petitioner hereby incorporates paragraphs 1-40 as if fully set forth herein. 42. On March 4, 2024, Petitioner requested that Respondents produce public judicial records pursuant to the common law right of access. 43. Respondents has refused to respond or even acknowledge Petitioner’s March 4, 2024 request. Nonetheless, Respondents have acknowledged in their FOIL denial discussed above that the Attorney Grievance Committee is “part of the Judiciary.” 44. Petitioner has a clear legal right to the requested records in Petitioner’s March 4, 2024 letter request pursuant to New York’s common law right of access to public and judicial records. 12 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 45. Respondent Jorge Dopico as Chief Attorney for the Attorney Grievance Committee has a clear legal duty under the law to provide the requested records in Petitioner’s March 4, 2024 letter request. 46. Respondent Jorge Dopico has failed to perform and has shirked his legal duty to provide access to the requested records in Petitioner’s March 4, 2024 letter request. 47. Consequently, the Court must issue a write of mandamus directing and compelling Respondent Jorge Dopico to perform his legal duty under the law to produce any and all records responsive to Petitioner’s March 4, 2024 letter request in accordance with New York’s common law right of access to public and judicial reports. COUNT 3 – COMMON LAW RIGHT OF ACCESS (All Respondents) 48. Petitioner hereby incorporates paragraphs 1-457as if fully set forth herein. 49. Petitioner seeks records from Respondents in accordance with New York’s common law right of access. 50. New York provides a common law right of access to all public record and judicial records. 51. Respondents assert and acknowledge that the Attorney Grievance Committee is “part of the Judiciary,” thereby making it subject to the common law right of access. 52. Petitioner seeks all records in his March 4, 2024 letter to Respondents pursuant to the common law right of access. The requested records in Petitioner’s March 4, 2024 letter request are clearly public records and public judicial records subject to disclosure under the common law right of access. They are all maintained by the judiciary, i.e., the AGC. Likewise, they were all relevant to the judicial process and the judicial proceedings investigating and prosecuting Petitioner in Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter, 13 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 respectively. And, there is no confidentiality associated with the records under Judiciary Law § 90(10) since Petitioner was publicly disciplined on March 8, 2018 and Petitioner has repeatedly waived any confidentiality associated with the records. 53. As a result, Petitioner is entitled to the records requested in his March 4, 2024 letter. The Court must enter an order directing Respondents to produce all responsive records to Petitioner forthwith. COUNT 4 – COMMON LAW RIGHT OF ACCESS (DECLARATORY JUDGMENT) (All Respondents) 54. Petitioner hereby incorporates paragraphs 1-53 as if fully set forth herein. 55. Petitioner seeks declaratory judgment pursuant to CPLR 3001 et seq. 56. Specifically, Petitioner seeks a declaration from this Court that the Respondents’ refusal to provide the records requested in Petitioner’s March 4, 2024 letter request violations New York’s common law right of access to public and judicial records. 57. Respondents assert and acknowledge that the Attorney Grievance Committee is “part of the Judiciary,” thereby making it subject to the common law right of access. 58. The requested records in Petitioner’s March 4, 2024 letter request are clearly public records and public judicial records subject to disclosure under the common law right of access. They are all maintained by the judiciary, i.e., the AGC. Likewise, they were all relevant to the judicial process and the judicial proceedings investigating and prosecuting Petitioner in Zappin Sua Sponte Investigation and the Zappin Collateral Estoppel Matter, respectively. And, there is no confidentiality associated with the records under Judiciary Law § 90(10) since Petitioner was publicly disciplined on March 8, 2018 and Petitioner has repeatedly waived any confidentiality associated with the records. 14 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 59. There is a justiciable controversy. Petitioner made a request on March 4, 2024 to Respondents for the requested records pursuant to the New York’s common law right of access. Respondents have ignored and effectively denied Petitioner’s request. 60. Petitioner requests that the Court enter declaratory judgment against Respondents that Respondents must produce to Petitioner any and all records responsive to the records requests made in his March 4, 2024 letter request. DEMAND FOR RELIEF 61. No prior application has been made for the relief sought herein. WHEREFORE, Petitioner respectfully requests that the Court issue a judgment as follows: a. Direct that Respondents to comply with its obligations under New York’s Freedom of Information Law; b. Direct that Respondent conduct a diligent search for the records sought in Petitioner’s FOIL requests at-issue; c. Direct that Respondent produce any and all records responsive to Petitioner’s FOIL requests that not subject to any exemption not previously waived by Respondent; d. Issuing a writ of mandamus directing Respondent Jorge Dopico to conduct a diligent search for all records responsive to Petitioner’s common law right of access request and to produce all such records to Petitioner; e. Directing to conduct a diligent search for all records responsive to Petitioner’s March 4, 2024 letter requests and produce all such records to Petitioner pursuant to New York’s common law right of access to public and judicial records; 15 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 f. Declaring that Petitioner has a legal right to the records requested in his March 4, 2024 letter pursuant to the common law right of access and declaring that Respondents must produce any and all responsive records to Petitioner pursuant to that right; g. Award fees and costs in accordance with New York Freedom of Information Law; and h. Award any other relief that the Court deems just and proper. Dated: May 28, 2024 _________________________________ ANTHONY ZAPPIN P.O. Box 443 North Myrtle Beach, SC 29582 anthony.zappin@gmail.com (304) 730-4463 Petitioner 16 of 17 FILED: NEW YORK COUNTY CLERK 05/28/2024 10:39 PM INDEX NO. 154980/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/28/2024 VERIFICATION Texas STATE OF ______________________ ) : ss COUNTY OF ____________________ Tarrant ) ANTHONY ZAPPIN, being duly sworn, deposes and says: I am the Petitioner in the above-captioned proceeding. I have read the foregoing Verified Petition and know its contents. It is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe them to be true. Dated: May 28, 2024 _________________________________ ANTHONY ZAPPIN Sworn to before me this 28th day of May, 2024 Notary Public, State of Texas ______________________ + John DClark Notary Public ID NUMBER 133N917-9 ¼p COMMISSIONEXPIRES usum1s,mas Electronically signed and notarized online using the Proof platform. 17 of 17