Preview
FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM INDEX NO. E2019001016
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019
MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 1987352
Book Page CIVIL
Return To: No. Pages: 6
ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Test-=ent: uISCELLANEOUS DOCUMENT
New York, NY 10016
Control #: 201902200970
Index #: E2019001016
Date: 02/20/2019
DEMPSEY, CHARLES Time: 11:38:49 AM
THE CITY OF ROCHESTER
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK'S OFFICE
WARNING - THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
ADAM J BELLO
MONROE COUNTY CLERK
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201902200970 Index #
INDEX : E2019001016
NO. E2019001016
FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
In the Matter of the Application of
CHARLES DEMPSEY to obtain pre-
action discovery,
INDEX NO.:
Petitioner,
-against-
AFFIRMATION IN REPLY
AND FURTHER SUPPORT
OF PETITION
THE CITY OF ROCHESTER,
Hon. Ann Marie Taddeo
Respondent.
ELLIOT D. SHIELDS, ESQ., an attorney duly admitted to practice law
before the Courts of the State of New York, affirms the following under
penalties of perjury:
1. I am associated with the law firm ROTH & ROTH, LLP, and I
am fully familiar with the facts and circumstances surrounding the within
matter based on the files maintained in my office and our investigation of the
within incident.
2. I respectfully submit this affirmation in reply to the
Respondent’s opposition and in further support for the within motion for
preaction discovery.
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FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM
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3. Respondent’s opposition is procedurally defective because it
lacks an affidavit from either RPD Officer Javier Algarin, the officer whose
body worn camera recorded him shooting and killing the Petitioner’s dog, or
any other member of the RPD. Thus, the entire affirmation in opposition is
inadmissible hearsay and is insufficient to rebut Petitioner’s prima facie
showing of entitlement to the recording.
4. Second, opposition is procedurally defective because it lacks an
affirmation with any member of the RPD or the District Attorney’s office
explaining how disclosure of the body worn camera video recording would
“interfere” with the alleged ongoing prosecution of the individual in the
neighboring yard.
5. The March 18, 2014 Decision and Order of the Honorable Karen
V. Murphy in Rebello et al v. Dale et al., Index No. 11906/2016 (Sup. Ct.,
Nassau Co. Mar. 18, 2014), which is annexed hereto as Exhibit “A”,
demonstrates why Respondent’s opposition is insufficient.
6. In Rebello, my office submitted a FOIL request for various
documents in a tragic police shooting case. The Nassau County Police
Department claimed that the requested documents were exempt pursuant to
POL § 87(2)(e)(i), the same exemption claimed in this case, and refused to
produce the documents.
7. Unlike this case, in opposition to the Petition in Rebello, the
respondents did include an affidavit from a police officer attempting to
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E2019001016
FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019
explain that disclosure of the documents would “interfere” with an ongoing
investigation. However, in that case, the Court found the affidavit was
inadequate because it was “conclusory and contain[ed] virtually no
descriptive facts upon which the court [could] meaningfully weigh the
viability of the claimed exemption.” (Ex. A p. 6).
8. The Court in Rebello rejected respondents’ arguments because
the officer’s affidavit failed to show how they would be harmed by disclosure
of the requested documents, or how disclosure would somehow interfere with
an alleged ongoing investigation. (Id. at 7).
9. In In re Patrolmen’s Benevolent Association of the City of New
York, Inc. v. De Blasio, et al., Index No. 150181/18 (Feb. 19, 2019)—a decision
issued by the Appellate Division, First Department yesterday, on February
19, 2019—the Court held that, “[t]he purpose of body-worn-camera footage is
for use in the service of other key objectives of the program, such as
transparency, accountability, and public trust-building.” (Annexed hereto as
Exhibit “B”).
10. The Court rejected respondent’s argument that body-worn-
camera recordings were exempt from disclosure under FOIL as personnel
records, and instead held that the overriding public interest in transparency
and accountability required that the body camera recordings be made
available to the public.
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E2019001016
FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019
11. The RPD’s body worn camera program was implemented to
increase transparency, police accountability to the public, and to improve
police community relations. (See MOU between City and Coalition for Police
Reform, annexed hereto as Exhibit “C”).
12. Nevertheless, the City has implemented policies that are
diametrically opposed to transparency and accountability, and instead they
have simply refused to produce the recording without providing an affidavit
from an RPD officer explaining the purported “interference” that would be
caused by disclosure of the video.
13. The body worn camera recording will show the truth. By
denying the request for the video the City is hiding the truth, and denying
justice to the Petitioner and his 10-year-old daughter, whose best friend was
killed for no reason by RPD officer Javier Algarin as he was trespassing in
Petitioner’s back yard.
14. Justice requires that the video be disclosed immediately.
15. The purpose of the GML 50-h haring is to investigate claims,
and determine if the claim should be settled or if the City should litigate the
claim in court. In making this determination, if only the City has the video,
they can gain an unfair litigation advantage by tricking Petitioner and / or
his 10-year-old daughter into testifying to something that does not exactly
match up to what the video shows, and then use that against them later in
the litigation.
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201902200970 IndexNO.
INDEX #: E2019001016
E2019001016
FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019
16. The simple fact is that this is a public video and it is required to
be disclosed under FOIL, and Respondents have failed to demonstrate
otherwise. Petitioner is disadvantaged and needs the video to file a properly
framed complaint that can survive a motion to dismiss under the Iqubal /
Twombly federal pleading standards.
Conclusion
17. For all of the forgoing reasons, Petitioner respectfully requests
this Court grant the Petition in its entirety.
Dated: New York, New York
February 20, 2019
~//s~//
ELLIOT D. SHIELDS
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Preview
FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM INDEX NO. E2019001016 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019 MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 1987352 Book Page CIVIL Return To: No. Pages: 6 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Test-=ent: uISCELLANEOUS DOCUMENT New York, NY 10016 Control #: 201902200970 Index #: E2019001016 Date: 02/20/2019 DEMPSEY, CHARLES Time: 11:38:49 AM THE CITY OF ROCHESTER Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK'S OFFICE WARNING - THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. ADAM J BELLO MONROE COUNTY CLERK ||||!!!!!!!'!!!!!!!!!!!!iii¹¹II¹!!!!!"!!!!"!' '"|E|ijiiilliimiiiii n s s 8iiiiiiiiiiiiii "G¹¹¹¹¹lll1111 .n IIII!!:iiIIIIIIIIIIIIIIni 1 of 6 201902200970 Index # INDEX : E2019001016 NO. E2019001016 FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of CHARLES DEMPSEY to obtain pre- action discovery, INDEX NO.: Petitioner, -against- AFFIRMATION IN REPLY AND FURTHER SUPPORT OF PETITION THE CITY OF ROCHESTER, Hon. Ann Marie Taddeo Respondent. ELLIOT D. SHIELDS, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under penalties of perjury: 1. I am associated with the law firm ROTH & ROTH, LLP, and I am fully familiar with the facts and circumstances surrounding the within matter based on the files maintained in my office and our investigation of the within incident. 2. I respectfully submit this affirmation in reply to the Respondent’s opposition and in further support for the within motion for preaction discovery. 2 of 6 201902200970 IndexNO. INDEX #: E2019001016 E2019001016 FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019 3. Respondent’s opposition is procedurally defective because it lacks an affidavit from either RPD Officer Javier Algarin, the officer whose body worn camera recorded him shooting and killing the Petitioner’s dog, or any other member of the RPD. Thus, the entire affirmation in opposition is inadmissible hearsay and is insufficient to rebut Petitioner’s prima facie showing of entitlement to the recording. 4. Second, opposition is procedurally defective because it lacks an affirmation with any member of the RPD or the District Attorney’s office explaining how disclosure of the body worn camera video recording would “interfere” with the alleged ongoing prosecution of the individual in the neighboring yard. 5. The March 18, 2014 Decision and Order of the Honorable Karen V. Murphy in Rebello et al v. Dale et al., Index No. 11906/2016 (Sup. Ct., Nassau Co. Mar. 18, 2014), which is annexed hereto as Exhibit “A”, demonstrates why Respondent’s opposition is insufficient. 6. In Rebello, my office submitted a FOIL request for various documents in a tragic police shooting case. The Nassau County Police Department claimed that the requested documents were exempt pursuant to POL § 87(2)(e)(i), the same exemption claimed in this case, and refused to produce the documents. 7. Unlike this case, in opposition to the Petition in Rebello, the respondents did include an affidavit from a police officer attempting to 3 of 6 201902200970 IndexNO. INDEX #: E2019001016 E2019001016 FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019 explain that disclosure of the documents would “interfere” with an ongoing investigation. However, in that case, the Court found the affidavit was inadequate because it was “conclusory and contain[ed] virtually no descriptive facts upon which the court [could] meaningfully weigh the viability of the claimed exemption.” (Ex. A p. 6). 8. The Court in Rebello rejected respondents’ arguments because the officer’s affidavit failed to show how they would be harmed by disclosure of the requested documents, or how disclosure would somehow interfere with an alleged ongoing investigation. (Id. at 7). 9. In In re Patrolmen’s Benevolent Association of the City of New York, Inc. v. De Blasio, et al., Index No. 150181/18 (Feb. 19, 2019)—a decision issued by the Appellate Division, First Department yesterday, on February 19, 2019—the Court held that, “[t]he purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.” (Annexed hereto as Exhibit “B”). 10. The Court rejected respondent’s argument that body-worn- camera recordings were exempt from disclosure under FOIL as personnel records, and instead held that the overriding public interest in transparency and accountability required that the body camera recordings be made available to the public. 4 of 6 201902200970 IndexNO. INDEX #: E2019001016 E2019001016 FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019 11. The RPD’s body worn camera program was implemented to increase transparency, police accountability to the public, and to improve police community relations. (See MOU between City and Coalition for Police Reform, annexed hereto as Exhibit “C”). 12. Nevertheless, the City has implemented policies that are diametrically opposed to transparency and accountability, and instead they have simply refused to produce the recording without providing an affidavit from an RPD officer explaining the purported “interference” that would be caused by disclosure of the video. 13. The body worn camera recording will show the truth. By denying the request for the video the City is hiding the truth, and denying justice to the Petitioner and his 10-year-old daughter, whose best friend was killed for no reason by RPD officer Javier Algarin as he was trespassing in Petitioner’s back yard. 14. Justice requires that the video be disclosed immediately. 15. The purpose of the GML 50-h haring is to investigate claims, and determine if the claim should be settled or if the City should litigate the claim in court. In making this determination, if only the City has the video, they can gain an unfair litigation advantage by tricking Petitioner and / or his 10-year-old daughter into testifying to something that does not exactly match up to what the video shows, and then use that against them later in the litigation. 5 of 6 201902200970 IndexNO. INDEX #: E2019001016 E2019001016 FILED: MONROE COUNTY CLERK 02/20/2019 01:06 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/20/2019 16. The simple fact is that this is a public video and it is required to be disclosed under FOIL, and Respondents have failed to demonstrate otherwise. Petitioner is disadvantaged and needs the video to file a properly framed complaint that can survive a motion to dismiss under the Iqubal / Twombly federal pleading standards. Conclusion 17. For all of the forgoing reasons, Petitioner respectfully requests this Court grant the Petition in its entirety. Dated: New York, New York February 20, 2019 ~//s~// ELLIOT D. SHIELDS 6 of 6