Court rejects Petitioner's proposed narrowing of a search for records sought pursuant to New York State's Freedom of Information Law following two refusals to do so

The New York City Department of Education [DOE] denied Petitioner's Freedom of Information Law (FOIL) request on the grounds that it did not seek "a record reasonably described". Supreme Court denied Petition's appeal seeking a court order directing DOE to conduct "an adequate search of responsive records, or in the alternative for a framed issues hearing." The Appellate Division unanimously affirmed the Supreme Court's decision, holding it was not affected by an error of law.

Petitioner sought all emails during a 17-month period between any DOE email address and any email address from a neutral arbitrator's firm. Citing Matter of Puig v New York State Police, 212 AD3d 1025, the Appellate Division said the administrative record and the DOE's affidavits demonstrate "that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search ... [by] name or other reasonable technological effort".

The Appellate Division's decision notes that "DOE maintains over 1 million email mailboxes". When DOE searched its database using the description given by Petitioner, the "system searches never appeared to end during the course of the day, continuing through the next day, then stopping and timing out". 

When Petitioner was twice asked by DOE to provide a narrower timeframe, names or titles of DOE employees who might be custodians of the emails sought, and key terms to be searched, Petitioner "simply refused to do so."

Petitioner subsequently offered a proposed script that would reduce the number of mailboxes being searched which "[n]either the language of the original request nor that of the administrative appeal demonstrates that the limitations now proposed were previously enunciated or provided" to the DOE. The Appellate Division ruled that Supreme Court "appropriately declined to entertain [Petitioner's] proposed means of narrowing the search," which were advanced for the first time in a later reply submitted to Supreme Court.

As DOE did not deny the FOIL request based on Petitioner's seeking voluminous records or claim that conducting the search "would be unduly burdensome or require the creation of new documents," the Appellate Division held Petitioner was not entitled to a hearing to resolve certain purported issues of fact.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

The Volunteer Firefighters' Benefit Law, incorporating by reference §29 of the Workers' Compensation Law, provides the exclusive remedies available to a firefighter injured in the line of duty

Plaintiff, a volunteer member of a Volunteer Fire Department [Defendant] allegedly was injured when he fell from the back of a fire truck operated by a fellow volunteer firefighter [Firefighter]. The accident occurred at a "fire track" allegedly owned by the defendant Ridge Fire District, sued as Ridge Volunteer Fire Department, Inc. [Ridge] during an event held in preparation for a firefighting competition. Based on a determination by the Workers' Compensation Board that Plaintiff was injured "in the line of duty," Plaintiff was awarded benefits under the Volunteer Firefighters' Benefit Law.

Plaintiff commenced this action to recover damages for personal injuries against the Defendants, Firefighter and Ridge, among others, alleging that Firefighter negligently operated the fire truck at a dangerous speed during preparations for the firefighting competition. Defendants, Firefighter and Ridge separately moved to dismiss the amended complaint insofar as asserted against each of them [See pursuant to CPLR 3211(a)]. Supreme Court granted those defendants' motions and Plaintiff appeal the Supreme Court's rulings.

The Appellate Division, citing §19 of the Volunteer Firefighters' Benefit Law, noted, in pertinent part, §19 provides that "[t]he benefits provided by this chapter shall be the exclusive remedy of a volunteer firefighter" for injuries sustained "in line of duty ... as against ... any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted."

Thus, opined the court, should a volunteer firefighter sustains an injury in the line of duty, the injured firefighter is barred from seeking recovery against either a fire company with which he or she had an employer/employee relationship or fellow firefighters acting "in furtherance of their duties and activities* [and §20 of the of the Volunteer Firefighters' Benefit Law] incorporates by reference subdivision 6 of §29 of the Workers' Compensation Law, which provides that compensation is the exclusive remedy of an employee injured by the negligence or wrong of another in the same employ" (See Malone v Jacobs, 88 AD2d 927)."

Accordingly, the Appellate Division held that Supreme Court properly granted the motions of Defendant and Firefighter pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against each of them.

With respect to Ridge, the Appellate Division said Ridge submitted documentary evidence conclusively establishing that it did not own the property where the accident occurred, and thus, that "a material fact as claimed by the [Plaintiff] is not a fact at all" and Supreme Court properly granted Ridge's motion to dismiss the amended complaint insofar as asserted against it.

* See Lima v State of New York, 74 NY2d 694 and Theodoreu v Chester Fire Dist., 12 AD3d 499).

Click HERE to access the Appellate Division decision posted on the Internet.

 

Federal Rule of Appellate Procedure 28(a) requires all appellants to provide the court with a clear statement of the issues on appeal in their briefs

Plaintiff, proceeding pro se,* sued the school district where he previously work as well as certain administrators and another former colleague [collectively Defendants] for alleged discrimination and retaliation on the basis of race, gender, age, and disability status under various federal statutes. A federal district court dismissed the Plaintiff's claims as barred by a general release in a settlement agreement and as time barred. Plaintiff filed a timely appeal with the U.S. Circuit Court of Appeals, Second Circuit.

Plaintiff, however, did not challenge these federal district court’s rulings in the brief he submitted to the Circuit Court. Rather, observed the Circuit Court, Plaintiff "focused solely on the merits of his underlying claims", alleged acts of unlawful discrimination and retaliation undertaken by the Defendants. In the words of the Circuit Court, Plaintiff "does not dispute that his claims were precluded and time barred".

The Circuit Court affirmed the district court's ruling, explaining it liberally construes pleadings and briefs submitted by pro se litigants to raise the strongest arguments they suggest. However, said the court, pro se appellants must still comply with Federal Rule of Appellate Procedure 28(a), which requires all appellants “to provide the court with a clear statement of the issues on appeal” in their briefs.

Plaintiff had conceded the procedural issues that resulted in the dismissal of his complaints by the federal district court and he could not advance the merits of his "underlying claims" in the brief he submitted to the Circuit Court of Appeals.

* Pro se [Latin] meaning for or on one's own behalf.

Click HERE to access the decision of the Circuit Court of Appeal posted on the Internet.