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Ebersole Affirmation
Exhibit C

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
BUFFALO POLICE BENEVOLENT ASSOCIATION,
INC.; and BUFFALO PROFESSIONAL FIREFIGHTERS
ASSOCIATION INC., LOCAL 282, IAFF, AFL-CIO,
Petitioners/Plaintiffs,
vs.

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Hon. Frank A. Sedita, III

BYRON W. BROWN, in his official capacity as Mayor of
the City of Buffalo; the CITY OF BUFFALO; BYRON C.
LOCKWOOD, in his official capacity as Commissioner of
the Buffalo Police Department; the BUFFALO POLICE
DEPARTMENT; WILLIAM RENALDO, in his official
capacity as Commissioner of the Buffalo Fire Department;
and the BUFFALO FIRE DEPARTMENT,
Respondents/Defendants.

[PROPOSED] MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS’ MOTION
FOR PRELIMINARY INJUNCTION AND IN SUPPORT OF PROPOSED INTERVENOR
THE NEW YORK CIVIL LIBERTIES UNION’S MOTION TO DISMISS

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1
I.

THE NEW YORK STATE LEGISLATURE’S REPEAL OF CIVIL RIGHTS
LAW § 50-a ........................................................................................................... 3

II.

PETITIONERS INITIATE THE PRESENT LITIGATION TO PREVENT THE
DISCLOSURE OF PUBLIC RECORDS .............................................................. 4

ARGUMENT ................................................................................................................................. 6
I.

PETITIONERS' MOTION FOR A PRELIMINARY INJUNCTION SHOULD
BE DENIED........................................................................................................... 6

II.

PETITIONERS LACK STANDING TO BRING THE UNDERLYING CLAIMS
................................................................................................................................ 9

III.

PETITIONERS NEVERTHELESS FAIL TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED ............................................................................ 12
A.

Petitioners Fail to Allege any Breach of Contract on the Part of
Respondents ............................................................................................. 12

B.

Petitioners Do Not Have a Protectable Interest Under the New York
Constitution’s Due Process Clause ........................................................ 166

C.

Petitioners Fail to State a Claim Under the New York Constitution’s Equal
Protection Clause ..................................................................................... 19

D.

Petitioners Fail to Plead Actions Sufficient to Constitute Violations of
CPLR § 7803............................................................................................ 21

CONCLUSION ............................................................................................................................ 24

ii

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TABLE OF AUTHORITIES
Case

Page

Abramo v. HealthNow New York, 758 N.Y.S. 2d 745 [4th Dept 2003] ..........................................7
Abramson v. Pataki, 278 F.3d 93 [2d Cir. 2002] ...........................................................................18
Am. Economy Ins. Co. v. State of New York (30 N.Y.3d 136 [2017]) ...........................................18
Anonymous v. Bd. of Educ. for Mexico Cent. Sch. Dist., 616 N.Y.S.2d 867 [Sup.
Ct. Oswego Cnty. Aug. 29, 1994] ............................................................................................15
Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910
F.3d 106 [3d Cir. 2018]............................................................................................................20
Atkinson v. Mobil Oil Corp., 614 N.Y.S.2d 36 [2d Dept 1994] ....................................................14
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 [1972]..........................................................18
Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617 [2004] ..........................................18, 19, 21
Citizens Organized to Protect Env’t ex rel. Brinkman v. Planning Bd. of Town of
Irondequoit, 857 N.Y.S. 2d 394 [4th Dept 2008] ....................................................................11
Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 578 N.Y.S 2d 945
[4th Dept 1991] ........................................................................................................................24
Buffalo News v. Buffalo Mun. Hous. Auth., 558 N.Y.S. 2d 364 [4th Dept 1990] ..........................15
Bursac v. Suozzi, 868 N.Y.S. 2d 470 [Sup. Ct., Nassau Co. 2008] ...............................................17
Camardo v. Bd. of Ed. of City School Dist., 376 N.Y.S. 2d 344 [4th Dept 1975] ...........................6
Caprer v. Nussbaum, 825 N.Y.S.2d 55 [2d Dept 2006] ..................................................................9
Carnahan v. Ward, 848 N.Y.S. 2d 458 [4th Dept 2007] ...............................................................20
Chicago Journeymen Plumbers’ Local Union 130, U.A. v. Pers. Bd. of City of
Chicago, No. 96 C 0751, 1996 WL 288631, [N.D. Ill. May 30, 1996] ...................................11
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 [2013] .................................................................10
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 [1985] .........................................................17
Cohoes City School Dist. v. Cohoes Teachers Ass’n, 40 N.Y.2d 774 [1976]................................14
Conte v. Board of Ed. of Town of Hinsdale, Cattaraugus Cnty., 397 N.Y.S. 2d
471 [4th Dept 1977] .................................................................................................................13
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Cutler v. Travelers Ins. Co. (552 N.Y.S.2d 998 [4th Dept 1990]) ................................................15
Delicati v. Schechter, 157 N.Y.S. 2d 715 [1st Dept 1956] ............................................................22
DePina v Educ. Testing Serv., 297 N.Y.S. 2d 472 [2d Dept 1969] .................................................8
Farrell v. Village Bd. of Trustees of Vil. of Johnson City, 372 N.Y.S. 2d 905 [Sup.
Ct., Broome Cty. 1975] ............................................................................................................23
Faulkner v. Del Giacco, 529 N.Y.S. 2d 255 [Sup. Ct., Albany Cty., 1988]..................................23
Filer v Keystone Corp., 9 N.Y.S. 3d 480 [4th Dept 2015] ............................................................13
Fink v Lefkowitz, 47 N.Y.2d 567 [1979]........................................................................................13
Foley v. D’Agostino, 248 N.Y.S. 2d 121 [1st Dept 1964] .............................................................12
Gen. Motors Corp. v. Romein, 503 US 181 [1992] .......................................................................18
Golden v Steam Heat, Inc., 628 N.Y.S. 2d 375 [2d Dept 1995] ......................................................7
Guggenheimer v. Ginzburg, 43 N.Y.2d 268 [1977] ......................................................................12
Matter of Hanig v. State Dept. of Motor Vehicles, 79 N.Y.2d 106 [1992] ......................................8
Harlen Assoc. v. Incorporated Vil. of Mineola, 273 F.3d 494 [2d Cir. 2001] ...............................19
Hepps v. New York State Dept. of Health, 122 N.Y.S. 3d 446 [3d Dept 2020].............................23
J.P. Morgan Securities. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324 [2013] ......................................12
Landgraf v. Usi Film Prods., 550 US 244 [1994] .........................................................................18
Luongo v. Records Access Appeals Officer, 90 N.Y.S. 3d 514 [1st Dept 2019] ...........................23
Lyman Rice, Inc. v. Albion Mobile Homes, Inc., 933 N.Y.S. 2d 741 [4th Dept
2011] ..........................................................................................................................................9
Mabry v. Neighborhood Defender Serv., 930 N.Y.S.2d 193 [1st Dept 2011] .............................7, 8
Main Evaluations, Inc. v. State, 745 N.Y.S.2d 355 [4th Dept 2002]...............................................6
Meese v. Miller, 436 N.Y.S. 2d 496 [4th Dept 1981] ....................................................................12
Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679
[S.D.N.Y. 2011] .......................................................................................................................19
Mulgrew v. Bd. of Educ. of City School Dist. of City of New York, 919 N.Y.S. 2d
786 [Sup. Ct., N.Y. Cty. 2011] ............................................................................................8, 23

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Mulgrew v Bd. of Educ. of City School Dist. of City of New York, 928 N.Y.S. 2d
701 [1st Dept 2011] .................................................................................................................22
Matter of N.Y. Civil Liberties Union v. N.Y. City Police Dept., 32 N.Y.3d 556
[N.Y. 2018] ..........................................................................................................................4, 23
New York State Ass’n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 810 N.E.2d
405 [2004] ......................................................................................................................9, 10, 11
Matter of New York Times Co. v. City of N.Y. Fire Dept., 4 N.Y.3d 477 [2005] ..........................23
Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839 [2005] ............................................6
Patterson v. City of Utica, 370 F.3d 322 [2d Cir. 2004]................................................................17
Pell v. Bd. of Educ., 34 N.Y.2d 222 [1974] ...................................................................................22
Pension Benefit Guar. Corp v. R.A. Gray & Co. (467 US 717 [1984]).........................................18
Post v. Harper, 980 F.2d 491 [8th Cir. 1992] ................................................................................20
Records Matter of Spring v County of Monroe, 36 N.Y.S. 3d 330 [4th Dept 2016] .....................21
Rent Stabilization Ass’n of City of New York v. Dinkins, 5 F.3d 591 [2d Cir. 1993] ....................11
Matter of Riccelli Enterprises, Inc. v. State of New York Workers’ Compensation
Bd., 984 N.Y.S. 2d 758 [4th Dept 2014] ...................................................................................6
Segal v. City of New York, 459 F.3d 207 [2d Cir. 2006] .........................................................16, 17
Sharrock v. Dell Buick-Cadillac, Inc., 45 N.Y.2d 152 [1978] ......................................................16
Shellabarger v. Onondaga Cnty. Water Auth., 482 N.Y.S.2d 610 [4th Dept 1984]........................6
Socy. of Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761 [1991] ......................................9
Sud v. Sud, 621 N.Y.S.2d 37 [1st Dept 1995]................................................................................15
US Dept. of Justice v. Reporters Comm. (489 U.S. 749 [1989]) ...................................................18
Valmonte v. Bane (18 F.3d 992 [2d Cir. 1994]).............................................................................17
W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157 [1990] .......................................................13
Warth v. Seldin, 422 U.S. 490 [1975] ............................................................................................11
Westchester Co. Dept. of Public Safety Police Benevolent Assoc., Inc. v.
Westchester County (828 N.Y.S. 2d 412 [2d Dept 2006]).................................................10, 13

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Westover Car Rental, LLC v. Niagara Frontier Transp. Auth., 21 N.Y.S. 3d 510
[4th Dept 2015] ........................................................................................................................21
White v. F.F. Thompson Health Sys., Inc., 904 N.Y.S. 2d 612 [4th Dept 2010] .........................7, 8
Wilcox v. Newark Val. Cent. School Dist., 967 N.Y.S. 2d 432 [3d Dept 2013] ............................16
Zahra v. Town of Southold, 48 F.3d 674 [2d Cir. 1995] ................................................................19

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PRELIMINARY STATEMENT
“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is
said to be the best of disinfectants; electric light the most efficient policeman.” Justice Louis D.
Brandeis’s sentiments from over a century ago ring true today. We as a community cannot cure
the problems we are unable to see. With this in mind, the New York State legislature made the
reasoned determination that it was in the public’s best interest to repeal section 50-a of the Civil
Rights Law, thereby bringing back into light vast amounts of records and data bearing on police
accountability that had previously been kept in the dark. What Petitioners seek to do in these
proceedings is turn off that light—or rather, selectively shine it only in places they deem
appropriate. If permitted, Petitioners would prevent the public from accessing untold amounts of
otherwise public records regarding the conduct of individuals who work for the people. That is
the very situation the legislature sought to address by repealing section 50-a, and this Court must
not permit Petitioners to continue to avoid public scrutiny.
First, Petitioners have failed to meet their heavy burden in demonstrating that the drastic
relief of a preliminary injunction is appropriate here. Indeed, Petitioners fail to establish any
likelihood of success on the merits, the harms they allege are speculative at best, and the balance
of equities weighs heavily in favor of the disclosure of presumptively public records—a balance
the New York State legislature already considered in deciding to repeal section 50-a.
Second, Petitioners lack standing to pursue any of the causes of action they assert in these
proceedings. Not only do Petitioners fail to allege that they themselves have suffered actual harm
at the hands of Respondents, they also fail to allege that any of their members have suffered or
will imminently suffer a concrete injury. As the Court of Appeals has previously held, Petitioners’
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Third, Petitioners’ claim that disclosure of its members’ disciplinary records would breach
certain collective bargaining agreements wholly ignores that, as a matter of public policy,
government agencies, such as Respondents here, cannot bargain away the public’s right to access
these otherwise public records. Indeed, the very purpose of the repeal of section 50-a was to grant
the public access to such records. The same is true of Petitioners’ claims related to the purported
breach of certain unidentified settlement agreements, as any confidentiality provisions in such
agreements conflict with the public policy of open access to public records.
Fourth, Petitioners do not have a protectable interest under the New York State
Constitution’s Due Process clause. Petitioners have failed to allege a viable “stigma-plus” claim
as they have not identified any statements made by or on behalf of the government itself, much
less any statements specifically made by the individual Respondents, nor have Petitioners alleged
that any adverse employment actions have been or will imminently be taken against any of their
members based on the release of public records previously withheld on the basis of section 50-a.
Fifth, Petitioners fail to state a claim under the New York State Constitution’s Equal
Protection clause.

Unsurprisingly, Petitioners are unable to identify any similarly situated

professions that are being treated differently than Petitioners’ members, notwithstanding
Petitioners’ reference to other “State-licensed professionals,” which, according to Petitioners,
includes architects, dietician-nutritionists, geologists, and interior designers, none of whom are
remotely similar to Petitioners. Regardless, Petitioners fail to allege that they are being singled
out on the basis of a protected reason—such as race, gender, or religion—or with “malevolent
intent,” and therefore fail to state an Equal Protection claim.
Sixth, Petitioners fail to state a claim that Respondents’ compliance with the law following
the repeal of section 50-a would be “arbitrary and capricious” or otherwise constitute an “error of

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law.” The Fourth Department is clear that agency determinations, such as those by Respondents
here, will be upheld absent an error in law and are not subject to the “arbitrary and capricious”
standard alleged by Petitioners. In any event, the balance between the minimal privacy interests
at stake for Petitioners’ members, on one hand, and, on the other hand, the strong public interest
of promoting transparency in governmental operations so that governmental actions can be more
readily scrutinized weighs heavily in favor of disclosure. Indeed, by repealing section 50-a, the
New York State legislature undertook such an analysis and decisively concluded that the public
interest in access to police disciplinary records must prevail.
For all of these reasons, as discussed more fully herein, Petitioners’ Complaint 1 must be
dismissed in its entirety, and Petitioners’ motion for a preliminary injunction must be denied.
FACTUAL BACKGROUND 2
I.

THE NEW YORK STATE LEGISLATURE’S REPEAL OF CIVIL RIGHTS LAW
§ 50-a
Until this summer, the greatest obstacle to police transparency was section 50-a, which

generally excluded from disclosure “police personnel records used to evaluate performance
towards continued employment or promotion” that were otherwise presumptively public. (C.R.L.
§ 50-a[1] [repealed June 12, 2020]). Although the intended breadth of section 50-a was narrow,
its scope quickly expanded, with unions like Petitioners leading the charge. 3 Indeed, by 2014,

All references to “Compl. ¶ __” are to the Verified Petition/Complaint Under Article 75, United States and New
York Constitutions, Common Law, and Article 78 Seeking Injunctive and Declaratory Relief, dated July 22, 2020 (the
“Complaint” or “Compl.”) (Index. No. 807664/2020, NYSCEF Doc. No. 1).
1

Facts alleged in the Complaint cited herein are accepted solely for purposes of the motion to dismiss. Unless
otherwise provided herein, defined terms are as defined in the Complaint.
2

New York City Bar, Report on Legislation by the Civil Rights Committee et al., New York City Bar Association 1,
2 (2020), https://bit.ly/3jK6O2O (initial scope of section 50-a “to, among other things, prevent ‘harassment’ by
criminal defense attorneys who sought to impeach officers with unsubstantiated prior bad act[s]”).
3

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section 50-a was “expanded in the courts to allow police departments to withhold from the public
virtually any record that contains any information that could conceivably be used to evaluate the
performance of a police officer.” 4 In 2018, the New York Court of Appeals held that section 50a prohibited even the release of redacted information in response to FOIL requests. (Matter of
N.Y. Civil Liberties Union v. N.Y. City Police Dept., 32 N.Y.3d 556, 560 [N.Y. 2018]). Such
caselaw, and its underlying rationale, is, however, no longer valid. On June 12, 2020, Governor
Andrew Cuomo signed the #Repeal50a Bill (S8496/A10611). The repeal of section 50-a has
already provided valuable transparency to the people of Buffalo. 5
II.

PETITIONERS INITIATE THE PRESENT LITIGATION TO PREVENT THE
DISCLOSURE OF PUBLIC RECORDS
On July 22, 2020, Petitioners filed the instant lawsuit seeking to prevent Respondents from

disclosing Buffalo Police and Fire Department records relating to “matters that are still pending,
as well as matters which were unsubstantiated, which were unfounded, which resulted in
exoneration, or which concerned members who were otherwise found not guilty (‘Unsubstantiated
and Pending Allegations’).” (Compl. at ¶ 1). “In the wake of the repeal of New York State Civil
Rights Law §50-a,” Petitioners also seek to withhold information “concern[ing] confidential
settlement agreements.” (Id.) As a basis for these claims, Petitioners argue that the release of
information concerning these purported Unsubstantiated and Pending Allegations would (i) violate
their collective bargaining agreements with Respondents, (ii) violate the Due Process Clause of

State of New York, Department of State Committee on Open Government, Annual Report to the Governor and State
Legislature, Department of State 1, 3 (Dec. 2014), https://on.ny.gov/3fbCxGO.

4

See News Editorial Board, The Editorial Board: Lieutenant's disciplinary record shows value of transparency law,
The Buffalo News, Jul. 9, 2020, (“Buffalo Police Lt. Michael A. DeLong’s disciplinary record includes 36 complaints
of misconduct, 13 of those involving excessive use of force. Before his current suspension he served at least four
others. Those facts would still be under lock and key were it not for the repeal last month of a state law that shielded
police records from the public.”).
5

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the New York State Constitution, (iii) breach settlement agreements entered into in good faith with
the Respondents, and (iv) “arbitrarily and capriciously reverse longstanding City and State practice
of deeming unsubstantiated allegations to be protected from disclosure.” (Id. at ¶ 3).
While Petitioners initially claim that the injunction they seek is limited to preventing
disclosure of information concerning Unsubstantiated and Pending Allegations or information
implicated by settlement agreements, they go on to seek a bar on an any “disciplinary records that
implicate the privacy and safety concerns of officers”—a much broader and even more ill-defined
category of information without any apparent limits. (Id. at ¶¶ 72, 78 [emphasis added]).
Petitioners further request that the Court “annul” any attempt to release any record before
conducting a “case-by-case analysis to determine whether disclosure is warranted.” (Id. ¶¶ 97,
98).
On July 24, 2020, the Court entered an Order to Show Cause, granting Petitioners’ request
for a temporary restraining order “restraining Respondents, and those acting in concert with them,
from publicly disclosing any records concerning Unsubstantiated and Pending Allegations or
settlement agreements entered into prior to June 12, 2020.” (Dkt. No. 10). In the same order, the
Court set a preliminary injunction hearing for August 26, 2020, at 9:30 a.m., and ordered
Respondents to file opposition papers, if any, by August 14, 2020, and Petitioners to file reply
papers, if any, by August 19, 2020. (Id.) Finally, the Court’s July 24 order permitted Petitioners
to serve “expedited document discovery requests” and ordered that Respondents produce any
responsive documents to such requests within seven days of their being served. (Id.) Petitioners
purportedly served these document requests on Respondents on August 4, 2020. (Dkt. No. 12.)
Respondents filed an answer to the document requests on August 12, 2020. (Dkt. No. 14.)

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ARGUMENT
I.

PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE
DENIED
Petitioners’ motion for a preliminary injunction should be denied as it fails to sustain

Petitioners’ substantial burden to show that they are entitled to enjoin the lawful release of
presumptively public records. Petitioners seek a preliminary injunction under CPLR § 7805 and
CPLR § 6301, which place on Petitioners the burden to demonstrate by clear and convincing
evidence: (1) a likelihood of success on the merits; (2) imminent and irreparable injury if the
preliminary injunctive relief is not granted; and (3) a balance of equities tipping in their favor.
(See Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005]); (Matter of Riccelli
Enterprises, Inc. v. State of New York Workers’ Compensation Bd., 984 N.Y.S. 2d 758, 759 [4th
Dept 2014] [noting that “although petitioners moved for a stay pursuant to CPLR 7805… [the]
Supreme Court properly considered their request for relief as a request for preliminary injunction,
and thus properly considered the requisite factors for granting such relief”] [internal quotations
omitted]). “The grant of a preliminary injunction is a drastic remedy to be used sparingly.”
(Camardo v. Bd. of Ed. of City School Dist., 376 N.Y.S. 2d 344, 346 [4th Dept 1975]).
Petitioners fail to meet their burden as to all three requirements. First, as detailed further
below, see supra Sections II-III, Petitioners lack standing and otherwise fail to state a claim as to
the causes of action asserted in the Complaint. For these reasons alone, Petitioners fail to meet
their burden of establishing a likelihood of success on the merits and their motion for a preliminary
injunction should be denied. (See Shellabarger v. Onondaga Cnty. Water Auth., 482 N.Y.S.2d
610, 610 [4th Dept 1984] [vacating preliminary injunction issued by trial court because “plaintiffs
have not demonstrated a sufficient likelihood of ultimate success on the merits to be entitled to an
injunction”]); (Main Evaluations, Inc. v. State, 745 N.Y.S.2d 355, 357 [4th Dept 2002] [vacating

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preliminary injunction, finding trial court “abused its discretion in granting plaintiff’s motion for
a preliminary injunction” because plaintiff “failed to meet its burden of demonstrating the
likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is not
granted, and a balancing of the equities in its favor”]).
Second, Petitioners fail to meet their burden of showing that their claims of potential
reputational harm or potential loss of future employment opportunities are sufficiently irreparable
to require the drastic relief of an injunction. It is well settled that loss of income or loss of
employment does not constitute irreparable damage for purposes of a preliminary injunction. (See
Abramo v. HealthNow New York, 758 N.Y.S. 2d 745, 746 [4th Dept 2003] [“Loss of employment,
although most likely to cause severe hardship, does not constitute irreparable damage.”] [internal
citations omitted]). Moreover, “absent extraordinary circumstances, feelings of degradation and
humiliation and damage to reputation and self-esteem do not constitute irreparable harm for the
purposes of injunctive relief.” (Mabry v. Neighborhood Defender Serv., 930 N.Y.S.2d 193, 194
[1st Dept 2011]). Significantly, potential harms, which are the only sort asserted by Petitioners,
are clearly not sufficiently imminent to meet the requisite burden of proof for a preliminary
injunction. “The prospect of irreparable harm must be imminent, not remote or speculative.”
(White v. F.F. Thompson Health Sys., Inc., 904 N.Y.S. 2d 612, 613 [4th Dept 2010] [internal
quotations omitted]); (see also Golden v Steam Heat, Inc., 628 N.Y.S. 2d 375, 377 [2d Dept 1995]
[“The record merely indicates that the plaintiffs are concerned that [defendant’s] presence will
have an adverse effect upon Brooklyn’s commercial district in the future. Thus, they have failed
to demonstrate the threshold showing of imminent, irreparable injury.”]); 67A N.Y. Jur. 2d
Injunctions § 11 (“Injury, material and actual, rather than fanciful, theoretical, or merely possible,
must be shown to be the necessary or probable result of the action sought to be restrained.”).

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Petitioners simply cannot carry their burden here, as the only harm they allege is speculative
reputational harm that they further speculate could lead to other remotely possible harms, such as
loss of future income. (Compl. ¶¶ 5, 37, 41, 42, 60, 66). This is not enough. (See Mabry, 930
N.Y.S.2d at 194); (White, 904 N.Y.S. 2d at 613-615).
Finally, the balancing of the equities weighs heavily against a preliminary injunction. As
explained below, supra Section III, Petitioners’ purported privacy and property interests in this
matter are minimal, particularly when contrasted with the strong and presumptive interests of the
general public. (DePina v Educ. Testing Serv., 297 N.Y.S. 2d 472 [2d Dept 1969] [weighing
interest of the public against interest of the parties and finding that defendant acted within its duty
to the public]); (Mulgrew v. Bd. of Educ. of City School Dist. of City of New York, 919 N.Y.S. 2d
786, 790-791 [Sup. Ct., N.Y. Cty. 2011] [“[c]ourts have repeatedly held that release of job
performance related information, even negative information such as that involving misconduct,
does not constitute an unwarranted invasion of privacy.”]); (see also Matter of Hanig v. State Dept.
of Motor Vehicles, 79 N.Y.2d 106, 109 [1992] [confirming that FOIL imposes the “broad duty of
disclosure on government agencies” and that “[a]ll agency records are presumptively available for
public inspection and copying”]). Moreover, the balancing of equities has already been considered
by the New York State legislature, and its determination was decisive when it acted to repeal
section 50-a to make available to the public the very documents Petitioners seek to shield through
this action. Indeed, the very “status quo” that Petitioners implore this Court to maintain is the

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same “status quo” that the New York State legislature unequivocally rejected in repealing section
50-a.
Accordingly, as Petitioners are unable to carry their substantial burden to establish any of
the elements necessary to obtain the “drastic relief” of a preliminary injunction, much less all three,
Petitioners’ motion should be denied in its entirety.
II.

PETITIONERS LACK STANDING TO BRING THE UNDERLYING CLAIMS
As an initial matter, Petitioners lack standing to bring claims under any of their underlying

causes of action because they do not allege that they themselves have suffered any specific injury
in fact. (Socy. of Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 769 [1991] [“Whether
a person seeking relief is a proper party to request an adjudication is an aspect of justiciability
which, when challenged, must be considered at the outset of any litigation.”]). Rather, Petitioners
only allege harm to their members. (See Lyman Rice, Inc. v. Albion Mobile Homes, Inc., 933
N.Y.S. 2d 741, 742 [4th Dept 2011] [“A plaintiff generally has standing only to assert claims on
behalf of [itself].”]); (Caprer v. Nussbaum, 825 N.Y.S.2d 55, 62-63 [2d Dept 2006] [same]).
Petitioners, as unions representing individual members, also lack organizational standing
necessary to bring claims on their members’ behalf. “To establish standing, an organizational
plaintiff—such as [Petitioners] here—must show that at least one of its members would have
standing to sue, that it is representative of the organizational purposes it asserts and that the case
would not require the participation of individual members.” (New York State Ass’n of Nurse
Anesthetists v. Novello, 2 N.Y.3d 207, 211, 810 N.E.2d 405, 407 [2004]); (see also Socy. of Plastics
Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 775 [1991] [outlining same test for organizational

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standing under New York State law]). 6 To that end, Petitioners must show that at least one of their
members has suffered an injury in fact—one that is “concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”
(Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 [2013]).
Here, Petitioners’ claims of potential violations of their members’ privacy rights or
potential negative impacts on their members’ prospective employment opportunities clearly do not
rise to the level of a concrete or imminent harm. The Court of Appeals’ decision in New York
State Ass’n of Nurse Anesthetists is instructive. There, plaintiff alleged that state-imposed Clinical
Guidelines for Office-based Surgery would “effectively prohibit [certified registered nurse
anesthetists] from performing anesthesia services in an office-based setting.” (New York State
Ass’n of Nurse Anesthetists, 2 N.Y.3d 207, 212 [2004]). In finding no injury in fact, the Court of
Appeals noted that the guidelines “might, or might not, actually affect the employment of CRNAs
in physicians’ offices,” and thus “there is no certainty whatsoever that any CRNAs would in fact
be injured.” (Id. at 214). Similarly, here, Petitioners merely speculate and anticipate that an injury
in fact will be felt by their members. 7

Petitioners relegate their entire standing analysis to a single footnote, inexplicably citing Westchester Co. Dept.
of Public Safety Police Benevolent Assoc., Inc. v. Westchester County (828 N.Y.S. 2d 412 [2d Dept 2006]), which
held that plaintiff union had standing where it was the exclusive agent of its members for collective bargaining
purposes in an action brought under Civil Service Law § 209-a (1)(d). See Memorandum of Law in Support of Verified
Petition/Complaint and Proposed Order to Show Cause Seeking Temporary Restraining Order and Preliminary
Injunction (NYSCEF Doc. No. 7) (“Pet. Mem.”) at fn. 3.
6

7
Petitioners selectively quote Paloger v. Cohen in their argument on irreparable harm, writing that “damage to
one’s reputation is often sufficient to justify a finding of irreparable injury.” (Pet. Mem. at 14) [quoting (37 Misc.3d
1220[A], 2012 NY Slip Op. 52098[U] [Sup. Ct., Nassau Co. 2012])]. The full quote is more instructive:
“[n]otwithstanding the fact that damage to one’s reputation is often sufficient to justify a finding irreparable [sic]
injury…the irreparable harm must nevertheless be shown to be imminent, not remote or speculative. Here, the
Defendant admits that the Plaintiff ‘may damage [Plaintiff]’s reputation’…Therefore, the Defendant has not
demonstrated irreparable injury that is imminent.” (Id.) [internal citations removed]. So, too, here. Petitioners only
allege hypothetical records that may potentially harm its members but allege no concrete facts of any actual or
imminent harm.

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In addition to a lack of concrete and imminent injury, Petitioners lack standing because
they fail to show that the case would not require the participation of individual members of their
organizations. (Id. at 211). That an individualized inquiry is required is self-evident—indeed, it
is the exact relief Petitioners seek from Respondents. (See Compl. at ¶ 97 [requesting “a case-bycase analysis to determine whether disclosure is warranted based upon the unique circumstances
of each case”]). Petitioners themselves only seek to enjoin the production of a portion of their
members’ disciplinary records—those relating to so-called Unsubstantiated and Pending
Allegations.

Petitioners cannot credibly claim that each and every one of the members’

disciplinary records includes information relating to Unsubstantiated and Pending Allegations or
that the severity of the Unsubstantiated and Pending Allegations in each case is extreme enough
to actually affect their members’ privacy rights or future employment opportunities. (See Citizens
Organized to Protect Env't ex rel. Brinkman v. Planning Bd. of Town of Irondequoit, 857 N.Y.S.
2d 394, 395-396 [4th Dept 2008] [finding environmental group lacked associational standing
because the petition would require the participation of individual members]); (Rent Stabilization
Ass’n of City of New York v. Dinkins, 5 F.3d 591, 596 [2d Cir. 1993] [finding individualized inquiry
for takings claim where establishing proof would require investigations of “the reasons for any
[landlord’s] failure to obtain an adequate return . . .”]); (Chicago Journeymen Plumbers’ Local
Union 130, U.A. v. Pers. Bd. of City of Chicago, No. 96 C 0751, 1996 WL 288631, at *2 [N.D. Ill.
May 30, 1996] [citing Warth v. Seldin, 422 U.S. 490, 515-516 [1975] [finding union lacked
individual and associational standing to bring claims on its members’ behalf]). Accordingly,
because Petitioners lack organizational standing to bring any of their underlying causes of action,
the Complaint must be dismissed in its entirety.

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III.

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PETITIONERS NEVERTHELESS FAIL TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED
When considering a CPLR § 3211(a)(7) motion to dismiss based on the pleadings, the “sole

criterion is whether the pleading states a cause of action, and if from its four corners factual
allegations are discerned which taken together manifest any cause of action cognizable at law.”
(Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] [citing Foley v. D’Agostino, 248 N.Y.S.
2d 121, 125-128 [1st Dept 1964] [“The question for us is whether the requisite allegations of any
valid cause of action cognizable by the state courts ‘can be fairly gathered from all the
averments.”’]); (Meese v. Miller, 436 N.Y.S. 2d 496, 501 [4th Dept 1981] [same]). The dispositive
inquiry is whether Petitioners have a cause of action, not whether one has been merely been stated.
(Guggenheimer, 43 N.Y.2d at 275). The court presumes the allegations of the complaint to be true
and accords them every favorable inference, except insofar as they consist of bare legal
conclusions or are inherently incredible or flatly contradicted by documentary evidence. (See J.P.
Morgan Securities. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334 [2013]).
As detailed below, Petitioners fail to state a claim as to each of their causes of action and,
accordingly, the Complaint should be dismissed.
A.

Petitioners Fail to Allege any Breach of Contract on the Part of Respondents

Petitioners’ claim that the disclosure of so-called Unsubstantiated and Pending Allegations
against its members would breach certain provisions of collective bargaining and settlement
agreements involving its members is unsupported.
As an initial matter, it is unclear from the Complaint that the referenced collective
bargaining agreement in fact prohibits the disclosure of disciplinary records in response to FOIL
requests. The language in the agreement cited in the Complaint merely states that “after 5 years
any incident resulting in anything other than a guilty plea/finding will be expunged from the

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Officers [sic] file,” Compl. Ex. A (NYSCEF Doc. No. 2), and says nothing as it relates to public
disclosure in response to FOIL requests. This makes sense as Petitioners’ members have relied on
section 50-a since it was enacted in 1976 to prevent the disclosure of their personnel records and
have had no need to negotiate its protections into collective bargaining agreements. Now, without
the shield of section 50-a, Petitioners are attempting to read into the collective bargaining
agreement language that was clearly not negotiated or contemplated. For this reason alone,
Petitioners’ claim must fail. (See, e.g., W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 162
[1990] [“A familiar and eminently sensible proposition of law is that, when parties set down their
agreement in a clear, complete document, their writing should as a rule be enforced according to
its terms. Evidence outside the four corners of the document as to what was really intended but
unstated or misstated is generally inadmissible to add to or vary the writing.”])
Nevertheless, even if the collective bargaining agreement sought to prohibit the disclosure
of otherwise public records—which, based on Petitioners’ Complaint, it does not—such an
interpretation would be invalid because the rights that have purportedly been bargained away here
are not those of Respondents but those of the public. (See Fink v Lefkowitz, 47 N.Y.2d 567, 571
[1979] [FOIL “proceeds under the premise that the public is vested with an inherent right to know
and that official secrecy is anathematic to our form of government”] [emphasis added]). It is wellsettled that entities cannot enforce a contract that would bargain away the rights of third parties.
(See Filer v Keystone Corp., 9 N.Y.S. 3d 480, 482-484 [4th Dept 2015]). Accordingly, even if
Petitioners’ collective bargaining agreements did prohibit the disclosure of otherwise public
records, such provisions would be unenforceable under the core principles of contract law.
Further, the collective bargaining rights allegedly enjoyed by Petitioners fall squarely in
line with those that the Fourth Department has found to be so clearly against public policy as to be

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unenforceable. (Conte v. Board of Ed. of Town of Hinsdale, Cattaraugus Cnty., 397 N.Y.S. 2d
471, 474 [4th Dept 1977] [holding “unenforceable” a collective bargaining agreement clause that
constituted “a substantive limitation on the board’s power to grant or deny tenure and is, therefore,
void as against public policy”]). The Court of Appeals has similarly found collective bargaining
provisions that violate public policy unenforceable. (See, e.g., Cohoes City School Dist. v. Cohoes
Teachers Ass’n, 40 N.Y.2d 774, 777 [1976] [holding that “[a]ny provision of a collective
bargaining agreement” which would “surrender [a school board’s] authority to terminate a
nontenured teacher at the end of the probationary period” is “unenforceable as against public
policy”]). Here, the New York State legislature made clear in its repeal of section 50-a that
Petitioners’ own self-serving interpretation of their collective bargaining agreements goes against
public policy and is therefore unenforceable. (See Mem. in Support of A9332, An act to repeal
section 50-a of the civil rights law, relating to personnel records of police officers, firefighters and
correction officers [“FOIL’s public policy goals, which are to make government agencies and their
employees accountable to the public, are thus undermined by [section 50-a]. Outright appeal [sic]
of this statute will positively affect public trust in law enforcement and serve to hold police and
other uniformed law enforcement officials to the same level of accountability applied to all other
public employees.”]).
The same principle applies equally to any confidentiality provisions contained in prior
settlement agreements that involve personnel records that would otherwise be subject to disclosure
under FOIL. As an initial matter, Petitioners do not cite to any specific settlement agreement that
would be implicated, but rather make a blanket proclamation that any settlement agreement
involving its members for the past forty-four years “necessarily incorporated § 50-a’s protections
against disclosure of this very type of information.” (Compl. ¶ 9). Such general pleadings are

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insufficient to state a claim. (Atkinson v. Mobil Oil Corp., 614 N.Y.S.2d 36 [2d Dept 1994] [“In
order to plead a cause of action for breach of contract, the complaint “must allege the provisions
of the contract upon which the claim is based.”]); (Sud v. Sud, 621 N.Y.S.2d 37 [1st Dept 1995]
[“[T]he complaint must allege the essentials terms of the contract, including the specific provisions
upon which liability is predicated.”]). Moreover, parties may not reopen voluntary settlement
agreements to take advantage of a subsequent change in the law, see Cutler v. Travelers Ins. Co.,
(552 N.Y.S.2d 998, 999 [4th Dept 1990]), which is exactly what Petitioners seek to do here.
Having failed to set out in the agreements any requirements preventing the release of such records,
much less documenting the agreement of Respondents to such a requirement, Petitioners now seek
to import such requirements on the basis of the repeal of section 50-a. Petitioners cannot do so.
(See id.) Therefore, to the extent a settlement agreement contains records that are otherwise
disclosable pursuant to a valid FOIL request, Respondents may not withhold such records on the
basis that they relate to a settlement agreement. (See Buffalo News v. Buffalo Mun. Hous. Auth.,
558 N.Y.S. 2d 364, 365 [4th Dept 1990] [noting that “FOIL imposes a broad standard of open
disclosure upon government agencies and all records are presumptively available for public
inspection and copying” and that “statutory exemptions are to be narrowly interpreted and the
burden lies upon the agency to show that the requested material falls squarely within the statutory
exemption”] [emphasis added]); (see also Anonymous v. Bd. of Educ. for Mexico Cent. Sch. Dist.,
616 N.Y.S.2d 867, 871 [Sup. Ct. Oswego Cnty. Aug. 29, 1994] [holding that settlement agreement
was subject to disclosure under FOIL and noting that although there was no confidentiality
agreement in place, “an agreement to keep secret that to which the public has a right of access
under Article 6 of the Public Officers Law would be unenforceable as against public policy”]
[emphasis added]).

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B.

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Petitioners Do Not Have a Protectable Interest Under the New York
Constitution’s Due Process Clause

Petitioners next allege that Respondents’ release of information concerning
Unsubstantiated and Pending Allegations violates the New York Constitution’s Due Process
clause because it has defamed Petitioners’ affected members, which in turn has deprived them of
their liberty and property interest in seeking future employment opportunities. (Compl. ¶¶ 64-72).
This claim fails because Petitioners do not sufficiently allege any such liberty or property interests.
First, Petitioners cannot state a claim based on a purported denial of liberty interests,
commonly referred to as a “stigma-plus claim,” because they fail to identify any statements made
by or on behalf of the government itself, much less any statements specifically made by the
individual Respondents. Where, as here, a liberty property interest in government employment is
alleged, “a plaintiff must satisfy three elements in order to demonstrate a deprivation of the stigma
component of a stigma-plus claim”: (1) “that the government made stigmatizing statements about
[plaintiff]… that call into question [the] plaintiff’s good name, reputation, honor, or integrity;”
(2) that “the stigmatizing statements were made public;” and (3) “that the stigmatizing statements
were made concurrently with, or in close temporal relationship to, the plaintiff's dismissal from
government employment.” (Segal v. City of New York, 459 F.3d 207, 212 [2d Cir. 2006] [internal
citations omitted] [emphasis added]); (see also Wilcox v. Newark Val. Cent. School Dist., 967
N.Y.S. 2d 432, 435-437 [3d Dept 2013]).
Here, Petitioners fail the first and third prongs. Petitioners do not specifically allege that
Respondents are the source of any of the Unsubstantiated and Pending Allegations that purportedly
jeopardize their due process rights, but rather admit that complaints against their members can
come from many sources, including private civilians. (Compl. at ¶ 29); (see Sharrock v. Dell
Buick-Cadillac, Inc., 45 N.Y.2d 152, 158 [1978] [“Purely private conduct, however egregious or

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unreasonable, does not rise to the level of constitutional significance absent a significant nexus
between the State and the actors or the conduct.”] [emphasis added]). 8
Further, even assuming specific stigmatizing statements were made directly by the
government, Petitioners’ stigma-plus claim also fails the third prong because they fail to point to
any such statements that were made concurrently with, or in close temporal relationship to, any
Petitioners’ member being dismissed from government employment. (Segal, 459 F.3d at 212).
Indeed, Petitioners do not allege that any of their members have been terminated, but only that the
release of such hypothetical stigmatizing statements now—regardless of when they were made—
could affect their members’ employment opportunities sometime in the future if they are someday
terminated. Thus, there is a fatal break in the chain between the alleged stigmatizing statements
and the loss of government employment. (See Patterson v. City of Utica, 370 F.3d 322, 330 [2d
Cir. 2004] [The “[l]oss of one's reputation can ... invoke the protections of the Due Process Clause
if that loss is coupled with the deprivation of a more tangible interest, such as government
employment.”] [emphasis added]). Petitioners’ stigma-plus claim therefore fails on its face.
Second, Petitioners’ purported property interest in “future employment opportunities” does
not, absent extraordinary circumstances not alleged here, amount to a cognizable protected interest
under the Due Process Clause of the New York State Constitution. (Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 [1985]). 9 Here, Petitioners point to no state law or other existing

Petitioners’ comparison to Bursac v. Suozzi is flawed. (868 N.Y.S. 2d 470, 479-480 [Sup. Ct., Nassau Co.
2008]). Petitioners note that “[i]n that case, a county executive created a ‘Wall of Shame’ website that included
photographs and identifying information of individuals arrested for DWI and DUI offenses[.]” Here, Petitioners allege
no comparable publication effort on the part of the government, and even concede that the release of information in
the present case would necessarily be “coupled with publicity from the local media[.]” (Pet. Mem. at 24). Indeed,
Petitioners fail to allege that any of the Respondents would be making any of the purportedly, and hypothetical,
harmful statements.
8

Petitioners’ citation to Valmonte v. Bane (18 F.3d 992 [2d Cir. 1994]) is misplaced. There, the Second Circuit
found that the state placed a tangible burden on a childcare worker who was included on a list of suspected child
9

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rules that grant them a right to “future employment opportunities.” On the contrary, the New York
Court of Appeals has made clear that a cognizable property interest for the purposes of substantive
due process violations is “a vested property interest, or more than a mere expectation or hope to
retain” the interest. (Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 627 [2004]); (see also
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 [1972] [To have a “property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it.”]); (Abramson v. Pataki, 278 F.3d 93, 100 [2d Cir. 2002]
[“Ordinarily, there is no constitutionally protected property interest in prospective government
employment.”]).
Petitioners further attempt to argue that the release of misconduct records would violate
their members’ due process to the extent that “applying new laws to past conduct may have an
impermissibly retroactive effect by upsetting reliance interests and triggering fundamental fairness
concerns.” (Pet. Mem. at 25). This argument also fails. Petitioners cite to several cases dealing
with statutes that all created purportedly retroactive financial obligations, whether in the form of
private rights of action or mandatory payments to employees or pension funds. 10 Notwithstanding
abusers where, by operation of law, her potential future employers in the childcare field would have to consult the list.
Petitioners here make no parallel clam that the so-called Unsubstantiated and Pending complaints would be compiled
as part of an official list or that police departments must consider such a list during the hiring process.
Petitioners go on to inexplicably cite to US Dept. of Justice v. Reporters Comm. (489 U.S. 749 [1989]), a U.S.
Supreme Court case interpreting FOIA to protect private citizens from the disclosure of certain files held by the FBI,
but noting that “the FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of
public scrutiny[.]” US Dept. of Justice v. Reporters Comm. is only relevant here to the extent it highlights the increased
expectation of public scrutiny over government agencies and employees, like Petitioners’ members.
10
See Landgraf v. Usi Film Prods., (511 US 244 [1994] [holding that statute creating right to recover
compensatory and punitive damages for sexual harassment does not apply to case that was pending appeal when the
statute was enacted]); Am. Economy Ins. Co. v. State of New York, (30 N.Y.3d 136 [2017]) [holding that plaintiff
insurance companies failed to establish any potential retroactive impact of relevant workers’ compensation statute
where they could not identify a vested right that was impaired by the law]; Gen. Motors Corp. v. Romein, 503 US
181 [1992]) [finding that the due process rights of automobile manufacturers were not violated by statute that required
employers to reimburse certain workers’ compensation benefits, noting that “[l]osing a political skirmish…creates no
ground for constitutional relief.”]; Pension Benefit Guar. Corp v. R.A. Gray & Co., (467 US 717 [1984]) [finding no

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the fact that three of these four cases found no due process violation, the facts in each are all distinct
from the present case, and Petitioners point to no cases finding due process violations involving
“rights in the confidential treatment” of misconduct allegations. As Petitioners fail to identify any
substantive “right” that is violated by the release of misconduct records, this argument also fails.
Accordingly, because Petitioners fail to allege any cognizable liberty or property interests,
their claim for violations of the New York Constitution’s Due Process clause must be dismissed.
C.

Petitioners Fail to State a Claim Under the New York Constitution’s Equal
Protection Clause

Petitioners’ third cause of action alleges a violation of the Equal Protection Clause of the
New York State Constitution and, in particular, that Respondents’ actions will cause their members
to receive lesser privacy protections than other State-regulated professions. (Compl. at ¶¶ 73-78).
“[A] violation of equal protection arises where first, a person (compared with others similarly
situated) is selectively treated and second, such treatment is based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious
or bad faith intent to injure a person.” (Bower, 2 N.Y.3d at 631, citing Harlen Assoc. v.
Incorporated Vil. of Mineola, 273 F.3d 494, 499 [2d Cir. 2001]). Petitioners fail to meet either of
these requirements.
First, Petitioners fail to identify any comparable professions that do not face the same
purported privacy violations. (See Zahra v. Town of Southold, 48 F.3d 674, 683 [2d Cir. 1995] [a
showing that Plaintiff was treated differently compared to others similarly situated is a prerequisite
and a threshold matter to a selective treatment claim]). Petitioners must “identify comparators
whom a prudent person would think were roughly equivalent.” (Mosdos Chofetz Chaim, Inc. v.

due process violation where statute requires employers withdrawing from pension plans to pay certain fixed amounts
into the funds for a five month period before the statute was enacted into law.].

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Village of Wesley Hills, 815 F. Supp. 2d 679, 696 [S.D.N.Y. 2011] [internal quotation omitted]).
Here, Petitioners cite a laundry list of other “licensed-professionals in New York State” that are
not subject to full disclosure of their disciplinary records (Compl. ¶ 43) but plead no evidence that
would show how police officers, firefighters, and corrections officers—i.e., the professions
covered by the repeal of section 50-a—are similarly situated to, say, an accountant or a dentist,
other than that they are all licensed by the State. Such a broad and tangential claim of similarity
is insufficient to sustain an equal protection claim. (See Carnahan v. Ward, 848 N.Y.S. 2d 458,
459 [4th Dept 2007] [“With respect to the contention of petitioner that his equal protection rights
are violated in that judicial candidates are not required to file a certificate of acceptance, we note
that ‘judges and judicial candidates are not similarly situated’ with nonjudicial candidates.”]);
(Post v. Harper, 980 F.2d 491, 495 [8th Cir. 1992] [rejecting equal protection challenge because
county employee was “not similarly situated, either in fact or in contemplation of law, to elected
public officials or to municipal employees”]); (Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v.
Attorney Gen. New Jersey, 910 F.3d 106, 114 [3d Cir. 2018] [“[L]aw enforcement officers, in light
of their extensive and stringent training and experience confronting unique circumstances that
come with being a police officer, are different from, and hence not similarly situated to, other
residents.”] [internal quotations omitted]). Moreover, in repealing section 50-a the New York
State legislature was clear that they viewed police officers, firefighters, and corrections officers to
be comparable professions unique from all others, and the repeal of section 50-a applies equally
to each of them. Notably, Petitioners appear to agree that their members are unique from other
professions. (See Compl. ¶ 43).
Second, neither Petitioners nor their members are part of a protected class under the Equal
Protection Clause. Because Petitioners do “not allege selective treatment based on race, religion

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or punishment for the exercise of constitutional rights,” they must demonstrate that they have been
singled out “with malevolent intent.” (Bower, 2 N.Y.3d at 631). Where, as here, “the requisite
showing of improper motivation is lacking,” an equal protection claim cannot be sustained. (Id.);
(see also Westover Car Rental, LLC v. Niagara Frontier Transp. Auth., 21 N.Y.S. 3d 510, 513
[4th Dept 2015] [“Contrary to plaintiffs’ contention, allegations that plaintiffs were treated
differently from a similarly situated business are not sufficient to state a claim for an equal
protection violation inasmuch as a demonstration of different treatment from persons [or
businesses] similarly situated, without more, [will not] establish malice or bad faith.”] [internal
quotations omitted]).
D.

Petitioners Fail to Plead Actions Sufficient to Constitute Violations of CPLR
§ 7803

Petitioners’ fifth and sixth causes of action allege violations of CPLR §7803. In reviewing
a cause of action under Article 78, the applicable standard is “whether [the] determination was
made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious
or an abuse of discretion.”

(CPLR § 7803[3])).

Petitioners allege that, “[b]y releasing

Unsubstantiated and Pending Allegations, Respondents have acted, and will continue to act, in an
arbitrary and capricious manner” and that “Respondents’ failure to make individualized
determinations regarding whether some, or all, of the information concerning these
Unsubstantiated and Pending Allegations must be withheld is an error of law.” (Compl. at ¶¶ 8498). These claims fail for several reasons.
As an initial matter, the standard of review under Article 78 for a public agency’s
determination regarding whether to produce requested documents does not fall under the arbitrary
and capricious standard of review, but rather may solely be reviewed to determine whether there
was an error of law. (See Records Matter of Spring v County of Monroe, 36 N.Y.S. 3d 330, 331

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[4th Dept 2016]); (Mulgrew v Bd. of Educ. of City School Dist. of City of New York, 928 N.Y.S.
2d 701, 702-703 [1st Dept 2011]). This makes good sense as administrative action is arbitrary and
capricious only when it is taken “without sound basis in reason” and “without regard to the facts.”
(Pell v. Bd. of Educ., 34 N.Y.2d 222, 231 [1974]); (see also Delicati v. Schechter, 157 N.Y.S. 2d
715, 721 [1st Dept 1956] [Courts “must presume, until the contrary is shown, that public officers
vested with discretionary power exercise their power consistent with their fiduciary obligation to
their particular governmental unit and to the people in general”]). Accordingly, Petitioners’ cause
of action based on the purported “arbitrary and capricious” actions of Respondents in violation of
Article 78 fail to state a cognizable claim and must be dismissed.
Petitioners find no salvation in the “error of law” standard. “Public agency records, like
the ones at issue here, are presumptively open for public inspection and copying, and the party
seeking an exemption from disclosure has the burden of proving entitlement to the exemption.”
(Mulgrew, 928 N.Y.S. 2d at 702). Petitioners, as the party claiming the exemption, fail to point to
any specific statute or administrative rule that requires that so-called Unsubstantiated and Pending
Allegations be shielded from public disclosure and instead reference pre-repeal opinions and
decisions implicitly overruled by the repeal of section 50-a. (Compl. at ¶¶ 48-52). 11 If Petitioners’
argument is accepted, then the New York State legislature’s repeal of section 50-a would have no

Petitioners cite to the Sponsor Memorandum of the Senate Bill to repeal section 50-a to support their argument
that it is an error of law to assume the repeal of section 50-a allows for the release of unsubstantiated or pending
allegations. (Pet. Mem. at 32). However, the Sponsor Memorandum outlines clear examples of statutory protections,
such as protections against the release of contact information and the protection against improper cross-examination
at trial, but says nothing about protections from the release of allegations of purported Unsubstantiated or Pending
Allegations.
See
Sponsor
Memorandum,
New
York
Senate
Bill
S8496
[https://www.nysenate.gov/legislation/bills/2019/s8496 ) (“FOIL already provides that agencies may redact or
withhold information whose disclosure would constitute an unwarranted invasion of privacy. Recent changes to the
Civil Service Law have created additional, non-discretionary protections against the release of certain sensitive
information such as contact information. Furthermore, this bill adds additional safeguards in the FOIL statute. Finally,
courts have the ability to protect against improper cross-examination and determine if police records are admissible
in a trial, without the denial of public access to information regarding police activity created by § 50-a. The broad
prohibition on disclosure created by § 50-a is therefore unnecessary, and can be repealed as contrary to public policy.”)
11

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effect whatsoever on the disclosure of otherwise public police records in response to FOIL
requests. That simply cannot be the case. Accordingly, the Court must “balanc[e] the privacy
interests at stake against the public interest in disclosure of the information.” (Matter of New York
Times Co. v. City of N.Y. Fire Dept., 4 N.Y.3d 477, 485 [2005]).
Such a balancing test here clearly weighs in favor of disclosure. First, with respect to
Petitioners’ members’ purported privacy interests, “[c]ourts have repeatedly held that release of
job performance related information, even negative information such as that involving misconduct,
does not constitute an unwarranted invasion of privacy.” (Mulgrew, 919 N.Y.S. 2d at 790); (see,
e.g., Faulkner v. Del Giacco, 529 N.Y.S. 2d 255 [Sup. Ct., Albany Cty., 1988] [finding “no basis
to support the claim that releasing the names of guards accused of inappropriate behavior is an
unwarranted invasion of their personal privacy”]); (Farrell v. Village Bd. of Trustees of Vil. of
Johnson City, 372 N.Y.S. 2d 905 [Sup. Ct., Broome Cty. 1975] [authorizing disclosure of written
reprimands of police officers, including names of the officers]); (see also New York Civ. Liberties
Union v. New York City Police Dept., 32 N.Y.3d 556, 565 [2018] [citing only section 50-a as the
source of protected privacy interests in police officers’ disciplinary records]); (Luongo v. Records
Access Appeals Officer, 90 N.Y.S. 3d 514 [1st Dept 2019] [same]).
Petitioners’ minimal privacy interests stand in stark contrast to the strong public interests
in disclosure. The disclosure of such police misconduct records goes directly to the underlying
purpose of New York’s open record laws—“to promote transparency in governmental operations
so that the process of governmental decision making is on public display and governmental actions
can be more readily scrutinized.” (Hepps v. New York State Dept. of Health, 122 N.Y.S. 3d 446,
451 [3d Dept 2020] [emphasis added]). Indeed, as the Fourth Department has made clear, “[i]n
enacting FOIL, the Legislature declared that government is in the public’s business and established

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a strong commitment to open government and public accountability by imposing ‘a broad standard
of open disclosure upon government agencies [whereby] all records are presumptively available
for public inspection and copying unless they fall within one of FOIL’s eight exemptions.’”
(Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 578 N.Y.S 2d 945, 946 [4th Dept
1991] [internal citations omitted]). Moreover, the New York State legislature, in repealing section
50-a, has already undertaken this weighing of public and private interests and decided that, in the
context of police disciplinary records, the public interest prevails. Thus, given that the presumptive
public interest in the documents at issue clearly overrides Petitioners’ minimal privacy interests in
such documents, Petitioners have failed to allege that Respondents have committed or will commit
legal error in disclosing such documents and, therefore, Petitioners’ Article 78 claims must be
dismissed.
CONCLUSION
For all of the foregoing reasons, Petitioners’ Complaint should be dismissed in its entirety
with prejudice, and Petitioners’ motion for a preliminary injunction should be denied.

Dated: August 14, 2020
New York, New York
By: /s/ Joshua Ebersole
Joshua Ebersole
SHEARMAN & STERLING LLP
599 Lexington Avenue
New York, NY 10022-6069
(212) 848-4000
Philip Urofsky (pro hac vice forthcoming)
SHEARMAN & STERLING LLP
401 9th Street, NW
Washington, DC 20004-2128
(202) 508-8000

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NEW YORK CIVIL LIBERTIES UNION
FOUNDATION, by:
Philip Desgranges
125 Broad Street, 19th Floor
New York, NY 10004
(212) 607-3300
Attorneys for Proposed Intervenor the New York Civil
Liberties Union

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