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Filed: New York County Clerk 07/08/2021 05:52 Pm Index No FILED: NEW YORK COUNTY CLERK 07/08/2021 05:52 PM INDEX NO. 153739/2018 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- X R.C., J.J., and A.G., suing under pseudonyms, : On behalf of themselves and all others similarly situated, : : Index No. 153739/2018 Plaintiffs, : Justice Lyle E. Frank : IAS Pt. 52 -against- : : THE CITY OF NEW YORK and JAMES P. O’NEILL, : New York City Police Department Commissioner, in his : official capacity, : : Defendants. : -------------------------------------------------------------------- X PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION AND TO DE-DESIGNATE Niji Jain Jonathan S. Kolodner Jenn Rolnick Borchetta Michael Cinnamon Seth Packrone CLEARY GOTTLIEB STEEN Kayla Rooney & HAMILTON LLP THE BRONX DEFENDERS One Liberty Plaza 360 E. 161st Street New York, New York 10006 Bronx, New York 10451 (212) 225-2000 (718) 838-7881 1 of 23 FILED: NEW YORK COUNTY CLERK 07/08/2021 05:52 PM INDEX NO. 153739/2018 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/08/2021 TABLE OF CONTENTS Page(s) INTRODUCTION .....................................................................................................................1 FACTUAL AND PROCEDURAL BACKGROUND ..............................................................2 A. Procedural History ....................................................................................................... 2 B. Ongoing Violations of the Sealing Statutes .................................................................. 4 C. NYPD Training Presentations and Motion to Compel ................................................. 5 ARGUMENT .............................................................................................................................8 I. Plaintiffs Have Demonstrated a Strong Likelihood of Success on the Merits........... 9 II. Plaintiffs Are Suffering and Will Continue to Suffer Irreparable Harm Without Relief .......................................................................................................................... 11 III. The Equities Weigh in Favor of Preliminary Injunctive Relief for the Class ......... 15 MOTION TO DE-DESIGNATE ............................................................................................ 16 CONCLUSION ....................................................................................................................... 18 i 2 of 23 FILED: NEW YORK COUNTY CLERK 07/08/2021 05:52 PM INDEX NO. 153739/2018 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/08/2021 TABLE OF AUTHORITIES Page(s) Rules and Statutes Civil Rights Law 50-a ..................................................................................................... 16 CPL 160.50 ..................................................................................................................... passim CPL 160.55 ..................................................................................................................... 1, 6 CPLR 6301 ..................................................................................................................... 8 Cases Barbes Rest. Inc. v. ASRR Suzer 218, LLC, 33 N.Y.S.3d 43 (1st Dep’t 2016) ..................................................................................... 9 Bd. of Higher Ed. of City of New York v. Marcus, 311 N.Y.S.2d 579 (Sup. Ct. Kings Cty. 1970) ................................................................. 11 Brad H. v. City of New York, 712 N.Y.S.2d 336 (Sup. Ct. N.Y. Cty. 2000), aff’d, 276 A.D.2d 440 (1st Dep’t 2000) ............................................................................................................ 12, 14, 16 Chrysler Corp. v. Fedders Corp., 63 A.D.2d 567 (1st Dep’t 1978) ...................................................................................... 8 CPTS Hotel Lessee LLC v. Holiday Hosp. Franchising LLC, 171 A.D.3d 484 (1st Dep’t 2019) .................................................................................... 13 Danco Lab’ys., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1 (1st Dep’t 2000) ........................................................................................ 17 Data Track Acct. Servs., Inc. v. Lee, 291 A.D.2d 827 (4th Dep’t 2002) .................................................................................... 14 Felix v. Brand Serv. Grp. LLC, 101 A.D.3d 1724 (4th Dep’t 2012) .................................................................................. 15 Gallivan v. Cuomo, 71 Misc. 3d 589 (Sup. Ct. Erie Cty. 2021) ....................................................................... 14 ii 3 of 23 FILED: NEW YORK COUNTY CLERK 07/08/2021 05:52 PM INDEX NO. 153739/2018 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/08/2021 Gryphon Domestic VI, LLC v. APP Int’l Fin. Co., B.V., 28 A.D.3d 322 (1st Dep’t 2006) ...................................................................................... 17-18 In re Will of Hofmann, 284 A.D.2d 92 (1st Dep’t 2001) ...................................................................................... 17 New York State Comm’n on Jud. Conduct v. Rubenstein, 23 N.Y.3d 570 (2014) ..................................................................................................... 12 Pantel v. Workmen’s Circle/Arbetter Ring Branch, 289 A.D.2d 917 (3rd Dep’t 2001) .................................................................................... 14 Rodriguez v. Winski, 444 F. Supp. 3d 488 (S.D.N.Y. 2020) .............................................................................. 18 Ruiz v. Meloney, 810 N.Y.S.2d 216 (2d Dep’t 2006) .................................................................................. 9 Sylmark Holdings Ltd. v. Silicone Zone Int’l Ltd., 783 N.Y.S.2d 758 (Sup. Ct. N.Y. Cty. 2004) ................................................................... 14 Teytelman v. Wing, 773 N.Y.S.2d 801 (Sup Ct. N.Y. Cty. 2003) .................................................................... 9, 14 Weissman v. Kubasek, 493 N.Y.S.2d 63 (2d Dep’t 1985) .................................................................................... 9 iii 4 of 23 FILED: NEW YORK COUNTY CLERK 07/08/2021 05:52 PM INDEX NO. 153739/2018 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/08/2021 INTRODUCTION In this class action challenging the NYPD’s violation of state sealing statutes, the City of New York produced NYPD trainings that instruct officers that These instructions are contrary to the plain text of Sections 160.50 and 160.55 of the Criminal Procedure Law (collectively, the “Sealing Statutes”), longstanding precedent, and a prior decision of this Court. Such instructions have likely caused and are likely to continue to cause NYPD personnel to access and use Sealed Arrest Information in violation of the class members’ statutory rights—the central harm Plaintiffs seek to end through this lawsuit and a harm that cannot be undone once NYPD personnel have accessed the sealed records. Given that the NYPD admits that it maintains over six million sealed records relating to more than 3.5 million people in at least fourteen interconnected databases that are accessible to NYPD personnel, these instructions represent a significant, imminent, and ongoing risk that the class members’ rights will be violated in a manner that will be difficult to remedy after-the-fact. And this is a violation of rights that primarily affects people of color: The vast majority of the records at issue concern Black and brown people. Plaintiffs bring this motion for limited preliminary relief: (1) restraining and enjoining Defendants from instructing NYPD personnel that in violation of the Sealing Statutes, (2) requiring Defendants to issue a FINEST training message stating that NYPD personnel may not access and use Sealed Arrest Information without a court order, and (3) prohibiting Defendants from providing NYPD 1 All capitalized terms not defined herein have the meaning set forth in the class-action complaint, ECF No. 2 (“Complaint”) in the above-captioned action. 1 5 of 23 FILED: NEW YORK COUNTY CLERK 07/08/2021 05:52 PM INDEX NO. 153739/2018 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/08/2021 personnel with access to Sealed Arrest Information for law enforcement purposes without a court order. The relief sought herein is necessary to prevent irreparable harm to the plaintiff class pending the resolution of this litigation, which is already in its third year and is proceeding at a halting pace. Through this lawsuit, Plaintiffs ultimately seek, inter alia, a permanent injunction that would require specific reforms and procedures to prevent the NYPD from illegally using Sealed Arrest Information for investigatory purposes in any manner absent a court order, as well as injunctive relief preventing the NYPD’s ongoing external disclosures of Sealed Arrest Information to the press, prosecutors, and other agencies. By the instant motion, Plaintiffs seek more limited, provisional relief to protect Plaintiffs’ statutory rights while litigation continues in light of the ongoing irreparable harm to the class. Additionally, Plaintiffs respectfully ask the Court to remove the cloak of secrecy shielding this motion from the public. On an interim basis, Plaintiffs submit this memorandum and the underlying trainings under seal, with redactions in the publicly-filed version that conceal certain information about the trainings, because Defendants improperly designated
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