In the Matter of Empire Center for New York State Policy, Appellant,v.Teachers' Retirement System of the City of New York, Respondent.BriefN.Y.March 26, 2014New York County Supreme Court To be argued by: Index No. 102055/2012 ELIZABETH I. FREEDMAN (10 minutes requested) COURT OF APPEALS STATE OF NEW YORK In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules -against- TEACHERS’ RETIREMENT SYSTEM OF THE CITY OF NEW YORK,, Respondent-Respondent. RESPONDENT’S BRIEF MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Respondent- Respondent, 100 Church Street, New York, New York 10007. (212) 356-0836 or 2500 efreedma@law.nyc.gov LEONARD KOERNER, ELIZABETH I. FREEDMAN, Of Counsel. October 9, 2013 APL-2013-00168 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS Page TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT...........................................1 QUESTION PRESENTED..............................................2 STATEMENT OF FACTS..............................................2 Empire Center’s Prior Proceeding Against the New York City Police Pension Fund..........................................4 Petitioner’s CPLR Article 78 Proceeding...............5 DECISIONS BELOW New York County Supreme Court Judgment................6 Appellate Division, First Department Decision and Order....................................8 Appellate Division, Third Department Memorandum and Order..................................9 RELEVANT STATUTES..............................................10 ARGUMENT THE APPELLATE DIVISION CORRECTLY RULED THAT THE NAMES OF THE INDIVIDUAL RETIREES ARE EXEMPT FROM DISCLOSURE UNDER FOIL, IN ACCORDANCE WITH THIS COURT’S RULING IN MATTER OF NEW YORK VETERAN POLICE ASSOCIATION V. NEW YORK CITY POLICE DEPARTMENT ARTICLE I PENSION FUND, 61 N.Y.2D 659 (1983)...................12 CONCLUSION.....................................................38 TABLE OF AUTHORITIES Cases Pages Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106 (2012) ....................................... 14 Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 84 N.Y.2d 488 (1994) ....................................... 29 Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007) ........................................ 31 E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359 (1988) ....................................... 30 Empire Center for New York State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dept., 2011), appeal dismissed, 18 N.Y.3d 901 (2012) ................. passim Empire Center for New York State Policy v. New York State Teachers’ Retirement System, 103 A.D.3d 1009 (3d Dept.), appeal granted, 21 N.Y.3d 859 (2013) .................... 9, 31 Gannett Co. v. County of Monroe, 59 A.D.2d 309 (4th Dept., 1977), aff'd, 45 N.Y.2d 954 (1978) ................................ 37 Granada Buildings, Inc. v. City of Kinston, 58 N.Y.2d 705 (1982), reh’g denied, 58 N.Y.2d 825 (1983) ......................... 30 Higby v. Mahoney, 48 N.Y.2d 15 (1979).......................................... 9 Hiney v. Teachers' Retirement Board of the City of New York, 182 Misc. 147 (Sup. Ct. N.Y. County 1944) .................. 26 John P. v. Whelan, 54 N.Y.2d 89 (1981) ........................................ 29 Katz v. New York City Teachers' Retirement Board, 291 N.Y. 360 (1943) ........................................ 26 ii Cases Pages iii Long v. Office of Personnel Management, 692 F.3d 185 (2d Cir. 2012) ............................... 35 Mulgrew v. Board of Education of the City School District of the City of New York, 87 A.D.3d 506 (1st Dept., 2011), appeal denied, 18 N.Y.3d 806 (2012) ......................... 8 National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990).......................... 36 New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560 (2010) ....................................... 34 New York Teachers Pension Association, Inc. v. Teachers’ Retirement System, 71 A.D.2d 250 (1st Dept., 1979), appeal denied, 49 N.Y.2d 701 (1980) ................ 19, 20, 21 New York Teachers Pension Association, Inc. v. Teachers' Retirement System, 98 Misc. 2d 1118 (Sup. Ct. N.Y. County 1979) ............... 20 New York Times Company v. City of New York Fire Department, 4 N.Y.3d 477 (2005) ................................. 7, 32, 33 New York Times Company v. Regenhard, 39 A.D.3d 414 (1st Dept., 2007) ............................. 33 New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 61 N.Y.2d 659 (1983) ................................... passim New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 92 A.D.2d 772 (1st Dept., 1983) ............................ 16 Schenectady County Society for the Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42 (2011) ........................................ 31 Public Improvements, Inc. v. Board of Education of the City of New York, 56 N.Y.2d 850 (1982) ....................................... 30 Statutes and Regulations Pages 5 U.S.C. § 552................................................ 35 New York City Administrative Code § 13-101.................... 25 New York City Administrative Code § 13-501................ 11, 25 New York Civil Practice Law and Rules § 5513................... 5 New York Public Officers Law § 84.............................. 2 New York Public Officers Law § 87......................... passim New York Public Officers Law § 89......................... passim New York Retirement and Social Security Law § 2............... 25 New York Retirement and Social Security Law § 151............. 25 New York Retirement and Social Security Law § 152............. 25 22 NYCRR § 500.1(h)............................................ 2 Legislative History Budget Report on Bills, July 14, 1983......................... 18 Department of State, Memorandum, July 29, 1983................ 22 Governor's Bill Jacket, A.5504, Ch. 783, Laws of 1983 ........................................... 17, 21 New York State Comptroller’s Office Report to the Governor on Legislation, July 15, 1983 .............................................. 18 New York State Governor's Office of Employee Relations, Memorandum, July 25, 1983 .............................................. 18 Other Sources Black’s Law Dictionary (7th ed. 1999) ......................... 26 Merriam Webster Dictionary.................................... 27 Oxford Dictionary............................................. 27 iv COURT OF APPEALS STATE OF NEW YORK In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules -against- TEACHERS’ RETIREMENT SYSTEM OF THE CITY OF NEW YORK,, Respondent-Respondent. RESPONDENT’S BRIEF PRELIMINARY STATEMENT In this CPLR Article 78 proceeding challenging the denial of a FOIL request, petitioner-appellant Empire Center for New York State Policy (“Empire Center” or “petitioner”) appeals, by permission of this Court, from a decision and order of the Appellate Division, First Department, entered February 28, 2013. That decision and order unanimously affirmed the judgment of the New York County Supreme Court (Stallman, J.S.C.) dismissing petitioner’s CPLR Article 78 petition annulling respondent’s determination, and denying petitioner’s Freedom of Information Law (“FOIL”) request seeking the names of retired members of respondent Teachers’ Retirement System of the City of New York (“respondent” or “TRS”). The Appellate Division, First Department held that TRS’s determination to withhold the names of retirees of the public retirement system, pursuant to the exemption set forth in New York Public Officers’ Law (“POL”) § 89(7), was not affected by an error of law, was consistent with that Court’s prior interpretation of the exemption in a case involving a different pension fund, and which followed a prior controlling decision of this Court. The Appellate Division accordingly adhered to its prior holding, applying the principles of stare decisis to this issue of statutory interpretation (43-44).1 QUESTION PRESENTED Whether the Appellate Division, First Department properly affirmed the Supreme Court’s judgment dismissing the Article 78 petition, and denying TRS’s FOIL request seeking the names of TRS’s individual retirees receiving a pension. STATEMENT OF FACTS On January 9, 2012, petitioner submitted a FOIL request to TRS, pursuant to POL § 84 et seq., requesting a list of all retired members of the TRS, including: name; last employer; cumulative years of service at retirement; gross 1 Numbers in parentheses refer to pages in the Record on Appeal. Numbers in parentheses preceded by the letter “A” refer to pages in appellant’s Appendix Pursuant to 22 NYCRR § 500.1(h). 2 retirement benefit for calendar years 2010 and 2011; retirement date; and date of commencement of retirement system membership for each retiree (21, 31-32). On January 18, 2012, following an exchange of e-mails, the Director of Legal Services of TRS informed the Empire Center that TRS would provide it with a CD containing all of the information requested, except for the individual names of retirees, pursuant to Empire Center for New York State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dept. 2011), appeal dismissed, 18 N.Y.3d 901 (2012) (hereinafter referred to as “Empire Center v. NYCPPF”) (22-23). By letter dated January 18, 2012, to the TRS FOIL Appeals Officer, Empire Center appealed from the determination to withhold individual retirees’ names, relying on its interpretation of POL § 89(7) as prohibiting the withholding of the name, and only permitting the withholding of the address of “an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system” (25-26). In petitioner’s view, this section of the statute could be distinguished from that permitting the withholding of both the name and address “of a beneficiary of a public employees’ retirement system” (25). Petitioner acknowledged that the Appellate Division, First Department reached a contrary conclusion in Empire Center v. NYCPPF, but argued that the 3 holding in that case contradicts the statutory language and the prior interpretation of POL § 89(7) since its enactment (26). By letter dated February 7, 2012, the TRS FOIL Appeals Officer denied Empire Center’s administrative appeal, based on Empire Center v. NYCPPF, 88 A.D.3d at 521, which held that “the names of retired members of a public employees’ retirement system were exempted from FOIL disclosure by Public Officers Law § 89(7)” (27). The letter noted that the “Empire decision is “currently the applicable law in this Department” (28). The TRS FOIL Appeals Officer further stated that the denial of the FOIL appeal would be reviewed pending the final resolution of Empire Center v. NYCPPF, by the Court (28). Finally, the TRS FOIL Appeals Officer quoted the definition of “beneficiary” set forth in TRS’s governing statute, as “any person in receipt of a pension, a pension-providing-for-increased-take-home-pay, an annuity, a retirement allowance or other benefit” (28). See New York City Administrative Code (“Admin. Code”) § 13-501(12). Empire Center’s Prior Proceeding Against the New York City Police Pension Fund In Empire Center v. NYCPPF, 88 A.D.3d at 520-21, the Appellate Division, First Department unanimously affirmed the New York County Supreme Court’s order and judgment denying the Article 78 petition seeking an order directing disclosure under 4 FOIL for the names of all of the NYCPPF’s retired members. The Appellate Division, First Department ruled as follows: The petition was properly denied. In Matter of New York Veteran Police Assn. v. New York City Police Dept. Art. I Pension Fund (61 NY2d 659, 460 NE2d 226, 472 NY2d 85 [1983]), the Court of Appeals held that Public Officers Law § 89(7) exempts from disclosure both the names and addresses of retirees of the New York City Police Department receiving pensions and annuities. Thus, respondent correctly denied petitioner’s FOIL request seeking the names of its retired members. Petitioner offers no persuasive argument distinguishing its FOIL request from that in Matter of New York Veteran Police Assn. Id., 88 A.D.3d at 521. Thereafter, this Court dismissed petitioner’s appeal in Empire Center v. NYCPPF as untimely pursuant to CPLR § 5513(b). See Empire Center for New York State Policy v. New York City Police Pension Fund, 18 N.Y.3d 901 (2012). Petitioner’s CPLR Article 78 Proceeding On or about March 1, 2012, petitioner commenced this CPLR Article 78 proceeding, challenging TRS’s denial of Empire Center’s final administrative appeal, and directing TRS to provide the names of TRS retirees, as sought in its FOIL request (12-20). On or about May 4, 2012 (as amended on May 21, 2012), respondent moved to dismiss the verified petition for failure to state a cause of action, pursuant to Empire Center v. NYCPPF, 88 5 A.D.3d 520 (1st Dept., 2011), appeal dismissed, 18 N.Y.3d 901 (2012) (29-37). DECISIONS BELOW New York County Supreme Court Judgment By decision and judgment filed September 6, 2012, the Supreme Court, New York County (Stallman, J.) granted respondent TRS’s motion to dismiss the petition in its entirety (5-10). Relying on Empire Center v. NYCPPF, the Supreme Court ruled as follows (7-8): Respondent has demonstrated that petitioner has failed to state a cause of action upon which relief can be obtained. This exact issue, brought by the exact same petitioner, has already been decided in Empire Ctr. For N.Y. State Policy v. New York City Police Pension Fund, (88 AD3d 520 [1st Dept. 2011]). In that case, the Appellate Division, First Department held that the police pension fund correctly denied the FOIL request which sought the names of retirees receiving a pension and annuities. The Appellate Division, First Department followed precedent set in Matter of New York Veteran Police Assn. v. New York City Police Dept. Art. I Pension Fund, (61 N.Y.2d 659 [1983]). In that case, the Court of Appeals held that pursuant to Public Officers Law § 89(7), a petitioner is not entitled under FOIL to obtain the names and address of all New York City Police Department retirees. In light of the two aforementioned decisions, TRS is not obligated under FOIL to release the names of its retirees. Even viewing the allegations of petitioner in the light most favorable to petitioner, petitioner fails to state a cause of action upon which relief can be granted, as a matter of law. 6 The Court below also cited POL § 87(2)(b), which exempts from disclosure information that “would constitute an unwarranted invasion of personal privacy” (8). The Supreme Court noted that here, “there is a legitimate concern that releasing retirees’ names ‘would in effect provide access to the addresses of these retirees, as well as to other personal information’ which could lead to an unwarranted invasion of privacy” (8). The Court further opined (9): In this age of widespread internet access it is increasingly easy to obtain addresses and other personal information of individuals using only a name and, thereafter to disseminate the information to the world. Although the security interests of retired New York City police officers might arguably be different from those of other retired public employees, the Public Officers Law recognizes the interest in privacy of the names of retired public employees. (Public Officers Law §§ 87[2][b]; 89[7].) The Supreme Court also cited POL § 89(7), and this Court’s decision in Empire Center v. NYCPPF, which held that “for the purposes of FOIL, the terms retiree and beneficiary are indistinguishable, and therefore the names of retirees may also be withheld” (9). Finally, the Court noted that in New York Times Company v. City of New York Fire Department, 4 N.Y.3d 477, 484 (2005), this Court held that the words spoken to “911” operators by individuals on September 11, 2001 were exempt from disclosure under FOIL, since disclosure would constitute an 7 “unwarranted invasion of personal privacy,” and applied the same privacy considerations to exempt the information being sought here (10): In so holding, the Court of Appeals once again articulated respect for privacy as an important public policy consideration, one recognized by FOIL itself. The privacy exceptions of Public Officers Law § 89(7) prevent petitioner from stating a cause of action as a matter of law. The Supreme Court accordingly granted the motion of TRS to dismiss the Article 78 petition in its entirety, entering judgment in favor of respondent (10). Appellate Division, First Department Decision and Order By decision and order entered February 28, 2013, the Appellate Division, First Department unanimously affirmed the Supreme Court’s judgment dismissing the petition seeking to annul TRS’s determination denying Empire Center’s FOIL request for the names of TRS’s retired members. The Appellate Division adhered to this Court’s and its own precedent, in ruling against Empire Center and denying the FOIL request (43-44): Respondent’s determination to withhold the names of retirees of the public retirement system, pursuant to the exemption set forth in Public Officers Law § 89(7) was not affected by an error of law (see Mulgrew v. Board of Educ. of the City School Dist. Of the City of N.Y., 87 AD3d 506 [1st Dept 2011], 1v denied 18 NY3d 806 [2012]). Indeed, the determination is in accord with our interpretation of that exemption in Empire Ctr. for N.Y. State Policy v. New 8 York City Police Pension Fund (88 AD3d 520 [1st Dept 2011], 1v dismissed 18 NY3d 901 [2012]), which followed Matter of New York Veteran Police Assn. v. New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]). Accordingly, we adhere to our prior holding under the principle of stare decisis, which applies with particular force to issues of statutory interpretation (see Matter of Higby v. Mahoney, 48 NY2d 15, 18- 19 [1979]). Appellate Division, Third Department Memorandum and Order In Empire Center for New York State Policy v. New York State Teachers’ Retirement System, 103 A.D.3d 1009 (3d Dept., 2013), the Appellate Division, Third Department similarly relied on this court’s ruling in New York Veteran Police Association, 61 N.Y.2d 659 (1983), to affirm the Albany County Supreme Court’s judgment denying Empire Center’s FOIL request for the names of the retired members of the New York State Teachers’ Retirement System. This Court granted Empire Center’s motions for leave to appeal to this Court in both case (42). 9 RELEVANT STATUTES The New York Freedom of Information Law (“FOIL”), Public Officers Law § 87(2) states in relevant part as follow: § 87. Access to agency records * * * 2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: (a) are specifically exempted from disclosure by state or federal statute; (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article; * * * Public Officers Law § 89(2)(a) and (c), and § 89(7) state in relevant part: § 89. General provisions relating to access to records; certain cases * * * 2. (a) The committee on public access to records may promulgate guidelines regarding deletion of identifying details or withholding of records otherwise available under this article to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available. * * * 10 (c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision: i. when identifying details are deleted; * * * 7. Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee or of a retiree of a public employees’ retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees’ retirement system or of an applicant for appointment to public employment; provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article. New York City Administrative Code, Title 13, Chapter 4, § 13-501(12), governing the Teachers’ Retirement System, defines “beneficiary” as follows: 12. “Beneficiary” shall mean any person in receipt of a pension, a pension- providing-for-increased-take-home-pay, an annuity, a retirement allowance, or other benefit as provided in this chapter. 11 ARGUMENT THE APPELLATE DIVISION CORRECTLY RULED THAT THE NAMES OF THE INDIVIDUAL RETIREES ARE EXEMPT FROM DISCLOSURE UNDER FOIL, IN ACCORDANCE WITH THIS COURT’S RULING IN MATTER OF NEW YORK VETERAN POLICE ASSOCIATION V. NEW YORK CITY POLICE DEPARTMENT ARTICLE I PENSION FUND, 61 N.Y.2d 659 (1983). The Appellate Division, First Department properly affirmed the Supreme Court’s judgment upholding the denial of petitioner’s FOIL request seeking the names of TRS’s retired members, pursuant to POL § 89(7), in accordance with this Court’s controlling decision in New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 61 N.Y.2d 659 (1983) (hereinafter referred to as “Veteran Police”), on which it also correctly relied in its prior decision on this issue of statutory interpretation (43-44). At issue is the interpretation of POL § 89(7), which states in relevant part as follows: § 89. General provisions relating to access to records; certain cases * * * 7. Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees’ 12 retirement system or of an applicant for appointment to public employment… . Petitioner argues that this provision does not permit the exemption from disclosure of retirees who receive a pension, and that the “misguided reading of Section 89(7) is not compelled by the holding of Veteran Police” (Pet.’s Br. at 9). Empire Center argues that reading the terms “retiree” and “beneficiary” in the statute to mean the same thing, renders the two clauses internally inconsistent; violates fundamental principles of statutory construction; and violates the principle of giving statutory language its plain and ordinary meaning (Pet.’s Br. at 10-12). Petitioner claims that POL § 89(7) was understood, from its date of enactment, to differentiate between “beneficiaries” and “retirees” for purposes of FOIL (Pet.’s Br. at 12-13). It asserts that this “reinterpretation” of the statute defeats FOIL’s objectives of open government, and policy of disclosure. It further claims that such an interpretation is not required under this Court’s ruling in Veteran Police, since this Court in that case did not consider the issue presented here, namely, whether retiree names, without addresses, can be withheld, noting that the petitioner association in that case sought both the names and addresses of retirees (Pet.’s Br. at 13-21). Finally, petitioner argues that the disclosure of government retirees’ names does not constitute an unwarranted 13 invasion of personal privacy, and is not exempt from disclosure under POL § 87(2)(b), arguing, inter alia, that the public interest in disclosure outweighs any asserted privacy interest in the names of the retirees (Pet.’s Br. 22-29). None of petitioner’s arguments have merit, however, and should be rejected, as they were in the Courts below. There is no reason for this Court to overturn its own legally correct and long-standing precedent, which correctly interpreted the statute in question at the time of its enactment in 1983. That interpretation has been the definitive interpretation, constituting the law on this issue, for 30 years, which the Legislature has not revised, corrected or altered by any subsequent amendments or legislative enactments. Any change in the interpretation of POL § 89(7) can and should be made by the Legislature, and not by the Court. If the long-standing, consistent interpretation of the statute “is not the desire of the Legislature, it can certainly amend the statute to provide otherwise.” See Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106, 123 (2012). Petitioner’s attempt to circumvent this Court’s holding in Veteran Police is unavailing. In New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 61 N.Y.2d 659, 660 (1983), this Court exempted from disclosure, under POL § 14 89(7), “the names and addresses of all retirees of the New York City Police Department currently receiving pensions and annuities.” Id. at 660. This Court, in reversing the decision of the Appellate Division, First Department in that case, ruled as follows: While the appeal to this court was pending, section 89 of the Public Officers Law was amended by adding a new subdivision 7 (L 1983, ch 783). The new statute provides that nothing in the Freedom of Information Law shall require the disclosure of the home address “of an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system” or the name or address of the beneficiary of such system or of an application for appointment to public employment. The act became law June 30, 1983. Its provisions provide that it was to take effect immediately and to apply to any request for information for which there had been no final determination on the effective date, “including judicial review.” The provisions of the amendment apply to this proceeding which was pending before the court at the time it became effective and foreclose relief to petitioner. Id. at 661 (emphasis in original). As petitioner notes (Pet.’s Br. at 13-14), POL § 89(7) was enacted on July 30, 1983, while Veteran Police was pending on appeal in this Court (and before all briefs had been filed). On March 3, 1983, the Appellate Division, First Department in Veteran Police had reversed the Supreme Court’s order denying access under FOIL to the names and addresses of all New York 15 City Police Department retirees receiving pensions and annuities, and ordered the retirees’ names and addresses to be disclosed. See New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 92 A.D.2d 772 (1st Dept., 1983). In his dissenting opinion, arguing that the FOIL request should have been denied on the basis of FOIL’s statutory exemptions for personal privacy, solicitation and fund-raising, and safety concerns, Justice Murphy repeatedly referred to concerns involving the release of both the names and addresses of the retirees. See id., 92 A.D.2d at 775 (Murphy J., dissenting) (“The petition should have been denied . . . because petitioner undoubtedly intends to release the private names and addresses to its next fund raiser. Those names and addresses will also be used by petitioner for its commercial and professional fund-raising purposes”). Justice Murphy further aptly pointed out that “[i]f the Legislature wishes to disclose the names of police retirees, that is its prerogative and it may pass appropriate legislation.” Id. at 775 (Murphy J., dissenting. Thus, certainly at issue and of concern and under consideration in Veteran Police was disclosure of not only the addresses, but also the names, of the Police Department retirees. As noted, while the appeal in Veteran Police (which the City appellants perfected on or about June 8, 1983) was 16 pending in this Court, the Legislature exercised its prerogative to enact dispositive legislation on the issue, and made the new law effective immediately, and applicable to any FOIL request for which there was no final determination, including judicial review. Rather than requiring the disclosure of such information, the Legislative opted instead to shield from public disclosure the names and addresses of retirees and beneficiaries, thereby determining that such information would not be public information. The Legislature amended POL § 89 to add subdivision 7 (L. 1983, ch. 783), which was signed into law and became effective on July 30, 1983. Contrary to petitioner’s hypothesis that the “legislative history confirms the distinction” made in POL § 89(7) between a “retiree” and a “beneficiary” at the time the bill was enacted (Pet.’s Br. at 10-11), the legislative history actually supports the legislative intent to exempt from disclosure both the names and addresses of all public employment retirees and beneficiaries receiving a public pension. Several memoranda in the New York Legislative Service’s Governor’s Bill Jacket (“Bill Jacket”) recommending approval of the 1983 FOIL amendment in issue, A. 5504, Ch. 783, Laws of 1983, substantiate that POL § 89(7) exempts from disclosure the names and addresses of all retirees of TRS currently receiving pensions and annuities (A39-65). For 17 example, the Report to the Governor on Legislation, dated July 15, 1983, recommending approval of the bill, issued by the New York State Comptroller’s Office, states that the bill would provide that nothing in FOIL “shall require the disclosure of the home address of an officer or employee or a retiree of a public employees’ retirement system, or the name or address of a beneficiary of such system . . .” (A50). Retirees who receive pensions are certainly beneficiaries of the employees’ retirement system. The Memorandum of the New York State Governor’s Office of Employee Relations dated July 25, 1983 states in relevant part as follows (A53): This bill would amend the Public Officers Law with respect to the disclosure of names and home addresses of certain public officers and employees, and participants and beneficiaries of the public employees retirement system. The bill would prevent access to the names and homes addresses except in cases where there would be a permissible invasion of personal privacy as defined in the Freedom of Information Law. The Budget Report on Bills dated July 14, 1983 notes that the bill “seeks to reduce harassment of public employees and retirees” by “allowing agencies to not disclose agency lists of public employee home addresses,” and by “allowing agencies to not disclose agency lists of public retirees” (A47). This Report thus acknowledges the Legislature’s intent to protect 18 from disclosure two distinct categories of individuals, namely, agency lists of “public employee home addresses” (implicitly recognizing that the names of public employees, but not their addresses, can be disclosed); and agency lists of “public retirees” (implicitly recognizing that both the names and addresses of public employment retirees are exempt form disclosure). Thus, the legislative history of POL § 89(7) makes clear that public employment retirees’ names and home addresses were both intended to be exempt from disclosure under FOIL. The withholding of names (“agency lists of public retirees”) is entirely consistent with the intent to protect public employees and retirees from harassment and fraud (A47) -- especially given the ease with which a person provided with a list of names can use the internet to obtain addresses and other personal information. The Budget Report foresaw that the passage of the proposed legislation “would also have the effect of overturning a recent State court decision that narrowly interpreted ‘fundraising’ to exclude ‘dues solicitation,’ which broadened access to lists of public employee and retiree address lists” (citing New York Teachers Pension Association, Inc. v. Teachers’ Retirement System, 71 A.D.2d 250 (1st Dept., 1979), appeal denied, 49 N.Y.2d 701 (1980)) (A48). In that case, which required TRS to provide a list of the names and addresses of all 19 retired New York City school teachers, the courts used the terms “retiree” and “beneficiary” interchangeably. Id., 71 A.D.2d at 251, 257. The lower court in that case described the FOIL request at issue as a request for “a list of [TRS’s] present beneficiaries,” and directed TRS to provide the list because TRS had failed to demonstrate that the disclosure of such information “would result in economic or personal hardship to an individual retiree.” New York Teachers Pension Association, Inc. v. Teachers’ Retirement System, 98 Misc. 2d 1118, 1119 (Sup. Ct. N.Y. County 1979). The Appellate Division, First Department, in affirming the Supreme Court’s judgment granting the Article 78 petition “in the nature of mandamus to compel disclosure of the names and home addresses of retired New York City school teachers from the Teachers’ Retirement System of the City of New York” (71 A.D.2d at 251), directed TRS “to make available to petitioners a list of the names and addresses of its beneficiaries.” Id., 71 A.D.2d at 257. The Legislature’s enactment of POL § 89(7), in response to New York Teachers Pension Association, Inc. v. Teachers’ Retirement System, 71 A.D.2d 250 (1979), overturned the outcome in that case requiring the disclosure of retirees’ names and addresses. Thus, from the point at which POL § 89(7) was proposed legislation, it was anticipated that it would further protect from disclosure lists of the names and addresses of public 20 employees and retirees. As demonstrated, the legislative history contains specific references to the reversal of New York Teachers Pension Association, Inc., the ruling in which, having previously compelled TRS to provide such a list, “broadened access to lists of public employee and retiree address lists” (A48), which the newly enacted bill would abrogate. TRS’s decision to withhold the list of retirees’ names when responding to petitioner’s FOIL request was, therefore, completely justified by the legislative record.2 As TRS demonstrated, the documents in the Bill Jacket (including the Memorandum from the New York State Governor’s Office of Employee Relations) overwhelmingly interpret POL § 89(7) as protecting the names of retirees from disclosure, and do so because they correctly infer the intent of POL § 89(7) to protect public employee retirees from invasion of privacy and harassment. See also Department of State Memorandum dated July 29, 1983, commenting on A. 5504, noting that FOIL implicitly allows agency discretion to withhold the names and home 2 The sixteen documents contained in the Governor’s Bill Jacket expressing a recommendation on the proposed legislation, although overwhelmingly in favor of the bill, or neutral toward it (eleven and four respectively) do not consistently interpret the proposed provision in the same manner (see A39-65). However, none of the documents specifically adopts the interpretation which petitioner is advocating here. 21 addresses under POL § 87(2)(b), where release would constitute an unwarranted invasion of personal privacy (A52). Thus, there is certainly no “new interpretation” of POL § 89(7), as petitioner claims. The language of the statute, as interpreted by the courts since its enactment, as well as its legislative history, fully supports TRS’s position, and the decision of the Courts below, that disclosure of public employment retirees’ names is not required, and that such information is fully exempt form disclosure under FOIL. When this Court decided Veteran Police (61 N.Y.2d 659) in 1983, it reversed not only the First Department’s decision in that case (see 92 A.D.2d 772), but also, in effect, New York Teachers Pension Association, Inc., 71 A.D.2d 250 (1st Dept., 1979), upon which the First Department in Veteran Police had relied. As noted, the relevant provision of the Public Officers Law was amended to add § 89(7), while Veteran Police was pending in this Court. Accordingly, in the New York City Police Department Article I and II Pension Fund appellants’ reply brief, which the Corporation Counsel’s Office filed in this Court on or about September 16, 1983, the appellants argued that this Court should reverse the Appellate Division, First Department’s ruling, and deny the FOIL request seeking the names and home addresses of retired police officers (not just the home addresses), based upon the dispositive legislation enacted on 22 July 30, 1983 (A36-38). The City appellants argued in their reply brief in that case as follows (A37): Since respondent’s request was for the names and home addresses of retired police officers receiving pensions from the City’s public employees’ retirement system (16), it falls squarely within the language of the new exemption from disclosure. Section 89(7) is clearly applicable to this case, as evidenced by the Legislature’s mandate that the act take effect immediately and that it apply to “any request… for which there is no final determination, including judicial review” (emphasis added). L. 1983, ch. 783 § 2. The City appellants in Veteran Police further specifically disputed in a footnote, as “simply untrue and unsupported by the Record,” the petitioner’s conclusory allegation that it was appellants’ “current practice” to disclose the “names and addresses of retired police officers” to the public (A38). Certainly, what was at issue in Veteran Police, and what this Court ruled on in that case, was the applicability of the exemption for both the names and addresses of retired police officers receiving pensions, and not just an exemption for their home addresses, contrary to Empire Center’s hypothesis that the focus in that case was the retirees’ home addresses (Pet.’s Br. at 14-15). This Court squarely held that the newly enacted legislation foreclosed any relief to the petitioner in that case, which sought “access to the names and addresses of all retirees of the New York City Police Department currently 23 receiving pensions and annuities.” New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 61 N.Y.2d at 660-61. Accordingly, contrary to petitioner’s complaint about the “new interpretation” of POL § 89(7) (Pet.’s Br. at 20), this Court has interpreted POL § 89(7) thirty years ago to exempt from disclosure the names and addresses of all retirees. Moreover, in Veteran Police, this Court was the first to interpret the then newly enacted POL § 89(7). Thus, from the time § 89(7) was enacted, courts, including this one, have interpreted the statute as protecting from disclosure both names and addresses of public employment retirees, and not just their addresses. It is petitioner’s narrow interpretation of the statute that cannot be sustained, as it is far more likely that the Legislature intended to distinguish between active and retired officers and employees, by permitting the disclosure of the names (but not the addresses) of active officers and employees, but protecting both the names and addresses of retired officers and employees. This interpretation is entirely consistent with the definition of “beneficiary” in New York State and New York City retirement statutes. Notably, TRS’s governing statute defines the term “beneficiary” as “any person in receipt of a pension, a pension- 24 providing-for-increased-take-home-pay, an annuity, a retirement allowance, or other benefit as provided in this chapter.” See Admin. Code § 13-501(12). Similarly, pertaining to the New York City Employees’ Retirement System, Admin. Code § 13-101(8) defines “beneficiary” as “any person in receipt of a pension, an annuity, a retirement allowance, a death benefit or any other benefit provided by this chapter.” Article 2 of the New York State Retirement and Social Security Law (“RSSL”) at § 2(5) defines “beneficiary” as “[a]ny person in receipt of a retirement allowance, or other benefit pursuant to this article.” RSSL Article 3-A, which applies to “any public retirement system of the state and to any public employee pension plan administered by such system” (RSSL § 151)), defines “beneficiary” as “a person who is receiving a benefit from a public retirement system of the state or who has met all of the conditions precedent for the actual receipt of a benefit form a public retirement system of the state . . .” (RSSL § 152(1)). Thus, the consistent definition of “beneficiary” in both the City and State retirement statutes is someone who receives a pension, annuity or retirement benefit, and is not limited, as petitioner would have it, to only the retirees’ named beneficiaries. As demonstrated, the New York City Administrative Code’s statutory definition of a beneficiary includes all 25 individuals who receive benefits, whether they are retirees, or individuals who are designated by members or retirees to be the potential recipients of benefits. See, e.g., Katz v. New York City Teachers’ Retirement Board, 291 N.Y. 360, 363 (1943) (under New York City Administrative Code, “a ‘beneficiary’ means a ‘person in receipt of a pension, an annuity, a retirement allowance, or other benefit’”); see also Hiney v. Teachers’ Retirement Board of the City of New York, 182 Misc. 147, 150 (Sup. Ct. N.Y. County 1944) (on the date the retirement was approved, “the retirement became an accomplished fact and the status of the deceased changed from that of contributor to beneficiary”). The Administrative Code’s definition of a beneficiary closely tracks the well-accepted legal definition of a beneficiary. Black’s Law Dictionary defines “beneficiary” as “[a] person who is designated to benefit from an appointment, disposition, or assignment (as in a will, insurance policy, ect.); one designated to receive something as a result of a legal arrangement or instrument.” Black’s Law Dictionary (7th ed. 1999), at 149. Generally, dictionaries provide two different definitions of beneficiary. One definition parallels the legal definition, defining “beneficiary” as “a person who derives advantage from something, especially a trust, will, or life 26 insurance policy.” See Oxforddictionaries.com, http://www.oxforddictionaries.com/us/defintition/american_ english/beneficiary. In addition to that definition, another narrower definition of the term “beneficiary” is “a person, organization, etc., that receives money or property when someone dies.” See Merriam-Webster.com, http://www.merriam- webster.com/dictionary/beneficiary. In the broader, technical sense of the word, the term “beneficiaries” applies to both the initial recipient of the trust’s benefits and to anyone eligible to receive benefits on the death of the initial recipient. In non-legal communications, the word “beneficiary” has been used in the narrower sense of a person who receives benefits upon the death of a benefactor. Numerous documents made available on the TRS website, www.trsnyc.org, do use the term “beneficiary” to refer to a person designated by a member or retiree to receive death benefits in the event of the member or retiree’s death, as petitioner asserts (Pet.’s Br. at 12). However, in these documents, the term is used in the colloquial, non-technical sense set out in general dictionaries cited above, to distinguish all the recipients of benefits of the retirement system trust, from the subset of those eligible to receive benefits upon the death of an initial beneficiary. It is not a legal definition, but rather, is being used in that context to distinguish between the two categories on the website. 27 Moreover, the TRS website contains a “Legal Note” page, which cautions, inter alia, that “[t]he information provided on this website is based on currently available information, which may be subject to change, and, as such, should not be solely relied upon. . . . In all cases, the provisions of the governing laws, rules, and regulations will prevail.” Legal Note, TEACHERS’ RETIREMENT OF THE CITY OF NEW YORK,https://trsnyc.org/trsweb/support/usingTheSite/legalNote.ht ml. In addition, The TRS Retiree’s Companion, a document cited by Empire Center in its brief as an example of a TRS document that uses the term “beneficiaries” to refer to persons designated by a retiree to receive benefits (Pet.’s Br. at 12 n.5), also specifically notes that “[i]n all cases, the provisions of the governing laws, rules, and regulations will prevail.” The TRS Retiree’s Companion, TEACHERS’ RETIREMENT OF THE CITY OF NEW YORK, at 74, at https://trsnyc.org/WebContent/tools/brochure/retirees/Companion. pdf. Finally, a search of the TRS website reveals the same explicit notification that “[i]n all cases, the provisions of the governing laws, rules, and regulations will prevail,” in 27 other documents that use the term “beneficiary” to refer to a person designated by a member or retiree to receive benefits in the event of the member or retiree’s death. Thus, to the extent 28 the information provided on the website conflicts with the applicable law, the provisions of the law necessarily control. Furthermore, petitioner’s reliance on opinions issued by the New York Committee on Open Government (“COG”), which distinguish “retiree” from “beneficiary,” and advocate for the disclosure of the names of retirees receiving pensions (Pet.’s Br. at 12-13), is unavailing, as these opinions are “neither binding upon the agency nor entitled to greater deference in an Article 78 proceeding than is the construction of the agency.” Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 84 N.Y.2d 488, 493 (1994) (quoting John P. v. Whelan, 54 N.Y.2d 89, 96 (1981)). Petitioner’s further arguments in support of its unfounded claim of a “new interpretation” of the statute, are that agencies have until recently “routinely” provided the names of their retirees and pension amounts in response to FOIL requests; and that several Committee on Open Government advisory opinions addressed this issue over the past two decades (Pet.’s Br. at 12-13). Both arguments are unavailing. Petitioner does not (and cannot) argue that agencies’ prior voluntary practice of providing names somehow transforms that practice into a statutory legal obligation.3 3 To the extent petitioner is contending that TRS is somehow estopped from changing its position, it is well-settled that 29 As to the COG opinions, petitioner cites to four such opinions issued in 1993, 1995, 1996, and 2010 (Pet.’s Br. at 12- 13). This hardly supports petitioner’s assertion that this case represents a change in the way the statute has consistently been interpreted by the decisions of the Committee on Open Government on this issue (Pet.’s Br. at 12-13). Furthermore, such decisions are not entitled to more deference than the agency’s own construction of the statute. Finally, there is nothing in the Committee on Open Government’s advisory opinions, or in petitioner’s brief, that defines a “retiree” as excluding a “beneficiary,” or that demonstrates that their meanings cannot be coterminous. Indeed, the Legislature could have used the terms “dependent” or “survivor” had it sought to limit the protection in POL § 89(7) to only recipients of statutorily defined dependent allowances or survivor benefits. Empire Center’s attempt to distinguish Veteran Police, maintaining that this Court did not decide the issue presented estoppel is generally not available against a public agency. See Granada Buildings, Inc. v. City of Kinston, 58 N.Y.2d 705, 708 (1982) (noting that “because a governmental subdivision cannot be answerable for the unauthorized acts of its gents. . . we have frequently reiterated that estoppel is unavailable against a public agency”), reh’g denied, 58 N.Y.2d 825 (1983); Public Improvements, Inc. v. Board of Education of the City of New York, 56 N.Y.2d 850, 852 (1982). See also E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 370 (1988). 30 here, since only the names are being sought in this case, as opposed to the names and addresses that were requested in Veteran Police (Pet.’s Br. at 13, 15), is also unavailing. The Appellate Division, Third Department properly rejected this attempt to distinguish Veteran Police. See Empire Center for New York State Policy v. New York State Teachers’ Retirement System, 103 A.D.3d 1009, 1010 (3d Dept. 2013). If only retirees’ addresses were intended to be exempt from disclosure, this Court could have directed the agency to disclose the names, while redacting the addresses. See id. at 1010, citing Schenectady County Society for the Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42, 46 (2011), and Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 464 (2007). Instead, this Court held in Veteran Police that the then newly-enacted POL § 89(7) “foreclosed any relief to the petitioner therein.” Empire Center further argues that disclosure of the names of retirees would not constitute an unwarranted invasion of privacy, arguing, inter alia, that retirees have no significant privacy interest in their names (Pet.’s Br. at 22- 29). Contrary to Empire Center’s contention, however, the New York County Supreme Court here also properly invoked the privacy exemption in FOIL under POL § 87(2)(b), as yet another basis upon which to exempt disclosure under FOIL of the names of the retirees (8-10). The Court correctly relied, in part, on this 31 Court’s ruling in New York Times Company v. City of New York Fire Department, 4 N.Y.3d 477, 484 (2005), in which this Court “once again articulated respect for privacy as an important public policy consideration, one recognized by FOIL itself” (10). The New York County Supreme Court articulated compelling reasons for invoking FOIL’s privacy exemption here (8-9): Furthermore, Public Officers Law § 87(2)(b) excepts disclosure of information if it “would constitute an unwarranted invasion of personal privacy.” In this case, there is a legitimate concern that releasing retirees names “would in effect provide access to the addresses of these retirees, as well as to other personal information,” which could lead to an unwarranted invasion of privacy. . . . In this age of widespread internet access it is increasingly easy to obtain addresses and other personal information of individuals using only a name and, thereafter to disseminate the information to the world. Although the security interests of retired New York City police officers might arguably be different from those of other retired public employees, the Public Officers Law recognizes the interest in privacy of the names of retired public employees. (Public Officers Law §§ 87[2][b]; 89[7].) As noted, disclosing the names of the TRS retirees could result in access to the addresses of those retirees, as well as to other personal information. Thus, such disclosure falls squarely within the protection of POL § 87(2)(b), as an “unwarranted invasion of personal privacy.” 32 Petitioner argues that this Court’s ruling in New York Times Company, 4 N.Y.3d 477, actually supports disclosure of the names of public employment retirees here, because the words of the public employees (911 operators and firefighters) in that case were found not to be exempt from disclosure, and were ordered to be disclosed (Pet.’s Br. at 28-29). However, this Court exempted the names, identifying information and actual words of the 911 callers (i.e., the category of individuals for which disclosure was sought in that case, comparable to the retirees in this case), finding the privacy concerns “compelling.” Id., 4 N.Y.3d at 485-86. This Court thus recognized the paramount privacy implications in releasing names and other identifying information in those circumstances, pursuant to a FOIL request, and accordingly upheld the privacy exemption under FOIL for the names and other information, including even the words they spoke, of the callers. Id.; accord, New York Times Company v. Regenhard, 39 A.D.3d 414, 414- 15 (1st Dept., 2007) (ordering redaction from tapes and transcripts of any 911 callers’ identifying information that was repeated by the 911 operators, consistent with the Court’s intent to protect the callers’ and their family’s personal privacy under POL § 87(2)(b)). The names of TRS retirees are similarly exempt from disclosure, to protect against the “unwarranted invasion of personal privacy” under § 87(2)(b). 33 This Court addressed this point, in a case in which the New York State Teachers’ union sought only the names, and not the addresses, of Charter School teachers pursuant to FOIL. In denying that request, this Court reasoned as follows: Nor is there merit to NYSUT’s contention that it is entitled to the teacher’s names because it dropped its request for “names and addresses” and seeks only the names. Section 89(2)(b)(iii) would have little meaning if entities could circumvent the fundraising exemption by gaining access to only names and then linking them to a home address. The policy concerns underlying the personal privacy exemption are no less implicated under that scenario. New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560, 566 (2010). This Court found that the stated purposes for the request for names (dues collection) was in essence fundraising and, therefore, exempt under POL § 89(2)(b)(iii), which provides that lists of names and addresses are exempt from disclosure if the list will be used for “solicitation or fund-raising purposes.” Id. at 564. This Court found that the petitioner’s withdrawal of its request for addresses, and its request for names only -- when the petitioner clearly intended to contact the teachers -- did not alter the potential invasion of privacy which exempted the list from disclosure under FOIL, again noting that access to names easily provides access to addresses and other personal information. 34 Id. at 566. This Court thus recognized the ease with which addresses and other personal information can be obtained once names are disclosed. As noted above, the legislative history of POL § 89(7) clearly sets forth the purpose of the proposed legislation as protecting retirees from harassment. To release the names of the retirees in TRS would in effect release access to their addresses and other personal information as well. Therefore, for the protections provided by POL § 87(2)(b) against an “unwarranted invasion of personal privacy” to have any meaning in an age where a wealth of information is readily available through access to the internet, the names as well as the addresses of the retirees must be exempt from disclosure under FOIL. Thus, POL § 87(2)(b) provides an independent basis for non-disclosure of the names of retirees participating in public pension systems, as such disclosure would constitute an “unwarranted invasion of personal privacy,” as the Supreme Court here concluded (8-10). This basis is entirely consistent with the stated legislative purpose of POL § 89(7), to prevent the harassment of public retirees. Accord, Long v. Office of Personnel Management, 692 F.3d 185, 189-90, 192, 195 (2d Cir. 2012) (holding that the personal privacy exemption in the federal Freedom of Information Act (“FOIA”), 5 U.S.C. § 35 552(b)(6), exempts from disclosure the names of federal employees working in sensitive agencies and sensitive occupations, recognizing that such employees “have a cognizable privacy interest in keeping their names from being disclosed wholesale”); National Association of Retired Federal Employees v. Horner, 879 F.2d 873, 878-79 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990) (recognizing privacy interest in list of names of retired and disabled federal employees, finding no public interest in, and a modest personal privacy interest against, disclosure of the names and addresses of individuals receiving federal employee retirement benefits; court further declined to release only addresses without the names, since “the privacy concerns raised by the release of the addresses alone are substantially identical to those raised by the release of both the names and addresses”). Petitioner further argues that FOIL does not generally preclude the disclosure of names; and asserts that the public interest in overseeing pension funds outweighs any privacy interest in retirees’ names (Pet.’s Br. at 23-28). However, the cases cited by petitioner in support of its argument that disclosure of the names of TRS participants would not fall into the invasion of privacy exception to FOIL (Pet.’s Br. at 26), 36 all relate to current public employees, not retirees.4 The concern for protecting retirees from harassment, articulated in support of the enactment of POL § 89(7), justifies the claim that the disclosure of retirees’ names would indeed constitute an unwarranted invasion of privacy, as the Supreme Court here correctly found (8-9). TRS’s determination to withhold the names as well as the addresses of retirees is fully supported by both POL § 89(7) and § 87(2)(b). There is no inconsistency, or infirmity in this statutory interpretation, or change in the law or its interpretation, which has been the prevailing and only interpretation since 1983, when this amendment to FOIL was enacted. 4 The final case cited, Gannett Co. v. County of Monroe, 59 A.D.2d 309 (4th Dept., 1977), aff’d, 45 N.Y.2d 954 (1978) (Pet.’s Br. at 26) was decided prior to the enactment of POL § 89(7). 37 38 CONCLUSION THE DECISION AND ORDER APPEALED FROM, AFFIRMING THE DENIAL OF PETITIONER’S CPLR ARTICLE 78 PETITION AND DISMISSAL OF THE PROCEEDING, SHOULD BE AFFIRMED, WITH COSTS. Dated: New York, New York October 9, 2013 Respectfully submitted, MICHAEL CARDOZO, Corporation Counsel of the City of New York, Attorney for Respondent- Respondent. By: _____________________________ ELIZABETH I. FREEDMAN Assistant Corporation Counsel LEONARD KOERNER, ELIZABETH I. FREEDMAN, Of Counsel.
