| Matter of Gomez v Fischer |
| 2012 NY Slip Op 08374 [101 AD3d 1195] |
| December 6, 2012 |
| Appellate Division, Third Department |
| In the Matter of Eddie Gomez, Appellant, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Appeals (1) from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered November21, 2011 in Chemung County, which, among other things, in a proceeding pursuant to CPLRarticle 78, denied petitioner leave to serve a supplemental petition, and (2) from a judgment ofsaid court, entered December 21, 2011, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to review, among other things, a determination of respondentfinding petitioner guilty of violating a prison disciplinary rule.
After a sharp, folded piece of metal was found during a search of petitioner's cell, he wascharged in a misbehavior report with violating the prison disciplinary rule prohibiting thepossession of a weapon. He was found guilty as charged following a tier III disciplinary hearing,and that determination was affirmed upon administrative appeal. Petitioner also filed numerousrequests pursuant to the Freedom of Information Law (see Public Officers Law art 6[hereinafter FOIL]) that were denied in part. He thereafter commenced this CPLR article 78proceeding to challenge both the determination of guilt and the denial of his FOIL requests. Afterissue was joined, petitioner attempted to append additional documents to his petition via asupplement, and Supreme Court refused to consider the documents. Supreme Court thereaftergranted the petition to the limited extent of directing respondent to certify that a diligent searchfor various requested [*2]documents had been conducted and thatthey were unavailable. Petitioner now appeals.[FN*]
Contrary to petitioner's assertion, leave of court is indeed required to supplement a pleadingabsent the stipulation of all parties (see CPLR 3025 [b]; 7804 [d]; Altman vBroadway Realty Co., 101 AD2d 83, 86 [1984]; Patrick Connors, Practice Commentaries,McKinney's Cons Laws of NY, Book 7B, CPLR C3025:9). Petitioner did not obtain that leaveand, given his failure to explain why he did not include the documents as part of his initialpetition, we find no abuse of discretion in Supreme Court refusing to consider them (see Nelson v State of New York, 67AD3d 1142, 1143 [2009]; Industrial Natl. Mtge. Co. v Shreve, Lamb & HarmonAssoc., 70 AD2d 774 [1979]).
Turning to petitioner's arguments regarding the disciplinary determination, while an inmate isordinarily entitled to observe a search of his or her cell, the Hearing Officer credited thetestimony of a correction sergeant that petitioner's presence presented a potential threat to thesafety and security of the facility given his agitated demeanor (see Matter of Cody v Fischer, 84 AD3d1651, 1651 [2011]; Matter of McKethan v Selsky, 297 AD2d 840, 840-841 [2002]).Petitioner's additional contentions that he was deprived of the right to call or question witnessesare without merit.
While we further agree with Supreme Court that respondent properly redacted an unusualincident report to remove intra-agency "communications exchanged for discussion purposes notconstituting final policy decisions" (Matter of Russo v Nassau County Community Coll.,81 NY2d 690, 699 [1993]; see Public Officers Law § 87 [2] [g]), remittal isnevertheless required to deal with other aspects of petitioner's FOIL requests. Respondentconcedes that further proceedings are necessary so that Supreme Court may determine if adiligent search for certain requested documents has occurred. Upon remittal, Supreme Courtmust also obtain and conduct an in camera review of several documents—namely, aFamily Reunion Program application and a memorandum prepared by a correction sergeant whoinvestigated a claim filed by petitioner—to determine if part or all of those documentswere exempt from disclosure pursuant to Public Officers Law § 87 (2) (g) (see Matterof Fink v Lefkowitz, 47 NY2d 567, 571 [1979]; Matter of Grune v New York State Dept.of Correctional Servs., 166 AD2d 834, 835-836 [1990]).
To the extent that petitioner seeks counsel fees, we note that this relief was not previouslyrequested and, therefore, is not properly before this Court.
Peters, P.J., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the appealfrom the order is dismissed, without costs. [*3]Ordered that thejudgment is modified, on the law, without costs, by reversing so much thereof as found thatcertain documents or parts thereof were exempt from disclosure pursuant to Public Officers Law§ 87 (2) (g); matter remitted to the Supreme Court for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote *: Although petitioner's appealfrom the order denying leave to supplement the petition is not appealable as of right, his appealfrom the final judgment brings this order up for review (see Matter of City of Utica v Daines, 95 AD3d 1467, 1470 n 5[2012]).