PRE S E NT: HON. JEFFREY S. BROWN

Transcription

1 ':(2 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE In the Matter of the Application of GEICO for the Preservation and Disclosure of the Traffic Camera Video Recordings Located at the Intersection of Lakevile Road and Union Turnpike on September 15, 2011, or the Time Period Between 6:30 p.m. and 8:30 p.m., Petitioner TRIAL/IAS PART 21 INDE)( # /11 Motion Seq. 1 Motion Date 11/15/11 Submit Date 11/29/11 XXX -against- COUNTY OF NASSAU, AMERICAN TRAFFIC SOLUTIONS, INC., JOV ANNA FAZZINI, NADIA RAMJOHN NAZREEN, NAZRIA RAMJOHN and ALLI RAMJOHN, Respondents. The following papers were read on this motion: Papers Numbered Order to Show Cause, Affidavits (Affirmations), Exhibits Annexed... Answering Affidavit... 2 Memorandum of Law... 3 Petitioner moves by order to show cause for the following relief: an order pursuant to CPLR 31 02( c) and 7804, to preserve for discovery the traffic camera video recordings located at the intersection of Lakevile Road and Union Tumpikeon September 15, 2011, for the time

2 period between 6:30 pm and 8:30 pm. Petitioner states that on September 15, 2011 at the above mentioned intersection an accident occurred between its insured and another vehicle. The accident was allegedly captured on video as a result of a Red Light Camera installed at that intersection, such camera being a par of the Red Light Camera Program. Petitioner seeks to preserve for discovery the video recordings in anticipation of litigation. It contends that the video wil establish any negligence on the part of the operators of the motor vehicles and needless litigation may be avoided by the procurement of the videotape recordings. Defendant County of Nassau (hereinafter " County ) oppose the application inter alia the grounds that such data is specifically exempt from Public Officers Law 87(2)(k), also known as "FOIL" Based on the foregoing, the decision of the court is as follows: Pursuant to Vehicle and Traffic Law (hereinafter "VTL" 1111-b(a)(1)\the State of New York authorized the County of Nassau to adopt a local law establishing a demonstration program imposing monetary liability on the owner of a vehicle for failure of the vehicle operator to comply with certain traffic-control devices within the county. VTL I111-b(b) provides that if the county has enacted such a local law or ordinance, the owner of the vehicle is liable for a penalty if the vehicle was operated with the permission of the owner in violation of VTL 1111 (d). Prima facie evidence of a violation is established, pursuant to VTL 1111 (d), by the original or facsimile of a certificate, sworn to or affirmed by a technician employed by Nassau County based upon inspection of photographs, microphotographs, videotape or other Laws 2009, ch 19, effmay , expires and repealed Dec

3 )" recorded images produced by a traffic-control signal photo violation-monitoring system. The County of Nassau established Local Law , which became law on June , authorizing the County to establish a demonstration program imposing monetary liability on the owner of a vehicle for failure of the operator to comply with traffic-control indications, (See Local Law (1)). Under 93(c) of the Local Law, the imposition ofliability is not to be used for insurance purposes, nor is it deemed a conviction as an operator, and is not made part of the operating record of the owner. Under ~6 of the Local Law, TPV A adjudicates liability imposed upon owners of vehicles as a branch of the Nassau County District Court. When the state authorized the county to implement a Red Light Camera Program, the state legislature amended the Public Officers Law (Freedom of Information Law or "FOIL") to add subdivision "(k)" to ~87(2), This. application of Public Offcers Law ~87(2)(k) appears to be one of first impression since its addition pursuant to L 2009, ch 19, ~ 8, eff May 28, Under the Freedom of Information Lawall records of governmental agencies are presumptively available for public inspection and copying, without regard to the status, need good faith or purpose of the applicant requesting access. (Matter of Farbman Sons New York City Health Hasps. Corp. 62 NY2d 75, Scott, Sardano Pomeranz v, Records Access Offcer 65 N.Y.2d In order to insure maximum public access to government records, full disclosure is compulsory unless the agency can demonstrate that the requested records fall within one of the categories of exemptions, which are to be narrowly interpreted. (Public Officers Law ~ 87 (2); Matter of Farbman Sons New York City Health & Hasps, Corp. supra; Matter of Washington Post Co, New York State Ins. Dept" 61 NY2d ; Matter of Westchester RocklandNewspapers Kimball 50 NY2d 575, 580; Matter of

4 Fink Lefkowitz 47 NY2d 567, 571, Public Offcers Law ~87 provides in pertinent part as follows: 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:... (k) (Expires and deemed repealed Dec , pursuant to L.2009, c. 19, ~ 10; L.2009, c. 20, ~ 24; L.2009, c. 21, ~ 22; L.2009, c. 22, ~ 22; L.2009, c. 23, ~ 9; L.2009, c, 383, ~ 24.) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-b of the vehicle and traffic law. VTL ~ I111-b provides in pertinent part as follows: (T)he owner of a vehicle shall be liable for a penalty imposed pursuant to this section if such vehicle was used or operated with the permission of the owner, express or implied, in violation of subdivision (d) of section eleven hundred eleven of this article, and such violation is evidenced by information obtained from a trafc-control signal photo violation-monitoring system... (Emphasis added) Because this case involves a legal issue requiring the interpretations of various statutory provisions, the court' s review is de novo. This motion also presents a question of statutory construction and the court notes that its primary consideration must be "to ascertain and give effect to the intention ofthe Legislature" (McKinney s Cons Laws of NY, Book 1, Statutes 9 92). The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction" (Statutes ~ 94). "A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute (Statutes 9 96). "The words and phrases used in a statute should be given the meaning intended

5 by lawmakers" (Statutes ~ 230). Applying the above principles to the case at bar, the court determines that the state legislature made a specific exemption for the information obtained by the Red Light Camera Program. By adding subsection (k) to the FOIL statute, the legislature intended that the information contained on the photographs, microphotographs, videotape or other recorded images obtained from a traffc-control signal photo violation-monitoring system should be excluded from the information generally made available to the public, Petitioner fails to submit reply papers in responds to the county s arguments relating to the FOIL exemption. Accordingly, it is ORDERED, that the application is DENIED. The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola, New York December 12, 2011 Attorney for Plaintiff Brian Pascale, Esq Franklin Avenue, Ste. 340 Garden City, NY John Ciampoli, Esq. Nassau County Attorney One West Street Mineola, NY ENTERED DEC NASSAU COUNTY COUfTY CLIRK' I OFFfCE

6 Amy Razor, Deputy General Counsel American Traffic Solutions 7681 E. Gray Road Scottsdale, AZ Attorneys for Nazrren and Ramjohn Harmon Linder & Rogowsky, Esqs, 42 Broadway, Ste New York, NY Alii Ramjohn N. 246 Street Bellrose, NY 11426