New York State Trial Lawyers' Association on Auqui v Seven Thirty One Limited Partnership, et al.

 

Thanks to the efforts and support of a remarkable coalition of lawyers, labor and community groups, the Court of Appeals today  [Dec. 10, 2013] reversed its ruling in Auqui v. Seven Thirty One Limited Partnership, et al. It was a wise decision.  If the Court's original ruling had been allowed to stand, injured workers would have been unjustly denied the opportunity to seek justice in the courts while receiving Workers Compensation benefits.  

 

As many of you know, in the Auqui case the Court of Appeals had, for the first time, granted collateral estoppel effect to decisions of the workers’ compensation board in third-party actions regarding disability issues. The decision jeopardized the right to jury trial on those issues and would have a serious impact on the ability of injured workers to seek justice through the court system, while also undermining the workers’ compensation system.

 

Today’s unanimous ruling vacated the earlier decision, and held that a decision of the workers’ compensation board as to duration of disability could not be granted preclusive effect, holding that:

 

Given the realities of these distinct proceedings, the finder of fact in a third-party negligence action, in its attempt to ascertain the extent of plaintiff's total damages, should not be bound by the narrow findings of the Board regarding the duration of plaintiff's injury or his need for further medical care.

 

This critical decision will ensure that injured workers will continue to be able to hold responsible third-parties accountable and to have their day in court. A copy of the full decision is available here.

 

Special thanks for their commitment and foresight in fighting to obtain a rarely granted re-argument must go to Immediate Past President Michael Jaffe as well as appellate counsel for the plaintiff and Amicus Committee Chair Annette Hasapidis.

 

In addition, an unprecedented coalition of lawyers, labor and community organizations worked tirelessly over many months to achieve this remarkable victory.  For their tremendous dedication and efforts to ensure that workers’ rights are protected, we would particularly like to thank:

• NYSTLA’s Amicus Committee;
• New York State Bar Association;
• AFL-CIO;
• New York City Central Labor Council; 
• Building and Construction Trades of Greater New York;
• Injured Workers Bar Association;
• Workers Injury Law and Policy Group;
• New York Committee for Occupational Safety and Health;
• Make the Road New York;
• New York Communities for Change;
• Center for Popular Democracy;
• The Black Institute; and
• Citizen Action of New York.

NYC Department of Education Gave Eva Moskowitz Favored Treatment

Eva Moskowitz

Eva Moskowitz's Success Academy Got Preferential DOE Treatment, Emails Show

LINK

NEW YORK CITY — WhenEva Moskowitz starts a new charter school, top officials at the city’s Department of Education move heaven and earth to meet her demands.

During the past two years, the DOE gave Moskowitz’s controversial chain, Success Academy, rent-free space in city school buildings to open 14 new co-location sites. In each handover, Moskowitz demanded the DOE deliver the space clear of furniture and broom-swept by 5 p.m. on the last day of the school year, according to sources and emails obtained by DNAinfo New York.

But since students used the space until the second-to-last day of the school year, the DOE was left with less than 36 hours to clear the area — costing the department tens of thousands of dollars in overtime from contracted workers scrambling to meet the onerous deadline.

“The cost was astronomical,” a DOE insider told DNAinfo New York. “We don’t have to do it the very last day of school. There’s absolutely no need for this.” 

The high-octane moves, insiders say, show the preferential treatment that DOE officials — including deputy schools chancellor Kathleen Grimm — give Success Academy, whose 22 schools serve just 6,700 of the city’s 1.1 million students.

Emails obtained by DNAinfo highlight the special relationship the high-profile school leader has with the DOE.

John Shea, the DOE's chief executive of the school facilities division, emphasized in a May 17, 2012 message to his subordinates the importance of meeting Moskowitz's deadline.

“What I need from you all is that, if it looks like a principal will not be out of these rooms by 6/29 [the last day of the 2011-12 school year], someone needs to tell me,” Shea wrote. “Kathleen [Grimm] volunteered to call principals who play games with vacating. But I need to know ahead of time — not Monday, July 2. Eva will start calling me Saturday morning if rooms aren’t empty.”

A former city councilwoman who chaired the council’s education committee, Moskowitz founded Success Academy in 2006. In the last few years, she has opened schools in Williamsburg, Cobble Hill, Fort Greene, Harlem, Union Square and elsewhere. Each school shares space with public schools.

Admirers have lauded the chain for turning out high-performing students and for being a juggernaut fundraiser. Critics have complained that Success Academy uses disciplinary tactics that weed out special-needs students and have fumed that the well-funded chain doesn't deserve free rent.

Moskowitz's high salary and brusque manner have also made her a polarizing figure. But the special connection she has to DOE brass is what really irks her peers and critics.

Her unparalleled access was on display when she rattled off an email at 7:02 a.m. on June 28 — the last day of that 2012-13 year — to Grimm, Shea and Thomas Taratko, the executive director of the department’s office of space planning.

Success Academy was getting space in eight DOE buildings to open schools. Moskowitz reminded the DOE officials that they needed to have each space cleared by the end of the day.

“As you know we will move stuff if it is not out by 5 p.m. as the agreed upon time [and] date when all stuff is removed,” Moskowitz wrote. “We have been discussing for months!!!”

“Let’s avoid the sequel to movegate 2,” she added, referring to the 2010-11 school year, when the DOE didn't meet her deadline.

Grimm responded two and a half hours later, saying her team was monitoring the moves.

Success Academy administrators kept tabs on the schools throughout the day, as scores of DOE-contracted movers cleared desks, chairs, student cubbies, computers and boxes of belongings and placed them in storage.

By 5:05 p.m., Success Academy director Kris Cheung emailed Shea, Taratko and Grimm to commend them on the progress of the moves. But Cheung also highlighted two spaces — a school building in Bedford-Stuyvesant and one in Crown Heights — that still had furniture in classrooms and lockers in the hallway.

Grimm responded three minutes later asking for an update from Shea, who in turn emailed his top lieutenants to make sure the moves were under control. The work crews eventually cleared the remaining furniture that night.

Clearing space at the eight locations cost the city $124,000 in the 2012-13 school year, sources say.

The DOE refers to the moves as school restructurings. In total, the DOE spent $1.4 million on restructurings — for public and charter schools — at 153 locations during the 2012-13 school year, according to records obtained by DNAinfo. That means clearing space for Success Academy at the eight sites accounted for 9 percent of the total costs. 

At the end of the 2011-12 school year, Success Academy received space in six DOE school buildings. That year the DOE shelled out $125,000 to make room for the chain under the same deadline. The total cost of school restructurings for that year was $1.6 million.

Education Department sources said that in each school year, clearing space for Success Academy could have been done for half the amount if the work were spread out over a few days, eliminating the need for extra manpower and overtime. The DOE could have then spent the saved money on fixing up schools, the sources said.

“All of this takes away from repair work, our core mission,” a source said.

Success Academy wants the speedy space clearings so its construction team can quickly begin construction.

“The earlier move date and meeting the move deadline allows us to do all the building work so we can start our school year on the right foot,” Moskowitz wrote in an email to Grimm after a successful move one year.

However, Success Academy construction crews don’t enter the school until after July 4, meaning the DOE really has a few days to pull off the moves, sources said. Also no other charter school gets to move into a new space so early, according to sources.

When Bill De Blasio becomes mayor on Jan. 1, Success Academy may lose its favored status in Tweed Hall. De Blasio has criticized the Bloomberg administration’s special treatment of the charter chain and has said he wants Moskowitz to start paying rent for DOE space.

But with just weeks to go in Mayor Bloomberg’s term, DOE officials are working to arrange speedy move-ins for Success Academy in at least four schools in June 2014, according to sources.

Normally, DOE officials hold meetings on making space for Success Academy in the spring. This year, they started meetings in November, sources said.

Shea also recently approved the promotion of a Moskowitz-friendly DOE deputy facilities manager to director of schools facilities for northern Brooklyn, sources said.

Joseph Lazarus was chosen for the position, even though other in-house candidates had more experience and qualifications, sources said. Before his promotion, Lazarus was a deputy facilities manager for schools on the northwest side of Manhattan, where he was known for helping Success Academy schools get extra resources for repair work.

Lazarus did not respond to a request for comment.

The Education Department and Success Academy also did not respond to requests for comment.

Black Mail - The Cathie Black Emails From Sergio Hernandez

Black Mail

Cathie Black

From Sergio Hernandez:

In 2011, I filed a lawsuit against New York City Mayor Michael Bloomberg, seeking access to records concerning his controversial appointment of Cathie Black, the former chairwoman of Hearst Magazines, to run the city’s public school system.

The case has been covered by Gothamist, the New York Post, the New York Daily News, NPR, Thomson Reuters, the Associated Press, and the Wall Street Journal. Links to those stories and updates on the case can be found here.

There is also an index of filings and documents from the case, which can be viewed online here.

- See more at: http://cerealcommas.com/?page_id=265#sthash.XFwa4ITY.dpuf

New Cathie Black Emails

1 Reply

200 MB of new Cathie Black emails, fresh from the NYC Department of Education's FOIL office.

Please enjoy:

F9359-2013-12-06-resp (final).pdf
CBlack CH FOIL 12-6-2013.pdf
File 01-Nov 2010-release version.pdf
File 02-Nov 2010-release version.pdf
File 03-Dec 2010-release version.pdf
File 04-Dec 2010-release version.pdf
File 05-Dec 2010-release version.pdf
File 06-Dec 2010-release version.pdf
File 07-Jan 2011-release version.pdf
Hernandez CB release.pdf

- See more at: http://cerealcommas.com/?p=890#sthash.4WzzpmM8.dpuf

NYC DOE Will Spend $1 Million To Train 120 Teachers in Computer Science and Coding

December 9, 2013, 4:55 pm 9 Comments

Teachers Tell Us How to Fix Science and Math

By DAVID FIRESTONE, NY TIMES

LINK

 

A middle school math class in Chippewa Falls, Wis., on Oct. 18, 2013.

 

There was some good news today for New York City high school students interested in computers — the city’s Department of Education announced it would spend $1 million in public and private money to train 120 teachers in computer science and coding. Dozens of new computer science classes taught by newly trained teachers will open in high schools across the city next fall, and Chancellor Dennis Walcott said they would eventually expand to elementary and middle schools.

That’s exactly the kinds of hands-on exposure to real-world jobs that is lacking in thousands of school districts across the country. As the first editorial in our science and math seriesnoted on Sunday, only 19 percent of American high school students have taken a computer science course. Many students who might have excellent coding abilities are never exposed to the subject, missing out on promising career paths.

That’s often because teachers themselves have no idea how to write a computer program. Many educators who commented on the editorial said they wanted better preparation for the math and science courses they teach.

“I know firsthand that underprepared teachers is a HUGE issue,” wrote Beth Z., a math teacher in Alaska. “We have a ‘math’ teacher right now who majored in HISTORY. How do you get people who major in mathematics to go into teaching? The job is often thankless and quite stressful. Plus, other people are always telling you how to do your job.”

Including, obviously, editorial writers. But you don’t have to be a professional pontificator to know that teacher preparation is incredibly important. More than half of the 6.7 million high school students studying physical sciences are learning from teachers who didn’t major in those subjects, as the editorial noted. A lesser percentage are learning math from teachers who didn’t major in math, or who aren’t certified to teach it.

“Ideally, every child would be trained by someone knowledgeable in the field,” wrote Kris C., an educator from Middleton, Wis. “This should stretch down to elementary as well, as my son had some misleading and damaging experiences as deep math concepts were poorly or inaccurately explained.”

But some teachers pointed out that a major or a certification is no guarantee of excellence in the classroom. A.W., who is getting a post-graduate degree in elementary education in North Carolina, said that some of his fellow students are less than impressive. “Unfortunately, most of my cohort can hardly keep up with elementary mathematics,” he wrote. “I am shocked at the low intellectual capacity of my cohort. And these are graduate students. Most of them can hardly solve the problems, and most are reporting that they would rather teach lower grades than have to teach fractions, decimals, probability, and hands-on equations.”

And many commenters made the familiar arguments that only higher pay will attract better teachers, or that they are being driven away by the cult of the standardized test.

The dialogue, though, was stimulating and intelligent, and the special design of the comments section on this series allows readers to see responses to each section of the editorial, and to sort them by the background of the writers. Some of the most interesting comments, in fact, came from students, who are often the most knowledgeable about what it takes to get them interested. We invite you to spend time reading through the comments, and to add your own as the series continues for the next two weeks.

Brandi Johnson Awarded $280,000 After Her Boss Rob Carmona of STRIVE Used the N- Word

Federal jury rejects ‘N-word’ among blacks in workplace 

Brandi Johnson sued her boss, STRIVE East Harlem founder Rob Carmona, after he targeted her in a slur-laced tirade. A Manhattan jury awarded $280,000 to Johnson, who recorded her boss using the epithet.

Comments (201)

BY DAREH GREGORIAN / NEW YORK DAILY NEWS

PUBLISHED: TUESDAY, SEPTEMBER 3, 2013, 2:14 PM

UPDATED: TUESDAY, SEPTEMBER 3, 2013, 11:41 PM

Brandi Johnson

A Manhattan jury awarded $280,000 to a black woman who was repeatedly called the N-word by her boss — who’s also black, and claimed he used the vile epithet as an endearing term.

“My voice was heard today,” Brandi Johnson said Tuesday, after the eight-person federal jury awarded her $30,000 in punitive damages on top of the $250,000 it had already ordered STRIVE and its founder, Rob Carmona, to pay her in the discrimination case.

Carmona’s voice was also heard by the jury — on a damning tape recording Johnson had made of her boss chewing her out in March 2012.

In the tape, Carmona repeatedly uses the racial slur against the 38-year-old single mother of two and a co-worker.

RELATED: PAULA DEEN’S SEXUAL HARASSMENT, DISCRIMINATION LAWSUIT DISMISSED


“I’m not saying, using the term ‘n-----’ derogatory, ’cause sometimes it’s good to know when to act like a n-----. But y’all act like n-----s all the time,” Carmona said.

When Johnson told her boss she was offended by his language, he said, “You can be offended, but it’s true.”

“You and her act like n-----s. And n-----s let their feelings rule them,” he said.

Carmona didn’t dispute making the comments, but maintained that he was doling out “tough love.”

 RELATED: ESPN SACKS DOUGLAS AFTER THREATENING CO-HOST



Rob Carmona


He testified that he was trying to tell Johnson she was “too emotional,” wrapped up in “the negative aspects of human nature.”

Carmona, who is black and of Puerto Rican descent, said the word has “multiple contexts” in the black and Latino communities, and not all of them bad.

He said the word can sometimes be used to convey love, and used the example of someone saying, “This is my n----.”

“That means my boy, I love him, or whatever,” Carmona said. Asked if he meant to indicate love when he called Johnson the word, he said, “Yes, I did.”


RELATED: JONES CLAIMS GIANTS FAN TOSSED BANANA AT HIM

Rob Carmona leaving Federal court

Johnson didn’t take it that way. She testified that she cried in the bathroom for 45 minutes after the tirade.

“I was hurt. I felt degraded. I felt disrespected,” she said. “I was embarrassed.”

She said she was later fired from her management job for having complained about Carmona’s conduct.

She had worked there for two years.

 

RELATED: JUDGE THROWS OUT RACE DISCRIMINATION CLAIMS AGAINST PAULA DEEN

 

 


Carmona testified that he was trying to tell Johnson she was 'too emotional,' wrapped up in 'the negative aspects of human nature.'

 The jury awarded Johnson $250,000 in compensatory damages last week, and another $30,000 in punitive damages on Tuesday — $25,000 of which Carmona will have to pay out of his own pocket.

Johnson’s lawyer, Marjorie Sharpe, said jurors “took a stand and said the N-word has no place in the workplace.”

Carmona is the founder of STRIVE, an East Harlem nonprofit that finds work for people from troubled backgrounds.

It claims to have helped nearly 50,000 people find work since 1984.

 

RELATED: OPRAH WINFREY SPEAKS OUT ON PAULA DEEN'S N-WORD CONTROVERSY

He insisted he wasn’t trying to offend Johnson with his use of the word.

“I come from a different time,” he said, adding that the verdict showed him he has to “take stock” about how he communicates “with people I’m trying to help.”

Sharpe called it “the most offensive word in the English language.”

“People have tried to take the sting away from the word,” she said. “The reality is that can’t happen.”

The lawyer for STRIVE, Diane Krebs, said the group was “disappointed” by the verdict and reviewing its options, including a possible appeal.

With News Wire Services

Age Discrimination in the Schools: GRUBERG v. BD. OF ED. OF SEWANHAKA CENT. HIGH SCH.NO. CV 96-3042(ADS).

3 F.Supp.2d 280 (1998)

Lucille GRUBERG, Plaintiff,
v.
The BOARD OF EDUCATION OF THE SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, Defendant.

United States District Court, E.D. New York

April 27, 1998.

Rosen, Leff, Attorneys, Hempstead, NY, for Plaintiff by Robert M. Rosen, Delvis Melendez, of counsel.

Jaspan, Schlesinger, Silverman & Hoffman, L.L.P., Garden City, NY, for Defendant by Stanley A. Camhi, Carrie Preble, of counsel.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This matter arises from the claims of the plaintiff, Lucille Gruberg ("Gruberg" or "the plaintiff"), under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), and New York State Executive Law §§ 296 and 297. Presently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

I. BACKGROUND

At the time of the filing of the complaint, Gruberg was a seventy-three year old woman who had been employed by the defendant, the Board of Education of the Sewanhaka Central High School District (the "School District" or "the defendant"), as an English teacher in the Elmont Memorial High School ("High School") for more than twenty years, from September 1972 until June 1994. The plaintiff accurately characterizes her annual evaluations from the time she began her career through 1990 as "more than satisfactory" and often "exemplary." For example, her annual evaluation for the 1988-1989 school year included the following high praise:

Mrs. Lucille Gruberg is an experienced and knowledgeable teacher of English.... Mrs. Gruberg planned lessons that would not only cover the many facets of the English courses of study but would also stretch students' minds. For her English 12 and 12NR students, especially, Mrs. Gruberg continually searched for stimulating materials that would force these students to think about what they wanted out of life and how to respond to the challenges that life offered.Mrs. Gruberg is a caring teacher who tries to help students to reach their potential. She sets high standards for her classes and is completely in control of her students and her lesson. She respects her students, and they respect her.Mrs. Gruberg is always willing to try out new ideas and approaches to encourage her students to write with confidence and to write better.......Mrs. Gruberg is a responsible member of the English Department, performing her various duties effectively and conscientiously.This has been an excellent, productive year for Mrs. Gruberg.

(Plaintiff's Ex. B. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment) (emphasis added).

In 1989, the year after she received such glowing accolades, there was a change in administration at the school. Diane Scricca became the Principal of Elmont Memorial High School and Robert Walsh became the Chair of the English Department. That same year, the plaintiff's annual evaluations suddenly plummeted. While the previous year's evaluations commended Gruberg's classroom management skills, Walsh's October 1990 evaluation criticized the teacher, suggesting that she needed to me more of "a strong classroom leader, firmly in control of the entire class at all times." (Defendant's Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's evaluation of the plaintiff stated that "[s]everal times when questioning or helping a child, you so focused on that child that the remainder of the class was ignored and they became restless and went off task." He criticized her for such things as momentarily turning her back on the class to provide a tissue for a student, and for taking her eyes off the class when peering into the textbook for information, both of which purportedly lead to "lack of eye contact [which] causes problems." Despite these criticisms, Walsh concluded that Gruberg's lesson was "satisfactory" with the "aim of the lesson being accomplished." The plaintiff alleges that following her evaluation conference with Walsh, he told her that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse."

According to the plaintiff, things, indeed, got much worse for her. The teacher states that "at that point, Mr. Walsh and Ms. Scricca began to make my life impossible in order to force my retirement. I believe, without any doubt whatsoever, that they wanted me to retire because of my age." (Gruberg Aff., ¶ 11). Her evaluations went from glowing in 1989, the year before she began working for Scricca and Walsh, to "mixed," and finally, to "unsatisfactory." By the plaintiff's account, once Scricca and Walsh came into power, she could not obtain a satisfactory evaluation no matter how hard she tried or whatever she did. "My every move was watched, and every incident the administration thought was improper was documented, no matter how trivial. For example, I was reprimanded for not standing by the door before the bell rang, for allowing my students two minutes at the start of class to settle down, for letting students speak without raising their hands, and for not utilizing the chalk board correctly." (Gruberg Aff., ¶ 13). Her annual performance evaluation for the 1990-1991 school year, while overall satisfactory, noted a "weakness" in her classroom management. The plaintiff alleges that during the following school year, on February 28, 1992, Walsh approached her and said, "Why don't you retire while you still can with dignity?" At the end of the 1991-1992 school year, her annual evaluation was, for the first time in her career, rated "unsatisfactory." (Defendant's Exhibit L).

In June of 1992, as a consequence of the poor evaluation, Gruberg was placed under the Board of Education's Administration Regulation 4117.1 ["the Regulation"] for the next school year. A teacher placed on the Regulation is, in essence, on probation: a "remediation" plan is developed to address and improve those areas in which the teacher is deemed deficient, she is closely monitored by her supervisor, and more than the usual number of classroom observations are conducted to monitor her progress. The defendant explains that "if the remediation plan fails and the teacher's performance remains unsatisfactory, a decision has to be made as to what other action should be taken." If the teacher is not performing at a satisfactory level, one of the options is for the District to "charge" the teacher with incompetency under § 3020a of the New York Education Law, which provides that in order for a tenured teacher to be discharged for "incompetence," the teacher is entitled to notice of specific charges and hearing before a hearing officer. At such a hearing, the burden of proof is on the District to prove the charges, and the teacher is entitled to representation by counsel, to cross-examine witnesses, and to present witnesses in her own behalf. The hearing officer determines whether theteacher is "guilty" of the charges and what, if any, penalty should be imposed.

While still in the defendant's employ, the plaintiff filed age discrimination charges with the New York State Division of Human Rights. On August 4, 1992, following a hearing at which the defendant was represented by counsel and the plaintiff proceeded pro se, the State Division rendered a probable cause determination stating that the purported legitimate business reasons provided by the School District for her treatment were pre-textual, and that she was discriminated against based on her age.

When the plaintiff returned to work at the beginning of the 1992-1993 school year, she continued to teach under the remediation plan. However, in the plaintiff's words, from then on, Walsh and Scricca constantly "demoralized, belittled, intimidated and [eventually] coerced me into resigning. They did this by singling me out and subjecting me to a standard of review unequal [to] that of any other teacher similarly situated in the District. The[y] engaged in a deliberate and punitive course of conduct designed to force me to resign because of my age.... I worked under constant unwarranted criticism and the threats of an incompetency hearing. I was plagued with numerous requests to retire." (Gruberg Aff., ¶ 31). The plaintiff contends, the defendants "created working conditions for me that were so intolerable that I was forced to tender my resignation in April 1994, effective in June 1994." (Gruberg Aff., ¶ 29).

According to the plaintiff, the defendant's treatment of her was part of a broader discriminatory pattern and practice of ousting older teachers by placing them on the District's Administrative Regulation 4117.1, for purposes of eventually replacing them with younger teachers who are paid less. The plaintiff has named ten other teachers in the district who also were subjected to the Regulation, four of whom also resigned, allegedly as a consequence of being placed on the Regulation and being subjected to treatment similar to that described by Gruberg.

II. DISCUSSION

A. SUMMARY JUDGMENT: THE STANDARD

A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion.See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Vann v. City of New York, 72 F.3d 1040 (2d Cir.1995).

Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable.Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The District Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994).

Finally, the Court of Appeals has warned that trial courts must be especially cautious about granting summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue. See, e.g., Gallo, 22 F.3d at 1224. Since it is rare to find in an employer's records direct proof that a personnel decision was made for a discriminatory reason, whatever other relevant depositions, affidavits and materials are before the district court must be carefully scrutinized for circumstantial evidence that could support an inference of discrimination. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994).

It is within this framework that the Court addresses the grounds for the present motion for summary judgment.

B. ADEA: THE STANDARDS

The ADEA provides, in relevant part, that it is "unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). At trial, it is the plaintiff's burden to prove employment discrimination on the basis of age. Gallo, 22 F.3d at 1224. The Court notes that age discrimination claims brought under the New York State Human Rights Law, N.Y.Exec. Law §§ 290-301, are governed by the same standards as those brought under the ADEA. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir.1997); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1158 (2d Cir.1993).

A plaintiff asserting an age discrimination claim must meet an initial burden of presenting evidence sufficient to establish a prima facie case of the alleged violation of ADEA. St. Mary's Honor Center v. Hicks,509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir.1995). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut it through the introduction of evidence of non-discriminatory reasons that support a finding that unlawful discrimination was not the cause of the discharge. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2746-47; Cronin, 46 F.3d at 203. The plaintiff retains the "ultimate burden of persuasion" and the burden of proof to demonstrate that the challenged employment action was the result of intentional age discrimination. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749; Cronin, 46 F.3d at 203. Since, in this case, the plaintiff resigned, she also has the burden of proving a "constructive discharge."

A prima facie case of discharge resulting from age discrimination is established if the plaintiff shows, through direct or circumstantial evidence, that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. Cronin, 46 F.3d at 204. To defeat a defendant's motion for summary judgment, the plaintiff need only show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief; and (2) it is more likely than not that an unlawful basis of discharge was the true reason. Chertkova v. Connecticut General Life Insurance Co.,92 F.3d 81, 92 (2d Cir.1996).

The parties agree that the plaintiff was within the protected age group. Instead, the disputed issues in this case center on whether: (1) the plaintiff can establish that she was "discharged"; (2) the "discharge" occurred under circumstances giving rise to an inference of age discrimination; and (3) the defendant had legitimate, non-discriminatory reasons for the employment actions taken.

I. CONSTRUCTIVE DISCHARGE

The plaintiff contends that she has satisfied the "discharge" element of her employment discrimination claim by proffering evidence that she was "constructively discharged." Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. See Pena v. Brattleboro Retreat,702 F.2d 322, 325 (2d Cir.1983). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d at 1188 (quoting Israel Alicea Rosado v. Ramon Garcia Santiago, 562 F.2d 114, 119 [1st Cir.1977]).

In the Court's view, Gruberg has presented evidence sufficient to raise a material triable issue on the question of constructive discharge. The "plaintiff's proof allows the inference that she was treated arbitrarily and severely criticized despite her strongperformance. A fact finder could infer, from the facts set forth in the affidavits and deposition testimony, that plaintiff was among the most competent employees in the [school].... [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [an incompetency hearing and repeated demands that she retire], that she was compelled to leave.... Viewed as a whole, the facts in the case at hand, if proven, would permit a finder of fact to conclude that [Gruberg] was forced to resign." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d at 92.

The Court rejects the defendant's contention that the plaintiff's resignation does not constitute a "constructive discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In support of this argument, the defendant cites Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir.1993), where the Court of Appeals held that a constructive discharge could not be established "simply through evidence that an employee [is] dissatisfied with the nature of his assignments," that he "feels that the quality of his work has been unfairly criticized," or that "the employee's working conditions [are] difficult or unpleasant." In the Court's opinion, the defendant's reliance on Stetson is misguided. As the Second Circuit subsequently clarified in Chertkova v. Connecticut General Life Ins. Co., 92 F.3d at 92,

"While the Court recognizes that a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge. ... here there is more than a disagreement over quality. Plaintiff's evidence suggests her supervisor[s] engaged in a pattern of baseless criticisms, [repeatedly demanded her retirement, and threatened to bring her up on incompetency charges, a precursor to her discharge.] ... [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [a] termination [hearing], that she was compelled to leave."

The Court finds that there are myriad triable issues of material fact with respect to the issue of constructive discharge. Accordingly, the defendant's motion for summary judgment as to that issue is denied.

II. THE DEFENDANT'S ASSERTED REASONS FOR THEIR EMPLOYMENT DECISIONS

The Court also concludes that this case is replete with genuine issues of material fact with respect to the defendant's asserted reasons for their employment decisions, and whether it is more likely than not that the defendant was motivated by the plaintiff's age. The Court begins with the plaintiff's age, a robust seventy-three. Additionally, in the Court's opinion, the plaintiff has presented substantial circumstantial evidence that the defendant sought to oust her due to her age. Just one year before Walsh and Scricca assumed power, she received a stellar annual review which commended her superior classroom management, innovative teaching style, and inspiring lectures. One year later, the same teacher was criticized for poor classroom control, and purported inability to capture her students' attention. In addition to this circumstantial proof, the plaintiff has alleged that Walsh and Scricca made various statements evidencing their improper motivation — remarks such as that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse." Such classic, key statements are thinly veiled references to the plaintiff's age — or so a jury reasonably could find. While the defendant asserts that the reason for the sudden, drastic change in the plaintiff's evaluation was due to Walsh's practice of conducting unannounced evaluations, in contrast to his predecessor's preference to forewarn teachers of any observations, this merely underscores the presence of material issues of fact as to the reasons for the defendant's employment decisions.

In addition, the plaintiff has raised the specter of a discriminatory pattern and practice of forcing out older teachers by placing them on the District's Administrative Regulation 4117.1, only to replace them with younger teachers who, interestingly, command less salaries. In fact, the plaintiff has named ten other teachers within the district who also were subjected to such treatment, four of whom resigned while on the Regulation remediation plan. Moreover, the plaintiff states that she was replaced with a teacher approximately twenty to thirty years her junior who was entitled to a much lower salary than the plaintiff earned. This latter assertion also raises a classic factual issue in an age discrimination case.

In sum, the Court concludes that this case is loaded with genuine issues of material fact. For this reason, and in view of the Second Circuit's directive that the plaintiff's burden of establishing a prima facie case in a discrimination suit is "de minimis," Chambers, 43 F.3d at 37, the defendant's motion for summary judgment is denied in all respects.

III. CONCLUSION

For the reasons stated above, it is hereby

ORDERED, that the defendants' motion for summary judgment is denied.

SO ORDERED.

CAPITAL NEWSPAPERS v. WHALEN and Freedom of Information (FOIL)

CAPITAL NEWSPAPERS v. WHALEN
69 N.Y.2d 246 (1987)

In the Matter of Capital Newspapers, Division of the Hearst Corporation, Appellant,
v.
Thomas M. Whalen, III, as Mayor of the City of Albany, et al., Respondents.

Court of Appeals of the State of New York.
Argued January 13, 1987.
Decided February 19, 1987.

Peter L. Danziger, Thomas F. Gleason and Mary O. Donohue for appellant.

Vincent J. McArdle, Jr., Corporation Counsel (W. Dennis Duggan of counsel), for respondents.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA concur.

HANCOCK, JR., J.

We hold that under the Freedom of Information Law (FOIL) (Public Officers Law art 6) personal or unofficial documents which are intermingled with official government files and are being "kept" or "held" by a governmental entity are "records" maintained by an "agency" under Public Officers Law § 86 (3), (4). Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption.

The term "record" for purposes of FOIL is broadly defined and includes "any information kept, held, filed, produced or reproduced by, with or for an agency * * * in any physical form whatsoever" (Public Officers Law § 86 [4]).1 The definition of "agency" is equally inclusive, encompassing "any * * * public corporation * * * or other governmental entity" (Public Officers Law § 86 [3]).2

At issue in this appeal by petitioner's newspaper is whether two categories of documents in custody of respondent City of Albany should be held to be "records" under FOIL: correspondence of a former Mayor of Albany, the late Erastus Corning, II, concerning matters of a personal nature and correspondence concerning the activities of the Albany County Democratic Committee. The narrow question of statutory construction presented arises from respondents' contention that although these papers are literally within the FOIL definitions as "record[s]" being "kept" or "held" by an "agency" (the City of Albany), they are, nonetheless, outside of the scope of FOIL because of the private nature of their contents. For reasons to be discussed, we disagree with respondents' contention and conclude that there should be a reversal.

I

Erastus Corning, II, was the Mayor of Albany from 1942 until his death in 1983. During his tenure, Mayor Corning collected and stored more than 900,000 pages of documents (the Corning papers) at his office in City Hall. Included among the documents were letters and documents pertaining to Corning's personal affairs and to his activities as Albany County Democratic Committee Chairman.

Following Mayor Corning's death, some of his personal correspondence was turned over to his family. The rest of the documents were listed by title, given index numbers, packed in over 300 cartons and either stored "at Albany City Hall or transferred to the City and County Hall of Records". On August 27, 1984, a reporter for petitioner's Albany evening newspaper, The Knickerbocker News, was granted access to the Corning papers by respondent Thomas M. Whalen, III, Corning's successor as Mayor of Albany. The reporter copied several documents which became the subject of news stories and in some cases appeared verbatim in The Knickerbocker News. Subsequently, respondents advised petitioner that further access would be denied until they had reviewed the Corning papers and removed the personal documents — which, in their opinion; were not covered by FOIL — and such other documents as were within one of FOIL's specific exemptions. Respondents stated that access to Corning's personal letters and to correspondence relating to his Albany County DemocraticCommittee activities was being denied, not because of any claimed FOIL exemption but solely because those documents were not written or received by Corning in his capacity as Mayor. Access to the remaining Corning papers, respondents advised, would be allowed once the sorting process was completed and the personal letters and the Albany County Democratic Committee papers removed.

After the city's FOIL Appeals Officer denied petitioner's appeal of respondents' partial refusal of access (see, Public Officers Law § 89 [4] [a]), petitioner sought an advisory opinion from the State Committee on Open Government (see, Public Officers Law § 89 [1] [b] [ii]). The Committee's opinion in reply was that all of the Corning papers, unless specifically exempt, were accessible under FOIL because the papers were within FOIL's expansive definition of "record" and were "kept" by the city, an "agency" as defined in the statute.

In this proceeding to obtain its statutory remedy of court-ordered access (Public Officers Law § 89 [4] [b]), commenced by petitioner after receipt of the advisory opinion, it alleges that the Corning papers were "received, prepared, copied or stored * * * by employees of the City or County of Albany", that the "services, materials, equipment and personnel used in receiving, preparing, copying and storing the Corning papers were paid for or provided by the City or County of Albany", and that the papers are currently being stored at Albany City Hall or at the City or County Hall of Records. Petitioner subsequently amended its request for access by limiting it to documents "assembled" from January 1, 1980 until June 1, 1983. Special Term (126 Misc.2d 710, 713) granted petitioner's amended request but provided that respondents could "articulate particularized and specific justifications for withholding" specific documents under FOIL's enumerated exemptions (Public Officers Law § 87 [2]); any records claimed by respondents to be exempt were ordered to be furnished to the court for its in camera inspection.

On appeal to the Appellate Division, that court unanimously modified by striking the requirement of disclosure for papers of a personal nature and those relating to the Albany County Democratic Committee and it remitted the matter to Special Term for further proceedings. The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government and that disclosure of private papers of a public officeholder would not further the purpose of FOIL. Moreover, because the paperswere originally "kept" by Corning in his individual capacity, the court reasoned that they were not being "kept" by an "agency" for purpose of the FOIL request, even though the papers had, in the interim, come under the city's custody. The appeal comes before us on a certified question: whether the Appellate Division erred as a matter of law, in modifying Special Term's judgment with respect to the disclosure of the papers relating solely to Mayor Corning's personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee.3 The question should be answered in the affirmative, the order of the Appellate Division reversed, and that of Special Term reinstated.

II

It is fundamental that in interpreting a statute, a court should look first to the particular words in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 N.Y.2d 8, 15-17; McKinney's Cons Laws of NY, Book 1, Statutes § 94, p 232). Here, if the terms "record" and "agency" are given their natural and obvious meanings, the Corning papers would fall within such definitions. The term "record" is defined as "any information kept [or] held * * * by, with or for an agency * * * in any physical form whatsoever" (Public Officers Law § 86 [4]). Unquestionably the Corning papers constitute "information * * * in [some] physical form" stored, "kept [or] held" by the city, a "governmental entity" and, as such, an "agency" for purposes of FOIL (see, Public Officers Law § 86 [3]).4

Although the Corning papers thus come within the definition of "record", respondents maintain that they should, nevertheless, not be held to be within the scope of FOIL. They argue that the Legislature intended that only records dealing with the governmental decision-making process should be subject to disclosure under FOIL not papers outside this category such as private papers of governmental employees. It is quite true, as respondents urge, that we are not bound to accord a literal interpretation to a statutory definition if to do so would lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted (see, Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38), and that in the interpretation of statutes the "legislative intent is the great and controlling principle" (People v Ryan, 274 N.Y. 149, 152). Here, however, we find nothing to suggest that the Legislature intended that the definitions of "record" and "agency" should be given anything other than their natural and obvious meanings. On the contrary, respondents' narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.

It is settled that FOIL is based on the overriding policy consideration that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" (Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: "that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article." (Public Officers Law § 84.) We have held, therefore, that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 N.Y.2d 557, 564, citingMatter of Fink v Lefkowitz, supra, at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL.

Nevertheless, respondents seek to read into the definitions of "record" and "agency" a requirement that, for documentsto be within FOIL's scope, their subject matter must evince some governmental purpose. There is, however, no language in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record". On the contrary, we held in Matter of Westchester Rockland Newspapers v Kimball (50 N.Y.2d 575, 581) that FOIL's scope is not to be limited based on "the purpose for which the document was produced or the function to which it relates". Such a limitation would be difficult to define, we explained, because of "the expanding boundaries of governmental activity" and because "in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

Moreover, respondents' construction — permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL — would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law § 87 [2]; § 89 [2], [3]). Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law § 89 (3) to prevent an unwarranted invasion of privacy (see, Public Officers Law § 89 [2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law § 87 [2]). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law § 89 (4) (a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law § 89 [4] [b]).5 Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus, respondents' construction would render much of the statutory exemptionand review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions (see, McKinney's Cons Laws of NY, Book 1, Statutes § 98).

Finally, as a practical matter, the procedure permitting an unreviewable prescreening of documents — which respondents urge us to engraft on the statute — could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it "purely private". Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected (McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the question certified answered in the affirmative and the judgment of the Supreme Court reinstated.

Order reversed, etc.

FOOTNOTES
1. "Record" is defined as follows: "any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes" (Public Officers Law § 86 [4]).

2. "Agency" is defined as follows: "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law § 86 [3]).
3. The certified question is: "Did this court err, as a matter of law, in modifying Special Term's judgment by reversing so much thereof as required disclosure of the papers of the late Erastus Corning, II, for the years 1980-1983 relating solely to his personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee, remitting the matter to Special Term for further proceedings, and, as so modified, affirming the judgment?"

4. Respondents argue that the Corning papers are not "record[s]" because the papers were kept by ex-Mayor Corning in his individual capacity, not as an officeholder, and, therefore, an "agency" did not keep or hold the documents. Petitioner did not, however, request disclosure of the Corning papers while they were being "kept [or] held" by Corning. Rather, disclosure is sought from the City of Albany, which now has custody of the papers and is storing them. Therefore, the only questions properly before us are whether the City of Albany is an "agency" and whether the Corning papers are "record[s]" for purposes of FOIL.

5. FOIL also allows a party to receive an advisory opinion from the Committee on Open Government (see, Public Officers Law § 89 [1] [b]).

a. General or specific?

The statutory exemptions are specific in nature. N.Y. Pub. Off. Law § 87(2) (McKinney 1988). "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government," Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) ("[t]he agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access"); Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993); Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (1984); Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979); Muniz v. Roth, 163 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (holding that merely asserting the exemption without particularity is insufficient); In Re W. Harlem Bus., 13 N.Y.3d 882, 921 N.E.2d 592, 893 N.Y.S.2d 825 (2010) (Empire State Business Corporation failed to meet its burden of sufficiently identifying a particular exemption when it submitted documents for in camera review because it failed to specify which documents fell under the inter/intra-agency exemption); In Re Carnevale, 68 A.D.3d 1290, 891 N.Y.S.2d 495 (3d Dep’t 2009) (holding that respondents categorical assumption that all law enforcement investigations will be harmed if witnesses names are available through a FOIL request failed to establish that witnesses statements to police fell under any particular exemption).

The FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records. Xerox v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985) (denying access to intra-agency records under FOIL exemption notwithstanding general principles for access to public records under § 51 of General Municipal Law).

Once it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992); Bellamy v. New York City Police Dept., 59 A.D.3d 353, 874 N.Y.S.2d 60 (1st Dep’t 2009) (holding that while age of requested record is a factor in determining an exemption, age alone is not a sufficient basis to find an exemption inapplicable).

Waiver or loss of exemption. Public disclosure of records may waive the cloak of confidentiality. McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Moore v. Santucci, 151 A.D.2d 676, 543 N.Y.S.2d 103, (2d Dep't 1989) (investigative statements lose cloak of confidentiality once the statements have been used in open court); Gerbe v. Franklin Hospital Medical Center, N.Y.L.J., Sept. 6, 1991 (Sup. Ct., Nassau County, 1991) (granting access to investigation file where no promise of confidentiality and agency allowed counsel access to file). Improper or inadvertent disclosure may not waive confidentiality, Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep't 1991) (unauthorized disclosure of a record does not operate as a waiver of the FOIL exemptions); New York 1 News v. President of the Borough of Staten Island, 631 N.Y.S.2d 479 (Supreme Court Kings County 1995) (FOIL exemption may be waived by voluntary disclosure of a significant part of the privileged communications or, alternatively, if a release creates even an unintended impression of the existence of underlying material); McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Miller v. New York State Dept. of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (inadvertent disclosure does not waive exemption).

Identifying the exemption. A governmental body seeking an exemption from the disclosure requirements of FOIL has the burden of proving that a record falls "squarely within the ambit of one of [the] statutory exemptions." Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (quoting Fink v. Lefkowitz, 47 N.Y.2d 567, 571). N.Y. Pub. Off. Law. § 89(4)(b) (McKinney 1988). See Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Washington Post v. Insurance Dep't, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984); Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979). See also Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739, (2d Dep't 1990) (agency failed to identify with specificity those portions of records claimed to be exempt); Burton v. Slade, 166 A.D.2d 352, 561 N.Y.S.2d 637 (1st Dep't 1990) (abuse of discretion for agency to deny access without reviewing documents and stating with particularity reasons for denial).

Conclusory allegations are insufficient to meet the agency's burden of proof. Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep't 1989); Mooney v. State Police, 117 A.D.2d 445, 502 N.Y.S.2d 828 (3d Dep't 1986); Hopkins v. City of Buffalo, 107 A.D.2d 1028, 486 N.Y.S.2d 514 (4th Dep't 1985)

- See more at: http://www.rcfp.org/new-york-open-government-guide/ii-exemptions-and-other-legal-limitations/exemptions-open-records-s-1#sthash.0ZkJds25.dpuf