# Petition — Patrolmen's Benevolent Ass'n of New York v. DeMilia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 959

## Text

83-1473 f

NO. MAR 6 84
AMNUER STEVAS,
RN :

Supreme Court of the United States

Ocroszr Tzrm, 1983

PATROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK, INCORPORATED,
AND PHIL CARUSO, PRESIDENT OF THE PA-
TROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK,

Petitioners,

against

YORK
LSSSSS— —_ ________

Ricuarp HAAR
Cownsel for Petitioners .
252-00 Horace Harding Expressway 1
Little Neck, New York 11362 4
(212) 423-1800

—

Question Presented

Whether the Respondent should have access to Peti-
tioner Corporation’s membership list, purportedly pursu-
ant to New York State statute (Not-for-Profit Corpora-
tion Law 6621), where said membership list consists of
r Cae ce
ing legitimate rights of privacy and

guaranteed by the United States — “heas Be.
spondent has no legitimate reason for obtaining said mem-
bership list.

cp NE ty NT CVn oe Bn gan See ee nm
. * 9
4

Orrstox BLOW.
JURISDICTION

Sraruronr Provision Ixvotvep ,
SraTeMENT or THE CasE
Reasons ror GRANTING THE WRIT:

Point I—Respondent should not have access to

Petitioner Corporation’s membership list, pur-

3 portedly pursuant to New York State statute
(Not-For-Profit Corporation Law 6621), where

said membership list consists of names and ad-

dresses of New York City Police Officers, hav-

ing legitimate rights of privacy and confiden-

tiality as guaranteed by the United States Con-

tution, where Respondent has no legitimate

reason for obtaining said membership list
J Conxciusion

7 _ APPENDIX:
A—Order of the Supreme Court of the State of
New York, County of New York

B—Memorandum Decision (Ascione, J.) of the
Supreme Court of the State of New York,
County of New York

C—Order of the Supreme Court of the State of
New York Appellate Division—First De-
partment

D—Order of the Court of Appeals of the State of
New York Denying Motion for Leave to Ap-
peal to the Court of Appeals

E—Decision of the Court of Appeals of the State
of New York Denying Motion for Reargu-
ment of the Motion for Leave to Appeal to
the Court of Appeals

10a

TABLE OF AUTHORITIES

PAGE
Table of Authorities
Cases Cited
Crane Company v. Anaconda Company, 39 NY2d 14
(1976) . 5
Matter of DePaula v. Memory Gardens, Inc., 90 AD2d
886 (3d Dept., 1982) 5
United States Cor titution Cited
Amendment 1 7
Amendment 4 7
Amendment 9
Statutes Cited
Not-for-Profit Corporation Law:
Sec. 621 i, 3,5
Sec. 621(b) 2,7
28 U.S. C.:

Sec. 1257 (3) , 2

S

oe

*
10)

NO.

Supreme Court of the United States

Ocroszr Tzrm, 1983

tin
>

PATROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK, INCORPORATED,
AND PHIL CARUSO, PRESIDENT OF THE PA-
TROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK,

Petitioners,
against

SAMUEL DeMILIA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Patrolmen’s Benevolent Association of The
City of New York, Incorporated and Phil Caruso, Presi-
dent of the Patrolmen’s Benevolent Association of the City
of New York pray for a writ of certiorari to review orders
of the Court of Appeals of the State of New York, entered
in these proceedings on December 20, 1983 and February
28, 1984, which denied a motion for leave to appeal to said
Court of Appeals, of an Order of the Supreme Court of

at

2 * rr

the State of New York, Appellate Division, First Judicial
Department entered in these proceedings November 1, 1983
and which affirmed a judgment of the Supreme Court of
the State of New York, County of New York, which granted
Respondents access to Petitioner Corporation’s member-
ship list of names and addresses of present and retired
members.

Opinion Below

The opinion of the Supreme Court of the State of New
York, County of New York, granting Respondent’s applica-
tion to have access to the membership list of the Petitioner
Corporation the Order of the District Court, appears at
page 5a to 7a of the attached appendix (1983). The
opinion has not been officially reported.

Jurisdiction

The final orders of the Court of Appeals of the State
of New York were entered on December 20, 1983 and Feb-
ruary 28, 1984.

The jurisdiction of this Court is invoked under 28 U.S.C.
§1257(3). This Court has jurisdiction of the controversy
because it involves a. . title, right, privilege or immunity

. specially set up or claimed under the Constitution,
treaties, statutes of, or commission held or authority exer-
cised under the United States.” 28 U.S.C. §1257(3).

Statutory Provision Involved

Section 621(b) of the Not-for-Profit Corporation Law
of the State of New York provides

3

“Any person who shall have been a member of rec-
ord of a corporation for at least six months imme-
diately preceding his demand, or any person hold-
ing, or thereunto authorized in writing by the holders
of, at least five percent of any class of the outstand-
ing capital certificates, upon at least five days writ-
ten demand shall have the right to examine in person
or by agent or attorney, during usual business
hours, its minutes of the proceedings of its members
and list or record of members and to make extracts
therefrom.”

Statement of the Case

Petitioner Patrolmen’s Benevolent Association of the
City of New York, Inc. is incorporated as a private, Not-
for-Profit corporation under the laws of the State of New
York. Petitioner Phil Caruso is President of the Patrol-
men’s Benevolent Association of the City of New York.
Respondent, Samuel DeMilia, is a retired member of the
aforesaid Corporation.

Respondent initiated an action, through an Order to
Show Cause, to compel Petitioners to provide him with
access to a list of the names and addresses of the mem-
bers of Petitioner Corporation. This action was based
upon §621 of the Not-for-Profit Corporation Law of the
Laws of New York. Respondent relied upon his status
with the Petitioner Corporation, as a retired member, to
justify receipt of said membership list.

In a memorandum decision dated May 27, 1983, Su-
preme Court of the State of New York, New York County
(Hon. Alfred M. Ascione, J.) granted Respondent’s mo-
tion and an Order was issued, dated July 26, 1983 (See
Appendix A) compelling the Appellants to:

4

“(A)llow plaintiff to make a computer disk copy of
the names and addresses of all members of the Pa-
trolmen’s Benevolent Association of the City of New
York at plaintiff’s sole cost and expense.” (See Ap-
pendix B).

Petitioners appealed the decision to the Supreme Court
of the State of New York, Appellate Division, First Judi-
cial Department. After the filing of briefs and hearing
of oral argument, the Appellate Division unanimously af-
firmed the lower Court, without rendering an opinion.
(See Appendix C).

A motion for leave to appeal to the Court of Appeals of
the State of New York, was duly made by Petitioners, The
Court of Appeals denied the Motion on December 20, 1983.
The Order denying the Motion, and the Notice of Entry
thereof were served upon Counsel for Petitioners on Jan-

uary 11, 1984. (See Appendix D).

Petitioners then made a motion to the Court of Appeals
of the State of New York for reargument of the aforesaid
denial of the motion for leave to appeal to said Court.
The Court of Appeals denied the motion on February 28,
1984. (See Appendix E).

The instant petition for a writ of certiorari ensued.

5

REASONS FOR GRANTING THE WRIT
POINT I

Respondent should not have access to Petitioner
Corporation’s membership list, purportedly pursuant
232 ee r
Law $621), where said membership list consists of
names and addresses of New York City Police Officers,
having legitimate rights of privacy and confidentiality
as guaranteed by the United States Constitution, where
Respondent has no legitimate reason for obtaining said
membership list.

A member’s right of inspection under both common law
and New York State Not-For-Profit Corporation Law 5621
(b) is not absolute. A member desiring to inspect and copy
a membership list from a corporation must make the
application in good faith and for a proper purpose. Matter
of DePaula v. Memory Gardens, Inc., 90 AD2d 886 (3d
Dept., 1982).

Once a member has established that he has such a legiti-
mate purpose and has acted in good faith, the corporation
in question must either provide the member with the list
or establish that the member seeks the list in bad faith
or an improper purpose. See Crane Company v. Anaconda
Company, 39 NY2d 14 (1976).

It is conceded that Plaintiff-Respondent is a retired
police officer and that he is a retired member of the De-
fendant-Appellant Corporation. However, it is submitted
that the Record adduced in the proceedings below fails
to establish that Plaintiff-Respondent made his application
either in good faith or for a proper purpose. Therefore,
without further analysis, it would appear that in order

a rns ‘ 2
8 rr 4 4 ee” Mae

to receive the sought after membership list, Plaintiff-
Respondent must make more of a showing than he has
done up to date. The fact that Plaintiff-Respondent has
made no showing as to the purpose for which he wishes
to employ the membership list, and indeed, he has made
absolutely no good faith assertions in connection with his
quest, Defendants-Appellants were justified in denying his
request.

It is submitted that Petitioners herein, both corporate
and the corporate president, have a duty to ensure that
the membership list of their corporation does not fall into
the wrong hands.

This is all the more of significance when one considers
the nature of the membership of Defendant-Appellant
Corporation. Indeed, the issue does not involve the mem-
bership of a milkman’s association or an auto mechanic’s
union. It involves a benevolent association of New York
City Police Officers. It is beyond dispute and states the

in the course of their duties, work in an undercover capa-
city, where their identities are necessarily secret. Many
other police officers, in the course of carrying out of their

fore, it is clear that the identities and residences of police
officers must remain confidential, absent a substantial show-
ing, not present here.

7

It is submitted that when the Courts of the State of New
York, pursuant to the cited State statute, ordered Petitioner
Corporation to turn over to Respondent, their membership
list, certain rights of the membership of the Corporation,
guaranteed by the United States Constitution were affected.
These rights involve legitimate concerns of privacy, con-
fidentiality and freedom from hostile action by criminal
elements of society, who would seek reprisals against the
membership of the Petitioner Corporation, who are or were
actively involved in law enforcement activities. Surely,
Amendments 1, 4 and 9 to the United States Constitution
protect the Petitioner Corporation and its membership
from improper intrusion, such as that, which in effect, was
ordered, albeit unwittingly, by the orders of the Courts of
the State of New York.

It is requested that this Court intervene and act to shield
Petitioner Corporation and its membership from this seri-
ous threat to Constitution rights.

In passing, the Court should be made aware that both
Houses of the Legislature of the State of New York have
passed a bill to amend the said section §621(b) of the State
Not-for-Profit Corporation Law. The intent of the Legis-
lature, in so amending the statute, reflects a concern of
said body, lest the improvident judicial construction of
the statute by the New York Courts, in allowing the po-
tentially unchecked distribution of the names and addresses
of New York City Police Officers, result in tragedy. The
bill is presently awaiting the signature of the Governor
of the State of New York.

9 9
f

Little Neck, New York 11362
(212) 423-1800

Certificate

Richard Hartman hereby certifies that he is a member
of the bar of the Supreme Court of the United States
and states that three copies of the Petition for a Writ of
Certiorari to the Court of Appeals of the State of New
York were mailed by postpaid First Class Mail to the
following:

Peter J. Maloney
Counsel for Respondent

2248 Broadway
New York, New York 10024

by depositing same in a United States Post Office at
90 Church Street, New York 10007

with first class postage prepaid and that forty copies were
deposited in a United States Post Office at 90 Church
Street, New York, New York 10007 with first class postage
prepaid and properly addressed to The Clerk of the
Supreme Court of the United States, Supreme Court
Building, One First Street, N.E. Washington, D.C. 20543,

Sworn to before me
this 5th day of
March, 1984

Rot AnDο W. Jonson

Notary Public, State of New York
No. 4502705
Qualified in Deleware County
Commission Expires March 30, 1985

APPENDIX A

Order of the Supreme Court of the State of New York,
County of New York

At a Special Term, Part I of the
Supreme Court of the State of New
York, held in and for the County
of New York, at the Courthouse
thereof, 60 Centre Street, New
York, New York on the 20 day of

July, 1983
Present:
Hon. Alfred M. Ascione
Justice

| SAMUEL DeMILIA,
Plaintiff,

PATROLMEN’S BENEVOLENT ASSOCIATION OF
: THE CITY OF NEW YORK, INCORPORATED, and
N PHIL CARUSO, as President of the Patrolmen’s Ben-
q evolent Association of the City of New York,

4 Defendant.
Index No. 24852/82

—

Oa
N
b

2a
Appendia A

Upon reading and filing the order to show cause signed
by the Honorable Thomas J. Hughes, Supreme Court of
the State of New York, on the 3rd day of May, 1983, the
affidavit of Samuel DeMilia, sworn to on the 3rd day of
May, 1983, and the exhibits annexed thereto, the affidavit
of Phil Carusa, sworn to on the 12th day of May, 1983,
and the exhibits annexed thereto, the affidavit of Samuel
DeMilia, swort o on the 17th day of May, 1983, and the
exhibits annexed thereto, and the decision of the Honorable
Alfred M. Ascione dated the 27th day of May, 1983, it is
hereby

ORDERED, that defendant, Patrolmen’s Benevolent As-
sociation of the City of New York, Inc. allow plaintiff to
make a computer disk copy of the names and addresses
of all members of the Patrolmen’s Benevolent Association
of the City of New York at plaintiffs sole cost and expense.

ENTER:
AMA

(Filed: July 26, 1983, County Clerk’s Office New York)

4

APPENDIX B

Memorandum Decision (Ascione, J.) of the Supreme
Court of the State of New York, County of New York

SUPREME COURT OF THE STATE OF NEW YORK
Special Term Part I, New York County
at the Courthouse thereof, 60 Centre Street, New York,
New York, 10007.
Present :

Hon. Alfred M. Ascione
Justice |

‘ |

— —

SAMUEL DeMILIA,
Plaintiff,

—against—

PATROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK, INCORPORATED, and
PHIL CARUSO, as President of the Patrolmen’s Ben-
evolent Association of the City of New York,

Defendant.

+

The following papers numbered 1 to 6 read on this
motion submitted.
: No. 146 on Calendar of May 18, 1983.

+4
Appendiæ B
Papers Numbered
Plaintiffs’ Order to Show Cause and Affidavits

Annexed 1&2
Defendant’s Answering Affidavit in Opposition 4
Plaintiffs’ Replying Affidavit in Support 5 & 6
Affidavit of Service 3

Upon the foregoing this motion is decided in accordance
with accompanying memorandum decision.

A.M.A
JS.C.

Dated May 27, 1983
Briefs: Plaintiff’s X, Defendant’s X.

County Clerk’s No. 24852 1982
Spee I D62, 9 1988

: 5a
Appendiz B
SUPREME COURT : NEW YORK COUNTY
Special Term, Part I

i
_

SAMUEL DeMILIA,
Plaintiff,

—against—

PATROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK, INCORPORATED, and
PHIL CARUSO, as President of the Patrolmen’s Ben-
evolent Association of the City of New York,

Defendant.

MEMO
Index No. 24852/82
# 146 of 5/18/83

ALFRED M. ASCIONE, J.:

Motion for an order permitting plaintiff to inspect the
membership list of the defendant corporation is granted.

Section 621 (b) of the Not-for-Profit Corporation Law
provides in pertinent part:

Ls

6a
Appendia B

Any person who shall have been a member of record
of a corporation for at least six months immediately
preceding his demand .. . upon at least five days
written demand shall have the right to examine
[the] record of members and to make extracts there-
from.

It is undisputed that plaintiff is a lifetime member of
the corporation; that he held such membership for the
six months immediately preceding his demand to inspect
the membership list; and that his request has been refused
by defendants. Defendants justify their refusal on the
grounds that plaintiff is not a qualified candidate for elec-
tive office and cannot have a legitimate fieed for the list;
that as a retired member of the PBA he has only a mini-
mal interest in the corporation; and that there is a strong
public policy against publication of the names and ad-
dresses of police officers. None of these grounds provides
a reasonable basis for defendants’ refusal, however.

Article 3, Section 5 of the Constitution and By-laws of
the Patrolmen’s Benevolent Association provides that mem-
bers such as plaintiff are entitlled to all the rights and
benefits of active members. Thus, plaintiff is entitled to
make an application under section 621 of the NPCL.

Moreover, the status of plaintiff’s candidacy is irrelevant
to the present application. As a member of the associa-
tion, subject to its policies and decisions regarding bene-
fits, representation, and other emoluments of membership,
plaintiff has the right to express his opinions and commu-
nicate his views concerning the administration of the or-
ganization to other members. This right is not necessar-
ily contingent on his actively seeking elective office in the
association. In this regard, the court also notes paren-

7a
Appendiæ B

‘ thetically that plaintiff has challenged defendants’ refusal
‘ to recognize his candidacy and that he commenced the in-
stant action, inter alia in an effort to annul that decision.
Nor, as conceded by plaintiffs, does the publie policy of

this state require that plaintiff be denied access to the
membership list so long as he has standing to apply un- |

der the statute and has a legitimate reason for release ;

7
3 1
r ee

of the information.
Dated: May 27, 1983
A.M.A
J. S. C.

8a

APPENDIX C
Order of the Supreme Court of the State of New York
| Appellate Division—First Department
(Filed—November 1, 1983)

ORDER OF AFFIRMANCE BY THE APPELLATE

DIVISION FIRST DEPARTMENT held in and for the
First Judicial Department in the County of New York, on

November 1, 1983.
Hon. Leonard H. Sandler, Justice Presiding
Joseph P. Sullivan :
David Ross
Sidney H. Asch
Fritz W. Alexander, II, Justices.
17819
SAMUEL DeMILAA,
Plaintiff-Respondent,
—against—

PATROLMEN’S BENEVOLENT ASSOCIATION OF :
THE CITY OF NEW YORK, INCORPORATED, and
PHIL CARUSO, as President of the Patrolmen’s Ben-
evolent Association of the City of New York,

Defendants-A ppellants.

|
7

9a
Appendiz C
An appeal having been taken to this Court by the de-
fendants-appellants from an order of the Supreme Court,
New York County (Alfred Ascione, J.), entered on July
26, 1983, which granted plaintiff’s motion to permit plain-
tiff to inspect and make a computer disc copy of names

and addresses of the membership list of the defendant
Policemen’s Benevolent Association,

And said appeal having been argued by John Maguire
of counsel for appellants, and by Peter J. Maloney of coun-
sel for respondent; and due deliberation having been had

thereon,

It is unanimously ordered that the order so appealed
from be and the same is hereby affirmed, without costs and
without disbursements.

ENTER:

Fnaxcm X. Gap
Deputy Clerk.

10a

APPENDIX D

Order of the Court of Appeals of the State of New York
Denying Motion for Leave to Appeal to the
Court of Appeals

STATE OF NEW YORK,
COURT OF APPEALS

At a session of the Court, held at
Court of Appeals Hall in the
City of Albany on the twentieth
day of December A. D. 1983

Present,

Hon. Lawrence H. Cooke,
Chief Judge, presiding.

#1 Mo. No. 1201

in
—_

In THe Matrer or THE APPLICATION
of

SAMUEL DzMILIA,
Respondent,

PATROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK, INCORPORATED, ET

AL,
Appellants,

4

:

vy >

¥

1
a

lla
Appendiz D
A motion for leave to appeal to the Court of Appeals in
the above cause having been heretofore made upon the

part of the appellants herein and papers having been sub-
mitted thereon and due deliberation thereupon had, it is

ORDERED, that the said motion be and the same here-
by is denied with twenty dollars costs and necessary re-
production disbursements.

Donato M. Sn
Clerk of the Court

In THE MatTer or THE APPLICATION
of

SAMUEL DeMILIA,
Respondent,

PATROLMEN’S BENEVOLENT ASSOCIATION OF
THE CITY OF NEW YORK, INCORPORATED, ET

AL.,
Appellants.

*

Motion for reargument of motion for leave to appeal
denied with twenty dollars costs and necessary reproduc-
tion disbursements.

Decision Court of Appeals February 28, 1984.

---

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