Matter of Gomez v. Fischer

APPELLATE DIVISION
THIRD DEPARTMENT
Criminal Practice

New York Law Journal

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Per Curiam

Gomez, an inmate, appealed from an order denying him leave to serve a supplemental petition, and from a judgment dismissing his application to review the commissioner's determination finding him guilty of violating a prison disciplinary rule. Gomez was charged with violating a rule prohibiting possession of a weapon after a sharp, folded piece of metal was found during a search of his cell. He was found guilty after a hearing, and the decision was affirmed after an appeal. Gomez filed requests under the Freedom of Information Law that were partly denied as exempt from disclosure, and he challenged the determinations. He sought to append additional documents to his petition after issue was joined, and the lower court refused consideration of them. The panel found, contrary to Gomez's contention, leave of court was required to supplement a pleading absent a stipulation of all parties. Gomez failed to obtain leave, and also failed to explain why he did not include the documents initially. Thus, the lower court did not abuse its discretion in refusing to consider them. The panel also noted that while it agreed respondent properly redacted an unusual incident report, it concluded remittal was required to deal with "other aspects" of Gomez's requests.

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