78 v. New York City Department of Correction, Respondent. (2026)

"NOTICE OF CROSS-MOTION TO DISMISS AND OBJECTIONS IN POINT OF LAW" (NYSCEF Doc 51), by Assistant Corporation Counsel Belina Anderson, Esq., and Laura Ahern, Esq., for an order pursuant to New York Civil Practice Law and Rules 3211(a)(2), (7) and 7804(f) that shall (1) dismiss the Petition on the grounds that: (a) the Court lacks subject matter jurisdiction with respect to certain causes of action and (b) the Petition fails to state a cause of action because mandamus to enjoin DOC does not lie; and [(2)] [p]ursuant to CPLR § 7804(f), if the Court does not dismissed [sic] the proceeding in its entirety, permitting DOC to serve and file an answer sixty (60) days after service of the order of denial with notice of entry;" is GRANTED as set forth below, upon this Court's determination, in sum, that i) petitioners' first, second, third, and fourth causes of action are dismissed, pursuant to CPLR 3211(a)(2), for failure to establish subject matter jurisdiction over the claims asserted therein; and that ii) petitioners' fifth, sixth, seventh, and eighth causes of action are dismissed, pursuant to CPLR 3211(a)(7), for failure to state claims upon which relief might be granted.

I. The Petition

The following is a summation of the facts pled in the instant petition. The petitioners allege that the respondent, New York City Department of Corrections ("DOC") engages in unconstitutional mass surveillance of privileged attorney-client telephone communications between inmates and their legal counsels, and that such surveillance also improperly infringes on the privacy rights of New Yorkers whose sensitive personal and identifying information is indiscriminately collected and databased whenever they make telephone contact with individuals in DOC custody. The pleadings, brought in part by three formerly incarcerated individuals, Marcus Reid, Eric Leon, and Tyrell Scott, seeking to represent a class of similarly situated persons, and which aggregate the accounts of numerous defense counsels affiliated with public defender agencies throughout New York City, including Brooklyn Defender Services ("BDS"), The Bronx Defenders ("BXD"), New York County Defender Services ("NYD"), Neighborhood Defender Service of Harlem ("NDS"), and the Legal Aid Society ("LAS"), assert that DOC and Securus have failed to implement safeguards to prevent protected legal communications from unlawful intrusion and surveillance by city law enforcement personnel. Additional petitioners Lillian Nelson and Samiyah De Freitas, who also seek certification as a class representing those similarly situated, are the relatives of formerly incarcerated individuals, and allege that their biometric information has been improperly collected without due process. At the heart of this controversy is DOC's contract with Securus Technologies ("Securus"), a private vendor who provides communications and monitoring services to corrections departments throughout the nation.

Petitioners assert that, effective June 16, 2008, the Board of Corrections ("BOC") amended their Minimum Standards to permit the agency to record all telephonic communications by persons in DOC custody, while abnegating any obligation to show a reasonable suspicion regarding the contents of such calls. Notwithstanding, DOC policy and both 40 R.C.NY §§ 1-08(c)(5) and 1-10(h), forbid the monitoring of privileged calls between incarcerated persons and their attorneys, and an "Operations Order" dated March 9, 2009, directed DOC to maintain a Do Not Record ("DNR") list whereby calls placed by registered legal counsels would be exempted from the routine surveillance measures employed during non-privileged calls (NYSCEF Doc 17). However, during the intervening years since the passage of the regulatory amendment and the instant petition, petitioners assert that DOC's retention of Securus for its call monitoring system, leveraging the vendor's powerful datamining tools, including voice capturing, recognition and verification technology (referred to herein as "voiceprinting") and an integrated nationwide analytical database (marketed commercially under the name "THREADS"), incepted an intrusive and illegal mass surveillance program alleged to have routinely violated the aforementioned statutory and regulatory constraints, the Fourth and Sixth Amendment rights of its inmates and detainees, and also the privacy and due process rights of ordinary citizens.

A. Petitioners' Causes of Action

Petitioners' first, second, third, and fourth causes of action seek, on behalf of the incarcerated petitioners' proposed class, pursuant to CPLR 7803(1): (i) mandamus enjoining DOC's recording of incarcerated persons' attorney-client telephone communications in violation of 40 R.C.NY §§ 1-10(h) and 1-08(c)(5); (ii) mandamus compelling DOC to refrain from further violations of incarcerated persons' Sixth Amendment right to counsel; (iii) mandamus preventing further intrusions against incarcerated persons' Fourth and Fourteenth Amendment rights against unreasonable search and seizure of petitioners' privileged conversations, also codified under the New York Constitution at Article 1, Section 12; and (iv) mandamus compelling DOC to cease monitoring of incarcerated persons' privileged communications in violation of both the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2511 and New York State eavesdropping laws under NYPL §§ 250.05, 250.15, and 250.25.

Petitioners' fifth cause of action seeks, on behalf of the community-residing petitioners' proposed class, and pursuant to CPLR 7803(1), mandamus enjoining the extraction and collection of sensitive personal and biometric information from community users of DOC's telephone system, in violation of the First and Fourth Amendments as well as of the New York State Constitution at Article I, Section 12, and from sharing said information with other law enforcement agencies.

Petitioners' sixth, seventh and eighth causes of action seek, on behalf of all petitioners' respective proposed classes, pursuant to CPLR 7803(1): (i) mandamus enjoining DOC, and its contractor Securus, from collecting and selling voiceprint information from users of DOC telephone systems, without consent, and in violation of New York Civil Rights Law § 51; (ii) mandamus enjoining DOC from surveilling users of its telephone system in violation of users' First and Fourteenth Amendment rights to freely self-express and associate, as well as of the New York State Constitution at Article I, Sections 8 and 9; and (iii) mandamus compelling DOC to terminate the Securus contract for violations of Sections 4-01(b) and 4-04(c) of the Procurement Policy Board ("PPB") rules, including failure to adhere to the requirement that DOC issue an assessment of the provider's performance and conduct public hearings during the renewal process.

B. DOC's Monitoring of Privileged Communications Between Inmates/Detainees and Defense Counsels

Petitioners assert that DOC's past disclosures have revealed that, on numerous instances during 2018 and 2019, DOC persistently engaged in the impermissible surveillance of calls from individuals on the DNR list. The public defender agencies, BDS, BXD, NYD, NDS, and LAS, routinely submitted staff phone lists to DOC in accordance with DOC's own instructions, with the expectation that those numbers would be incorporated into the DNR list. However, multiple requests to DOC for additional guidance as to the criteria for eligibility, and how to submit requests, went repeatedly unanswered. Nonetheless, on various occasions throughout 2018 and 2019, BDS, BXD, NYD, and NDS defense counsels placing calls into DOC facilities from numbers provided to the DNR list heard prefatory alerts that their client calls were being recorded, and also received discovery packages from District Attorneys' Offices containing recordings of privileged phone conversations. These incidents were reported to DOC's then-Legal Division Senior Counsel and FOIL Officer, Laura Mello, and its then-First Deputy Commissioner, Lynelle Maginley-Liddie, who at times disclaimed knowledge of the recordings and confirmed that those counsels were on the DNR list, and at other times failed to respond to those inquiries at all.

In 2020, the implementation of expanded discovery rules prompted the revelation that privileged calls were still being recorded by DOC, including at least two attorneys who had previously reported monitoring of their attorney-client communications. On March 20, 2020, BDS sent a letter to then DOC General Counsel, Heidi Grossman, and then DOC Chief of Staff, Brenda Cooke, complaining about the improper recordings and demanding that the practice immediately cease. At or around the same time, LAS came to learn that privileged communications between its attorneys and their clients were being unlawfully recorded and requested that DOC conduct an audit of its records. On May 8, 2020, DOC informed LAS that it had failed to add numbers provided by LAS to the DNR list, and following an exchange of communications, subsequently confirmed on May 11, 2020, that the DNR list had been updated to include the previously omitted LAS numbers. However, upon the continued discovery of additional privileged recordings throughout May and June of 2020, despite reassurances by DOC officials that the DNR list was fully updated, LAS demanded that DOC conduct a comprehensive audit and sequester any recordings from further access. Although privileged calls continued to be discovered throughout the remainder of 2020 and into January of 2021, DOC reportedly refused to perform a thorough audit of their records during that period.

Then, in late February and March of 2021, DOC contacted each defender agency separately to recount the results of preliminary agency-specific audits of Securus's records that revealed widespread recording of privileged calls. Petitioners state that the audit determined that DOC recorded: (i) 1,450 unique phone calls from BDS involving over 300 incarcerated defendants; (ii) 347 unique phone calls from NYD involving 73 incarcerated defendants; (iii) 630 unique phone calls from NDS involving 93 incarcerated defendants; (iv) 118 unique phone calls from BXD involving 20 incarcerated defendants; and (v) 1302 unique phone calls from LAS. However, petitioners assert that a review of each audit's methodology revealed that DOC utilized inconsistent and restrictive criteria in reviewing each agency's recorded communications, thereby dually failing to either address the breaches in the manner befitting a systemic problem, or to capture all of the calls improperly recorded during that period. Notably, petitioners assert that those audits uniformly failed to include (1) calls recorded prior to March 2020; (2) privileged conversations that were illegally recorded but not shared with law enforcement; and (3) any privileged conversations that were illegally recorded but not involving public defender organizations. DOC repeatedly declined to expand the scope of each audit, nor did DOC share the results of each agency's individual audit with the other defender agencies. However, petitioners insist, by early 2021 it should have been long apparent to DOC that they were dealing with a systemic problem and not a small number of isolated incidents, showing that DOC had persistently failed to take reasonable steps to safeguard the Constitutional rights of the individuals in its custody. Further, the agencies continued to receive discovery from prosecutors containing privileged conversations recorded during the period purportedly encompassed by the audit, revealing that the audits' disparate methodologies had failed to capture and isolate all of the improperly recorded communications.

In late March of 2021, DOC informed LAS that it was investigating whether Securus had failed to properly update their DNR list with recently provided phone numbers. That investigation revealed that a Securus employee unfamiliar with the software had failed to grant an agency-wide exemption for the DNR list numbers, and that the employee was reportedly not terminated but merely moved off of the DOC contract. However, petitioners maintain, the incident raised serious questions about Securus's ability to competently provide services to the city. In May 2021, DOC announced remedial measures designed to minimize the recording of privileged calls, including a) having Securus perform a 20% spot check of the DNR list; b) modifying the verbal admonishment heard by callers to and from DOC facilities to contain an explicit warning to attorneys; and c) the creation of a website where attorneys can check to see if their numbers are privatized. But petitioners insist that these measures are insufficient in that (1) the implemented 20% spot check of phone numbers on the DNR list fails to require timely notification to recorded parties, neglects to expand the scope of that review when a breach is found, and provides no guidance as to its frequency, enforcement, or remediation; (2) DOC already failed to execute a planned comprehensive audit of the recorded calls, such that the full extent of previous breaches remains unknown; (3) the measures fail to impose additional automatic safeguards to minimize future breaches caused by human error; and (4) the measures fail to properly sequester recordings from previous breaches to prevent further dissemination. Movants assert that additional unlawful recordings continued into the Spring of 2021, and have identified three public defender agency attorneys whose calls were improperly recorded between August 2023 and January 2024.

Additionally, petitioners argue that the Department of Investigations ("DOI") review of the breaches ordered by then Mayor Bill de Blasio on March 21, 2021, was flawed in that it was restricted solely to a review of DOC's previous internal audit, and did not expand on its limited scope nor incorporate extrinsic data, and was therefore plagued by the same problems and errors that impaired the audit's accuracy. Petitioners also contend that, because DOI itself had previously failed to alert DOC or defense counsels upon receipt of illegally recorded communications, DOI had an unresolved conflict of interest and was therefore an inappropriate evaluative body to determine the sufficiency of the proposed remedies. In light of the preceding flaws, the movants insist that the DOI's ultimate determination as to the sufficiency of the remediative measures imposed to prevent future breaches largely reproduces the findings, and therefore the defects, of the underlying DOC audit, and cannot be deemed an independent assessment as to the sufficiency of those remediations.

Petitioners maintain that these breaches have crippled the reliability of the inmates' best and often only means of initiating rapid communication with their legal counsel; and that other means of contact, such as mail or in-person meetings, lack the immediacy and certainty of telephonic communication, which can be essential when important legal actions must be undertaken within short timeframes. They argue that the chilling effect of DOC's improper surveillance has concretely impaired their right to communicate with their legal defense teams by impeding their ability to confidentially discuss substantive matters by phone. Petitioners also assert that DOC's surveillance has harmed the formerly-incarcerated petitioners' right to privacy, inherent to the attorney-client privilege itself. Petitioner Reid attests that during his pre-trial detention DOC recorded forty-three privileged phone calls between himself and his attorney between May and June of 2020; petitioner Leon states that on January 21, 2021, DOC recorded a privileged call with his counsel, which was later provided to the prosecutor's office; and petitioner Scott does not claim that his calls were recorded, but states that he avoided discussing important legal matters with both his local and Nevada counsel for fear that his privileged phone communications were being monitored. Petitioners contend that these breaches are severely prejudicial to defendants since they undermine the integrity of attorney-client privilege — a key pillar of the adversarial legal system — by improperly enabling prosecutors to preview defense strategies and preemptively curtail access to critical evidence.

C. DOC's Monitoring of Communications Between Inmates/Detainees and Family and Community Members

Petitioners also allege that, in addition to monitoring the content of phone calls to individuals in custody, DOC is gathering the biometric "voiceprints," financial data, and associational networks of community-residing participants in those calls. Petitioners assert that this practice of mass surveillance has a corrosive effect on the community support systems essential to sustaining the wellbeing of inmates and detainees, increasing their interpersonal isolation and vulnerability to mental health issues. The formerly-incarcerated petitioners state that many of their friends and family were reluctant to utilize the DOC phone system out of concern about how their personal information might be used by law enforcement. They argue that this invasive monitoring also violates both classes of petitioners' rights to privacy as they struggle to overcome addiction, maintain relationships, and remain optimistic about the future. Community-residing petitioner Lillian Nelson, whose daughter was repeatedly incarcerated between 2020 and 2024, states that DOC's surveillance unfairly intruded into the privacy of that relationship, and impaired her only reasonable means of regular communication. Petitioner Samiyah De Freitas is the niece of a repeatedly incarcerated woman who also relies on phone contacts to support her aunt as she struggles with addiction and other challenges, and who similarly asserts that the surveillance and data gathering policy violates her right to privacy. The petitioners further insist that DOC's cataloguing of these communications serves no rational security-related objective when less than 1.7% of the 17,977,510 calls recorded between January 1, 2020, and January 1, 2022, were actually reviewed by DOC officials — but were more commonly disclosed to the prosecutors handling the cases — and that the mass-surveillance system has imparted no appreciable improvement in facility security.

D. DOC's Renewal of its Securus Contract

Finally, petitioners allege that DOC failed to properly review Securus's performance or to provide a public hearing prior to exercising its contractual renewal options in 2019, 2020, 2021, and 2022, in violation of PPB rules §§ 4-04(c) and 4-01(b) governing procurement practices. They argue that a public hearing about the renewal of the Securus contract was especially warranted given the vendor's documented record of systemic violations of DOC policies. Instead, petitioners claim, the scope of the Securus contract has only expanded, and in 2022, DOC awarded Securus an additional contract to provide digital tablets without conducting a competitive bidding process, reflecting DOC's putative "indifference to protecting the privacy and constitutional rights of the people in its custody" (NYSCEF Doc 1 at ¶179).

Article 78

CPLR 7803 permits aggrieved parties to bring a petition before the New York State Supreme Court, under a limited number of enumerated grounds, to determine whether a government agency acted unlawfully. Here, the petitioners proceed under CPLR 7803(1), which authorizes the court to review whether an agency or official "failed to perform a duty enjoined upon it by law [.]" CPLR 7803(1). "The availability under article 78 of mandamus to compel performance of a duty by an administrative agency depends not on the applicant's substantive entitlement to prevail, but on the nature of the duty sought to be commanded, i.e., mandatory, nondiscretionary action." Hamptons Hosp. & Med. Ctr., Inc. v. Moore, 52 NY2d 88, 97 (1981). Conversely, a court may not award mandamus to "compel an act in respect to which the officer may exercise judgment or discretion." Crain Commc'ns, Inc. v. Hughes, 74 NY2d 626, 628 (1989). In other words, to the extent that plaintiffs can establish that defendants are not satisfying nondiscretionary obligations to perform certain functions, they are entitled to orders directing defendants to discharge those duties. Klostermann v. Cuomo, 61 NY2d 525, 541 (1984). However, the activity that the courts must be careful to avoid is the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches. Id.

Generally, a party who objects to the determination of an administrative agency is required to exhaust all available administrative remedies before seeking judicial review. Achille v. Laveman, 224 AD3d 744, 746 (2d Dept. 2024). However, that rule is not applicable when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury. Watergate II Apartments v. Buffalo Sewer Auth., 46 NY2d 52, 57 (1978). The Court of Appeals has since clarified that a constitutional claim requiring the resolution of factual issues reviewable at the administrative level should initially be addressed to the relevant agency so that the necessary factual record can be established; and that merely asserting a constitutional violation will not excuse a litigant from first pursuing administrative remedies that can provide the requested relief. Schulz v. State, 86 NY2d 225, 232 (1995). The First Department further refined its exhaustion doctrine jurisprudence under Martinez 2001 v. New York City Campaign Fin. Bd, holding that exemption is limited to situations where the statute or administrative scheme itself is alleged to be unconstitutional, thus undermining the legality of the entire proceeding. Martinez 2001 v. New York City Campaign Fin. Bd., 36 AD3d 544, 549 (1st Dept. 2007); also see Nieblas-Love v. New York City Hous. Auth., 212 AD3d 509, 510 (1st Dept. 2023).

III. DOC's Cross-Motion to Dismiss

Respondent DOC now cross-moves to dismiss the petition pursuant to CPLR 3211(a)(2), (a)(7), and 7804(f), contending that the Court lacks subject matter jurisdiction with respect to certain causes of action, and that the petition fails to state a cause of action for mandamus. At the outset, respondent notes that DOC routinely informs outside callers that their calls will be recorded upon connecting to a facility phone line and instructs attorneys to discontinue their call to avoid being recorded, directing them to a website to register their numbers for exemption from automatic recording. It also highlights that, following a May 11, 2021, public hearing about the improper recording of privileged calls, the DOI reviewed the evidence and issued a report identifying the particular circumstances that produced those violations, including errors by Securus employees as well as the workplace dislocation of many attorneys during the COVID pandemic which often forced them to call their clients from numbers not listed on the DNR list. DOI also concluded that the remedial policies initiated by DOC to prevent future recurrences were sufficient which, DOC suggests, renders much of the petitioners' sought relief moot.

1. Standards of Review

1-a. CPLR 3211(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the trial court must decide whether the pleading, within its four corners, states a cause of action. See Qualified Personal Residence Trust of Doris Rosen Margetti, 137 AD3d 965 (2d Dept. 2016). Although conclusory allegations are insufficient to state a cause of action (Caniglia v. Chicago Tribute New York News Syndicate. Inc., 204 AD2d 233 [1st Dept. 1994]), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory. Dee v. Rakower, 112 AD3d 204 (2nd Dept. 2013). Although the facts pleaded are presumed to be true and are accorded every favorable inference, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to such consideration." See WFB Telecommunications, Inc. v. NYNEX Corp., 188 AD2d 257, 259, (1st Dept. 1992) (granting motion to dismiss). To determine the sufficiency of a pleading, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one. See Leon v. Martinez, supra at 88. If the complaint and affidavits permit some reasonable chance, even if small, that plaintiff might prevail on its cause of action, the pleading should not be dismissed under 3211(a)(7). See Rovello v. Orofino Realty Co., 40 NY2d 633, 634 (1976).

1-b. CPLR 3211(a)(2)

Subject matter jurisdiction has been defined as the "power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question." Thrasher v. U. S. Liab. Ins. Co., 19 NY2d 159, 166 (1967). The defense that an action lacks subject matter jurisdiction is nonwaivable and can be raised at any stage of the action. Gelin v. Lehman Coll., 254 AD2d 119, 119 (1st Dept. 1998). A claimant's failure to exhaust statutory administrative remedies prior to the bringing of an action against a government entity in Supreme Court precludes the court's subject matter jurisdiction over that claim. See Eden v. St. Luke's-Roosevelt Hosp. Ctr., 39 AD3d 215, 216 (1st Dept. 2007); Indemini v. Beth Israel Med. Ctr., 4 NY3d 63, 66 (2005). Moreover, an Article 78 proceeding brought seeking an exercise of judicial authority over a discretionary action by the Department of Corrections, a government apparatus properly residing under purview the executive, a coordinate branch of government, is non-justiciable where the subject matter involves questions of judgment, allocation of resources, and ordering of priorities, which are generally not subject to judicial review. New York State Inspection, Sec. & L. Enf't Emps., Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 NY2d 233, 239 (1984).

1.c CPLR 7804(f)

"On a motion to dismiss a petition pursuant to subdivision (f) of CPLR 7804, only the petition is to be considered and all of its allegations are to be deemed true." DePaoli v. Bd. of Educ., Somers Cent. Sch. Dist., 92 AD2d 894, 894 (2d Dept. 1983). A respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition. CPLR 7804(f). If such motion is denied, the court shall permit the respondent to answer, upon such terms as may be just. Id. When the respondent in an article 78 proceeding challenges petitioner's standing only, it is error to dismiss the petition on the merits prior to service of respondent's answer. Nassau BOCES Cent. Council of Tchrs. by Dreaper on Behalf of Adult Educ. Instructors v. Bd. of Co-op. Educ. Servs. of Nassau Cnty., 63 NY2d 100, 101—02 (1984).

2. DOC's Cross-Motion to Dismiss Petitioners' First, Second and Third Causes of Action

We first review that branch of DOC's cross-motion seeking dismissal of petitioners' first, second and third causes of action for an order of mandamus compelling DOC to refrain from surveilling privileged phone conversations in alleged violation of the incarcerated petitioners' rights to due process and the assistance of counsel, as protected under the United States and New York State constitutions as well as BOC regulations under RCNY §§ 1-08 and 1-10. DOC argues, chiefly, that the petitioners have not been aggrieved by DOC's acts or omissions, and therefore lack the standing to challenge those acts. While acknowledging that RCNY §§ 1-08 and 1-10 both extend constitutional protections to incarcerated persons, DOC notes that only one of the petitioners, Tyrell Scott, was incarcerated at the time of his affirmation in support of the petition, and that none of them were incarcerated when the petition was filed, placing all of them outside the zone of interest protected by the aforementioned regulations. Further, DOC contends, none of the petitioners articulate a concrete harm and all fail to establish that they were materially damaged by DOC's recordings of their privileged communications, instead alleging the speculative possibility of harm. DOC also avers that, as a precondition to bringing an Article 78 action, an incarcerated petitioner must exhaust their administrative remedies by availing themselves of the three regulatory mechanisms instituted to safeguard privileged communications, including, (i) placement of the attorney's number on the DNR list; (ii) the filing of a formal grievance by an inmate whose privileged calls have been recorded; and (iii) the filing of a complaint with the BOC. Therefore, respondent insists, petitioners' failure to satisfy the exhaustion requirement deprives this Court of subject matter jurisdiction over their claims.

In opposition, petitioners assert that the establishment of a cognizable harm requires a showing that the petitioners have been or will be injured. Here, the facts presented in the petition demonstrate that their concerns are not speculative, in that two of the named petitioners, Marcus Reid and Eric Leon, discovered recorded calls to their counsel in the evidentiary productions furnished by the prosecution. Petitioners also dispute DOC's characterization of the zone of interest requirement, stating that the requirement's sole purpose is to ensure that "groups whose interests are only marginally related to or inconsistent with, the purpose of the statute cannot use courts to further their own purposes at the expense of statutory purposes" (NYSCEF Doc 60 at p. 14). In this instance, they argue, the government's breaches of the petitioners' attorney-client privilege alone comprise a concrete harm sufficient to confer standing, particularly since that harm is the precise sort of injury that RCNY §§ 1-08(c)(5) and 1-10(h) were enacted to prevent. Further, those violations also constitute unreasonable searches and seizures under the Fourth Amendment because the petitioners had a reasonable expectation of privacy for their privileged communications, and the surveillance program impermissibly interferes with the petitioners' right to counsel as codified under the Sixth and Fourteenth Amendments. Finally, petitioners maintain that the exhaustion requirement does not apply to special proceedings brought under CPLR 7803(1), but only to requests for judicial review of agency adjudications. Instead, because it is challenging DOC's acts as unconstitutional or wholly beyond its grant of power, no exhaustion of remedies is required.

On reply, DOC posits that in order to establish the standing to assert the Sixth Amendment claims, the formerly-incarcerated petitioners must show that DOC's interference with their right to counsel detrimentally affected the plaintiff's trial; moreover, the petitioners cannot show that their right to counsel was unreasonably burdened because alternative means of communication remained accessible. DOC also reiterates that the violations identified by the petitioners prior to March 2021 have already been investigated and remediated, and are therefore moot. Additionally, DOC argues, because petitioners assert no facts demonstrating that widespread recording of privileged phone calls have continued beyond the 2021 DOI investigation, petitioners' assertion that DOC continues to unlawfully record attorney-client conversations is both unsupported and conclusory. Further, DOC points out that many of the assertions of fact contained in the petition, particularly those enumerating the vast majority of DOC's past breaches of privileged communications, are not asserted by the petitioners themselves but instead by various nonparties to the dispute.

2-a. Incarcerated Petitioners' Standing to Assert their First and Second Causes of Action

We shall first examine DOC's assertion that the incarcerated petitioners lack standing to assert their claims that respondent unreasonably burdened their right to the assistance of counsel. Under the common law, there is little doubt that a "court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected." Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 NY2d 761 (1991). The rights to be affected must be personal as distinguished from the rights in common with the great body of people. Schieffelin v. Komfort, 212 NY 520, 530 (1914). Further, there must exist an injury in fact--an actual legal stake in the matter being adjudicated--ensuring that the party seeking review has some concrete interest in prosecuting the action which casts the dispute in a form traditionally capable of judicial resolution. Soc'y of Plastics, 77 NY2d at 772. In other words, standing requires a showing of cognizable harm, meaning that a plaintiff has been or will be injured - tenuous and ephemeral harm is insufficient to trigger judicial intervention. New York State Ass'n of Nurse Anesthetists v. Novello, 2 NY3d 207, 214 (2004). To this essential principle of standing, the courts have added rules of self-restraint, or prudential limitations: a general prohibition on one litigant raising the legal rights of another; a ban on adjudication of generalized grievances more appropriately addressed by the representative branches; and the requirement that the interest or injury asserted fall within the zone of interests protected by the statute invoked. Soc'y of Plastics, 77 NY2d at 773. The requirement that a petitioner's injury fall within the concerns the Legislature sought to advance or protect by the statute assures that groups whose interests are only marginally related to, or even inconsistent with, the purposes of the statute cannot use the courts to further their own purposes at the expense of the statutory purposes. Id. at 774.

Generally, regulations for the administration and discipline of prisons, promulgated and enforced by authorized officials, are not subject to review by the courts unless it can be clearly demonstrated that they interfere with fundamental rights guaranteed by the Constitution. Walker v. Hughes, 558 F.2d 1247, 1254 (6th Cir. 1977). In this instance, the formerly incarcerated petitioners claim that DOC's conduct has interfered with the fundamental right to counsel afforded by the Sixth Amendment United States Constitution, as well as the New York State constitution under Article I, § 6, and also violates the regulations promulgated by the BOC under 40 RCNY §§ 1-08(c)(5) and 1-10(h) enjoining prison officials from monitoring privileged phone calls between prisoners and detainees and their legal counsel. The United States Supreme Court has held that "inmates must have a reasonable opportunity to seek and receive the assistance of attorneys," and that "[r]egulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid." Procunier v. Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Federal precedent also establishes that the Sixth Amendment right to counsel is implicated when an incarcerated individual claims that a corrections facility prevented or impeded his ability to communicate with his attorney regarding his ongoing criminal defense. Groenow v. Williams, 2014 WL 941276, at *5 (S.D.NY 2014). The Second Circuit has held that "prison regulations restricting pretrial detainees' contact with their attorneys are unconstitutional where they unreasonably burdened the inmate's opportunity to consult with his attorney and to prepare his defense. Benjamin v. Fraset, 264 F.3d 175, 187 (2d Cir. 2001); Groenow, at *6. Further, a prisoner asserting a violation of the Sixth Amendment need not allege that he suffered actual injury as a result of this interference. Groenow, at *6; Benjamin, 264 F.3d at 185. However, the Groenow court nonetheless found that an incarcerated plaintiff has no valid Sixth Amendment claim where he was granted at least some access to unmonitored calls to his attorney throughout the term of his incarceration, as well as other means of communication such as through mail or in-person visits. Groenow, at *6; Schick v. Apker, 2009 WL 2016926 at *3 (S.D.NY 2009).

Notwithstanding, New York Courts have long recognized that the state's constitutional right to counsel has been interpreted more broadly than the federal right and attaches not only upon commencement of formal criminal proceedings, but also where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter. Police Benev. Ass'n of New York State Troopers, Inc. v. Div. of New York State Police, 43 AD3d 125, 130 (3d Dept. 2007), aff'd sub nom. Police Benevolent Ass'n of New York State Troopers, Inc. v. Div. of New York State Police, 11 NY3d 96 (2008); People v. West, 81 NY2d 370, 373 (1993); People v. Hobson, 39 NY2d 479, 483 (1976). Additionally, the right protects against undue interference with any existing attorney-client relationship (People v. West, 81 NY2d at 374), and is buttressed by BOC regulation 40 RCNY §§-08(c)(1), which mandates that "people in custody shall not be restricted in their communication with attorneys," and also by subdivision (c)(5), which further states that "telephone communications between people in custody and attorneys shall be kept confidential and protected, in accordance with the provisions of 40 RCNY § 1-10." Concordantly, the referenced rule permits the monitoring of phone calls upon legally sufficient notice to the prisoners, but specifies that calls "to treating physicians and clinicians, attorneys and clergy shall not be listened to or monitored." 40 RCNY § 1-10(h).

Upon review and an analysis of the statutory authority, case law, the submitted papers and the record, this court determines that the formerly-incarcerated petitioners' Sixth Amendment claims against the respondent have been validly asserted. The law here is clear that a plaintiff need not establish an actual injury to have standing to bring a claim that a government actor has unduly burdened his right to counsel. Here, both petitioners Reid and Leon each allege that their privileged calls to legal counsel were unlawfully collected by DOC and then disseminated to the prosecuting agency. Although respondent's provision of alternative means of communication with counsel would vitiate petitioners' claims under the Sixth Amendment, New York State has codified a more expansive conceptualization of the right to counsel than that countenanced by the U.S. Constitution (Police Benev. Ass'n, 43 AD3d at 130). In addition, in its promulgation of RCNY §§ 1-08(c)(5) and 1-10(h), BOC established a concrete expectation for the petitioners that their privileged calls to their defense counsel would not be surveilled or recorded, and there is no dispute by either party that those rules were repeatedly violated by DOC and its contractor. As the language of RCNY §§ 1-08(c)(5) and 1-10(h) expressly forbids the exact conduct at the core of the incarcerated petitioners' allegations, the claims clearly fall within the zone of interest of those statutes. It is therefore apparent that, in its negligent failure to adhere to the mandates set forth under RCNY §§ 1-08(c)(5) and 1-10(h), respondent failed to perform a duty enjoined upon it by law (CPLR 7803[1]).

DOC also fails to offer any legal support for its contention that a petitioner may only challenge violations by a corrections agency during the term of that petitioner's incarceration. Parenthetically, DOC's assertion that petitioners' Sixth Amendment challenges require an allegation articulating some form of prejudicial effect on the outcomes of their legal proceedings is inapt — that standard applies solely to challenged violations of the First Amendment right of access to the courts (see Groenow, at *7, where a plaintiff's claim premises a violation of his First Amendment right to access the courts, standing requires that he allege actual injury, showing that the deprivation of his right unfairly prejudiced his case, requiring [1] a valid underlying cause of action separate from the right of access claim; and [2] frustration or hindrance of the litigation caused by the public official). However, petitioner Scott does not allege that respondent DOC monitored his privileged calls, but merely expresses a speculative injury characterized as a fear that those calls would be surveilled and therefore fails to adequately allege that his right to the assistance of counsel was actually infringed. Therefore, this Court finds that the incarcerated petitioners Reid and Leon have standing to bring their claims against DOC for violation of their rights to counsel, but that petitioner Scott lacks such standing. It follows that the branch of respondent's motion to dismiss petitioners' first and second causes of action for failure to state a claim must be GRANTED, solely to the extent of dismissing Scott's right to counsel claim for lack of standing.

2-b. Incarcerated Petitioners' Standing to Assert their Third Cause of Action

We now turn to DOC's contention that the incarcerated petitioners lack standing to assert their claim that DOC seized their privileged communications in violation of their Fourth Amendment protections against unreasonable search and seizure. The Fourth Amendment to the United States Constitution, states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Amend. IV. The United States Supreme Court has observed that "the Fourth Amendment protects people, not places[,]" and that while what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection, "what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967). Such protections are also enforceable against the individual states via the due process clause of the Fourteenth Amendment. Berger v. State of NY, 388 U.S. 41, 53, 87 S. Ct. 1873, 1880, 18 L. Ed. 2d 1040 (1967). A viable Fourth Amendment challenge must assert that the seizure was not legally justified and there must be sufficient factual allegations to support that contention. See People v. Scully, 14 NY3d 861, 863—64 (2010). Such claimant must also demonstrate a personal legitimate expectation of privacy in the searched property. Id. at 864.

The mandate of the Fourth Amendment requires adherence to judicial processes, and searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. Katz, 389 U.S. at 357. Because electronic surveillance is singularly invasive, law enforcement officials generally may intercept communications only when they scrupulously follow constitutional and statutory requirements. People v. Darling, 95 NY2d 530, 535 (2000). Courts have typically held that a private citizen possesses a societally-recognized expectation of privacy with respect to the content of his private phone conversations that can only be overcome by a demonstration of probable cause, and the issuance of a warrant. See Katz, 389 U.S. at 356; Alderman v. United States, 394 U.S. 165, 180 (1969). Far less protection is accorded to the commercial and digital records created upon the placement of a phone call, records for which the courts have not found a reasonable subjective expectation of privacy by the participants. See Smith v. Maryland, 442 U.S. 735, 742 (1979) (holding that telephone users typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes). Notably, while CPLR 4548 prevents the abatement of attorney-client privilege for a verbal exchange through a digital platform, where that exchange occurs via a service governed by a policy permitting review by a third-party, there is no reasonable expectation of privacy, and attorney-client privilege is destroyed. Peerenboom v. Marvel Ent., LLC, 148 AD3d 531, 531 (1st Dept. 2017).

Both federal and state courts have also recognized that a valid, rational connection exists between a corrections agency's control and surveillance of inmate phone communications and the legitimate governmental interest in preventing criminal activity and harassment. People v. Diaz, 33 NY3d 92, 98—99 (2019); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996). Relatedly, in People v. Diaz, the New York Court of Appeals held that where detainees are aware that their phone calls are being monitored and recorded, all reasonable expectation of privacy in the content of those phone calls is lost, "and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible" Diaz, 33 NY3d at 99—100 (quoting United States v Eggleston, 165 F.3d 624, 626 [8th Circ. 1999]).

Turning to the circumstances of this case, while communications over a medium conferring no reasonable expectation of privacy normally destroys attorney-client privilege, the construction of 40 RCNY § 1-10(h), which flatly provides that communications by and to attorneys shall not be listened to or monitored, unequivocally places the onus upon the respondent to restrain itself from engaging in the surveillance of privileged calls. Therefore, because the BOC's own regulations have created a reasonable expectation of privacy for inmate communications with their counsel, any warrantless monitoring of those communications must be deemed per se unreasonable searches and seizures pursuant to the Fourth Amendment (Katz, 389 U.S. at 356—357). Therefore, it is determined that incarcerated petitioners Reid and Leon have demonstrated standing to assert the petition's third cause of action challenging DOC's violation of their constitutional protection against unreasonable search and seizure. However, because petitioner Scott does not allege that his privileged communications were actually monitored or recorded, his pleading insufficiently claims that an unlawful search or seizure of a private communication occurred. Therefore, that branch of respondent's motion to dismiss petitioners' third cause of action for failure to state a claim is GRANTED solely to the extent that petitioner Scott's Fourth Amendment claim is hereby dismissed.

2-c. Petitioners' Exemption from the Exhaustion Requirement

As previously stated, the general rule that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law is not applicable when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury. Watergate II, 46 NY2d at 57. Additionally, under the First Department the exhaustion requirement bars an Article 78 challenge unless the statute or administrative scheme itself is alleged to be unconstitutional, thus undermining the legality of the entire proceeding. Martinez, 36 AD3d at 549. An article 78 proceeding may lie where the relief sought is by way of prohibition or by way of mandamus to compel performance by an administrative agency of a duty enjoined by law, and that under such circumstances finality of action on the part of the administrative agency is not prerequisite. See Hamptons Hosp. 52 NY2d 88, 96 (1981). However, the Martinez court elaborated on the Hamptons Hosp. ruling, holding that that applications seeking mandamus to compel are not automatically exempt from the exhaustion requirement. Martinez, 36 AD3d at 548. It is the petitioner's burden to demonstrate that available avenues of administrative remedy have been exhausted, or to otherwise demonstrate the inapplicability of the exhaustion requirement on the grounds that exhaustion would be futile or that they would suffer irreparable harm. See Nieblas-Love, 212 AD3d at 510; Holzman v. Comm'n on Jud. Conduct, 93 AD3d 431, 432 (1st Dept. 2012).

Here, the incarcerated petitioners have clearly asserted constitutional challenges under their Fourth and Sixth Amendment protections. But they are not attacking the statutory scheme as unconstitutional or inapplicable, as would qualify them for exemption under Hamptons Hosp. or Watergate II, but instead allege that the agency has failed to dutifully observe the constitutional protections afforded to incarcerated persons under that scheme. Respondent contends that, prior to pursuing judicial recourse, petitioners were entitled to pursue three administrative remedies: (i) placement of the attorney's number on the DNR list; (ii) the filing of a formal grievance by an inmate whose privileged calls have been recorded; and (iii) the filing of a complaint with the BOC. While the petition's voluminous narrative describing the interactions between DOC and the public defender agencies, the ensuing DOI investigation, and the remedial measures enacted in May 2021, is suggestive that some process of seeking redress for the unlawful recordings has been undertaken by the public defender agencies, the petition does not establish that the individual petitioners have pursued, much less exhausted, all of the administrative remedies that were available to them for their injuries, nor does it otherwise demonstrate how those proposed remedies were inapplicable under these circumstances. Petitioners have also failed to establish that pursuit of administrative remedies would have been futile at the time the breaches were discovered, or that such pursuit would have produced irreparable harm by the resultant delay in remediation. Instead, the petitioners rely on the principle that the exhaustion requirement is wholly inapplicable to mandamus petitions bringing constitutional challenges under CPLR 7803(1) which, as the controlling caselaw demonstrates, is an incomplete rendering of the governing doctrine. In light of the above, that branch of respondent's cross-motion seeking dismissal of petitioners' first, second, and third causes of action for lack of subject matter jurisdiction is GRANTED, and petitioners' first, second, and third causes of action are dismissed in totum.

3. DOC's Cross-Motion to Dismiss Petitioners' Fourth and Sixth Causes of Action

We now address that branch of DOC's cross-motion for dismissal of petitioners' claims that respondent acted in violation of 18 U.S.C. § 2511, New York Penal Law § 250.05 ("Eavesdropping Statute"), and Civil Rights Law § 5121. DOC argues that both 18 U.S.C. §§ 2510-2522, also known as the "ECPA" or "Wiretap Act," and New York's Eavesdropping Statute, permit the interception and surveillance of phone calls upon the consent of one of the parties to the conversations, as is tacitly given when callers continue their conversation while cognizant of DOC's admonition that the call is being recorded. It also asserts that the petition was filed in excess of the ECPA's two-year statute of limitations commencing from the initial discovery of the surveillance, rendering the fourth cause of action to be untimely with respect to its ECPA claims, nor can petitioners demonstrate the requisite intent to record privileged calls necessary to sustain those claims. DOC also posits that the essential elements of petitioners' claims under the Eavesdropping Statute, namely, the lack of both consent and lawful authority, are absent here; and further, that the Court lacks the authority to impose criminal liability under Article 78 in any event. Finally, respondent argues that the claims brought under Civil Rights Law § 5121 are improper, which it characterizes as aimed at prohibiting the non-consensual use of a person's name or likeness for commercial reasons, and that the existence of a vendor contract does not convert agency acts concomitant to the administration of the corrections process into commercial transactions.

In rebuttal, the petitioners argue that the recording of the privileged communications of incarcerated persons without judicial authorization is proscribed under the ECPA. Further, because the petitioners do not seek damages authorized under the ECPA but rather seek to enjoin DOC from further violation of that statute, petitioners contend that the statute of limitations is inapplicable. However, they also contend that the ongoing nature of the alleged breaches places the petition within the two-year statutory window. They argue that the deliberate creation of a mass-surveillance system, coupled with the failure to institute adequate safeguards to prevent the collection of protected communications, despite multiple notices of breaches, sufficiently conveys DOC's intent to engage in improper electronic surveillance. Finally, petitioners dually assert that they do not invoke the Eavesdropping Statute to impose criminal penalty but to compel compliance with that statute, and that allegations asserting Securus's collection and resale of petitioners' identifying information via its THREADS service lends sufficient commercial context to DOC's misconduct to bring these claims within the scope of Civil Rights Law § 51.

3-a. The Sufficiency of Petitioners' Claims Pursuant to the ECPA and New York State Eavesdropping Statute

The Wiretap Act prohibits the intentional interception of wire, oral, and electronic communications unless specifically authorized by a court order. Lonegan v. Hasty, 436 F. Supp. 2d 419, 426 (E.D.NY 2006); also see 18 U.S.C. §§ 2510—22. The United States Supreme Court has previously observed that Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. United States v. U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297, 302 (1972). The 2nd Circuit has previously held that liability under the Wiretap Act requires a finding of intentionality, and that a culpable act "must have been the product of defendant's conscious objective rather than the product of a mistake or an accident." United States v. Townsend, 987 F.2d 927, 930 (2d Cir. 1993). Accordingly, a pleading sufficiently alleging violation of the ECPA must allege that the respondent knowingly and intentionally intercepted privileged calls. See Kurtenbach v. Securus Techs., 2022 WL 889155, at *4 (D.S.D. 2022); Pratt v. Securus Techs., Inc., 2021 WL 1725936, at *6 (D. Me. 2021). The ECPA also permits that any person whose wire, oral, or electronic communication is intercepted in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate. Lonegan, 436 F. Supp. 2d at 427; 18 U.S.C.A. § 2520(a). It further specifies that a civil action under this section may not commence later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation. Id. at 426—27; 18 U.S.C. § 2520(e).

Penal Law § 250.05 provides, in pertinent part, that a person is guilty of eavesdropping when he or she unlawfully engages in the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment. People v. Badalamenti, 124 AD3d 672, 673 (2d Dept. 2015), aff'd, 27 NY3d 423 (2016). However, under both New York and federal law it is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties to the conversation. Id. at 673; People v. Lasher, 58 NY2d 962, 963 (1983). Concordantly, in People v. Cisse the New York Court of Appeals determined that there can be no liability under either the federal act nor New York's Eavesdropping Statute for nonprivileged phone calls intercepted by a penal facility, where callers are notified that usage of the service confers implied consent to facility surveillance. People v. Cisse, 32 NY3d 1198, 1200 (2019).

Returning to the instant matter, in view of the reasoning offered by the United States district court in Kurtenbach (2022 WL 889155, at *4), the Court is persuaded that the petitioners need only factually allege that DOC intentionally intercepted privileged communications in violation of the ECPA to survive a motion to dismiss. While the petition explicitly states exactly that (NYSCEF Doc 1 at ¶202), it is also clear that the factual circumstances upon which that assertion rests have already been investigated by the DOI, whereby it was determined that the interceptions were inadvertent and occasioned by the negligence of the vendor, Securus (see NYSCEF Doc 40). Petitioners implicitly urge the Court to review and overturn the factual determinations of DOI, who notably is not a named respondent in this Article 78 action, as to the agency intent that produced the interceptions, but such authority is beyond the scope of this proceeding, which, petitioners affirm, is not brought under CPLR 7803(3) or (4). Because this Court has no authority to grant mandamus enjoining or compelling a discretionary act (see Crain Commc'ns, Inc. v. Hughes, 74 NY2d at 628; New York State Inspection, 64 NY2d at 239), this Court lacks subject matter jurisdiction under the present Article 78 proceeding to review the determinations produced by DOI's factual inquiry into DOC's telephone surveillance system, and consequently, to determine the intent that animated respondent's acts or omissions during the relevant time period. Furthermore, because none of the named petitioners are challenging interceptions that occurred within the two-year statute of limitations for civil actions brought under the ECPA, claims brought under that statute are time-barred. The Court is not persuaded by petitioners' contention that the ECPA's statute of limitations only applies to suits seeking monetary damages. 18 U.S.C.A. § 2520(a) permits that an aggrieved party may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate (Lonegan, 436 F. Supp. 2d at 427). Therefore, the scope of the subdivision that creates a cause of action under the ECPA is not limited solely to actions seeking monetary relief but instead encompasses all relief "as may be appropriate," which necessarily includes mandamus relief.

Turning to petitioners' Eavesdropping Statute claims, notwithstanding the Cisse court's holding with respect to the consensual recording of nonprivileged phone conversations to and from a penal facility (Cisse, 32 NY3d at 1200), as was stated above, 40 RCNY § 1-10(h) places the burden of preventing unlawful monitoring of privileged phone calls on the respondent. This Court must therefore find that, where, as here, the complaint alleges that DOC was previously apprised that calls from certain numbers were privileged attorney-client communications, and where, under the applicable regulations, it was incumbent upon DOC to take the necessary precautions to avoid the interception of such calls, petitioners Reid and Leon's claims that DOC violated the Eavesdropping Statute are sufficiently plead. On the other hand, because petitioner Scott does not present factual allegations that DOC illegally intercepted his privileged phone calls, his pleading is deemed insufficient. As a result, that branch of DOC's motion for dismissal of petitioners' claims that DOC intentionally violated the ECPA and Eavesdropping Statute on the grounds that the petitioners have failed to state a claim is GRANTED solely to the extent that all petitioners' ECPA claims, as well as petitioner Scott's Eavesdropping Statute claims, are dismissed.

3-b. The Sufficiency of Petitioners' Claims Pursuant to New York State Civil Rights Law § 51

Civil Rights Law § 50 requires that "[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait, picture, likeness, or voice of any living person without having first obtained the written consent of such person, or if a minor of such minor's parent or guardian, is guilty of a misdemeanor." Civil Rights Law § 50; Brinkley v. Casablancas, 80 AD2d 428, 434 (1st Dept. 1981). Civil Rights Law § 51 authorizes a civil action to recover damages from a defendant's violation of Civil Rights Law § 50. Civil Rights Law § 51. Neither oral consent nor estoppel is a complete defense; they are available only as partial defenses in mitigation of damages. Brinkley, 80 AD2d at 434; Lomax v. New Broad. Co., 18 AD2d 229, 229 (1st Dept. 1963).

In the instant petition, the community-residing petitioners, Nelson and De Freitas, allege that DOC's call monitoring policy interfered with their ability to provide emotional support to their incarcerated relatives. Importantly, while the petition asserts that Securus records users' biometric and other personal data for packaging and resale via its THREADS service, because the petitioners themselves do not factually allege that their own personal information was impermissibly monetized without written consent, the petition is ultimately speculative as to whether, and the purposes for which, petitioners' personal information was captured. In view of the foregoing, that branch of respondent's motion for dismissal of petitioners' sixth cause of action brought under Civil Rights Law § 51 for failure to state a claim is GRANTED, and petitioners' sixth cause of action is hereby dismissed.

3-c. Petitioners' Exemption from the Exhaustion Requirement

Turning to the question of whether this Court has subject matter jurisdiction over the claims plead on petitioners' fourth cause of action, it is clear that petitioners incorrectly rely on the same flawed interpretation of Watergate II to evade the exhaustion requirement. As with the first three causes of action, petitioners fail to establish that they exhausted all available administrative remedies, or that their action properly falls within a recognized exemption to the requirement. Accordingly, that branch of DOC's motion to dismiss for lack of subject matter jurisdiction is GRANTED, and petitioners' fourth cause of action is dismissed.

4. DOC's Cross-Motion to Dismiss Petitioners' Fifth Cause of Action

We now consider that branch of respondent's cross-motion to dismiss Petitioners' Fifth Cause of Action seeking mandamus enjoining the extraction and collection of sensitive personal and biometric information from community-residing users of DOC's telephone system, in violation of the Fourth and Fourteenth Amendments as well as of the New York State Constitution at Article I, Section 12, and from sharing said information with other law enforcement agencies. DOC argues that the community petitioners have no clear right of mandamus compelling it to cease recording of phone users' conversations. Movant highlights the speculative nature of the petitioners' allegations that their personal and biometric information has been collected and resold without permission, and the absence of any articulated injuries in fact.

Petitioners argue that they seek to compel DOC to comply with the nondiscretionary duties and obligations imposed by state and federal law by ending its institutional surveillance of callers using its phone system in violation of the petitioners' federal and state due process protections against unreasonable search and seizure.

4-a. The Sufficiency of Petitioners' Fifth Cause of Action

Consonant with the preceding analysis of petitioners' Civil Rights Law § 51 claims, it is clear from the pleadings that none of the named petitioners factually allege that either DOC or Securus has taken their personal information and used said information for commercial gain. Accordingly, that branch of respondent's motion seeking dismissal of petitioners' fifth cause of action for failure to state a claim is GRANTED, and petitioners' fifth cause of action is hereby dismissed.

5. DOC's Motion to Dismiss Petitioners' Seventh Cause of Action.

We next consider that branch of DOC's cross-motion seeking mandamus enjoining DOC from surveilling users of its telephone system in violation of those users' First and Fourteenth Amendment rights to privacy, and to freely self-express and associate, as well as of the New York State Constitution at Article I, Sections 8 and 9. DOC argues that users of the phone service are alerted that their calls will be recorded, and that the community petitioners have implied their consent to be recorded by their continued use of the service. Additionally, DOC regards the claims of the community-residing petitioners as completely afield of the zone of interest circumscribed by RCNY §§ 1-08(c)(5) and 1-10(h), and asserts that both legal precedent and public policy militate against the effective expansion of the scope of BOC protections to the entire public.

Petitioners posit that the mass surveillance of phone calls unreasonably burdens and deprives the phone system's community users of their First Amendment rights of association and associational privacy, speech, and expression, also enshrined in Sections 8 and 9 of the New York State Constitution. Additionally, the petitioners claim that DOC's grant to Securus of access to outside callers' financial and biometric data represent unreasonable searches and seizures absent a reasonable suspicion of criminality, which are further compounded by the sale of the personal data to other law enforcement jurisdictions.

5-a. The Sufficiency of Petitioners' Seventh Cause of Action

As stated above, the Court of Appeals has heretofore recognized that the widespread surveillance of correctional facility calls is rationally related to the furtherance of the agency's legitimate security objectives (Diaz, 33 NY3d at 98—99). Therefore, in the view of this Court, the petitioners cannot possibly demonstrate a clear right to fully enjoin DOC from surveilling facility phone calls grounded in their First Amendment rights to association, privacy or expression. In any event, the community-residing petitioners consented to the surveillance of their phone calls by continuing to use the service once cognizant of the conditions of use, and have therefore waived their First Amendment objections on that basis. Additionally, as with their fifth cause of action, the petitioners do not sufficiently allege that their personal or biometric data has been gathered by DOC and Securus, but rest entirely on the presumption that such seizures have occurred. It is also clear that there is virtually no nexus between the community petitioners' claims and RCNY §§ 1-08(c)(5)'s and 1-10(h)'s statutory zones of interest, which are the protection incarcerated persons' rights to counsel and privileged communications. Consequently, that branch of DOC's motion to dismiss petitioners' seventh cause of action for failure to state a claim is GRANTED, and petitioners' seventh cause of action is dismissed.

6. DOC's Cross-Motion to Dismiss Petitioners' Eighth Cause of Action

Finally, we review that branch of DOC's motion to dismiss petitioners' eighth cause of action for mandamus compelling DOC to terminate the Securus contract for violations of Sections 4-01(b) and 4-04(c) of the Procurement Policy Board ("PPB") rules, including failure to adhere to the requirement that DOC issue an assessment of the provider's performance and conduct public hearings during the renewal process. DOC contends that, since the subject renewals occurred between 2019 and 2022, petitioners' challenge must be deemed untimely, citing to CPLR 217 which sets the window of time to mount an Article 78 challenge to four months after the determination to be reviewed becomes final. DOC also notes that the contractual terms commenced by the subject renewals have already expired, rendering the controversy non-justiciable, and thus, moot. Further, because PPRB Rule 2-11 permits the petitioners to raise their concerns during the subsequent procurement process, not only does an administrative remedy already exist, the recurrence of the issue would present another opportunity to review the matter with a more developed record. The movant also argues that the petitioners lack standing to contest the procurement determination, because as non-bidders for the communications contract, the petitioners are outside the zone of interest protected by the public contracting statutes, nor have they suffered a financial injury; nor can mandamus to compel lie with respect to agency's discretionary determination. DOC also insists that the 2019 and 2022 renewals complied with the PPB rules, and that DOC's 2021 — 2023 performance evaluation, conducted during and after the DOI investigation, identified and addressed deficiencies in the previous contract and further determined that termination of the contract would prove burdensome, costly, and disruptive to the functioning of the communications system.

In response, petitioners allege that DOC failed to conduct public hearings in advance of its renewal periods starting in 2019, 2020, 2021, and 2022. They also argue that the PPB Rules' zone of interest is to protect against corruption, waste, fraud, and abuse, as indicated by the Rules' introductory section, and that their claims fall squarely within the ambit of those interests. Because the requirement that DOC abide by the PPB Rules is nondiscretionary, petitioners argue that mandamus to compel adherence is an appropriate form of relief. They further claim that they have suffered direct harm as a result of DOC's violations, namely, the interception of privileged calls and their dissemination to law enforcement agencies that have unduly burdened the formerly-incarcerated petitioners' Fourth and Sixth Amendment protections, as well as of the surveillance policy's purported infringement on the community-residing petitioners' First and Fourth Amendment protections. Petitioners maintain that these harms are ongoing, and are therefore still timely asserted.

6-a. Petitioners Standing to Assert their Eighth Cause of Action

The zone of interests test, tying the in-fact injury asserted to the governmental act challenged, circumscribes the universe of persons who may challenge a given administrative action, and requires that a party show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the "zone of interests," or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted. Soc'y of Plastics, 77 NY2d at 773. As pertains here, the introduction of the PPB Rules states its purpose as follows:

The underlying purposes of these Rules are to simplify, clarify and modernize the law governing procurement by the City of New York; to permit the continued development of procurement policies and practices; to make as consistent as possible the uniform application of these policies throughout New York City agencies; to provide for increased public confidence in New York City's public procurement procedures; to ensure the fair and equitable treatment of all persons who deal with the procurement system of the City of New York; to provide for increased efficiency, economy, and flexibility in City procurement activities and to maximize to the fullest extent the purchasing power of the City; to foster effective broad-based competition from all segments of the vendor community; including small businesses, minority and women-owned and operated enterprises; to safeguard the integrity of the procurement system and protect against corruption, waste, fraud, and abuse; to ensure appropriate public access to contracting information, and to foster equal employment opportunities in the policies and practices of contractors and subcontractors wishing to do business with the City.

Introduction, Procurement Policy Board Rules; RCNY § 4

Furthermore, RCNY § 4-01(b) requires an agency to commence a performance evaluation of a vendor contract within 90 days after the anniversary of a contract start date, and to complete such evaluation within the year preceding the new contract year, and to notify the vendor of deficiencies as soon as practicable. RCNY § 4-01(b). Additionally, RCNY § 4-04(c) mandates, inter alia, that a public hearing or a public notice and comment be conducted, or otherwise an explanation must be given as to why such was not held. RCNY § 4-04(c).

Finally, CPLR 217 requires that "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent's refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty."

Turning to the instant matter, petitioners' challenge respondents' compliance with the policy board's rules regarding its 2019 — 2022 renewals of its contract with Securus. However, it cannot be credibly claimed that petitioners' injuries fall within the intended scope of the statute, which is clearly aimed at preserving clarity and economic fairness, and preventing corruption and waste. The various First, Fourth, and Sixth Amendment claims presented in the petition bear no relation to the types of economic and fiscal virtues that the statute seeks to uphold; it therefore follows that none of these petitioners fall within the PPB Rules' zone of interest, and that all lack the requisite standing to pursue the claims alleged in their eighth cause of action.

Separately, it must here be noted that, of the three formerly-incarcerated petitioners, only petitioner Scott remained in DOC custody within four months of the filing of the instant petition, whereby the agency's surveillance policies might have caused injury, and as discussed above, his claims fail to allege any cognizable injuries. Therefore, none of the petitioners allege any actual injuries caused by respondent's refusal to perform an incumbent duty within the statutory window for commencement of an Article 78 petition. The incarcerated petitioners' claims must thus be deemed untimely, pursuant to CPLR 217. In conclusion, that branch of respondent's motion to dismiss petitioners' eighth cause of action for failure to state a claim is GRANTED, and petitioners' eighth cause of action is hereby dismissed.

Conclusion

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, respondent DOC's cross-motion is GRANTED in the entirety, and the petition is hereby dismissed without prejudice, except as to petitioners' eighth cause of action, as well as those claims brought under the ECPA, which are dismissed with prejudice as time-barred, as stated herein.

Respondent DOC is directed to serve a copy of this decision and order with notice of entry upon the petitioners within thirty (30) days of entry, and to upload proof of service onto the NYSCEF system.

This constitutes the decision and order of this Court.

Dated: July 22, 2026

Bronx, New York

Hon. Kim Adair Wilson, J.S.C.

Kim Adair Wilson, J.