Cuadrado v. Morgenthau

267 A.D.2d 46, 699 N.Y.S.2d 367, 1999 N.Y. App. Div. LEXIS 12688

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Luis Gonzalez, J.), entered May 27, 1998, which denied petitioner’s application to compel respondent District Attorney to provide access to certain records under the Freedom of Information Law, and dismissed the petition, unanimously modified, on the law and the facts, to direct that respondent conduct a diligent search for records sought under Requests 4; 6 and 7, and to direct that respondent determine the existence of any records sought under Requests 9, 10 and 11 not already provided, as set forth herein, and otherwise affirmed, without costs.

Respondent does not sustain his burden of showing that he has diligently searched for the vouchers, videotape and the write-ups petitioner seeks under Requests 4, 6 and 7 (see, Matter of Key v Hynes, 205 AD2d 779, 781). Respondent should search the file of Spiro Varsos, for whom petitioner was convicted of committing murder, and should also represent how he stores videotapes. Nor does respondent specifically deny the existence of or otherwise specifically justify his refusal to disclose records sought under Requests 9, 10 and 11 (see, Matter of Fink v Lefkowitz, 47 NY2d 567, 571; Matter of Mantica v New York State Dept. of Health, 94 NY2d 58). Accordingly, respondent is also directed to determine whether such records exist, and, if they do, to either provide them to petitioner or indicate why they are exempt. We have considered and rejected petitioner’s other claims. Concur — Lerner, J. P., Saxe, Buckley and Friedman, JJ.