Jamison v. Tesler

300 A.D.2d 194, 750 N.Y.S.2d 860, 2002 N.Y. App. Div. LEXIS 12840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2002
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Walter Tolub, J.), entered January 4, 2002, which granted respondent’s motion to dismiss petitioner’s Freedom of Information Law (FOIL) application, and dismissed the petition, unanimously affirmed, without costs.

If petitioner was dissatisfied with the Police Department’s September 1996 response to his November 1995 request for all police reports relating to his 1993 arrest, he was required, in order to preserve his right to judicial review, to exhaust his administrative remedies by filing an administrative appeal within 30 days (see Matter of McGriff v Bratton, 293 AD2d 401). Respondent represents that its review of petitioner’s FOIL file indicates that no such appeal was taken. The application court was entitled to rely on this representation in finding that petitioner did not take an administrative appeal, “particularly since the petitioner failed to offer a factual basis for his claim to the contrary” (Matter of Calvin K. of Oakknoll v De Francesco, 200 AD2d 619, 619, lv denied 83 NY2d 756). Moreover, belated judicial review of respondent’s 1996 response cannot be based on petitioner’s second request, in July 2000, for the same records, albeit more specifically described (see McGriff, 293 AD2d 401). In any event, assuming that petitioner’s July 2000 request and respondent’s November 2000 response thereto involved different records from those requested and provided in 1995 and 1996, there is no evidence that petitioner took an administrative appeal of the 2000 response. Concur — Nardelli, J.P., Saxe, Sullivan, Rosenberger and Ellerin, JJ.