Johnson v. Morgenthau

Appellate Division of the Supreme Court of New York

Johnson v. Morgenthau

214 A.D.2d 348, 625 N.Y.S.2d 21, 1995 N.Y. App. Div. LEXIS 3716

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 1995

StatusPublished

Cited by3 cases

This text of 214 A.D.2d 348 (Johnson v. Morgenthau) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnson v. Morgenthau, 214 A.D.2d 348, 625 N.Y.S.2d 21, 1995 N.Y. App. Div. LEXIS 3716 (N.Y. Ct. App. 1995).

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Opinion

Order, Supreme Court, New York County (Lewis Friedman, J.), entered January 13, 1994, which denied petitioner’s application under the Freedom of Information Law for access to documents relating to the criminal proceeding against him prosecuted by respondent, without prejudice to petitioner pursuing an administrative appeal, unanimously modified, on the law, to reverse the denial of the application and dismiss the proceeding as moot, and otherwise affirmed, without costs.

It appears that due to an inadvertent mishandling of petitioner’s document request, respondent did not make the requested records available or deny the request in writing within five business days, as required by Public Officers Law § 89 (3). Petitioner promptly took an administrative appeal, which was received by respondent’s records access officer before the actual request for documents, and promptly initiated this CPLR article 78 proceeding a month later when the only response he had received was a letter that an effort was being made to locate the requested documents and that the appeal was being held in abeyance while the request was processed. While the article 78 was sub judice, respondent denied petitioner’s request on the ground that the documents requested had been provided to petitioner’s attorney in the course of the criminal proceeding (citing Matter of Moore v Santucci, 151 AD2d 677), and advised petitioner that he had the right to take an administrative appeal. Respondent’s denial of petitioner’s document request prior to the determina[349]*349tion of the article 78 proceeding, and accompanying acknowledgment of petitioner’s right to take an administrative appeal, rendered the article 78 proceeding moot, and we accordingly modify to effect its dismissal (Matter of Newton v Police Dept., 183 AD2d 621, 624). Concur—Rosenberger, J. P., Ellerin, Rubin, Ross and Tom, JJ.

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Order, Supreme Court, New York County (Lewis Friedman, J.), entered January 13, 1994, which denied petitioner’s application under the Freedom of Information Law for access to documents relating to the criminal proceeding against him prosecuted by respondent, without prejudice to petitioner pursuing an administrative appeal, unanimously modified, on the law, to reverse the denial of the application and dismiss the proceeding as moot, and otherwise affirmed, without costs.

It appears that due to an inadvertent mishandling of petitioner’s document request, respondent did not make the requested records available or deny the request in writing within five business days, as required by Public Officers Law § 89 (3). Petitioner promptly took an administrative appeal, which was received by respondent’s records access officer before the actual request for documents, and promptly initiated this CPLR article 78 proceeding a month later when the only response he had received was a letter that an effort was being made to locate the requested documents and that the appeal was being held in abeyance while the request was processed. While the article 78 was sub judice, respondent denied petitioner’s request on the ground that the documents requested had been provided to petitioner’s attorney in the course of the criminal proceeding (citing Matter of Moore v Santucci, 151 AD2d 677), and advised petitioner that he had the right to take an administrative appeal. Respondent’s denial of petitioner’s document request prior to the determina[349]*349tion of the article 78 proceeding, and accompanying acknowledgment of petitioner’s right to take an administrative appeal, rendered the article 78 proceeding moot, and we accordingly modify to effect its dismissal (Matter of Newton v Police Dept., 183 AD2d 621, 624). Concur—Rosenberger, J. P., Ellerin, Rubin, Ross and Tom, JJ.

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Bluebook (online)

214 A.D.2d 348, 625 N.Y.S.2d 21, 1995 N.Y. App. Div. LEXIS 3716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-morgenthau-nyappdiv-1995.

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