Kelly v. New York City Police Department

286 A.D.2d 581, 730 N.Y.S.2d 84, 2001 N.Y. App. Div. LEXIS 8330

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 6, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Franklin Weiss-berg, J.), entered July 17, 2000, which granted respondent’s cross motion to dismiss as time barred the petition brought pursuant to CPLR article .78 to challenge respondent’s denial of petitioner’s Freedom of Information Law (FOIL) request, unanimously affirmed, without costs.

On June 6, 1997, respondent partially denied petitioner’s request for documents leading to his indictment. That determination was final and binding upon petitioner and commenced the running of the applicable four-month limitations period (CPLR 217). Petitioner’s second request, dated June 23, 1999, was duplicative of his prior request, and therefore did not extend or toll his time to commence an article 78 proceeding, after petitioner’s first article 78 proceeding challenging the partial denial of his first request was dismissed for failure to file proof of service (see, Matter of Mendez v New York City Police Dept., 260 AD2d 262; see also, Matter of Edwards v New York City Employees’ Retirement Sys., 190 AD2d 545). Accordingly, since this second article 78 proceeding, identical to petitioner’s first article 78 proceeding, was not commenced by petitioner within the time allowed by CPLR former 306-b, then applicable, or within the six-month extension provided pursuant to CPLR 205 (a) (see, Matter of Hicks v City of New York, 247 AD2d 342), the proceeding was properly dismissed as untimely. Concur — Nardelli, J. P., Tom, Mazzarelli, Saxe and Friedman, JJ.