Malerba v. Kelly

211 A.D.2d 479, 621 N.Y.S.2d 318, 1995 N.Y. App. Div. LEXIS 334

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1995
• Status: Published

Opinion

Order, Supreme Court, New York County (David Saxe, J.), entered June 28, 1993, which, in a proceeding pursuant to CPLR article 78, denied as moot petitioner’s application to direct respondents to comply with a request to turn over certain documents pursuant to the Freedom of Information Law (Public Officers Law art 6), unanimously modified, on the law, to the extent of authorizing petitioner to perfect an administrative appeal within 30 days of service of a copy of this order with notice of entry upon him, if he has not already done so, and otherwise affirmed, without costs.

The proceeding has been rendered moot insofar as it seeks the documents that were produced by respondent in its response dated March 9, 1993 (Matter of Newton v Police Dept., 183 AD2d 621, 624), and, with respect to the remaining documents demanded, dismissible for failure to exhaust administrative remedies (supra). However, in view of respondents’ laxity in not addressing petitioner’s request until after he commenced this article 78 proceeding, we modify to permit petitioner to take an administrative appeal from this partial production of documents despite the lapse of the 30-day period to take such an appeal under Public Officers Law § 89 (4) (a).

Motion requesting confidentiality is denied. Concur—Murphy, P. J., Sullivan, Nardelli and Tom, JJ.