Matter of Cross v. Russo

132 A.D.3d 454, 17 N.Y.S.3d 636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 2015
• Docket: 15837 401413/11
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Paul Wooten, J.), entered April 3, 2012, denying the petition challenging respondents’ denial of a Freedom of Information Law (FOIL) request and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

This proceeding is time-barred (CPLR 217 [1]). On June 25, 2010, the New York City Police Department’s Records Access Appeals Officer denied petitioner’s request for records relating to a criminal investigation. Petitioner’s CPLR article 78 proceeding challenging that determination was dismissed for lack of personal jurisdiction. His subsequent FOIL request, made on December 22, 2010, “was duplicative of his prior request, and therefore did not extend or toll his time to commence an article 78 proceeding” (Matter of Kelly v New York City Police Dept., 286 AD2d 581, 581 [1st Dept 2001]; see also Matter of Andrade v New York City Police Dept., 106 AD3d 520 [1st Dept 2013]).

Petitioner also failed to exhaust his administrative remedies (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52 [1978]). At the time of the commencement of this proceeding, his request had not yet been denied, and no final administrative determination had been rendered {see Public Officers Law § 89 [4] [b]; Matter of Tellier v New York City Police Dept., 267 AD2d 9 [1st Dept 1999]).

Concur — Mazzarelli, J.P., Renwick, Andrias and Manzanet-Daniels, JJ.