Mixon v. McMahon

Appellate Division of the Supreme Court of New York

Mixon v. McMahon

302 A.D.2d 714, 754 N.Y.S.2d 589, 2003 N.Y. App. Div. LEXIS 1261

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

DecidedFebruary 13, 2003

StatusPublished

Cited by2 cases

This text of 302 A.D.2d 714 (Mixon v. McMahon) 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.

Bluebook

Mixon v. McMahon, 302 A.D.2d 714, 754 N.Y.S.2d 589, 2003 N.Y. App. Div. LEXIS 1261 (N.Y. Ct. App. 2003).

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Opinion

Crew III, J.P.

Appeal from a judgment of the Supreme Court (Keegan, J.), entered October 24, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as time-barred.

Petitioner, an inmate at Elmira Correctional Facility in Chemung County, made five separate Freedom of Information Law (Public Officers Law art 6 [hereinafter FOIL]) requests to respondents for information gathered during the investigation of various homicides for which petitioner was convicted. Following each FOIL request, respondents advised either that they did not have the records requested or that petitioner’s request was duplicative of an earlier request and would not be reconsidered. Finally, petitioner made the instant FOIL request to which respondents replied that they previously had responded to such request and, hence, the application would not be reconsidered. Petitioner thereafter sought administrative appeal and, upon denial thereof, commenced this CPLR article 78 proceeding. Following joinder of issue and respondents’ interposition of objections in point of law, Supreme Court dismissed the petition, prompting this appeal.

We affirm. The record makes plain, as conceded by petitioner, that the instant FOIL request is substantially similar to petitioner’s prior applications, the last of which was denied nearly two years ago. Accordingly, this proceeding constitutes nothing more than a belated attempt to challenge respondents’ previous responses to petitioner’s requests and is, therefore, barred by the statute of limitations (see Matter of Van Steenburg v Thomas, 242 AD2d 802, 803, lv denied 91 NY2d 803).

Peters, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Crew III, J.P.

Appeal from a judgment of the Supreme Court (Keegan, J.), entered October 24, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as time-barred.

Petitioner, an inmate at Elmira Correctional Facility in Chemung County, made five separate Freedom of Information Law (Public Officers Law art 6 [hereinafter FOIL]) requests to respondents for information gathered during the investigation of various homicides for which petitioner was convicted. Following each FOIL request, respondents advised either that they did not have the records requested or that petitioner’s request was duplicative of an earlier request and would not be reconsidered. Finally, petitioner made the instant FOIL request to which respondents replied that they previously had responded to such request and, hence, the application would not be reconsidered. Petitioner thereafter sought administrative appeal and, upon denial thereof, commenced this CPLR article 78 proceeding. Following joinder of issue and respondents’ interposition of objections in point of law, Supreme Court dismissed the petition, prompting this appeal.

We affirm. The record makes plain, as conceded by petitioner, that the instant FOIL request is substantially similar to petitioner’s prior applications, the last of which was denied nearly two years ago. Accordingly, this proceeding constitutes nothing more than a belated attempt to challenge respondents’ previous responses to petitioner’s requests and is, therefore, barred by the statute of limitations (see Matter of Van Steenburg v Thomas, 242 AD2d 802, 803, lv denied 91 NY2d 803).

Peters, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

302 A.D.2d 714, 754 N.Y.S.2d 589, 2003 N.Y. App. Div. LEXIS 1261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mixon-v-mcmahon-nyappdiv-2003.

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