Moreno v. New York City Department of Correction

Appellate Division of the Supreme Court of New York

Moreno v. New York City Department of Correction

47 A.D.3d 545, 851 N.Y.S.2d 34

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

DecidedJanuary 29, 2008

StatusPublished

This text of 47 A.D.3d 545 (Moreno v. New York City Department of Correction) 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

Moreno v. New York City Department of Correction, 47 A.D.3d 545, 851 N.Y.S.2d 34 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, New York County (Charles J. Tejada, J.), entered May 24, 2006, which denied petitioner’s application pursuant to CPLR article 78 challenging respondent’s constructive denial of his Freedom of Information Law request for documents, unanimously affirmed, without costs.

Petitioner’s challenge to respondent’s failure to respond to requests for documents compiled in his criminal case by a special master appointed by the court was properly rejected in light of the sworn statement by respondent’s counsel that the special master was not employed by respondent and that no such documents were in its possession. The Public Officers Law is not to be “construed to require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89 [3] [a]). Furthermore, inasmuch as petitioner has not “substantially prevailed” herein, he is not entitled to an award of counsel fees (Public Officers Law § 89 [4] [c]; see Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 441 [2005]).

We have considered petitioner’s remaining arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.

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Order, Supreme Court, New York County (Charles J. Tejada, J.), entered May 24, 2006, which denied petitioner’s application pursuant to CPLR article 78 challenging respondent’s constructive denial of his Freedom of Information Law request for documents, unanimously affirmed, without costs.

Petitioner’s challenge to respondent’s failure to respond to requests for documents compiled in his criminal case by a special master appointed by the court was properly rejected in light of the sworn statement by respondent’s counsel that the special master was not employed by respondent and that no such documents were in its possession. The Public Officers Law is not to be “construed to require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89 [3] [a]). Furthermore, inasmuch as petitioner has not “substantially prevailed” herein, he is not entitled to an award of counsel fees (Public Officers Law § 89 [4] [c]; see Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 441 [2005]).

We have considered petitioner’s remaining arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.

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47 A.D.3d 545, 851 N.Y.S.2d 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moreno-v-new-york-city-department-of-correction-nyappdiv-2008.

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