Norde v. Morgenthau

Appellate Division of the Supreme Court of New York

Norde v. Morgenthau

262 A.D.2d 129, 691 N.Y.S.2d 503, 1999 N.Y. App. Div. LEXIS 6784

Appellate Division of the Supreme Court of the State of New York·Decided June 15, 1999·Published

Opinion

—Order, Supreme Court, New York County (Ronald Zweibel, J.), entered on or about February 10, 1998, which dismissed the petition, brought pursuant to CPLR article 78, to challenge respondents’ denial of petitioner’s Freedom of Information Law request, seeking access to written and recorded pretrial statements of a rebuttal witness for the People at petitioner’s criminal trial, unanimously affirmed, without costs.

Respondents, in denying petitioner’s request for the above-described materials, have certified, in accordance with the requirement of Public Officers Law § 89 (3), that, after a diligent search, the material sought by petitioner could not be found in their files (see, Matter of Qayyam v New York City Police Dept., 227 AD2d 188). Since petitioner, in response, failed to articulate a factual basis for his contention that, respondents’ certification notwithstanding, the requested materials exist and are within respondents’ possession, the petition challenging the denial of the sought materials was properly dismissed (see, Dos Santos v New York City Police Dept., 255 AD2d 205). Petitioner’s conjecture as to the existence of the materials was insufficient to sustain his petition (supra).

We have considered petitioner’s other arguments and find them unpersuasive. Concur — Rosenberger, J. P., Tom, Saxe and Buckley, JJ.

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—Order, Supreme Court, New York County (Ronald Zweibel, J.), entered on or about February 10, 1998, which dismissed the petition, brought pursuant to CPLR article 78, to challenge respondents’ denial of petitioner’s Freedom of Information Law request, seeking access to written and recorded pretrial statements of a rebuttal witness for the People at petitioner’s criminal trial, unanimously affirmed, without costs.

Respondents, in denying petitioner’s request for the above-described materials, have certified, in accordance with the requirement of Public Officers Law § 89 (3), that, after a diligent search, the material sought by petitioner could not be found in their files (see, Matter of Qayyam v New York City Police Dept., 227 AD2d 188). Since petitioner, in response, failed to articulate a factual basis for his contention that, respondents’ certification notwithstanding, the requested materials exist and are within respondents’ possession, the petition challenging the denial of the sought materials was properly dismissed (see, Dos Santos v New York City Police Dept., 255 AD2d 205). Petitioner’s conjecture as to the existence of the materials was insufficient to sustain his petition (supra).

We have considered petitioner’s other arguments and find them unpersuasive. Concur — Rosenberger, J. P., Tom, Saxe and Buckley, JJ.

Norde v. Morgenthau, 262 A.D.2d 129, 691 N.Y.S.2d 503, 1999 N.Y. App. Div. LEXIS 6784 (N.Y. Ct. App. 1999).

Pincite

262 A.D.2d 129 (Norde v. Morgenthau) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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