Matter of Aron Law, PLLC v. Town of Hempstead

requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied . . . . If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgment of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. . . . [T]he entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search." An agency's failure to conform to these provisions "constitute[s] a denial" (id. § 89[4][a]).

A petitioner may commence a CPLR article 78 proceeding seeking review of an administrative determination "only after the determination has become final and binding" (Matter of Surton Constr. Contr. Corp. v New York City School Constr. Auth., 81 AD3d 654, 655). "An administrative determination becomes final and binding when two requirements are met:

completeness (finality) of the determination and exhaustion of administrative remedies" (Matter of Village of Kiryas Joel v County of Orange, 181 AD3d 681, 685 [internal quotation marks omitted]).

"[A]ny person denied access to a record may within thirty days appeal in writing," and the agency "shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought" (Public Officers Law § 89[4][a]). A petitioner who does not

"appeal the denial in writing" will generally be deemed to have "failed to exhaust . . . administrative remedies and, thus, [may] not resort to a judicial forum to gain relief" (Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, 818; see Doe v Lake Grove Sch., 107 AD3d 841, 842-843). But where the agency fails to "inform the . . . request[or] that further administrative review of the determination is available, the requirement of exhaustion is excused" (Matter of Lepper v Village of Babylon, 190 AD3d 738, 742; see Matter of Barrett v Morgenthau,

74 NY2d 907, 909; Matter of Snyder v Village of Hempstead, 199 AD3d 924, 925). Here, the Supreme Court improperly determined that the petitioner failed to exhaust its administrative remedies. The petitioner alleged that it received a single document from the Town on June 27, 2023, with no further instructions or information regarding the other parts of the petitioner's FOIL request. Therefore, the petitioner appealed the determination. As the Town's time to respond to the petitioner's appeal had expired, and as this was its final response, the court should have determined that the petitioner had, in fact, exhausted its administrative remedies (see Matter of Edmond v Suffolk County, 197 AD3d 1297, 1299-1300; Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d 798, 800).

However, "[w]here a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" (Matter of Edmond v Suffolk County, 197 AD3d at 1298 [internal quotation marks omitted]; see Matter of McDevitt v Suffolk [*3]County, 183 AD3d 826, 827; Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896, 897). Here, the record supports the Town's contention that the petitioner received all records responsive to its FOIL request during the proceeding, not properly withheld, through the Town's disclosure and as discovery responses. Accordingly, dismissal of that branch of the petition which was to compel the production of certain records was warranted.

"In order to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL, the Legislature has provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings" (Matter of Cook v Nassau County Police Dept., 140 AD3d 1059, 1060 [citations and internal quotation marks omitted]; see Public Officers Law § 89[4][c]; Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d at 799). Thus, "[t]he court . . . may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of" Public Officers Law § 89 "in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time" (id. § 89[4][c][i]). "A petitioner has 'substantially prevailed' within the meaning of Public Officers Law § 89(4)(c) when the commencement of the CPLR article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure" (Matter of McDevitt v Suffolk County, 183 AD3d at 828; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 79).

Here, the Town did not timely determine the petitioner's FOIL appeal within 10 business days of receiving it in accordance with Public Officers Law § 89(4)(a) (see Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d at 800). Moreover, the Town provided additional documents responsive to the FOIL request after the commencement of litigation. Thus, the petitioner was the substantially prevailing party (see id.; Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 930-931). Under the circumstances, the Supreme Court should have denied that branch of the Town's motion which was to dismiss that branch of the petition which was for an award of attorneys' fees and litigation costs and should have granted that branch of the petition (see Matter of Acme Bus Corp. v County of Suffolk,

136 AD3d at 897), and the matter is remitted to the Supreme Court, Nassau County, for a determination of that award. The petitioner's remaining contentions are without merit.

DILLON, J.P., DOWLING, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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