[*1]
Matter of Sheppard v New York City Police Dept.
2013 NY Slip Op 51470(U) [40 Misc 3d 1237(A)]
Decided on September 6, 2013
Supreme Court, New York County
Ling-Cohan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 6, 2013
Supreme Court, New York County


IN THE MATTER OF THE APPLICATION OF Samuel Sheppard, Petitioner, FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES

against

New York City Police Department, Respondent.




400523/13



Petitioner:

Samuel Sheppard - pro se

Attica Correctional Facility

Attica, NY 14011

Respondent:

Corporation Counsel, City of New York

N.Y.C. Police Department

1 Police Plaza, Room 1406

New York, New York 10038

Doris Ling-Cohan, J.

Pro se petitionerSamuel Sheppard brings this proceeding, pursuant to Article 78 of the [*2]CPLR, by order to show cause (OSC), seeking an order : (i) vacating and setting aside the determination of respondent New York City Police Department (NYPD), dated November 5, 2012, denying petitioner's appeal on the initial denial of his New York State Freedom of Information Law (FOIL) request; and (ii) directing the lieutenant of records access officer or the records access appeals officer to produce documents with regards to petitioner's FOIL request. Petitioner asserts that the decision was arbitrary and capricious.

NYPD cross-moves to dismiss this proceeding pursuant to CPLR §§ 7804(f) and 217(1) on the grounds that: (i) this proceeding is time-barred; (ii) petitioner failed to obtain personal jurisdiction over respondent NYPD; and (iii) the Court lacks subject matter jurisdiction with regards to portions of the records, as petitioner failed to exhaust his administrative remedies. For the reasons stated below, the petition is denied as provided and the cross-motion to dismiss is granted.

BACKGROUND

Petitioner is currently an inmate of Attica Correctional Facility. On October 12, 2011, petitioner sent a FOIL request to respondent NYPD seeking witness statements, and various police records and documents in connection with his criminal conviction. By letter dated April 9, 2012, such request was granted in part and denied in part. Petitioner appealed the partial denial in May 2012, and ultimately received a letter dated November 5, 2012 (Final Determination) denying his appeal, as "such records, if disclosed, would interfere with judicial proceedings, ...would constitute an unwarranted invasion of privacy...[and] could endanger the life or safety of any person." Notice of Cross-Motion, Exh. 6, NYPD Letter dated November 5, 2012. Thereafter, petitioner commenced this proceeding.

In seeking dismissal of this proceeding, respondent NYPD maintains that petitioner's challenge to the Final Determination is time-barred, petitioner failed to obtain personal jurisdiction over respondent NYPD, and the Court lacks subject matter jurisdiction as to portions of the record. Respondent NYPD alleges that this proceeding is time-barred, as the Final Determination was made on November 5, 2012 and petitioner failed to commence this proceeding within four months as required. Respondent NYPD further argues that petitioner failed to serve a copy of the OSC and supporting papers in the manner provided for in the OSC, and, thus, this court lacks personal jurisdiction over respondent NYPD. Specifically, respondent NYPD claims that while petitioner served the OSC on the Attorney General and the Corporation Counsel, petitioner failed to serve it on respondent NYPD. Lastly, respondent NYPD argues that, as petitioner's appeal was made only as to certain portions of the requested record, petitioner has failed to exhaust his administrative records as to the remaining records not addressed on appeal. According to respondent NYPD, as no final determination was made as to the remaining records, this Court lacks subject matter jurisdiction as to such records.

In opposition to the NYPD's cross-motion to dismiss, petitioner argues that this proceeding is timely, as the petition was dated and mailed on February 11, 2013, well within the four month statute of limitations. However, petitioner asserts that the Clerk of the Court mailed the original papers back to petitioner for re-mailing. See Petitioner's affidavit in opposition, ¶ 6. Petitioner further argues that this Article 78 proceeding should be considered a "post-conviction motion for discovery" as permitted in a criminal action, pursuant to Criminal Procedure Law 440.10. Petitioner further argues that he has demonstrated obstacles which prevented compliance [*3]with proper service of the OSC.

DISCUSSION


Preliminarily, this court must determine whether this Article 78 proceeding was timely filed. Pursuant to CPLR §217, "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner". The Court of Appeals has held that "absent any evidence that the Legislature intended to vary for their benefit the filing-by-receipt requirement established in CPLR 304, we cannot depart from the statutorily mandated filing requirements by incorporating a pro se prisoner mailbox exception." Matter of Grant v Senkowski, 95 NY2d 605, 609 (2001). Further, the Grant court stated that the "statutory scheme [of CPLR 1101(f)] evinces the Legislature's intent to treat an inmate's unsigned order to show cause as filed' when the case is assigned an index number upon receipt of the papers by the clerk of the court." Id. at 610. However, here, as in Grant, "CPLR 1101(f)...is of no avail to petitioner... [as p]etitioner's proposed order to show cause, verified petition and request for poor person relief were not received by the clerk of the court until...after the Statute of Limitations expired and, thus, were not timely filed even under the procedure for commencement of actions and proceedings by indigent prison inmates established in CPLR 1101(f)." Id.

Here, it is undisputed that the Final Determination was made on November 5, 2012. Although petitioner initially mailed his OSC on February 11, 2012, petitioner concedes that such papers were mailed back to him by the Clerk of the Court for re-mailing. As the Request for Judicial Intervention and this OSC are dated March 19, 2013, this Article 78 proceeding was commenced over four months from November 5, 2013, the date of the Final Determination, and, thus, it is time-barred. Pursuant to the prevailing case law, this Court is constrained to dismiss the proceeding.

Accordingly, it is

ORDERED that the petition is denied and the proceeding is dismissed; and it is further

ORDERED that respondent's cross-motion to dismiss is granted; and it is further

ORDERED that within 30 days of entry, respondent NYPD shall serve a copy of this order upon petitioner with notice of entry.

This constitutes the decision of this Court.

Dated:

DORIS LING-COHAN, J.S.C.