[*1]
Matter of Gianella v Port Auth. of N.Y. & N.J.
2014 NY Slip Op 51448(U) [45 Misc 3d 1204(A)]
Decided on September 19, 2014
Supreme Court, New York County
Hunter, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2014
Supreme Court, New York County


In the Matter of the Application of Leonardo Gianella, Petitioner,

against

The Port Authority of New York And New Jersey, Respondent.




100605/14



Appearances:



Pro se Petitioner:



Leonardo Gianella



Respondents:



The Port Authority of New York and New Jersey 225 Park Avenue South



New York, NY 10003


Alexander W. Hunter Jr., J.

The application by pro se petitioner for an order pursuant to CPLR Article 78, compelling respondents to provide petitioner with records responsive to his September 16, 2013 request in accordance with the Freedom of Information Law ("FOIL") as codified in Public Officers Law ("POL") § 84, et seq., is denied and the proceeding is dismissed without costs and disbursements to either party.

In an email dated September 13, 2013, petitioner Leonardo Gianella requested copies of all email communications within a 12 month period between the Port Authority of New York and New Jersey (the "Port Authority") and its China Center (the "Center") tenant, including all of the Center's affiliates from "Vantone Holding Company" or "Vamerica Company".

By letter dated September 23, 2013, FOI Administrator ("FOI Administrator") of the Port Authority acknowledged receipt of the FOIL request. The FOI Administrator stated that a determination needed to be made as to whether the records were available and that petitioner would be notified within twenty (20) business days from the date of the letter. Petitioner was further advised that if additional time was necessary to process the request, petitioner would be notified in writing. By letters dated October 25, 2013, November 7, 2013, December 26, 2013, January 29, 2014, February 6, 2014, February 21, 2014, March 19, 2014, April 8, 2014 and May 7, 2014, the FOI Administrator notified petitioner that additional time was needed to process his FOIL request. Petitioner now seeks to compel respondents to provide the records requested in the original email as well as all recent communications between the Port Authority, the Center and its affiliates.

Respondents oppose the petition on the grounds that the Port Authority has not yet reached a final determination on the availability of the records and, thus, the petition is premature and improper.



Pursuant to POL §84, "the FOIL requester's statutory remedy for an untimely response or ruling is to deem the response a denial and commence a CPLR Article 78 proceeding for the review of such denial." New York Times Co. v. City of New York Police Dept, 103 AD3d 405, 406 (1st Dept. 2013). However, POL § 89(3) "mandates no time period for denying or granting a FOIL request, and rules and regulation purporting to establish an absolute time period have been held invalid on the grounds that they were inconsistent with the statute." Id. at 407. Moreover, CPLR §7801(1) provides that a proceeding under Article 78, "shall not be used to [*2]challenge a determination which is not final or can be adequately reviewed by appeal to a court or to some other body or officer ." Thus, prior to any determination of the FOIL request by the Port Authority, litigation is premature. See Tellier v. New York City Police



Dept., 267 AD2d 9 (1st Dept. 1999).



In the case at bar, petitioner commenced the instant proceeding prior to a final determination by the Port Authority. Where the Port Authority has yet to either grant or deny a FOIL request due to ongoing efforts to determine the accessibility of records, there is no constructive denial. See Matter of Advocates for Children of New York. Inc. v. New York City Dept. of Educ., 101 AD3d 445 (1st Dept. 2012). Accordingly, the application of petitioner is premature and denied.



Accordingly, it is hereby



ADJUDGED that the application by pro se petitioner for an order pursuant to CPLR Article 78, compelling respondents to provide petitioner with records pursuant to petitioner's FOIL request is denied and the petition is dismissed without costs and disbursements to either party.



Dated: September 19, 2014

ENTER:

____________________________

J.S.C.