[*1]
Matter of Cobb v District Attorney, Kings County
2015 NY Slip Op 50887(U) [47 Misc 3d 1229(A)]
Decided on June 11, 2015
Supreme Court, Kings County
Rivera, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2015
Supreme Court, Kings County


In the matter of the application of Michael Cobb, Plaintiff(s), For a judgement pursuant to Article 78 of the Civil Practice Law and Rules,

against

District Attorney, Kings County, Defendant(s).




3815/15



Plaintiff Pro Se



Michael Cobb 93-A-0350



Green Haven Corr. Fac.



P.O.Box 4000



Stormville, New York 12582



Atty for Defendant



Morgan J. Dennehy



Assistant District Attorney



Kenneth P. Thompson



District Attorney



Kings County



350 Jay Street



Brooklyn, NY 11201-2908



(718) 250-2000


Francois A. Rivera, J.

By order to show cause and petition filed on March 27, 2015, petitioner Michael Cobb (hereinafter Cobb or petitioner) has moved pursuant to CPLR Article 78 (hereinafter Article 78) for order to compel respondent, the District Attorney of Kings County (hereinafter DA or respondent), to disclose records pursuant to the Freedom of Information Law (Public Officers Law § 84 et seq.) (hereinafter FOIL). Respondent opposed the motion and sought to dismiss the petition.[FN1]



MOTION PAPERS



The order to show cause filed on March 27, 2015 consists of an affidavit of Cobb in support of the application, a verified petition and verification; an order of the Honorable Carolyn E. Demarest dated March 31, 2015, which granted Cobb`s application for reduced filing fees; the supporting motion papers; a request for judicial intervention filed on March 27, 2014, an affidavit of service dated November 5, 2014; an application for an index number; and annexed exhibits marked A through E.



Exhibit A is a document dated August 2, 2013, described as a copy of a letter from Cobb to the DA, specifically to the Record Access Officer (hereinafter RAO). Exhibit B is a document dated June 26, 2014, described as a copy of the RAO`s response to Cobb. Exhibit C is a document dated December 16, 1996, described as a copy of the DA's letter containing the list of the documents being forwarded to Cobb. Exhibit D is a document dated July 14, 2014, described as a copy of Cobb`s appeal letter to the FOIL Appeals Officer. Exhibit E is a document dated July 24, 2014, described as a copy of the letter from FOIL Appeals Officer.



The DA`s affirmation in support of the motion to dismiss consists of memorandum of law and annexed exhibits labeled A through E. Exhibit A corresponds to Cobb`s Exhibit A. Exhibit B is a copy of the RAO`s response to Cobb dated June 26, 2014. Exhibit C is a document dated July 14, 2014, described as a copy of Cobb`s appeal letter to the FOIL Appeals Officer. Exhibit D is a document dated July 24, 2014, described as a copy of the letter from the FOIL Appeals Officer. Exhibit E is a document dated April 20, 2015, described as a print out from the New York State Unified Court System's website.



BACKGROUND



The petitioner brought this Article 78 proceeding to compel the DA to produce certain documents pertaining to an action entitled People v Cobb bearing index number 10070/91.



ARTICLE 78 PROCEDURE



Article 78 of the CPLR establishes the procedure for challenging determinations of administrative agencies, public bodies or officers (see CPLR 7802(a); Luczaj v. Bortnik, 91 AD3d 872, 873 [2nd 2012]). Under the common law, procedure for relief was obtained by procedures under writs of certiorari, prohibition or mandamus. Distinctions between these procedures are no longer important, but are still relevant for analyzing Article 78 proceedings.



The petitioner in this case is not seeking a judicial review, which would be appropriate [*2]under writ of certiorari, or to prohibit a specific action, which would be appropriate under writ of prohibition (see generally, Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR, CC7801:2 and C7801:4). Rather he seeks mandamus to compel through a "judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed" (see Brownlee v. Kohm, 61 AD3d 972, 973[2d 2009]). CPLR 7803(1) mirrors a mandamus to compel and allows the petitioner to review "whether the body or officer failed to perform a duty enjoined upon it by law" (see CPLR 7803(1); Klein v New York State Office of Temp. & Disability Assistance, 84 AD3d 1378, 1380 [2nd Dept 2011]). The petitioner seeks a court order compelling the respondent to take certain actions that he alleges are required by law. Specifically, he seeks the Court to compel the respondent to completely produce the records requested in his letter dated August 2, 2013. The Second Department noted that the remedy of mandamus to compel "may be granted only if petitioner establishes a clear legal right to the relief requested" (Rozz v. Nassau County Dept. of Assessment, 96 AD3d 952 [2d 2012]). The Court must apply this standard to all the petitioner's requests.



Mandamus to compel is appropriate only where the right to relief is clear and the action sought to be compelled is an act commanded to be performed by law involving no exercise of discretion (see generally, Matter of Korn v Gulotta, 72 NY2d 363 [1988]). Mandamus is addressed to the discretion of the court (County of Albany v. Connors, 300 AD2d 902 [3rd Dept 2002]).



FOIL REQUEST



FOIL is an article of Public Officers Law § 87 that allows members of the public to access records of governmental agencies and "imposes a broad duty on government to make its records available to the public" (Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]). To analyze the respondent's failure to provide the petitioner with the complete set of the records, the Court presumes that all government records are open for public inspection and copying, subject to certain exemptions of Public Officers Law § 87(2) (Verizon New York, Inc. v. Mills, 60 AD3d 958, 959 [2nd Dept 2009]). The exemptions must be "narrowly interpreted" to guarantee that the public has maximum access to government records (Data Tree, LLC v. Romaine, 849 N.Y.S.2d 489, 494 [2007]). Furthermore, the burden to demonstrate that the requested records indeed qualify for an exemption rests on the agency (id). To successfully demonstrate such exemption, the agency has to provide "a particularized and specific justification for denying access" (Markowitz v Serio, 862 NYS2d 833,836 [2008]).



The petitioner made two FOIL requests. The first FOIL request was made by Cobb sometime prior to December 16, 1996 (hereinafter the 1996 request). That request was responded to by the DA by letter dated December 16, 1996 (hereinafter the 1996 response). The 1996 response reflects that several of the requested documents were forwarded to the petitioner. The second FOIL request is dated August 2, 2013 (hereinafter the 2013 request). By letter dated June 26, 2014, the DA issued a decision on the 2013 request. The DA determined that several of the records were available for the petitioner to purchase. However, several of the records were exempt from FOIL, and accordingly the petitioner was not entitled to copies. By letter dated July 14, 2014, Cobb appealed the DA's determination to withhold certain documents. By letter dated July 24, 2014, the DA issued a final determination on the appeal which upheld the RAO's [*3]determination to withhold and redact certain documents.



The statute of limitations to bring a CPLR Article 78 petition is four months [CPLR 217]. The statute starts to run when the determination to be reviewed becomes final and binding on the petitioner, i.e., when the petitioner receives notice of determination. Any ambiguity created by the respondent as to the finality of the determination should be resolved against the respondent (Mundy v Civil Service Commission, 44 NY2d 352 [1978]).



The final determination regarding petitioners FOIL request is the letter dated July 24, 2014. On March 27, 2015, more than eight months later, the petitioner filed the instant petition. Clearly the petition is untimely.



Since the petitioner failed to comply with statute of limitation requirements for CPLR Article 78 proceedings, the respondent`s motion to dismiss the CPLR Article 78 petition is granted. The petition is dismissed without prejudice to make a new FOIL request for the same information.



The foregoing constitutes the decision and order of this court.



Enter________________________X



J.S.C.



Enter forthwith_________________________X



J.S.C.

Footnotes


Footnote 1: The DA opposed the petition on two grounds. The first is that the petition was improperly served upon the DA. The second ground was that the petition is untimely. As the District Attorney appeared on the motion date, April 24, 2015, and submitted opposition on the merits of the application, the Court will not address the service argument.