Upon the foregoing electronically filed papers, the Motion to Dismiss filed by the respondents, Lake Success Police Department ["LSPD"] and Joseph Gardella, in his official capacity as the Chief of Police for the Lake Success Police Department ["Gardella"] [collectively, "respondents"], and opposed by the petitioner, LatinoJustice PRLDF ["petitioner"], is determined as hereinafter provided.

The petitioner commenced this Article 78 proceeding by Verified Petition on July 6, [*2]2022. The petitioner seeks an Order and Judgment pursuant to CPLR §7806 for the following relief: directing the LSPD and Gardella to certify, pursuant to the Freedom of Information Law ("FOIL") and Public Officers Law §89(3)(1), that the records the petitioner requested could not be found after a diligent search; directing the respondents to appear for an evidentiary hearing to determine whether the respondents maintain additional documents responsive to the petitioner's FOIL request; and to the extent the respondents are in possession of the documents, directing them to disclose the documents in accordance with their duty under FOIL. The petitioner also seeks an award of attorneys' fees and costs pursuant to Public Officers Law §89(4)(c). In response, the respondents filed a Notice of Motion for an Order dismissing the Petition pursuant to CPLR §§ 7804(f), 306-b and 3211(a)(1), (2), (5), (7) and (8). The respondents argue, inter alia, that LSPD is not a proper party to this proceeding and that the petitioner has failed to state a cause of action against Gardella.

On November 18, 2021, the petitioner submitted a FOIL request to the LSPD. The FOIL request sought records collected by the LSPD concerning "problem-oriented", "intelligence-led", "focus-deterrence", "hot-spot", and "predictive policing". Receipt of the FOIL request was acknowledged by the Village of Lake Success (the "Village") by letter dated November 19, 2021 and signed by Patrick E. Farrell ("Farrell"), as Village Administrator.

By email and letter dated December 30, 2021, Village Administrator Farrell denied Petitioner's FOIL request, stating that, "no such records exist, and the Village is not in possession of any responsive records". Such denial was printed on the stationary of "The Incorporated Village of Lake Success". The denial advised the petitioner of its right to appeal, within 30 days, to the FOIL Access Officer at the address of 318 Lakeville Road, Great Neck, NY 11020.

On February 1, 2022, the petitioner submitted its appeal addressed to the FOIL Appeals Officer and to Angelique Melnyk, Deputy Clerk for the Incorporated Village of Lake Success. The Village's Mayor, Adam Hoffman, responded to the petitioner's appeal by letter dated February 11, 2022. In that letter, Mayor Hoffman remitted the petitioner's original FOIL request and its appeal to the FOIL Access Officer, and directed the FOIL Access Officer to work with the Police Department to see what documents "if any exist" in response to the petitioner's FOIL request. The letter further directed the Foil Access Officer to take certain additional measures to respond to the petitioner's FOIL request within a specified time frame. Mayor Hoffman copied the Committee on Open Government, Police Chief Gardella and the FOIL Access Officer on his letter response to the petitioner. On March 7, 2022, Farrell, as FOIL Access Officer, forwarded to the petitioner copies of documents for which its appeal was granted in whole or in part, together with explanations for any responses and/or denials thereof. Village Administrator Farrell copied the Committee on Open Government on his letter determination sent to the petitioner.

LSPD argues that the Verified Petition should be dismissed because, inter alia, LSPD is not a proper party to this proceeding. The respondents argue that, under New York law, agencies of a municipality are not suable entities because they do not have a separate identity from the Village. In so arguing, the respondents rely upon lawsuits arising from 42 § USC 1983 claims and negligence-related tort claims in which the Courts have held that such actions were properly dismissed against the relevant police department. (See, e.g., Stevens v. Town of East Fishkill Police Department, 198 AD3d 832 [2d Dept 2021]). The respondents do not cite to any cases involving Article 78 proceedings brought against a municipality's police department and the [*3]Court is not persuaded at this time to extend the prohibition against lawsuits brought against municipal police departments to Article 78 proceedings such as this one. (See CPLR 7802 governing the "Parties" involved in Article 78 proceedings and defining "body" or "officer" as follows: "The expression 'body or officer' includes every court, tribunal, board, corporation, officer, or other person, or aggregation of persons, whose action may be affected by a proceeding under this article".).

However, the Court does find that the petitioner failed to include all of the necessary parties in this proceeding, as it failed to include the FOIL Access Officer, i.e., Village Administrator Patrick Farrell, and the Incorporated Village of Lake Success [the "Village"], as additional parties to this proceeding. The evidence submitted by the parties in support of their respective motion papers indicates that the Village (through its FOIL Access Officer) is the main body responsible for the determination of the petitioner's FOIL request and appeal. In all of the cases cited by the petitioner in its opposition papers, the police and fire departments had their own FOIL Units, FOIL Records Officers and FOIL Appeals Officers who were directly responsible for handing the FOIL requests and issuing the determinations subject to judicial review. In contrast, the evidence submitted in this case indicates that LSPD does not have its own FOIL Unit; rather, the Village is responsible for FOIL requests of its records.

The parties' respective motion papers further reveal that the FOIL denials were signed by Mr. Farrell as the Village's Administrator, Treasurer and FOIL Access Officer, and that each denial was on the Village's letterhead. Aside from Mr. Farrell, the only other individual who provided substantive written correspondence in response to the petitioner's FOIL request was Mayor Hoffman. The sole communication between Chief Gardella and the petitioner consisted of Chief Gardella forwarding the FOIL Access Officer's determination as an attachment to an email.

Therefore, accepting as true the petitioner's argument that Chief Gardella is a necessary party to this proceeding ^[FN1] , then FOIL Access Officer Farrell is also a necessary party who "may be affected by [this] proceeding". (CPLR § 7802[a]; see also Snyder v. Village of Hempstead, 199 AD3d 924, 924 [2d Dept 2021] [Article 78 proceeding brought based on FOIL request for records, brought against respondents Village of Hempstead, Hempstead Village Police Department, and Records Access Officer Lisa Cedillo]).

As the four-month statute of limitations has expired with respect to these additional necessary parties, the respondents' application to dismiss the Verified Petition shall be GRANTED, and the Verified Petition shall be dismissed. (See, CPLR § 217[1]; see also Germain v. Town of Chester Planning Board, 178 AD3d 926, 927 [2d Dept 2019]; Matter of Karmel v. White Plains Common Council, 284 AD2d 464, 465 [2d Dept 2001]; Baker v. Town of Roxbury, 220 AD2d 961, 963 [3d Dept 1995], leave to appeal denied, 87 NY2d 807 [1996]).

Based upon conclusions reached herein, this Court need not address the remaining arguments set forth in the parties' motion papers.

Accordingly, it is hereby

ORDERED, that the Petitioner's Verified Petition is DISMISSED.

ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED.

This constitutes the Decision and Order of the Court.