Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 8, 2026

2024-11440, (Index No. 603746/24)

Betsy Barros, J.P.

Cheryl E. Chambers

Lillian Wan

Susan Quirk, JJ.

[*1]

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to compel production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Lisa A. Cairo J.), entered October 7, 2024. The order and judgment, insofar as appealed from, granted that branch of the respondent/defendant's motion which was pursuant to CPLR 7804(f) and CPLR 3211(a) to dismiss the petition/complaint and dismissed the proceeding/action.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The plaintiff/petitioner (hereinafter the petitioner) commenced this hybrid proceeding pursuant to CPLR article 78 against the defendant/respondent, Town of Hempstead, to compel the production of certain records pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6), for an award of attorney's fees and litigation costs, and for a judgment declaring that the Town acted unlawfully in withholding records from the petitioner which are not properly exempt from disclosure and that the $40 fee charged by the Town is unlawful.

In November 2023, the petitioner had sent a request pursuant to FOIL to the Town seeking "[a]ll filed plans" for a certain property located in West Hempstead. The Town responded to the request on that same day in a letter from the Town's building department. The letter stated that all of the requested records could be found in permit files on the Town's website, "Hempsteadny.viewpointcloud.com," provided the website's address, indicated that the website could be accessed via the Internet, and provided information on how to access permit files via the Town's "public kiosk." The letter also indicated that "[t]his FOIL [request] is now completed." The petitioner administratively appealed the Town's determination, but the Town did not respond.

After the commencement of this proceeding/action, the Town sent a letter to the petitioner detailing its ability to access the same records that the petitioner had requested in its FOIL request via its website, "Hempsteadny.viewpointcloud.com," and provided copies of the records to [*2]the petitioner.

Thereafter, the Town moved, inter alia, pursuant to CPLR 7804(f) and 3211(a)(1) and (7) to dismiss the petition/complaint. In an order and judgment entered October 7, 2024, the Supreme Court, among other things, granted that branch of the Town's motion and dismissed the proceeding/action. The petitioner appeals.

"To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274, citing Public Officers Law § 84). Thus, "[w]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 440-441, citing Public Officers Law §§ 87[2]; 89[3]).

Here, the Supreme Court properly granted that branch of the Town's motion which was to dismiss that branch of the petition/complaint which was to compel the production of the requested records. The Town's FOIL response was not a denial but instead informed the petitioner how to locate the requested records either via the Town's website or in person. Although the Town referred the petitioner to a publicly available website, the petitioner did not request the records in any specific format (cf. Matter of Goldstein v Incorporated Vil. of Mamaroneck, 221 AD3d 111, 124-125). Moreover, the Town was not required to certify, pursuant to Public Officers Law § 89(3)(a), that any requested records could not be found after diligent search, since the certification requirement is triggered "when, in lieu of granting a FOIL request, the agency finds that it either does not possess the item requested or is unable to locate it after a diligent search" (Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 232; see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875). Thus, under the circumstances presented in this case, the Town met its obligations under FOIL (see Public Officers Law §§ 89[3][a]; [4][a]).

Additionally, the Supreme Court properly granted that branch of the Town's motion which was to dismiss that branch of the petition/complaint which was for an award of attorney's fees and litigation costs. "In order to create a clear deterrent to unreasonable delays and denials of access and thus, encourage government to make a good faith effort to comply with the requirements of FOIL, the legislature has provided for the assessment of attorney's fees and other litigation costs in FOIL proceedings" (Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 218 AD3d 462, 465, quoting Matter of Law Offs. of Cory H. Morris v County of Nassau, 184 AD3d 830, 832). "Thus, 'the court . . . shall 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 the court finds that the agency had no reasonable basis for denying access'" (Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 218 AD3d at 466 [alteration omitted], quoting Public Officers Law § 89[4][c][ii]). Alternatively, the 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'" (Matter of Edmond v Suffolk County, 197 AD3d 1297, 1299, quoting Public Officers Law § 89[4][c][i]; see Matter of Baez v Brown, 124 AD3d 881, 884). "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 Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 218 AD3d at 466 [internal quotation marks omitted]; see Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d 798, 800).

Here, the records requested were always available to the petitioner prior to the commencement of this a proceeding/action, and therefore, the commencement of litigation did not trigger the production of such records. Further, the petitioner was not entitled to discretionary fees pursuant to Public Officers Law § 89(4)(c)(i) because even though the petitioner administratively [*3]appealed the Town's FOIL determination and the Town did not answer, there was nothing to administratively appeal, as the Town did not deny the FOIL request.

The Supreme Court also properly granted that branch of the Town's motion which was to dismiss that branch of the petition/complaint which sought declaratory relief. "'A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government'" (Dolce-Richard v New York City Health & Hosps. Corp., 149 AD3d 903, 904, quoting Matter of Gottlieb v City of New York, 129 AD3d 724, 725). "A declaratory judgment is a discretionary remedy, and is usually unnecessary where a full and adequate remedy is provided by another form of action" (id. [citations omitted]). Here, although the petitioner sought a judgment declaring, inter alia, that the Town acted unlawfully by withholding certain documents, the petitioner was, in essence, seeking review of the Town's determination. That issue is subject to review pursuant to CPLR article 78 (see Matter of Wehr v Brown, 169 AD3d 807, 808; Dolce-Richard v New York City Health and Hosps. Corp., 149 AD3d at 904). Additionally, the petitioner's request for a judgment declaring that the Town of Hempstead's $40 certification fee is unlawful contemplated harm that was remote, as the petitioner was never charged $40 and was able to retrieve the records on its own without paying the fee. Therefore, since an adjudication on this issue would not result in a "direct and immediate effect upon the rights of the parties," the controversy was not ripe for judicial review (Matter of Enlarged City School Dist. of Middletown v City of Middletown, 96 AD3d 840, 841; see Matter of Hargraves v City of Rye Zoning Bd. of Appeals, 162 AD3d 1022, 1025).

The petitioner's remaining contentions need not be reached in light of our determination.

BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court