Matter of Marino v Bodner

[*1] Matter of Marino v Bodner 2005 NY Slip Op 51409(U) [9 Misc 3d 1105(A)] Decided on June 28, 2005 Supreme Court, New York County Lehner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2005
Supreme Court, New York County

In the Matter of LEO MARINO, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

MARILYN BODNER, Records Access Officer, Office of the New York City Comptroller, Respondent.



403507/04

Edward H. Lehner, J.

Petitioner brings this Article 78 proceeding seeking to compel respondent, the Records Access Officer for the Office of the New York City Comptroller ("Comptroller"), to disclose documents pursuant to New York State's Freedom of Information Law, Public Officers Law, § 84, et seq. ("FOIL"). Respondent cross-moves to dismiss the petition on the grounds that it is barred by the four-month statute of limitations, and that it seeks to compel respondent to produce a document a subject matter list that it contends has already been produced.

Respondent argues that the petition is untimely because its final decision in response to petitioner's FOIL request was issued on May 18, 2004 (exhibit G), and the instant proceeding was not commenced until October 28, 2004, according to court records. Petitioner responds that the petition and an application for poor person's relief were verified on August 26. He argues that since the order granting poor person's relief was signed by a Justice Gangel Jacob on September 20, 2004, the petition must have been received earlier than October 28th and probably earlier than September 20th. The court observes that the County Clerk's file contains a computer run dated September 17, 2004, which is stapled to the signed order and supporting affidavit for fee waiver. Although these documents and the petition were stamped filed in the County Clerk's office on October 28, 2004, review of the entire file requires the conclusion that petitioner's application arrived prior to October 28, 2004. "CPLR 1101(f) sets up a special procedure for pro se prisoners, which effectively changes the general rule and allows the general rule and allows the commencement of a proceeding by the filing of an unsigned order to show cause" [Grant v. Senkowski, 95 NY2d 605, 609 (2001)]. Under these circumstances, absent any evidence demonstrating that the petition did not arrive at the clerk's office by September 18, 2004, the court will treat the petition as having been timely commenced, consistent with the intent of CPLR 1101(f).

On the merits, petitioner contends that respondent has not adequately responded to his [*2]request for its subject matter list. The Comptroller contends it satisfied its statutory obligation by producing a subject matter list on March 26, 2004, and fully responded to the FOIL request with a letter stating that the Comptroller "neither maintains nor possesses records responsive" to the part of the FOIL request seeking records of the NYC Police Department and the Queens County District Attorney's Office. The list provided by the Comptroller identifies 25 divisions within the Comptroller's Office that maintain records. There is no affidavit by a person with knowledge that alleges that the list of divisions within respondent's office reflects how records are maintained by subject matter.

Under FOIL, "all records of governmental agencies are presumptively available for public inspection and copying, without regard to the status, need, good faith or purpose of the applicant" (Matter of Scott, Sardano & Pomeranz v. Records Access Officer, 65 NY2d 294, 296 [1985]). Part of an agency's obligation under FOIL is to maintain a "reasonably detailed current list by subject matter, of all records in the possession of the agency, whether or not available under this article" (Public Officers Law § 87[3][c]).

As set forth in a prior proceeding brought by this petitioner, a "subject matter list need not refer to each and every document [respondent's] agency maintains, but only to categories of records in detail sufficient to permit an applicant to identify the category of records that may include the records sought" [Marino v. Morgenthau, 1 AD3d 275 (1st Dept. 2003), appeal dismissed 2 NY3d 780 (internal quotation omitted)]. An agency is not required to index all of its records, but may satisfy the "spirit and letter" of the law by labeling records so they may be accessed and listing the "broad variety of records it maintains" [D'Alessandro v. Unemployment Ins. Appeal Bd., 56 AD2d 762 (1st Dept. 1977)]. The list provided by the Comptroller's office is not a list by subject matter of the records in the agency's possession but rather a list of the departments within the agency, which would not assist a FOIL applicant in identifying the category of records sought.

Accordingly, the petition is granted to the extent that the matter is remitted to the agency to provide a subject matter list consistent with the guidelines set forth herein.

This decision constitutes the order of the court.

Dated: June ___, 2005________________

J.S.C.