Matter of Kanani v District Attorney of the County of
N.Y.
2012 NY Slip Op 30873(U)
April 2, 2012
Sup Ct, NY County
Docket Number: 402886/11
Judge: Barbara Jaffe
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NNED ON41512012
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : PART 5
In the Matter of the Application of BEHROOZ KANANI,
#83-A-7866,
Petitioner,
For a judgment pursuant to Article 78 of the Civil
Practice Law and Rules,
Index No. 402886/11
Motion Subm. :
Motion Seq. No.:
12/15/12
00 1
DECISION & JUDGMENT
-against-
DISTRICT ATTORNEY OF THE COUNTY OF NEW
YORK,
For petitioner, self-represented:
Behrooz Kanani, #9 1-A-5678
Fishkill Correctional Facility
271 Matteawan Rd., P.O. Box 1245
Beacon, NY 12508-0307
FILED
Sara M.-Zausrner, ADA
New York County District
Attorney's Office
One Hogan P1.
New York, NY 10013
2 12-335-9000
By order to show cause dated November 3,20 11, petitioner brings this special proceeding
pursuant to CPLR Article 78. Respondent opposes.
1, BACKGROUlQ
In March 1998, after a second jury trial, petitioner was convicted of 12 counts of sodomy
in the first degree related to crimes he committed against his two daughters, who were both under
12 years old at the time of the crimes. (Verified Petition, dated Oct. 26,201 1 [Pet.]).
By letter dated April 19,2010, petitioner served respondent with a Freedom of
Information Law (FOIL) request seeking an unredacted copy of all records, files, and documents
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relating to his criminal indictment. (Id.,Exh. A).
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By letter dated April 30, 2010, respondent denied his request on the grounds that he had
been provided with the documents during his two trials and that the documents were exempt
from disclosure pursuant to section 50-b of the Civil Rights Law as they would identify the
victims of a sex offense. (Id,,Exh. B).
By letter dated May 19,2010, petitioner appealed the denial, asserting that the documents
were not exempt as the alleged victimsâ identities were already known to him, that he never
received any documents during the trials, and that when he requested the documents from his
attorney, he was told that they had been returned to the District Attorneyâs Office. (Id,,Exh. C).
By letter dated July 2,2010, respondent denied the appeal, finding that petitionerâs denial
of receipt of the records during his trial was unsubstantiated and not in evidentiary form, that it
was unclear if he had tried diligently to obtain the records from his attorney, and that the records
were exempt notwithstanding the victimsâ relationship with petitioner. (Id,,Exh. D).
By letter dated September 23, 2010, petitioner sent respondent a request for
reconsideration of its decision, annexing copies of letters he allegedly sent to his attorney and
which, according to him, were ignored by the attorney. (Id,Exh. E). By letter dated January 7,
201 1, respondent denied the request. ( I d , Exh. F).
By letter dated February 10,201 1, petitioner wrote to the Committee on Open
Government, requesting assistance with his FOIL request. The letter was apparently forwarded
to respondent, which responded to petitioner by letter dated March 3,201 1 and advised that the
documents which needed to be reviewed had been ordered from the Closed Cases Unit and that
upon receipt of the documents, it would determine petitionerâs request. According to petitioner,
he received no further response from respondent. (Id., Exhs. G, H, I, J).
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11, CONTENTIONS
Petitioner contends that he is entitled to the documents as he never received them during
his criminal trials and as the alleged victims are known to him. (Pet.).
Respondent asserts that the proceeding is time-barred, and that in any event, petitionerâs
FOIL request was properly denied. (Verified Answer, dated Dec. 14,201 1).
IJLuAum
A. Timelinoness
Pursuant to CPLR 2 17(1), any proceeding against a body or officer must be commenced
within four months after the determination to be reviewed becomes final and binding upon the
petitioner. The determination becomes final and binding when the petitioner has been aggrieved
by it. (Mutter ofYarbough v Franco, 95 NY2d 342 [2000]).
As respondent denied petitionerâs request for reconsideration of the denial of his appeal
on or about January 7,201 1, and this proceeding was not commenced until November 201 1, it is
time-barred. (See Matter ofMcCrory v Village of Scursdule, 67 AD3d 684 [2d Dept 20091 [as
proceeding related to FOIL request was not commenced within four months of respondentâs
letter informing petitioner of decision not to disclose records, it was time-barred]; Roman v
Lombardi, 298 AD2d 3 13 [ 19t Dept 20021 Lproceeding commenced more than six months after
petitioner received notice of denial of FOIL request dismissed as time-barred]).
As respondentâs March 201 1 letter was not issued in response to a new FOIL request by
petitioner, it did not extend petitionerâs time to commence the instant proceeding. (See eg
McBride v Ct ofNew York, 284 AD2d 197 [ 1st Dept 20011 [petitionerâs additional requests for
iy
3
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same materials did not extend time to commence proceeding after respondentâs denial of first
request]; Washington v Rudin, 256 AD2d 178 [lSt
Dept 19981, lv denied 93 NY2d 867 [1999]
[denial of first FOIL request triggered four-month statute of limitations, regardless of fact that
petitioner subsequently made two additional requests]).
B. M&
In any event, generally all agency records under FOIL are presumptively available for
public access, inspection or use, unless such records fall within one of eight categories of
exemptions. (See Public Officers Law
8 87[2]).
An agency may not withhold information it
chooses, but must state with particularity and list specific justifications for withholding
information from the party seeking access to it. (Mutter ofMoore v Santucci, 151 AD2d 677 [2d
Dept 19891, citing Mutter of Fink v Lefkowitz, 47 NY 2d 567, 571 [1979]; see also City of
Newark v Law Dept. ofCiQ ofNew York, 305 AD2d 28 [lstDept 20031).
Pursuant to Civil Rights Law 6 50-b(l), the identity of any victim of a sex offense shall
be confidential, and no document in the custody of any public officer or employee which
identifies such a victim shall be made available for public inspection, nor shall a public officer or
employee disclose such a document.
As petitioner was convicted of the crimes with which was he was charged, the records are
exempt from disclosure. (Matter of Fuppiano v New York City Police Dept., 95 NY2d 738
[2001]). That petitioner knows the victimsâ names does not negate the exemption. (Id, at 748
[âNor does the fact that petitioners already know the identity of their victims provide a basis for
disclosure.â]).
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IV, CONCJLJSION
Accordingly, it is hereby
ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed.
ENTER:
DATED:
April 2,2012
BARBARAYAFFE
New York, New York
J.S.C.
FILED
NEW YORK
COUNTY CLERKS OFFICE
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