Matter of Johnson v Kelly

Matter of Johnson v Kelly 2014 NY Slip Op 02727 Decided on April 22, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 22, 2014
Tom, J.P., Renwick, Richter, Feinman, Gische, JJ.
12301 402082/11

[*1]In re Lamonte Johnson, Petitioner-Appellant,

v

Raymond W. Kelly, etc., et al., Respondents-Respondents.




Lamonte Johnson, appellant pro se.
Michael A. Cardozo, Corporation Counsel, New York (Hanh H.
Le of counsel), for respondents.

Judgment, Supreme Court, New York County (Donna Mills, J.), entered on or about February 7, 2012, denying the petition brought pursuant to CPLR article 78, seeking to compel respondents to disclose records pertaining to petitioner's criminal prosecution pursuant to the Freedom of Information Law (FOIL), and dismissing the proceeding, unanimously affirmed, without costs.

The court properly dismissed the petition as against respondent Police Commissioner Kelly as time-barred. The petition was brought in July 2011, more than four months after the December 2010 denial of petitioner's FOIL request (CPLR 217[1]). The parties' subsequent correspondence regarding the same request " did not extend or toll his time to commence an article 78 proceeding'" (Matter of Andrade v New York City Police Dept., 106 AD3d 520, 521 [1st Dept 2013], quoting Matter of Kelly v New York City Police Dept., 286 AD2d 581, 581 [1st Dept 2001]).

The court properly found that the records petitioner requested from respondent Chief Medical Examiner, pertaining to petitioner's conviction of two counts of second-degree murder (People v Johnson, 170 AD2d 535 [2d Dept 1991], lv denied 77 NY2d 996 [1991]), are exempt from disclosure under New York City Charter § 557(g) (see Public Officers Law § 87(2)(a); see also Matter of Robles v Hirsch, 19 AD3d 132 [1st Dept 2005], appeal dismissed 5 NY3d 823 [2005]; Matter of Mitchell v Borakove, 225 AD2d 435 [1st Dept 1996], appeal dismissed 88 NY2d 919 [1996]). We reject petitioner's constitutional challenge to the Charter provision on the ground that it restricts the disclosure of public records to
a greater extent than in other parts of New York State (see Matter of Lovacco v Hirsch, 250 AD2d 416 [1998], lv denied 92 NY2d 810 [1998], citing Gardner v Michigan, 199 US 325, 334 [1905]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 22, 2014

CLERK