Matter of Lambrou v New York City

Matter of Lambrou v New York City 2022 NY Slip Op 06753 Decided on November 29, 2022 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 and Entered: November 29, 2022
Before: Acosta, P.J., Kern, Singh, Scarpulla, Pitt, JJ.
Index No. 152283/22 Appeal No. 16755 M-4070 Case No. 2022-02148

[*1]In the Matter of Lambros Lambrou, Petitioner-Appellant,

v

New York City, Respondent, New York County District Attorney's Office et al., Respondents-Respondents.

The Law Offices of Cory H. Morris, Melville (Cory H. Morris of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Stephen Kress of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Lyle E. Frank, J.) entered May 4, 2022, denying the petition to annul respondents' purported constructive denial of petitioner's Freedom of Information Law request and to recover costs and attorneys' fees, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' review and determination of petitioner's FOIL request after the commencement of this article 78 proceeding rendered the proceeding moot (see Matter of Alvarez v Vance, 139 AD3d 459, 460 [1st Dept 2016]). Petitioner did not seek to amend the petition to challenge respondents' later determination of the FOIL request, and the validity of respondents' claimed exemptions are not before this Court in this proceeding (see Matter of Save Monroe Ave. v New York State Dept. of Transp., 197 AD3d 808, 809 [3d Dept 2021], lv denied 38 NY3d 905 [2022]).

Supreme Court also properly denied petitioner's request for costs and attorneys' fees, as petitioner failed to establish that he met the statutory requirements of Public Officers Law § 89(4)(c)(i) (see Public Officers Law § 89[3][a]; Matter of Save Monroe Ave. 197 AD3d at 809; Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405, 406-407 [1st Dept 2013], lv dismissed 22 NY3d 854 [2013]). In any event, even assuming that petitioner met the statutory requirements, Supreme Court providently exercised its discretion in denying petitioner's request for attorneys' fees (see Public Officers Law § 89[4][c][i]; Matter of Maziarz v Western Regional Off-Track Betting Corp., 207 AD3d 1065, 1066 [4th Dept 2022]).

M-04070 - Matter of Lambros Lambrou v New York County District Attorney's Office

Motion by respondents for leave to file a supplemental record on appeal granted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 29, 2022