Matter of Rosasco v St. James Fire Dist.

Matter of Rosasco v St. James Fire Dist. 2021 NY Slip Op 06692 Decided on December 1, 2021 Appellate Division, Second 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 December 1, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
LEONARD B. AUSTIN
PAUL WOOTEN
JOSEPH A. ZAYAS, JJ.
2018-09020
(Index No. 1354/18)

[*1]In the Matter of Troy Rosasco, etc., appellant,

v

St. James Fire District, et al., respondents.

Cory H. Morris, Dix Hills, NY, for appellant.

Campolo, Middleton & McCormick, LLP, Ronkonkoma, NY (Patrick McCormick and Richard A. DeMaio of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney's fees and other litigation costs, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Sanford Neil Berland, J.), dated June 15, 2018. The order and judgment, insofar as appealed from, granted the respondents' motion, in effect, pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, denied the petition, and dismissed the proceeding.

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

The petitioner commenced this proceeding pursuant to CPLR article 78, inter alia, to compel the respondents to comply with a series of requests for documents he made pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL). The respondents thereafter moved, in effect, pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. The Supreme Court, among other things, granted the respondents' motion, denied the petition, and dismissed the proceeding. The petitioner appeals.

The Supreme Court properly determined that the branch of the petition which sought to compel the production of the subject documents was rendered academic by the respondents' post-commencement disclosure of those materials. Where, as here, a petitioner receives an adequate response to a FOIL request during the pendency of a CPLR article 78 proceeding, the proceeding should be dismissed as academic because a determination will not affect the rights of the parties (see Matter of Edmond v Suffolk County, 197 AD3d 1297, 1298; Matter of McDevitt v Suffolk County, 183 AD3d 826, 827; Matter of Robert v Fondulis, 40 AD3d 1002, 1003).

The Supreme Court, moreover, properly denied that branch of the petition which was for an award of attorneys' fees and other litigation costs (see Public Officers Law § 89[4][c]). The petitioner did not establish that the respondents failed to respond to his multiple FOIL requests— which the court characterized as complex, "duplicative," "overlapping," and marred with "inconsistencies"—or his purported appeal, within the applicable statutory time frames. Nor did he [*2]establish that the respondents denied access to any records without a reasonable basis (see Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1075; Matter of Fichera v New York State Dept. of Envtl. Conservation, 159 AD3d 1493, 1498; cf. Matter of Edmond v Suffolk County, 197 AD3d at 1298-1299).

Finally, the Supreme Court properly denied that branch of the petition which sought to retrain certain employees of the respondent St. James Fire District with respect to their obligations under FOIL (cf. Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405, 406).

LASALLE, P.J., AUSTIN, WOOTEN and ZAYAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court