McCreery v New York City Dept. of Transp.

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McCreery v New York City Dept. of Transp. 2021 NY Slip Op 31612(U) May 14, 2021 Supreme Court, New York County Docket Number: 100030/2020 Judge: Carol R. Edmead Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] NEW YORK COUNTY CLERK 05/14/2021 09: 54 AM] NYSCEF DOC. NO. 50 INDEX NO. 100030/2020 RECEIVED NYSCEF: 05/14/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. CAROL R. EDMEAD IAS MOTION 35EFM Justice ----------------------------------------------------------------- ----------------X DAVID MCCREERY, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 100030/2020 01/20/2021 002 -vNEW YORK CITY DEPARTMENT OF TRANSPORTATION, POLLY TROTTENBERG, ANDREW BURDES, THE CITY OF NEW YORK DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40,41,42,43,44,45,46 were read on this motion to/for REARGUMENT/RECONSIDERATION Upon the foregoing documents, it is ORDERED that the motion, pursuant to CPLR 2221, of petitioner David T. McCreery (motion sequence number 002) is denied; and it is further ORDERED that counsel for respondent New York City Department of Transportation shall serve a copy of this order along with notice of entry on all parties within ten (10) days. 100030/2020 MCCREERY, DAVID T. vs. NYC DEPT. OF TRANSPORTATION, Motion No. 002 1 of 4 Page 1 of4 [*[FILED: 2] NEW YORK COUNTY CLERK 05/14/2021 09: 54 AM] NYSCEF DOC. NO. 50 INDEX NO. 100030/2020 RECEIVED NYSCEF: 05/14/2021 Petitioner David T. McCreery (McCreery) moves, pursuant to CPLR 2221, for leave to reargue the merits of the Article 78 petition to compel the respondent New York City Department of Transportation (DOT) to comply with a Freedom of Information Law (FOIL) request, which the court previously denied and dismissed in a decision dated December 18, 2020 (motion sequence number 002). For the following reasons, this motion is denied. FACTS The court discussed the facts of this case at length in its earlier decision (motion sequence number 001), and will not repeat them at length here. The relevant portion of the court's December 18, 2020 decision found as follows: "The court finally notes that appellate case law has upheld the dismissal of Article 78 proceedings that were commenced by petitioners who had submitted separate successive FOIL requests for the same material, and either received the material from the agency in response to the first request, or obtained it during the pendency of the second request. See e.g., Matter ofFappiano v New York City Police Dept., 95 NY2d 738 (2001); Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072 (3d Dept 2020); Matter of Smith v New York State Off of the Attorney Gen., 159 AD3d 1090 (3d Dept 2018); Matter ofKhatibi v Weill, 8 AD3d 485 (2d Dept 2004). In such cases, the courts deemed that the relief sought in the second FOIL request had been rendered moot or academic. As was previously discussed, this case is similar to the cited precedent as McCreery's 2018 FOIL request was satisfied by the DOT's document productions in 2015 and 2018. As a result, dismissal is appropriate herein, notwithstanding the strong general policy that favors granting FOIL requests." See motion sequence number 001. McCreery filed this current motion on January 21, 2021, and DOT submitted its opposition on February 19, 2021. See notice of motion, McCreery and Druyan affirmations; Koroleva affirmation in opposition. This matter is now fully submitted (motion sequence number 002). 100030/2020 MCCREERY, DAVID T. vs. NYC DEPT. OF TRANSPORTATION, Motion No. 002 2 of 4 Page 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 05/14/2021 09: 54 AM] NYSCEF DOC. NO. 50 INDEX NO. 100030/2020 RECEIVED NYSCEF: 05/14/2021 DISCUSSION Pursuant to CPLR 2221 (d) (2), "[a] motion for leave to reargue ... shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Such a motion may be granted only upon a showing "'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision."' William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (1st Dept 1992), quoting Schneider v Solowey, 141 AD2d 813 (2d Dept 1988). As the Appellate Division, First Department, has observed, "a motion for leave to reargue 'is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented."' Matter ofAnthony J Carter, DDS, P.C. v Carter, 81AD3d819, 820 (2d Dept 2011); quoting McGill v Goldman, 261AD2d593, 594 (2d Dept 1999). Here, McCreery requests leave to reargue on two grounds. First, McCreery asserts that "[i]t has come to my attention that the outside vendor preparing the WalkNYC design guidelines publicly shared on April 20, 2018 on Twitter a graphic showing what appear to be newer versions of the design guidelines than have been previously released by the NYCDOT," and that "the above Tweet appears to contradict the sworn statement of Public Records Officer Judith Falk that the records have not changed since their previous release." See notice of motion, McCreery aff, iii! 1-2. McCreery's alleged new discovery of this 2018 Tweet plainly constitutes "a matter of fact not offered on the prior motion," which CPLR 2221 (d) (2) excludes from consideration in motions to reargue. As a result, the court discounts McCreery's assertion and finds that so much of his reargument motion as seeks to rely on that assertion should be denied. 100030/2020 MCCREERY, DAVID T. vs. NYC DEPT. OF TRANSPORTATION, Motion No. 002 3 of 4 Page 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 05/14/2021 09: 54 AMI NYSCEF DOC. NO. 50 INDEX NO. 100030/2020 RECEIVED NYSCEF: 05/14/2021 Next, counsel for McCreery asserts that "the correct standard of review in an Article 78 proceeding in which the petitioner challenges the denial of a FOIL request is whether the denial by the agency was merely 'affected by an error oflaw,"' and argues that the court's December 18, 2020 decision erroneously applied the "arbitrary and capricious standard" instead. See notice of motion, Druyan affirmation at 1-3 (paragraphs not numbered). It is true that the court made passing reference to the "arbitrary and capricious standard" in the opening portion of the December 18, 2020 decision, as it does in the opening portion of most of its decisions reviewing Article 78 petitions. However, as the portion of the December 18, 2020 decision reproduced above makes clear, the court based its dismissal of McCreery's Article 78 petition on its finding that the evidence in the administrative record indicated that McCreery's FOIL request was moot. Because the court's decision was based on the doctrine of mootness rather that an (alleged) misapplication of the standard ofreview, the argument that McCreery's counsel raises in the current motion is inapposite. As a result, the court discounts that argument and finds that so much ofMcCreery's reargument as seeks to rely on it should be denied. Accordingly, the court concludes that McCreery's motion should be denied in full. DECISION ACCORDINGLY, for the foregoing reasons it is hereby ORDERED that the motion, pursuant to CPLR 2221, of petitioner David T. Mccreery (motion sequence number 002) is denied; and it is further ORDERED that counsel for respondent New York City Department of Transportation shall serve a copy of this order along with notice of entry on all pa"ithin t (10 days. ~~EAbD76 B2E772F85B 5/14/2021 DATE CHECK ONE: CAROL R. EDMEAD, J.S.C. CASE DISPOSED GRANTED 0 DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 100030/2020 MCCREERY, DAVID T. vs. NYC DEPT. OF TRANSPORTATION, Motion No. 002 4 of 4 D D OTHER REFERENCE Page4 of 4

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