Matter of Jackson v Wilcox

[*1] Matter of Jackson v Wilcox 2021 NY Slip Op 50012(U) Decided on January 4, 2021 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2021
Supreme Court, Albany County

In the Matter of the Application of Raymond L. Jackson, Petitioner,

against

LT. COL. Scott A. Wilcox, NEW YORK STATE POLICE, Respondent.



4575-20



Appearances:

Raymond L. Jackson,

Petitioner and Self Represented Litigant

Hon. Letitia James

Attorney General of the State of New York

Attorney for Respondent

Chris Liberati-Conant, Esq., of counsel

The Capitol

Albany, New York 12224
Henry F. Zwack, J.

The petitioner Raymond L. Jackson has filed this Article 78 to compel the respondent [*2]New York State Police to comply with his FOIL request.[FN1] This is the petitioner's second Article 78 to compel production for the same FOIL request — his first was dismissed by the Court (Ryba, J) for lack of jurisdiction on October 19, 2019. The first Article 78 was brought as a result of the denial of the petitioner's appeal dated February 14, 2019. Following Judge Ryba's dismissal of the first Article 78, the petitioner made a motion to reargue the dismissal, which was denied on January 6, 2020. The petitioner then brought the instant Petition on July 16, 2020.

The respondent now moves for the dismissal of the Petition as time barred. The petitioner disagrees, asserting that his entitled to avail himself of the tolling period provided by the Governor's Executive Order 202.8 ("Executive Order 202.8") dated March 20, 2020, and that his Petition is therefore timely.

For the reasons that follow the Court grants the respondent's Motion to Dismiss and dismisses the Petition in its entirety.

Here, the Court is mindful that the date of the respondent's final determination regarding the petitioner's FOIL request was February 14, 2019 (as set out in the petitioner's Exhibit "H") — the date that the determination was final, binding, and had a direct impact on the petitioner (New Surfside Nursing Home, LLC v Daines, 103 AD3d 637 [2d Dept 2013]). This said, the petitioner had four months, or until June 21, 2019, to commence his Article 78 proceeding. He filed his first Article 78 timely on May 1, 2019, which then tolled the statute of limitations. The first Article 78 was dismissed on October 15, 2019. Albeit he moved for reconsideration, applications for reconsideration do not toll the statute of limitations in an Article 78 proceeding (Alterra Healthcare Corp. v Novello, 306 AD2d 787 [3d Dept 2003]). Therefore, the petitioner was required to have commenced a new Article 78 withing four months from the October 15, 2019 determination dismissing the first Article 78, or by February 20, 2020.

Turning to the petitioner's argument that he is entitled to the tolling afforded by Executive Order No. 202.8, it is simply without any merit. Here, the Court is mindful that retroactive application of a law (in this instance Executive Order 202.8) needs to be clearly intended and stated (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 370-371 [2020]. Executive Order 202.8 tolled until April 19, [*3]2020 [FN2] only the "specific time limit for the commencement, filing or service of any legal action, notice, motion, other process or proceedings" from the date of Executive Order filings, pleadings, responses and notices...that came due on or after March 16, 2020." By its clear terms, it cannot be read to revive already expired time limitations, and the petitioner's reliance on the Executive Order is patently misplaced.

Even if the petitioner were entitled to a tolling, thus making the instant Article 78 timely, the record provides the Court with sufficient information to determine there is no merit to his Petition. The record amply establishes that the respondent provided the petitioner with all the information it was required to provide. Albeit the petitioner makes much of the Department of Corrections and Community Supervision ("DOCCS") directive that allows inmates to "possess CD's", a careful reading of the same reveals that the respondent is prohibited from providing the same to inmates, and also that an inmate is not actually allowed to have possession of them. While CDs may be kept as part of the inmate's property by the prison, and may be reviewed by the inmate under supervision, CDs may never be in the inmate's physical possession — thus amply supporting the respondents determination that it is prohibited by 7 NYCRR 270.2, Rule 113.10 and DOCCs Memorandum by Lucien LeClaire, Deputy Commissioner, from directly providing CDs to an inmate. Further, the petitioner admitted on several occasions that he has been provided with the images he sought, and made no attempt to differentiate between hard copy photos, contact sheets, or CD/DVD. However viewed, the petitioner's argument that sought images might be altered on the hard copy photos, but not on the CD/DVD is nonsensical.

On this record, the petitioner has failed to demonstrate that the respondent has not fully complied with his FOIL request, and his Petition must also be denied on the merits.

Accordingly, it is

ORDERED, that the Article 78 Petition is dismissed in its entirety.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the Attorney General.The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: January 04, 2021

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

1. Order to Show Cause dated August 3, 2020; Verified Petition dated July 10, 2020, with Exhibits;

2. Notice of Motion to Dismiss dated October 27, 2020; Affirmation of Chris Liberati-Conti, Esq., dated October 18, 2020 with Exhibits "A" and "B";

3. Letters in Opposition by Petitioner dated November 3, 2020 and November 6, 2020. Footnotes

Footnote 1:The petitioner was convicted of three criminal sales and drug possession charges. He thereafter FOILed the respondent State Police seeking information pertaining to drug evidence set out in three photographs, asking for digital jpeg images of the photographs, as well as contact sheets for the photographs.

Footnote 2:Further extended by Executive Orders, including Governor's Executive Order 202.67 which extended the toll first instituted in Executive Order 202.8 through November 3, 2020.