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Matter of Hodges v Russo 2007 NY Slip Op 31867(U) June 26, 2007 Supreme Court, New York County Docket Number: 0404381/2006 Judge: Herman Cahn Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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In the Matter of the Application of CLIFTON HODGES,
Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
- against -

Index No. 40438 1/06

Herman Cahn, J.

Petitioner, Clifton Hodges, brings this Article 78 proceeding to reverse respondents' denial of his request for documents and records, pursuant to the Freedom of Information Law
("~01~37).

Respondents cross-move to dismiss the Petition on the grounds that, infer alia, the proceeding is time-barred, CPLR 2 17(I), and the principles of res judicata bar relief. BACKGROUND

This action is based on respondents' determination that petitioner was not entitled to
certain documents related to his February 2 1, 1990 arrest and subsequent conviction of rape and sodomy. Petitioner is currently incarcerated at Marcy Correctional Facility in Marcy, New York. Over the past few years, petitioner has submitted numerous FOIL requests for documents

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concerning the same incident. Petitioner submitted his first request, by letter dated February 20,2004, In addition to listing specific items, he also requested all other documents and records that related to his case and attached a list of almost one hundred general categories. On March 5,2004, the Records Access Officer (the `XAO") sent petitioner a letter seeking additional information, such as the date of his arrest and the arrest charge, to assist h m in locating the documents. After petitioner i responded with the requested information, the RAO denied access to the requested records, by letter dated June 10,2004, on the grounds that disclosure of those documents was barred, pursuant to Civil Rights Law 0 50-b. Civil Rights Law 8 50-b protects the privacy rights of victims of sex offenses. It provides:
No . . . court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subsection two of this section.

Civ. Rights Law 50-b. However, the statute also provides exceptions where court documents will nonetheless be disclosed. Idt at 5 50-b(2). The June 10,2004 letter also contained a provision notifying petitioner that an appeal of the RAO's decision must be made within thirty days of the date of the letter. However, petitioner never submitted an appeal to that determination. Instead, on August 9,2005, petitioner submitted another FOIL request, seeking documents pertaining to the same arrest and conviction as his previous FOIL request.

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Thereafter, on February 8,2006, the RAO denied the documents requested on various grounds, including that this request was duplicative of the earlier request and that disclosure was exempted under Public Officers Law 6 87(2) and barred by Civil Rights Law 6 50-b. Similar to the previous denial letter, this letter contained notice that any appeal must be made in writing within thirty days from the date of the letter. With regard to this denial, petitioner appealed the RAO's decision on March 22,2006. However, the Records Access Appeals Officer (the "RAAO") denied petitioner's appeal stating it
was untimely, as petitioner was supposed to submit his appeal within thirty days of February 8,

2006. The RAAO also indicated that even if the appeal had been timely, it would have been denied based on the same reasons given by the RAO in his February 8,2006 letter. The June 7,
2006 letter also advised petitioner that he could seek judicial review of that determination by

commencing an Article 78 proceeding within four months of the date of the decision. However, before petitioner appealed the RAO's determination, he submitted his third

FOIL request seeking various documents, but did not include any information regarding the
particular incident or arrest. On March 8,2006, the RAO denied access to the requested records
on the basis that the request was too broad. On March 22,2006, petitioner submitted his appeal
to this decision, which was denied by the RAAO on June 7,2006, on the basis that disclosure is

barred by Civil Rights Law 8 50-b. Consequently, petitioner commenced this Article 78 proceeding on October 17,2006 to contest respondents' denials of his FOIL requests.
DISCUSSION

Public Officers Law $ 89(4)(b) provides that an Article 78 proceeding is the proper

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mechanism to challenge a final determination denying access to records. It also states that, if access is denied pursuant to Public Officers Law 5 87(2), which lists exemptions for disclosure, the agency issuing the denial has the burden of proving that the record falls within the claimed exemption. Therefore, the general standard applied in Article 78 proceedings, Le. whether a determination was "arbitrary and capricious or an abuse of discretion," does not apply. Laureano
v Grimes, 179 AD2d 602,603-04 (1st Dep't 1992).

Respondents maintain that, under Public Officers Law 4 87(2), the requested records are exempt from disclosure by a state law, namely, Civil Rights Law 5 50-b. Therefore, should the case proceed, the burden of proving the exemption applies rests on the respondents. Respondents contend that the Petition should be dismissed for various reasons, including that the petition is time-barred because the statute of limitations has expired and that the petitioner did not timely file an appeal to the RAO's denial within the thirty-day time requirement. Before this Court could consider whether the respondents have met their burden of proving that an exemption to disclosure applied, it must first decide the threshold issue of whether the statute of limitations precludes petitioner from proceeding in this action.
CPLR 2 17( 1) provides that an Article 78 proceeding must be commenced within four
months of the challenged determination becoming final and binding on the petitioner. The

determinations became final and binding when the RAAO issued his letters denying the petitioner's appeals to the determinations of the R40. Laureano, 179 AD2d at 603. The FMAO sent two letters on June 7,2006. One letter regarded the RAO's determination of February 8,2006, in which the appeal was denied as untimely because

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petitioner failed to submit it within thirty days of receiving the RAO's determination. The other letter concerned the RAO's decision of March 8,2006, in which the appeal was denied because access to the records petitioner requested was barred by Civil Rights Law 5 50-b and, therefore, the documents were exempt from disclosure under Public Oficers Law 6 87(2)(a). Both of the June 7,2006 letters constituted final and binding determinations because they were the final step in the administrative process. As a result, petitioner was required to seek judicial review by commencing this proceeding within four months of the date of the letters.
CPLR 304 states that a special proceeding, such as an Article 78 proceeding, is

commenced by filing a petition. A review of the court records and the documents submitted indicates that petitioner commenced this proceeding by filing his Verified Petition, among other documents, on October 17,2006, which was more than four months after the final determinations were issued. Therefore, he did not do so within the requisite time limit. As such, the Petition should be dismissed.

As a result of finding that petitioner did not act timely in instituting this action, it is
unnecessary to discuss respondents' other bases for dismissing the Petition.
If the Court were to consider the petition on substantive grounds, it would deny it, based
on Civil Rights Law 9 SO-b.

Accordingly, it is

ORDERED that the Petition is dismissed; and it is further

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c

ORDERED that a copy of this decision shall be mailed to petitioner at Marcy
Correctional Facility; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

Dated: June 26,2007

ENTER:

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J.S.C.

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