Matter of Empire Ctr. for Pub. Policy, Inc. v. N.Y.C. Off. of Payroll Admin.

Matter of Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin. (2018 NY Slip Op 01143) Matter of Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin. 2018 NY Slip Op 01143 Decided on February 15, 2018 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 on February 15, 2018 Friedman, J.P., Tom, Mazzarelli, Singh, JJ. 5738 100079/16 [*1]In re Empire Center for Public Policy, Inc., Petitioner-Respondent, v N.Y.C. Office of Payroll Administration, Respondent-Appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellant. Lawrence P. Justice, Albany, for respondent. Judgment, Supreme Court, New York County (Kathryn Freed, J.), entered March 10, 2017, granting the petition brought pursuant to CPLR article 78 seeking to compel respondent to disclose certain information requested by petitioner pursuant to the Freedom of Information Law (FOIL), granting attorney's fees and costs, and referring the matter to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded, unanimously reversed, on the law, without costs, and the petition dismissed. Between July 1, 2015 when petitioner first made the FOIL request and November 5, 2015, petitioner and respondent corresponded regarding respondent's attempt to comply with the request. Respondent anticipated needing until October 2015 to compile the data. On November 5, 2015, upon petitioner's inquiry, respondent requested an additional 20 days to provide the requested data. On November 6, 2015 petitioner filed an administrative appeal. However, petitioner's appeal was premature because respondent did not constructively deny petitioner's FOIL request. Respondent provided most of the information on November 18, 2015 (cf. Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929 [2d Dept 2016] [failure to provide approximate date when FOIL request would have been granted was constructive denial]). Petitioner did not file an administrative appeal from respondent's November 18, 2015 response and failed to exhaust its administrative remedies before commencing this article 78 proceeding (see Matter of Taylor v New York City Police Dept. FOIL Unit, 25 AD3d 347 [1st Dept 2006] [despite untimely response to FOIL request, petitioner did not properly institute Article 78 without first taking an administrative appeal], lv denied 7 NY3d 714 [2006]; Matter of Carty v New York City Police Dept., 41 AD3d 150 [1st Dept 2007] [same]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 15, 2018 CLERK