Wood v. Ellison

Appeal from a judgment of the Supreme Court (Williams, J.), entered February 17, 1993 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for failure to state a claim. Petitioner commenced this proceeding to compel the release of certain documents previously requested under the Freedom of Information Law (Public Officers Law art 6). The documents pertained to a 1983 criminal prosecution against petitioner. According to the Town Clerk of the Town of Neversink, the responses and documentation provided to petitioner constituted all of the records that presently exist relating to the 1983 prosecution. The Town Clerk also averred that she had charge and custody of all existing records concerning matters pending before respondent during his tenure as Town Justice. This included the time period that petitioner’s case was before respondent. Based on this evidence, Supreme Court concluded that there was nothing more that could be produced and granted respondent’s motion to dismiss the petition. In affirming Supreme Court, we initially note that, with certain exceptions not pertinent to this case, a public entity is not required to "prepare any record not possessed or maintained by” it (Public Officers Law § 89 [3]). Here, petitioner’s assertion that not all of the responsive documents were produced is based on nothing more than unsupported speculation and his own subjective belief that more records exist (see, Mitchell v Slade, 173 AD2d 226, lv denied 78 NY2d 863; Matter of Corbin v Ward, 160 AD2d 596, lv denied 76 NY2d 706). There is simply no evidence to indicate that there is further documentation which could be provided to petitioner. Thus, the petition was properly dismissed. In considering petitioner’s remaining arguments, we reject them as unpersuasive. Mikoll, J. P., Mercure, Cardona, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.