IN RE: Thomas HOFFMAN (2024)

Order and judgment (one paper) Supreme Court, New York County (Erika M. Edwards, J.), entered November 9, 2023, which, in this proceeding brought pursuant to CPLR article 78, granted the petition to annul respondent New York City Police Department (NYPD)’s denial of petitioner's Freedom of Information Law (FOIL) request and awarded reasonable attorneys’ fees and costs to petitioner, and denied the NYPD's cross-motion to dismiss, unanimously modified, on the law, the cross-motion granted in part and the petition denied in part as to petitioner's claim seeking records responsive to his FOIL request on grounds of mootness, and otherwise affirmed, without costs.

The cross-motion to dismiss should have been granted in part, as the NYPD's post-petition disclosure “moot[ed] petitioner's challenge to the denial of [his] FOIL request” (Matter of O'Neill v. New York City Police Dept., 202 A.D.3d 444, 444, 158 N.Y.S.3d 588 [1st Dept. 2022];  see also Matter of Lambrou v. New York City, 210 A.D.3d 588, 589, 178 N.Y.S.3d 524 [1st Dept. 2022], lv denied 40 N.Y.3d 902, 2023 WL 6066549 [2023]).  Additionally, Supreme Court should not have considered the issue of redactions in the NYPD's production of documents and “the validity of [the NYPD's] claimed exemptions are not before this Court,” since petitioner “did not seek to amend the petition to challenge” the later production (Matter of Lambrou, 210 A.D.3d at 589, 178 N.Y.S.3d 524;  see also Matter of Cha v. New York State Indus. Bd. of Appeals, 204 A.D.3d 602, 603, 168 N.Y.S.3d 415 [1st Dept. 2022];  compare Matter of Barry v. O'Neill, 185 A.D.3d 503, 504–505, 128 N.Y.S.3d 183 [1st Dept. 2020]).

However, we affirm the award of attorneys’ fees.  There is no reasonable dispute that petitioner “substantially prevailed” (Public Officers Law § 89[4][c][i]), as the NYPD admittedly conducted a diligent search resulting in the production of 481 pages of responsive documents only after petitioner commenced the instant proceeding (see Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 78–79, 64 N.Y.S.3d 635, 86 N.E.3d 527 [2017];  Matter of Rauh v. de Blasio, 161 A.D.3d 120, 123–124, 127, 75 N.Y.S.3d 15 [1st Dept. 2018];  Matter of Kohler–Hausmann v. New York City Police Dept., 133 A.D.3d 437, 437–438, 18 N.Y.S.3d 848 [1st Dept. 2015]).  The record further shows that the NYPD failed to provide any determination whatsoever after twice providing a “statement of the approximate date” that it would respond and contacted petitioner again only after he sought to challenge the constructive denial (Public Officers Law § 89[3][a];  see 21 NYCRR 1401.5[e]), thus “fail[ing] to respond to a request or appeal within the statutory time” (Public Officers Law § 89[4][c][i]).

We have considered the remaining contentions and find them unavailing.