IN RE: Application of Courtney KELLY (2001)

Order, Supreme Court, New York County (Franklin Weissberg, J.), entered July 17, 2000, which granted respondent's cross motion to dismiss as time-barred the petition brought pursuant to CPLR article 78 to challenge respondent's denial of petitioner's Freedom of Information Law (FOIL) request, unanimously affirmed, without costs.

 On June 6, 1997, respondent partially denied petitioner's request for documents leading to his indictment.   That determination was final and binding upon petitioner and commenced the running of the applicable four-month limitations period (CPLR 217).   Petitioner's second request, dated June 23, 1999, was duplicative of his prior request, and therefore did not extend or toll his time to commence an article 78 proceeding, after petitioner's first article 78 proceeding challenging the partial denial of his first request was dismissed for failure to file proof of service (see, Matter of Mendez v. New York City Police Dept., 260 A.D.2d 262, 688 N.Y.S.2d 538;  see also, Edwards v. New York State Employs. Retirement Sys., 190 A.D.2d 545, 593 N.Y.S.2d 1011).   Accordingly, since this second article 78 proceeding, identical to petitioner's first article 78 proceeding, was not commenced by petitioner within the time allowed by former CPLR 306-b, then applicable, or within the six-month extension provided pursuant to CPLR 205(a)(see, Matter of Hicks v. City of New York, 247 A.D.2d 342, 669 N.Y.S.2d 290), the proceeding was properly dismissed as untimely.