IN RE: Application of Alfred NORDE (1999)

Order, Supreme Court, New York County (Ronald Zweibel, J.), entered on or about February 10, 1998, which dismissed the petition, brought pursuant to CPLR article 78, to challenge respondents' denial of petitioner's Freedom of Information Law request, seeking access to written and recorded pretrial statements of a rebuttal witness for the People at petitioner's criminal trial, unanimously affirmed, without costs.

Respondents, in denying petitioner's request for the above-described materials, have certified, in accordance with the requirement of Public Officers Law § 89(3), that, after a diligent search, the material sought by petitioner could not be found in their files (see, Qayyam v. New York City Police Dept., 227 A.D.2d 188, 642 N.Y.S.2d 28).   Since petitioner, in response, failed to articulate a factual basis for his contention that, respondents' certification notwithstanding, the requested materials exist and are within respondents' possession, the petition challenging the denial of the sought materials was properly dismissed (see, Matter of Dos-Santos v. New York City Police Dept., 255 A.D.2d 205, 679 N.Y.S.2d 819).   Petitioner's conjecture as to the existence of the materials was insufficient to sustain his petition (id.).

We have considered petitioner's other arguments and find them unpersuasive.

MEMORANDUM DECISION.