IN RE: the JEWISH PRESS (2021)

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered on or about October 20, 2020, denying the petition seeking to compel respondent New York City Department of Housing Preservation and Development (HPD) to disclose records requested by petitioner pursuant to the Freedom of Information Law (FOIL) (Public Officers Law §§ 84–90), and granting HPD's cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

On August 22, 2019, petitioner appealed HPD's failure to produce, in response to its FOIL request, “all communications between HPD representatives and individuals outside of the agency regarding the classification of Hasidic Jews.”

Pursuant to Public Officers Law § 89(4)(a), “any person denied access to a record may within thirty days appeal in writing such denial” and an agency “shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”

Here, petitioner's administrative remedies were exhausted when HPD constructively denied its timely appeal by failing to respond to the appeal within the statutorily mandated 10–day period (see Public Officers Law § 89[4][a], [b];  see also Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 406, 959 N.Y.S.2d 171 [1st Dept. 2013], lv dismissed 21 N.Y.3d 930, 967 N.Y.S.2d 686, 989 N.E.2d 968, lv denied 22 N.Y.3d 854, 2013 WL 5716155 [2013];  Matter of Kelly v. New York City Police Dept., 286 A.D.2d 581, 730 N.Y.S.2d 84 [1st Dept. 2001];  Matter of Van Steenburg v. Thomas, 242 A.D.2d 802, 661 N.Y.S.2d 317 [3d Dept. 1997], lv denied 91 N.Y.2d 803, 667 N.Y.S.2d 682, 690 N.E.2d 491 [1997]).  Thus, the four-month limitations period to challenge HPD's decision began to run when the statutorily mandated 10–day period to respond to the appeal expired (Matter of Kelly, 286 A.D.2d at 581, 730 N.Y.S.2d 84;  Matter of Van Steenburg, 242 A.D.2d at 803, 661 N.Y.S.2d 317).  Since this proceeding was not commenced within the four-month limitations period, it was properly dismissed as untimely.