IN RE: Lambros LAMBROU (2022)

Judgment (denominated an order), Supreme Court, New York County (Lyle E. Frank, J.) entered May 4, 2022, denying the petition to annul respondents’ purported constructive denial of petitioner's Freedom of Information Law request and to recover costs and attorneys’ fees, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents’ review and determination of petitioner's FOIL request after the commencement of this article 78 proceeding rendered the proceeding moot (see Matter of Alvarez v. Vance, 139 A.D.3d 459, 460, 29 N.Y.S.3d 793 [1st Dept. 2016]).  Petitioner did not seek to amend the petition to challenge respondents’ later determination of the FOIL request, and the validity of respondents’ claimed exemptions are not before this Court in this proceeding (see Matter of Save Monroe Ave., Inc. v. New York State Dept. of Transp., 197 A.D.3d 808, 809, 151 N.Y.S.3d 560 [3d Dept. 2021], lv denied 38 N.Y.3d 905, 2022 WL 1222679 [2022]).

Supreme Court also properly denied petitioner's request for costs and attorneys’ fees, as petitioner failed to establish that he met the statutory requirements of Public Officers Law § 89(4)(c)(i) (see Public Officers Law § 89[3][a];  Matter of Save Monroe Ave. 197 A.D.3d at 809, 151 N.Y.S.3d 560;  Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 406–407, 959 N.Y.S.2d 171 [1st Dept. 2013], lv dismissed 22 N.Y.3d 854, 2013 WL 5716155 [2013]).  In any event, even assuming that petitioner met the statutory requirements, Supreme Court providently exercised its discretion in denying petitioner's request for attorneys’ fees (see Public Officers Law § 89[4][c][i];  Matter of Maziarz v. Western Regional Off–Track Betting Corp., 207 A.D.3d 1065, 1066, 169 N.Y.S.3d 563 [4th Dept. 2022]).

Motion by respondents for leave to file a supplemental record on appeal granted.