IN RE: TSUNIS GASPARIS (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorneys’ fees and litigation costs, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated May 9, 2023.  The judgment, insofar as appealed from, denied that branch of the petition which was for an award of attorneys’ fees and litigation costs, and dismissed that portion of the proceeding.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the petition which was for an award of attorneys’ fees and litigation costs is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amount of an award of reasonable attorneys’ fees and litigation costs to the petitioner and the entry of an appropriate amended judgment thereafter.

In January 2022, the petitioner, a law firm, submitted, via mail and email, a request pursuant to the Freedom of Information Law (Public Officers Law art 6;  hereinafter FOIL) to the respondent Stony Brook Fire District for certain records.  Approximately three weeks later, after it did not receive a response to its FOIL request, the petitioner mailed an appeal.  The petitioner did not receive a response to the FOIL appeal.

In July 2022, the petitioner commenced this proceeding pursuant to CPLR article 78, inter alia, to compel the Stony Brook Fire District and the respondent Board of Fire Commissioners of the Stony Brook Fire District to produce the records the petitioner requested pursuant to FOIL and for an award of attorneys’ fees and litigation costs.  Thereafter, the respondents disclosed documents responsive to the petitioner's FOIL request.

In a judgment dated May 9, 2023, the Supreme Court, among other things, denied that branch of the petition which was for an award of attorneys’ fees and litigation costs, concluding that “[w]here the relief requested is rendered moot, petitioner has not substantially prevailed in this case and thus is not entitled to attorney's fees” under Public Officers Law § 89(4)(c)(ii), and dismissed that portion of the proceeding.  The petitioner appeals.

“In order to create a clear deterrent to unreasonable delays and denials of access and thus, encourage government to make a good faith effort to comply with the requirements of FOIL, the legislature has provided for the assessment of attorney's fees and other litigation costs in FOIL proceedings” (Matter of Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, 218 A.D.3d 462, 465, 193 N.Y.S.3d 126 [internal quotation marks omitted];  see Public Officers Law § 89[4][c];  Matter of Edmond v. Suffolk County, 197 A.D.3d 1297, 1299, 153 N.Y.S.3d 594).  Thus, the court “shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of” Public Officers Law § 89 “in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access” (Public Officers Law § 89[4][c][ii];  see Matter of Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, 218 A.D.3d at 466, 193 N.Y.S.3d 126).  “A petitioner has ‘substantially prevailed’ within the meaning of Public Officers Law § 89(4)(c) when the commencement of the CPLR article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure” (Matter of Lane v. County of Nassau, 221 A.D.3d 1008, 1011, 201 N.Y.S.3d 129 [internal quotation marks omitted];  see Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 79, 64 N.Y.S.3d 635, 86 N.E.3d 527;  Matter of McNerney v. Carmel Cent. Sch. Dist., 204 A.D.3d 1012, 1013, 165 N.Y.S.3d 348).

Here, the petitioner substantially prevailed because it was only after the commencement of this proceeding that the respondents produced documents responsive to the petitioner's FOIL request (see Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d at 79, 64 N.Y.S.3d 635, 86 N.E.3d 527;  Matter of McNerney v. Carmel Cent. Sch. Dist., 204 A.D.3d at 1014, 165 N.Y.S.3d 348).  Moreover, the respondents failed to timely respond to the petitioner's FOIL request and had no reasonable basis for denying access to the records requested by the petitioner (see Matter of New York Civ. Liberties Union v. Village of Freeport, 229 A.D.3d 629, 632, 214 N.Y.S.3d 471;  Matter of Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, 218 A.D.3d at 466, 193 N.Y.S.3d 126).  Contrary to the respondents’ contention, the record demonstrates that they were aware of the petitioner's FOIL request before the commencement of this proceeding.

Accordingly, the Supreme Court should have granted that branch of the petition which was for an award of attorneys’ fees and litigation costs, and we remit the matter to the Supreme Court, Suffolk County, for a determination of the amount of an award of reasonable attorneys’ fees and litigation costs to the petitioner, and the entry of an appropriate amended judgment thereafter.

In view of the foregoing, we need not reach the petitioner's remaining contention.

CONNOLLY, J.P., CHAMBERS, LANDICINO and GOLIA, JJ., concur.