IN RE: Joseph J. D'IMPERIO (1999)

In a proceeding pursuant to CPLR article 78 to compel the Putnam Lake Fire Department, Inc., to provide certain documents pursuant to the Freedom of Information Law, the Putnam Lake Fire Department, Inc., appeals, as limited by its brief, from stated portions of a judgment of the Supreme Court, Putnam County (Hickman, J.), dated March 16, 1998, as, inter alia, directed it to disclose certain specified documents, and Joseph J. D'Imperio cross-appeals, as limited by his brief, from stated portions of the same judgment, as, inter alia, dismissed the petition insofar as it sought to annul the determination of the Putnam Lake Fire Department, Inc., denying his request for certain other documents.

 ORDERED that the appeal of the Putnam Lake Fire Department, Inc., from so much of the judgment as directed it to provide disclosure of certain tax returns is dismissed, without costs or disbursements, as the appellant consented to that relief, and no appeal lies from an order entered on the consent of the appealing party (see, Baecher v. Baecher, 95 A.D.2d 841, 464 N.Y.S.2d 199);  and it is further,

ORDERED that the judgment is affirmed insofar as reviewed, without costs or disbursements.

 Contrary to the petitioner's contentions, the Supreme Court properly granted the petition only in part.   The Putnam Lake Fire Department, Inc., offered sufficient proof, in the submissions of its president and attorney, that certain of the documents sought by the petitioner were either not in its possession or did not exist (see, Public Officers Law § 89[3];  Matter of Gabriels v. Curiale, 216 A.D.2d 850, 628 N.Y.S.2d 882).

The parties' remaining contentions are either without merit, need not be addressed in light of this determination, or are improperly raised for the first time on appeal (see, Murray v. Palmer, 229 A.D.2d 377, 644 N.Y.S.2d 647).

MEMORANDUM BY THE COURT.