IN RE: the Application of Noel Arroyo (2026)

Petitioner, Noel Arroyo ("Petitioner"), moves for relief pursuant to Civil Practice Law and Rules ("CPLR") Article 78 seeking to vacate the above-named Respondents' denial of Petitioner's Freedom of Information Law ("FOIL") request and to compel Respondents to produce records in response to his FOIL request or provide particularized reasons for any withheld records. Petitioner further moves for permission to proceed as a poor person and waive the filing fee pursuant to CPLR § 1101. Respondents have responded, seeking denial of the petition, and Petitioner has replied.

For the reasons set forth below, the Court now grants the motion for permission to proceed as a poor person and dismisses the petition.

The Court read and considered the following papers electronically filed via NYSCEF in making its decision:

• Motion Sequence #1: Notice of Motion, Application to Proceed as a Poor Person, Proposed Order, and Affirmation of Service (NYSCEF Doc. Nos. 8-10, 14).

• Motion Sequence #2: Notice of Petition, Petition, Exhibits A-D, Request for Judicial Intervention, and Affirmation of Service (NYSCEF Doc. Nos. 1-7, 12-13).

• Affirmation of Jeffrey Briem, Esq. and Exhibits 1-7 (NYSCEF Doc. Nos. 15-22).

• Reply Affirmation in Further Support of Petition (NYSCEF Doc. No. 23).

Application to Proceed as a Poor Person

As an initial matter, the Court grants Petitioner's application for permission to proceed as a poor person in the prosecution of this proceeding. Accordingly, pursuant to CPLR § 1101(d), the fees and costs related to the filing of this proceeding shall be waived.

Petition

On approximately May 14, 2025, Petitioner submitted a FOIL request for records related to surety bonds and bid bonds to the City of New Rochelle (the "City") (see NYSCEF Doc. No. 16). On May 30, 2025, following communications aimed at clarifying Petitioner's request, the City denied Petitioner's FOIL request on the grounds that it was overly broad and lacked sufficient specificity (see NYSCEF Doc. No. 5). On June 2, 2025, Petitioner submitted an administrative appeal of the denial of his FOIL request (see Petition [NYSCEF Doc. No. 1], ¶ 11).¹ The City did not issue a decision on the administrative appeal (see id., ¶ 13).

Pursuant to Public Officers Law ("POL") § 89(4)(a), the person designated as an agency's FOIL appeals officer must respond to an administrative appeal of a denial of a FOIL request within ten business days of receipt thereof. Failure to respond within ten business days constitutes a constructive denial of the administrative appeal (see POL § 89[4][b]). Following denial or constructive denial of an administrative FOIL appeal, judicial review may be sought by commencement of an Article 78 proceeding (id.).

An Article 78 proceeding must be commenced within four months after the agency's determination becomes final and binding (see CPLR § 217[1]; Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604, 606 [2d Dept 2001]). Where an agency fails to respond to an administrative FOIL appeal within ten business days, thereby constructively denying the appeal, the four-month limitations period is measured from the date of such constructive denial (see Matter of Boyd v Hilton, 213 AD3d 927, 928-929 [2d Dept 2023]; Matter of Van Steenburg v Thomas, 242 AD2d 802, 803 [3d Dept 1997]). The proceeding must be commenced within such four-month period and is commenced by filing the petition with the County Clerk (see CPLR § 304[a]; Matter of Baez v Brown, 98 AD3d 609, 611-612 [2d Dept 2012]).

Here, it is undisputed that the City did not timely issue a written determination or otherwise respond to Petitioner's June 2, 2025, administrative appeal, as required by POL § 89(4)(a). Therefore, the four-month limitations period commenced upon constructive denial of the appeal ten business days later, or approximately June 17, 2025, and it expired on October 17, 2025. However, Petitioner did not commence this proceeding until July 13, 2026. For this reason, this proceeding is subject to dismissal as the petition is time barred.

The parties' remaining contentions, to the extent not rendered academic or explicitly addressed herein, have been considered and found to be unavailing.

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that Petitioner's application to proceed as a poor person pursuant to CPLR § 1101(d) (motion sequence #1) is granted, and the fees and costs related to the filing of this proceeding are waived; and it is further

ORDERED that the petition (motion sequence #2) is denied and this proceeding is dismissed, without costs or disbursements; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

This constitutes the Decision, Order and Judgment of the Court.

Dated: August 24, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice

FOOTNOTES

1.   Petitioner has provided tracking information as proof that the administrative appeal was delivered on June 3, 2025 (Ex. D, NYSCEF Doc. No. 6).

Sheralyn Pulver, J.