IN RE: the Application of Robert A Cox (2026)

Petitioner, Robert A. Cox ("Petitioner"), moves for relief pursuant to Civil Practice Law and Rules ("CPLR") Article 78 seeking to annul responses made by the City School District of New Rochelle (the "District") and its Superintendent, Dr. Corey Reynolds (collectively, "Respondents") to three Freedom of Information Law ("FOIL") requests, and to compel further responses and document productions. Petitioner further seeks an award of attorneys' fees and costs pursuant to Public Officers Law ("POL") § 89(4)(c). Respondents have moved to dismiss the petition, pursuant to CPLR § 3211(a)(1), (2), and (7), and CPLR § 7804(f), on the grounds that a defense is founded upon documentary evidence; the Court lacks subject matter jurisdiction; and the petition fails to state a valid cause of action.

For the reasons set forth below, the Court now grants in part and denies in part Respondent's motion to dismiss.

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

• Notice of Petition, Verified Petition, Affirmation Robert Cox in Support, Exhibits A-F, Request for Judicial Intervention ("RJI"), Amended RJI, and Affirmation of Service (NYSCEF Doc. Nos. 1-11, 15-18).

• Notice of Motion to Dismiss, Affirmation of Michael Liptrot, Esq. in Support, Exhibits A-C (NYSCEF Doc. Nos. 25-29).

• Affirmation of Robert Cox in Opposition to Motion to Dismiss and Exhibit G (NYSCEF Doc. Nos. 30-31).

Relevant Facts

On October 8, 2024, Petitioner submitted three FOIL requests to the District, seeking records regarding the District's dealings with the Shrub Oak International School from 2019 through the date of the requests (see Affirmation of Robert Cox ["Cox Aff."], ¶ 3; Affirmation of Michael Liptrot, Esq. ["Liptrot Aff."], ¶¶ 11-13). Specifically, Petitioner sought (1) invoices and payments for legal services (the "legal invoices FOIL"); (2) certain email communications (the "emails FOIL"); and (3) timesheets and payment records for school transportation aides (the "aide payments FOIL") (see id.).

The District acknowledged receipt of Petitioner's three FOIL requests and subsequently wrote multiple times to notify Petitioner that additional time to respond to the requests was needed (see Liptrot Aff., ¶¶ 14-17, Exs. A-C).

More than one year had passed before the District substantively responded to any of the subject FOIL requests. On November 6, 2025, the District responded to Petitioner regarding the aide payments FOIL, certifying that it was not in possession of any responsive records (see Cox Aff., ¶ 16, Ex. F; Liptrot Aff., ¶ 21).

On December 29, 2025, Petitioner sent administrative appeals to Dr. Reynolds, the District Superintendent, regarding the legal invoices FOIL and the emails FOIL (see Liptrot Aff., ¶ 24; Petition, ¶ 8). The administrative appeals were premised upon the District having constructively denied these FOIL requests by failing to substantively respond (see id.).

On January 12, 2026, the District responded to the emails FOIL by sending to Petitioner 543 pages of records with redactions made (see Liptrot Aff., ¶ 25; Petition, ¶¶ 13-17, Exs. B-E). The following day, January 13, 2026, the District responded to the legal invoices FOIL by sending to Petitioner 380 pages of records with redactions made (see Liptrot Aff., ¶ 26; Petition, ¶¶ 9-11, Ex. A).

On January 14, 2026, Petitioner sent to Dr. Reynolds an administrative appeal of the District's response to the legal invoices FOIL (see Affirmation of Robert Cox in Opposition to Motion to Dismiss ["Cox Opp. Aff."], p. 5, Ex. G). In this administrative appeal, Petitioner claimed that the District made excessive and overbroad redactions to the produced records with no explanation or justification provided for the redactions (see id.).

Standard of Review

A. Failure to Exhaust Administrative Remedies

On a motion to dismiss an Article 78 petition for failure to state a cause of action under CPLR §§ 3211(a)(7), the allegations in the petition must be accepted as true, and the petitioner must be afforded the benefit of all favorable inferences (see Matter of Atane Engrs., Architects & Land Surveyors, D.P.C. v Nassau County, 227 AD3d 708, 709 [2d Dept 2024]). Where a court considers evidentiary material outside of the four corners of the pleadings, the question becomes whether the petitioner has a cause of action, and not simply whether she has sufficiently stated one (see id.; Matter of Madden v Village of Tuxedo Park, 192 AD3d 802, 804 [2d Dept 2021]).

An Article 78 proceeding is subject to dismissal pursuant to CPLR § 3211(a)(7) where the petitioner failed to exhaust all administrative remedies (see Matter of Brunjes v Nocella, 40 AD3d 1088, 1088-1089 [2d Dept 2007]). The doctrine of exhaustion of administrative remedies requires that one first exhaust all available administrative channels before seeking relief from the courts in an Article 78 proceeding (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; Stoll v County of Nassau, 227 AD3d 1085, 1086 [2d Dept. 2024]; CPLR § 7801[1]). The agency from which records were requested pursuant to FOIL must have issued a final determination before judicial review is sought; otherwise, an Article 78 proceeding would be premature and appropriately dismissed (see Matter of Meyer v Nassau County Police Dept., 235 AD3d 641, 642 [2d Dept 2025]).

In the context of FOIL, the available administrative remedies include an appeal of a denial to the person designated as the agency's FOIL appeals officer (see Public Officers Law § 89[4][a]; 21 NYCRR § 1401.7[a]). The FOIL appeals officer must respond to the appellant within ten business days of receipt of the appeal (see id.). If the FOIL appeals officer fails to respond within the statutory timeframe, thereby constituting a constructive denial, a petitioner's administrative remedies will be deemed to have been exhausted (see Matter of New York Times Co. v City of NY Police Dept., 103 AD3d 405, 408 [1st Dept 2013]).

B. Defense Founded Upon Documentary Evidence

Dismissal on the ground that a defense is founded upon documentary evidence, pursuant to CPLR § 3211(a)(1), is appropriate only if the "documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Fontanetta v John Doe 1, 73 AD3d 78, 83-84 [2d Dept 2010] [internal citation and quotation marks omitted]. See also Spoleta Constr., LLC v Aspen Ins. UK Ltd., 27 NY3d 933, 936 [2016]; BCI Constr., Inc. v Board of Educ., Washingtonville Cent. Sch. Dist., 203 AD3d 794, 795 [2d Dept 2022] [a CPLR § 3211(a)(1) motion may be granted "only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law"]). To be considered "documentary evidence" for purposes of CPLR § 3211(a)(1), a submission must be unambiguous, of undisputed authenticity, and contain "essentially undeniable" information (see Fontanetta, 73 AD3d at 86-87). This typically applies to judicial records and to documenting reflecting out-of-court transactions, such as mortgages, deeds, and contracts, but not to affidavits, letters, emails, or transcripts (see id. at 84-86 [collecting cases]).

C. Mootness / Lack of Subject Matter Jurisdiction

Dismissal on the ground that the Court lacks subject matter jurisdiction, pursuant to CPLR § 3211(a)(2), may be appropriate where the matter at issue is moot (see Lacks v Lacks, 41 NY2d 71, 74 [1976]; Blue Lagoon, LLC v Reisman, 214 AD3d 938, 940 [2d Dept 2023]). A case or controversy can become moot by the passage of time or a change in circumstances (see Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). "[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy" (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]). Without an actual, live controversy to be decided, a case would not be justiciable and, therefore, would exceed a court's subject matter jurisdiction (see Hearst Corp., 50 NY2d at 713-14; Morrison v Budget Rent A Car Sys., Inc., 230 AD2d 253, 259 [2d Dept. 1997]). An Article 78 proceeding is moot if a determination on the merits would no longer have an effect on the existing controversy (see Matter of New York Inst. of Tech. v Colombo, 138 AD2d 489, 490 [2d Dept 1988]). A determination as to whether a matter is moot is generally fact-driven (see Matter of Dreikausen, 98 NY2d at 173).

Discussion

A. Petitioner Failed to Exhaust His Administrative Remedies in Connection with the Aide Payments FOIL and Emails FOIL

Based upon the evidence submitted by the parties, the Court finds that the petition, insofar as it concerns the aide payments FOIL and the emails FOIL only, is subject to dismissal for failure to exhaust all available administrative remedies.

First, as to the aide payments FOIL, there is neither an allegation in the petition nor any evidence submitted that Petitioner ever made an administrative appeal concerning the District's response. Therefore, the Court must find that Petitioner failed to exhaust his administrative remedies in connection with the aide payments FOIL (see Matter of Meyer, 235 AD3d at 642).

Second, as to the emails FOIL, Petitioner made an administrative appeal to Dr. Reynolds based upon the District's failure to make any substantive response, which allegedly constituted a constructive denial (see Liptrot Aff., ¶ 24; Petition, ¶ 8). However, the District subsequently responded and produced records (see Liptrot Aff., ¶ 25; Petition, ¶¶ 13-17, Exs. B-E). Petitioner now has particular complaints concerning this document production, but there is neither an allegation in the petition nor evidence that Petitioner submitted a further administrative appeal concerning any of his complaints with the produced emails.

To be considered a final determination of a FOIL request, "the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" (Matter of Meyer, 235 AD3d at 642, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 [2005]). In other words, the agency must have been given an opportunity to reach a definitive, final position on Petitioner's particular contentions, i.e., that certain email attachments were missing, that the produced emails contained broken email threads, and that duplicative and corrupted versions of emails were included (see Petition, ¶¶ 13-18). Without an administrative appeal concerning these contentions having been made, the Court must find that Petitioner failed to exhaust his administrative remedies in connection with the emails FOIL (see Matter of Meyer, 235 AD3d at 642).

On the other hand, the Court cannot conclude that Petitioner failed to exhaust his administrative remedies as to the legal invoices FOIL. Like with the emails FOIL, Petitioner made an administrative appeal on constructive denial grounds, and the District subsequently produced records (see Liptrot Aff., ¶ 26; Petition, ¶ 9). However, unlike with the emails FOIL, Petitioner has demonstrated that he made a further administrative appeal, on January 14, 2026, containing his substantive complaints with the produced legal invoices, which are at issue in this proceeding—specifically, that the invoices were excessively redacted without explanation or justification (see Ex. G to Cox Opp. Aff.).

To be sure, Petitioner failed to allege in the petition that he had made the January 14, 2026, administrative appeal, but proof of same was submitted in opposition to Respondents' motion and will be considered by the Court in determining whether Petitioner has a cause of action (see Matter of Madden, 192 AD3d at 804). Petitioner further alleges that Dr. Reynolds failed to respond to the January 14, 2026, administrative appeal within the statutory ten-day period. Therefore, Petitioner's administrative remedies with respect to the legal invoices FOIL should be deemed to have been exhausted (see Matter of New York Times Co., 103 AD3d at 408).

In sum, Petitioner's causes of action concerning the aide payments FOIL and the emails FOIL are subject to dismissal for failure to exhaust all available administrative remedies. However, the causes of action concerning the legal invoices FOIL are not subject to dismissal on this ground.

B. Respondents' Other Asserted Grounds for Dismissal are Inapplicable to the Legal Invoices FOIL

The Court is not persuaded by the other grounds for dismissal asserted by Respondents. Respondents have not submitted "documentary evidence" within the meaning of CPLR § 3211(a)(1) (see Fontanetta, 73 AD3d at 84-86). And Respondents have not shown that Petitioner's contentions concerning the legal invoices FOIL are moot. Petitioner makes particular complaints regarding the breadth of redactions and completeness of the document production. Petitioner demonstrated that he had presented these complaints to Dr. Reynolds in the January 14, 2026, administrative appeal and that these complaints went unanswered within the statutory time period.

Based upon the foregoing, the Court grants Respondents' motion to dismiss the petition insofar as it concerns the aide payments FOIL and the emails FOIL only. The Court denies Respondents' motion to dismiss the petition insofar as it concerns the legal invoices FOIL.

Respondents have requested, in the event their motion to dismiss is denied, that they be permitted a reasonable time within which to answer the petition. When a court denies a respondent's pre-answer motion to dismiss, "the court shall permit the respondent to answer, upon such terms as may be just" (CPLR § 7804[f]). Therefore, the Court directs Respondents to file and serve their answering papers within the timeframe noted below.

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that Respondents' motion to dismiss (motion sequence #2) is granted in part and to the extent noted above; and it is further

ORDERED that Respondents shall file and serve their answer to the remaining claims of the petition on or before May 20, 2026; and it is further

ORDERED that Petitioner's reply, if any, shall be filed and served on or before June 3, 2026.

This constitutes the Decision and Order of the Court.

Dated: April 28, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice

Sheralyn Pulver, J.