IN RE: Application of Maurice PELT

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Maurice PELT, Petitioner-Appellant, For a Judgment, etc., v. POLICE DEPARTMENT, CITY OF NEW YORK, etc., et al., Respondents-Respondents.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Petitioner-Appellant, Pro Se. Timothy J. O'Shaughnessy, for Respondents-Respondents.

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered December 16, 1997, which denied petitioner's application to compel respondent Police Department's FOIL disclosure of certain complaint follow-up reports, and dismissed the petition, unanimously affirmed, without costs.

 The motion court correctly held that this second article 78 proceeding constituted an improper attempt by petitioner to relitigate his prior article 78 proceeding and respondents' prior denial of his FOIL request.   Since petitioner's first article 78 proceeding was dismissed as time-barred, a result that is the equivalent to a final disposition on the merits (see, Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194, 445 N.Y.S.2d 68, 429 N.E.2d 746), and since “ ‘[the] conclusive effect of a final disposition is not to be disturbed by a subsequent change in decisional law’ ” (Matter of Gowan v. Tully, 45 N.Y.2d 32, 36, 407 N.Y.S.2d 650, 379 N.E.2d 177, quoting Slater v. American Min. Spirits Co., 33 N.Y.2d 443, 447, 354 N.Y.S.2d 620, 310 N.E.2d 300), the issuance of Gould v. New York City Police Dept., 89 N.Y.2d 267, 653 N.Y.S.2d 54, 675 N.E.2d 808, subsequent to the disposition of the first article 78 proceeding cannot serve to resurrect petitioner's FOIL claim.


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