LUGO v. Kenneth C. Gobetz, nonparty appellant-respondent.

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

Ramon LUGO, Jr., appellant-respondent, v. SCENIC HUDSON, INC., et al., respondents-appellants; Kenneth C. Gobetz, nonparty appellant-respondent.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ. Wichler & Gobetz, P.C., Suffern, N.Y. (Kenneth C. Gobetz, nonparty appellant-respondent pro se, of counsel), for appellant-respondent. John W. Caffry, Glens Falls, N.Y. (Inga L. Fricke of counsel), for respondents-appellants.

In an action for a judgment declaring, inter alia, that the defendants are subject to the provisions of the Public Officers Law, (1) the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J), dated January 12, 1998, which granted the defendants' motion to dismiss the complaint, (2) the plaintiff's counsel, Kenneth C. Gobetz, appeals from a judgment of the same court, dated June 19, 1998, which, upon the granting of the defendants' application for costs and sanctions to the extent of awarding $1,500 for counsel fees, is in favor of the defendants and against him in the principal sum of $1,500, (3) the plaintiff and Kenneth C. Gobetz appeal from an order of the same court, dated June 11, 1998, which denied their motion for reargument, and (4) the defendants cross-appeal from so much the judgment as failed to award them all of the costs and sanctions requested.   The parties' notices of appeal and cross appeal from a decision dated March 6, 1998, are deemed premature notices of appeal and cross appeal from the judgment (see, CPLR 5520[c] ).

ORDERED that the order dated January 12, 1998, is affirmed, without costs or disbursements;  and it is further,

ORDERED that the cross appeal from the judgment is dismissed as abandoned, without costs or disbursements;  and it is further,

ORDERED that the judgment is reversed, on the law, without costs or disbursements, and the defendants' application for costs and sanctions is denied in its entirety;  and it is further,

ORDERED that the appeal from the order dated June 11, 1998, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.

 The plaintiff commenced this action seeking a declaration that the defendants, two not-for-profit corporations, were subject to the disclosure requirements of the Freedom of Information Law (Public Officers Law art 6, hereinafter FOIL), because they work closely with State agencies.   However, the court properly found that the defendants are not subject to FOIL. The defendants were formed by private individuals and each is governed by a board of directors which is self-elected.   Both defendants are primarily privately funded, and their operating budgets are not required to be approved by any governmental body.   Although the defendants' objectives appear to coincide partly with those of the New York State Department of Environmental Conservation and the Office of Parks, Recreation and Historical Preservation, and they work closely with those two State offices, the defendants are not controlled by either of the agencies.

Since neither of the defendants is an “agency” within the meaning of Public Officers Law § 87, neither defendant is subject to FOIL (see, Matter of Farms First v. Saratoga Economic Dev. Corp., 222 A.D.2d 861, 635 N.Y.S.2d 720;  see generally, Matter of Buffalo News v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 619 N.Y.S.2d 695, 644 N.E.2d 277;  Goodson Todman Enter., Ltd. v. Town Bd. of Milan, 151 A.D.2d 642, 542 N.Y.S.2d 373;  Matter of Poughkeepsie Newspaper Div. of Gannett Satellite Information Network v. Mayor's Intergovernmental Task Force on N.Y. City Water Supply Needs, 145 A.D.2d 65, 537 N.Y.S.2d 582).

 However, the court improvidently exercised its discretion in imposing sanctions, in the form of counsel fees, on the plaintiff's counsel (see, 22 NYCRR 130-1.1[c] ).  “FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose” (Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 464 N.E.2d 437).   Moreover, access to records of a government agency under FOIL is not affected by the fact that there is pending or potential litigation between the person making the request and the agency (see, Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, at 78, 476 N.Y.S.2d 69, 464 N.E.2d 437).  Consequently, the fact that a corporate client of the plaintiff's attorney is involved in litigation with the defendants has no bearing on the plaintiff's FOIL requests.

 The defendants' status as not-for-profit corporations also does not render the lawsuit frivolous, inasmuch as there is no per se rule that a not-for-profit corporation cannot be deemed an “agency” and, therefore, be subject to FOIL (see, Matter of Buffalo News v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 619 N.Y.S.2d 695, 644 N.E.2d 277).   Based on the allegations contained in the pleadings, it was not frivolous for the plaintiff to commence this lawsuit to test the reach of FOIL (see, Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 430 N.Y.S.2d 574, 408 N.E.2d 904).

MEMORANDUM BY THE COURT.

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