IN RE: Howard NORTON

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

IN RE: Howard NORTON, appellant-respondent, v. TOWN OF ISLIP, et al., respondents-appellants.

Decided: March 31, 2009

STEVEN W. FISHER, J.P., HOWARD MILLER, EDWARD D. CARNI, and RUTH C. BALKIN, JJ. Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP, Riverhead, N.Y. (Bryan C. Van Cott of counsel), for appellant-respondent. Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Michael G. Kruzynski and Jessica Klotz of counsel), for respondents-appellants.

In a proceeding pursuant to CPLR article 78 to compel production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art. 6), the petitioner appeals from so much of an order of the Supreme Court, Suffolk County (Mullen, J.), dated July 26, 2007, as denied his motion, inter alia, to hold the Town of Islip, Patricia Pasciutti, Michelle Remsen, and Richard Hoffman in civil contempt for their violation of a judgment of the same court entered January 31, 2006, and to impose sanctions upon them for frivolous conduct, and the Town of Islip, Patricia Pasciutti, Michelle Remsen, and Richard Hoffman cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion to impose sanctions upon the petitioner for frivolous conduct.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether the Town of Islip, Patricia Pasciutti, Michelle Remsen, and Richard Hoffman violated the judgment entered January 31, 2006, and a new determination thereafter on the motion and cross motion.

On January 27, 2003, the petitioner, Howard Norton, filed with the Town of Islip a request for the production of certain Town records pursuant to the Freedom of Information Law (hereinafter FOIL) (see Public Officers Law § 84 et seq.).   Through various proceedings challenging the Town's failure to produce the records, and one prior appeal to this Court (Matter of Norton v. Town of Islip, 17 A.D.3d 468, 793 N.Y.S.2d 133), production has proceeded fitfully.   In a judgment entered January 31, 2006, the Supreme Court granted the petition in part and directed the Town, inter alia, to produce unredacted copies of the records Norton sought.   In May 2007, after concluding that certain requested records had not been produced and that others had been provided with redactions, Norton moved to hold the Town and several of its officers (hereinafter the respondents) in contempt for violating the judgment entered January 31, 2006.   He also sought the imposition of sanctions, and an award of an attorney's fee.   The respondents cross-moved for the imposition of sanctions upon Norton and his attorney for engaging in frivolous conduct.

After an in camera review of the Town's records, including records not previously produced, to determine whether they were the subject of Norton's FOIL request, the Supreme Court denied the motion and cross motion, but directed the Town to disclose the records not previously produced, with references to matters that were not the subject of Norton's FOIL request redacted.   The court held that such redactions and the redactions in the records previously disclosed did not violate the terms of the judgment, inasmuch as the redacted matter did not pertain to the subject of Norton's FOIL request.   The court did not determine, however, whether the respondents had, in fact, violated the judgment by virtue of their nonproduction of certain requested documents.   The parties appeal and cross-appeal from those portions of the order as are adverse to them.

Without first determining whether the respondents, in fact, violated the judgment, it was not possible for the Supreme Court to make proper determinations on the motion and cross motion.   We therefore reverse and remit the matter to the Supreme Court, Suffolk County, for a hearing to determine whether, by virtue of their nonproduction of certain documents, the respondents violated the judgment, and for a new determination thereafter on the motion and cross motion.

We note that the Supreme Court properly found that the redactions in the documents already provided did not relate to the subject matter of Norton's FOIL request.   Thus, the Town's redactions in this regard did not violate the judgment and, consequently, did not provide a basis for finding the respondents in civil contempt (see Antonacci v. Antonacci, 273 A.D.2d 185, 186, 709 N.Y.S.2d 432;  Matter of Whiteco Metrocom Div. of Whiteco Indus. v. Lambert, 221 A.D.2d 750, 751, 633 N.Y.S.2d 640;  Educational Reading Aids Corp. v. Young, 175 A.D.2d 152, 572 N.Y.S.2d 39).

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