Gannett Satellite Info. Network, LLC v. N.Y.S. Thruway Auth.

Citation181 A.D.3d 1072,120 N.Y.S.3d 224
Decision Date12 March 2020
Docket Number527904
Parties In the Matter of GANNETT SATELLITE INFORMATION NETWORK, LLC, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent.
CourtNew York Supreme Court Appellate Division

181 A.D.3d 1072
120 N.Y.S.3d 224

In the Matter of GANNETT SATELLITE INFORMATION NETWORK, LLC, Appellant,
v.
NEW YORK STATE THRUWAY AUTHORITY, Respondent.

527904

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

Calendar Date: January 15, 2020
Decided and Entered: March 12, 2020


Satterlee Stephens LLP, New York City (Glenn C. Edwards of counsel), for appellant.

Letitia James, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondent.

Baker & Hostetler, Washington, DC (Mark I. Bailen of counsel), for Society of Professional Journalists and others, amici curiae.

Before: Lynch, J.P., Clark, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

120 N.Y.S.3d 226
181 A.D.3d 1072

Petitioner is the owner and publisher of a print and online newspaper serving Westchester, Putnam and Rockland Counties. On October 5, 2017, petitioner made an amended request to respondent pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) for "any emails, letters or any other written or digital communication regarding the shifting of Rockland-bound traffic from the old Tappan Zee Bridge to the Gov. Mario M. Cuomo Bridge overnight August 25 and 26, 2017 to or from [12 current or former directors, officers or employees of respondent] from Jan. 1, 2017 until Aug. 25, 2017."1 Respondent acknowledged receiving the request the same day, and advised petitioner it anticipated that a response would be provided on or before November 2, 2017. Thereafter, respondent advised petitioner by successive letters between November 2, 2017 and June 25, 2018 that it was conducting an ongoing search for potentially responsive records, in each letter setting forth a revised date by which respondent anticipated it would provide a response. On April 11, 2018, petitioner filed an administrative appeal, alleging that respondent had, among other things, constructively denied its FOIL request. Respondent's FOIL appeals officer concluded

181 A.D.3d 1073

that respondent required additional time to locate and review the requested records, that respondent had advised petitioner in writing of its need for additional time and that respondent's response time was reasonable under the circumstances.

Petitioner commenced this proceeding pursuant to CPLR article 78 contending that respondent's failure to produce the requested documents constituted a constructive denial of its request. Petitioner sought an order directing respondent to comply with its FOIL request and an award of counsel fees.2 While this proceeding was pending, respondent provided petitioner with 1,107 pages of records on July 6, 2018, and indicated that any withheld documents were exempt from disclosure pursuant to Public Officers Law § 87(2)(a), (f) and (g). Thereafter an additional 213 pages were provided to petitioner on August 10, 2018, for a total of 1,320 pages.3 Respondent moved to dismiss

120 N.Y.S.3d 227

the petition as moot, arguing that, during the proceeding, it had provided all nonexempt and nonprivileged records in response to the subject FOIL request. Petitioner opposed the motion, arguing that approximately half of the pages provided included nonresponsive information, but did not seek to amend its petition to challenge the content of the disclosure. Supreme Court granted respondent's motion and dismissed the petition, finding that petitioner had been furnished with all of the responsive documents in respondent's possession, rendering moot petitioner's claim that its request had been constructively denied. The court denied petitioner's request for counsel fees, finding that respondent's response time was reasonable under the circumstances, and denied petitioner's subsequent motion for renewal and/or reargument. Petitioner appeals from both the judgment granting respondent's motion to dismiss the petition and the order denying its motion for reargument and/or renewal.

We affirm. "Where a petitioner receives an adequate response

181 A.D.3d 1074

to a FOIL request during the pendency of his or her CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" ( Matter of Cobado v. Benziger , 163 A.D.3d 1103, 1105, 80 N.Y.S.3d 529 [2018] [internal quotation marks and citations omitted]; see Matter of Associated Gen. Contrs. of N.Y. State, LLC v. New York State Thruway Auth. , 173 A.D.3d 1526, 1527, 105 N.Y.S.3d 573 [2019] ). Petitioner's sole contention in its petition was that respondent's failure to provide the requested documents by the anticipated response dates set by respondent constituted a constructive denial of the request. Given that respondent ultimately disclosed 1,320 pages of documents during the pendency of this special proceeding, the claim of constructive denial was rendered moot (see Matter of Associated Gen. Contrs. of N.Y. State, LLC v. New York State Thruway Auth. , 173 A.D.3d at 1527, 105 N.Y.S.3d 573 ; Matter of Cobado v. Benziger , 163 A.D.3d at 1105, 80...

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  • Hepps v. N.Y. State Dep't of Health, 529148
    • United States
    • New York Supreme Court — Appellate Division
    • April 30, 2020
    ...quoting Public Officers Law § 89[4][c][i], [ii] ; see Matter of Gannett Satellite Info. Network, LLC v. New York State Thruway Auth., 181 A.D.3d 1072, 1074, 120 N.Y.S.3d 224, 2020 WL 1172627 [2020] ). Indeed, we find that respondent properly denied the FOIL request with regard to the most r......
  • Vertucci v. N.Y. State Dep't of Transp.
    • United States
    • New York Supreme Court — Appellate Division
    • June 10, 2021
    ...moot respondents’ challenge to Supreme Court's award of counsel fees and costs ( Matter of Gannett Satellite Info. Network, LLC v. New York State Thruway Auth., 181 A.D.3d 1072, 1074, 120 N.Y.S.3d 224 [2020] ; Matter of Associated Gen. Contrs. of N.Y. State, LLC v. New York State Thruway Au......
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    • United States
    • New York Supreme Court — Appellate Division
    • October 27, 2022
    ...that issue] will not affect the rights of the parties" ( Matter of Gannett Satellite Info. Network, LLC v. New York State Thruway Auth., 181 A.D.3d 1072, 1073–1074, 120 N.Y.S.3d 224 [3d Dept. 2020] [internal quotation marks and citations omitted]). Despite petitioner's assertion to the cont......
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    • August 5, 2021
    ...complied with the timing requirements of Public Officers Law § 89(3)(a) (see Matter of Gannett Satellite Info. Network, LLC v. New York State Thruway Auth., 181 A.D.3d 1072, 1075, 120 N.Y.S.3d 224 [2020] ). The initial response was timely, and each extension was issued before the anticipate......
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