Kirsch v. Bd. of Educ. of Williamsville Cent. Sch. Dist.

• Decision Date: 07 July 2017
• Citation: 152 A.D.3d 1218,57 N.Y.S.3d 870
• Parties: In the Matter of Kim A. KIRSCH and Michael A. Starvaggi, Petitioners–Respondents, v. BOARD OF EDUCATION OF WILLIAMSVILLE CENTRAL SCHOOL DISTRICT and Williamsville Central School District, Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 1218

57 N.Y.S.3d 870

In the Matter of Kim A. KIRSCH and Michael A. Starvaggi, Petitioners–Respondents,

v.BOARD OF EDUCATION OF WILLIAMSVILLE CENTRAL SCHOOL DISTRICT and Williamsville Central School District, Respondents–Appellants.

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

July 7, 2017.

Goldberg Segalla LLP, Buffalo (Kristin Klein Wheaton of Counsel), for Respondents–Appellants.

Starvaggi Law Offices, P.C., Valley Cottage (Stanley J. Silverstone of Counsel), for Petitioners–Respondents.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.

MEMORANDUM:

Petitioner Kim A. Kirsch commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondents to comply with her request pursuant to the Freedom of Information Law ( [FOIL] Public Officers Law art. 6) for certain email records of the superintendent of respondent Williamsville Central School District. We reject respondents' contention that Kirsch lacks standing to maintain this proceeding. "Any ‘person denied access to a record’ may appeal and seek judicial review of any adverse appeal determination," and "any person on whose behalf a FOIL request was made has standing to maintain a proceeding to review the denial of disclosure of the records requested" (Matter of Norton v. Town of Islip, 17 A.D.3d 468, 470, 793 N.Y.S.2d 133, lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476, quoting Public Officers Law § 89[4][a], [b] ). Here, although the FOIL request was made by petitioner Michael A. Starvaggi,

Kirsch's attorney, the administrative appeal letter expressly stated that Starvaggi was making the request on behalf of Kirsch (see Norton, 17 A.D.3d at 469, 793 N.Y.S.2d 133 ). We thus conclude that Kirsch has standing to maintain this proceeding (see Matter of Gannett Satellite Info. Network, Inc. v. County of Putnam, 142 A.D.3d 1012, 1017–1018, 37 N.Y.S.3d 299 ; Norton, 17 A.D.3d at 470, 793 N.Y.S.2d 133 ).

Even assuming, arguendo, that respondents preserved for our review their further contention that the proceeding is barred by the statute of limitations (cf. Matter of Troy Sand & Gravel Co. v. New York State Dept. of Transp., 277 A.D.2d 782, 783–784, 716 N.Y.S.2d 772, lv. denied 96 N.Y.2d 708, 725 N.Y.S.2d 638, 749 N.E.2d 207 ), we conclude that respondents failed to meet their burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced (see CPLR 217[1] ; Matter of Covington v. Fischer, 125 A.D.3d 1320, 1320, 999 N.Y.S.2d 791 ; Matter of Advocates for Children of N.Y., Inc. v. New York City Dept. of Educ., 101 A.D.3d 445, 445–446, 954 N.Y.S.2d 454 ; Matter of Arnold v. Erie County Med. Ctr. Corp., 59 A.D.3d 1074, 1075–1076, 873 N.Y.S.2d 789, lv. dismissed 12 N.Y.3d 838, 881 N.Y.S.2d 11, 908 N.E.2d 918 ; cf. Matter of Roman v. Lombardi, 298 A.D.2d 313, 313, 748 N.Y.S.2d 499 ).

We further conclude that Supreme Court properly granted petitioners' oral motion to amend the petition to add Starvaggi as a petitioner. Contrary to respondents' contention, under the circumstances here, the relation back doctrine permits the addition of Starvaggi after the expiration of the statute of limitations inasmuch as the claims brought by Starvaggi and Kirsch are identical in substance, i.e., that respondents improperly denied the FOIL request made by Starvaggi on behalf of Kirsch, and Starvaggi and Kirsch are united in interest in seeking compliance with that request (see CPLR 203 [f] ; Fazio Masonry, Inc. v. Barry, Bette & Led Duke, Inc.,

23 A.D.3d 748, 749, 803 N.Y.S.2d 729 ; Fulgum v. Town of Cortlandt Manor, 19 A.D.3d 444, 446, 797 N.Y.S.2d 507 ; see generally

Matter of Greater N.Y. Health Care Facilities Assn. v. DeBuono, 91 N.Y.2d 716, 721, 674 N.Y.S.2d 634, 697 N.E.2d 589 ).

Contrary to respondents' further contention, the court properly granted the amended petition and directed respondents to provide petitioners with the requested emails, with any claimed exemptions from disclosure documented in a privilege log that may be reviewed by the court. Here, petitioners "reasonably described" the requested emails to enable respondents to identify and...