Kohler-Hausmann v. N.Y.C. Police Dep't

• Decision Date: 10 November 2015
• Docket Number: 15844, 100759/13
• Citation: 133 A.D.3d 437,2015 N.Y. Slip Op. 08084,18 N.Y.S.3d 848 (Mem)
• Parties: In re Issa KOHLER–HAUSMANN, Petitioner–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents. The Associated Press, Daily News, L.P., The New York Times Company and Propublica, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 437
18 N.Y.S.3d 848 (Mem)
2015 N.Y. Slip Op. 08084

In re Issa KOHLER–HAUSMANN, Petitioner–Appellant
v.
NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents.

The Associated Press, Daily News, L.P., The New York Times Company and Propublica, Amici Curiae.

15844, 100759/13

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

Nov. 10, 2015.

Issa Kohler–Hausmann, Brooklyn, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Media Freedom and Information Access Clinic, New York (David A. Schultz of counsel), for amici curiae.

Opinion

133 A.D.3d 437

Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered January 17, 2014, which, insofar as appealed from as limited by the briefs, denied petitioner's request for attorney's fees or litigation costs, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously modified, on the law, to reinstate the proceeding, remand to Supreme Court for proceedings consistent with this order, and otherwise affirmed, without costs.

After acknowledging receipt of petitioner's FOIL request on August 1, 2012, respondent New York City Police Department (NYPD) extended its time to respond to petitioner's FOIL request to January 15, 2013, pursuant to Public Officers Law § 89(3)(a). By failing to respond for months after that deadline, NYPD constructively denied the FOIL request (see 21 NYCRR 1401.5 [e] ). Contrary to the court's finding, petitioner's administrative remedies were exhausted when NYPD denied her administrative appeal from the constructive denial of her FOIL request (see Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 408, 959 N.Y.S.2d 171 [1st Dept.2013], lv. dismissed 21 N.Y.3d 930, 967 N.Y.S.2d 686, 989 N.E.2d 968 [2013], lv. denied 22 N.Y.3d 854, 2013 WL 5716155 [2013] ).

Although petitioner effectively concedes that the merits of her petition are moot as a result of NYPD's voluntary disclosure, petitioner's claim for attorney's fees and other litigation costs is not moot (see Matter

18 N.Y.S.3d 849

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