Powhida v. City of Albany
| Decision Date | 22 June 1989 |
| Citation | 542 N.Y.S.2d 865,147 A.D.2d 236 |
| Parties | In the Matter of Anne POWHIDA, Respondent, v. CITY OF ALBANY et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Vincent J. McArdle (Karen A. Crotty-Steinmetz, of counsel), Albany, for appellants.
Walter, Thayer, Long & Mishler (Lanny E. Walter, of counsel; Mark S. Mishler with him on the brief), Albany, for respondent.
Before MAHONEY, P.J., and CASEY, WEISS, MERCURE and HARVEY, JJ.
Respondent City of Albany (hereinafter respondent) * Police Officer Patrick Fox, in his capacity as a part-time employee of a realtor, entered petitioner's home on April 3, 1987 without petitioner's permission for the purpose of conducting a termite inspection. Fox, who was on duty at the time, used a key supplied by the realtor. Petitioner's son, awakened by Fox's entry, recognized him as a police officer. Petitioner went to lodge a complaint about Fox's conduct but Officer Patsy Deso refused to take a statement from petitioner concerning the invasion of her home by a police officer. Petitioner eventually filed a complaint with respondent's Deputy Chief of Police concerning the conduct of Fox and Deso. By letter dated June 9, 1987, respondent's Chief of Police informed petitioner that her complaint had been sustained and that the officers involved in the incident were found to have violated departmental rules, regulations or orders.
After a request by petitioner's attorney for additional data yielded no response, petitioner sought certain records from respondent's Police Department pursuant to the Freedom of Information Law (hereinafter FOIL) (Public Officers Law art. 6). The request sought the records of the officers who had been investigated, the rules, regulations and orders found to have been violated, the discipline imposed and a copy of Fox's work schedule for April 3, 1987, the date of the incident. This request, except for Fox's work schedule, was denied on the ground that the information sought was exempt from disclosure by Civil Rights Law § 50-a. On administrative appeal, the denial was affirmed.
Thereafter, petitioner commenced this CPLR article 78 proceeding seeking release of the requested documents along with an award of costs and counsel fees. On February 25, 1988, following an advisory opinion in favor of full disclosure by the Executive Director of the Committee on Open Government, respondent's Corporation Counsel released all of the requested records and sought a stipulation to discontinue the proceeding. Petitioner refused. On March 10, 1988 respondents answered and sought dismissal on the ground of mootness. Petitioner submitted attorneys' affidavits in support of her application for counsel fees. Supreme Court awarded petitioner $1,350 in counsel fees and $150 as reimbursement for filing fees. This appeal by respondents from the judgment entered thereon ensued.
A party may receive counsel fees in a FOIL proceeding when it is established that (1) the petitioner substantially prevailed, (2) the record requested was of "clearly significant interest to the general public", and (3) "the agency lacked a reasonable basis in law for withholding the record" (Public Officers Law § 89[4][c]. However, even if all these requirements are met, an award of counsel fees is still discretionary (see, Public Officers Law § 89[4][c]. Since an award is discretionary, a court's determination should not be disturbed unless an abuse of discretion is shown(Matter of Friedland v. Maloney, 148 A.D.2d 814, 815, 538 N.Y.S.2d 650, 651-52, citing Matter of McAndrew v. Board of Educ. for City School Dist. of City of Port Jervis, 120 A.D.2d 591, 592, 502 N.Y.S.2d 70). We find no abuse of discretion in this case.
Considering the elements necessary to an award of counsel fees, we first reject respondents' contention that petitioner cannot be deemed to have substantially prevailed since the documents were released before any defense was asserted. Such a contention is irrational. It would allow a respondent to moot any proceeding and prevent an award of counsel fees by releasing the documents...
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