Opinion
11429 Index 101989/16
04-30-2020
In re Trevis L. FUNCHES, Petitioner–Appellant, v. Cyrus R. VANCE, Jr., etc., et al., Respondents–Respondents.
Trevis L. Funches Sr., appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent. James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for municipal respondent.
Trevis L. Funches Sr., appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for municipal respondent.
Friedman, J.P., Kapnick, Webber, Oing, JJ.
Petitioner never administratively appealed any of the FOIL requests he propounded on respondents in 2003, and his time to do so lapsed long ago (see Public Officers Law [POL] § 89[4][a] ). Accordingly, to the extent it relates to the 2003 FOIL requests, the petition was correctly dismissed for failure to exhaust administrative remedies ( Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ; Matter of Cross v. Russo, 132 A.D.3d 454, 17 N.Y.S.3d 636 [1st Dept. 2015] ). However, petitioner did not fail to exhaust his administrative remedies with respect to his 2016 FOIL claims. Accordingly, those claims are reinstated.
In the order to show cause commencing this proceeding, Supreme Court directed petitioner to serve respondents, the Attorney General, and Corporation Counsel. Petitioner filed an affidavit of service averring that, on December 28, 2016, he served DANY, Corporation Counsel, and the Attorney General.
Petitioner's failure to serve respondent NYPD mandates dismissal of the petition to the extent it relates to FOIL requests propounded by petitioner against NYPD in 2016 (see Matter of Smith v. New York County Dist. Attorney's Off., 104 A.D.3d 559, 960 N.Y.S.2d 646 [1st Dept. 2013] ; Matter of Ruine v. Hines, 57 A.D.3d 369, 871 N.Y.S.2d 14 [1st Dept. 2008] ).
Petitioner's facially adequate affidavit of service on respondent DANY notwithstanding, DANY contests service, necessitating a traverse hearing (see NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 460, 777 N.Y.S.2d 483 [1st Dept. 2004] ). In light of the dismissal against NYPD, we need not reach the issue of whether the parties were properly joined in this proceeding.
We have considered petitioner's remaining contentions and find them unavailing.