Opinion
No. 401170/2014.
05-16-2016
Karl GOODEN, Petitioner, v. NEW YORK CITY POLICE DEPARTMENT—FOIL UNIT, Respondent.
Karl Gooden, pro se petitioner. Zachary W. Carter, Esq., Corporation Counsel, City of New York (Matthew P. Smith of counsel), for respondent New York City Police Department—FOIL Unit.
Karl Gooden, pro se petitioner.
Zachary W. Carter, Esq., Corporation Counsel, City of New York (Matthew P. Smith of counsel), for respondent New York City Police Department—FOIL Unit.
GERALD LEBOVITS, J.
Petitioner, an inmate at Orleans Correctional Facility in Albion, New York, commenced this CPLR Article 78 proceeding against the New York City Police Department (N.Y.PD)—FOIL Unit to reverse respondent's decision denying petitioner access to documents pertaining to the murder of Trevor Daley. According to petitioner, petitioner was arrested on March 5, 1985, and subsequently charged with murder, criminal possession of a weapon, and criminal use of a firearm. Petitioner seeks respondent's records investigating the murder.
Respondent moves to dismiss this proceeding on the basis that this proceeding is time—barred under CPLR 217(1). Respondent also argues that this proceeding should be dismissed because the proceeding is barred by collateral estoppel or, in the alternative, because another Article 78 proceeding is pending in Supreme Court, New York County, between the same parties in which petitioner seeks the same relief he seeks in this Article 78 proceeding.
This is petitioner's second FOIL request and second Article 78 proceeding. Petitioner's first FOIL request was in September 1996. Petitioner commenced his first Article 78 proceeding in 1997 under Index number 402973/97 in Supreme Court, New York County, seeking documents to which the NYPD had denied petitioner access.
Respondent's motion to dismiss is granted. If a petitioner submits a second FOIL request that is duplicative of petitioner's first FOIL request, a court must dismiss an Article 78 proceeding challenging the second FOIL request as a “belated attempt to seek judicial review of the denial of the first request.” (Matter of Mendez v. New York City Police Dept., 260 A.D.2d 262, 263–264, 688 N.Y.S.2d 538 [1st Dept 1999] ; accord Matter of Corbin v. Ward, 160 A.D.2d 596, 596, 554 N.Y.S.2d 240 [1st Dept 1990] [“[T]he IAS court properly refused to consider the challenge to the second denial ... as this demand apparently constituted nothing more than an effort to obtain reconsideration of the prior request without any change in circumstances.”]; Matter of Kelly v. New York City Police Dept., 286 A.D.2d 581, 581, 730 N.Y.S.2d 84 [1st Dept 2001] [finding that petitioner's second FOIL request in 1999 was duplicative of petitioner's first FOIL request from 1997, in which respondent NYPD partially denied petitioner's request for documents leading to his indictment]; Matter of Van Steenburg v. Thomas, 242 A.D.2d 802, 803, 661 N.Y.S.2d 317 [3d Dept 1997] [“We agree with Supreme Court that this proceeding is a belated attempt to appeal the October 4, 1994 denial of access to information and is therefore barred by the Statute of Limitations.”].)
Even if petitioner's second FOIL request is more detailed than his first request, “[b]elated judicial review of that denial cannot be based on petitioner's second request for the same information.” (Matter of McGriff v. Bratton, 293 A.D.2d 401, 402, 740 N.Y.S.2d 342 [1st Dept 2002] ; see also Matter of Garcia v. Div. of State Police, 302 A.D.2d 755, 756, 754 N.Y.S.2d 913 [3d Dept 2003] [finding that petitioner's 2000 FOIL request was a more specific list of the 1993 FOIL request and thus an improper attempt to relitigate respondents' prior denial.)
Petitioner's second FOIL request from 2014 is duplicative of petitioner's first FOIL request from 1996.
In 1996, petitioner requested copies of any investigative notes, witnesses' statements, copies of the DD5 reports, copies of memo books regarding Trevor Daley's murder, any polygraph test report, inventory of all items found on the victim's body and any ballistic, DNA, and fingerprint reports. (Respondent's Notice of Motion, Exhibit 1.) In 1996, respondent informed petitioner that no polygraph report existed and that petitioner may obtain his criminal felony complaint from the court of original jurisdiction. (Respondent's Notice of Motion, Exhibit 2.) Respondent denied petitioner access to the DD5s. (Respondent's Notice of Motion, Exhibit 2.) Petitioner appealed. Thereafter, Assistant Deputy Commissioner, Karen A. Pakstis, partly granted petitioner access to the DD5s except for any information that was exempt under FOIL. (Respondent's Notice of Motion, Exhibit 4.)
In 2014, petitioner sought the following documents: statements from eyewitnesses; police officers' memo book entries; polygraph reports; list of objects found on decedent's person; ballistic reports; bullet casings found at the scene of the crime; and crime scene forensic reports, such as DNA and fingerprint tests. On April 23, 2014, respondent released nine pages to petitioner: ballistics report, arrest report, complaint report, and DD5s. Respondent redacted some information to protect for personal privacy and safety. Petitioner appealed. On his appeal, petitioner requested, among other things, eyewitness statements and memo book entries. On June 6, 2014, respondent denied petitioner's appeal on the basis that the documents petitioner seeks are exempt.
The petition is dismissed as barred under the statute of limitations. Petitioner's second FOIL request from 2014 is a belated attempt to seek judicial review of petitioner's first FOIL request from 18 years ago, 1996. Petitioner's challenge to the 2014 denial is “nothing more than an effort to obtain reconsideration of the prior request without any change in circumstances.” (Matter of Corbin, 160 A.D.2d at 596, 554 N.Y.S.2d 240.)
To the extent that petitioner is seeking to relitigate his first Article 78 proceeding under Index number 402973/97, the court notes that petitioner abandoned that proceeding.
Hon. William J. Davis determined, in an interim order dated February 17, 1998, that a Special Referee perform an in camera inspection of the withheld DD5s to determine whether they are exempt. It appears that the parties never received a final decision and order from the court. And, according to this court's review of the file, no final decision exists in the court file. Petitioner never restored the case to the calendar. Nor did petitioner commence an Article 78 proceeding to compel Justice Davis to render a final decision.
This court need not address respondent's remaining arguments.
ORDERED that respondent's cross-motion to dismiss is granted, and it is further
ORDERED and ADJUDGED that petitioner's petition is dismissed, and it is further
ORDERED that respondent must serve a copy of this order with notice of entry on the County Clerk's office, which is directed to dismiss the petition.
This is the court's decision and order.