Opinion
June 27, 1994
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.
As we stated in Matter of Key v. Hynes ( 205 A.D.2d 779 [decided herewith]), it is error to accept wholly conclusory allegations as a substitute for proof that an agency governed by the Freedom of Information Law (Public Officers Law § 84 et seq.) has been unable to locate a document after having conducted a "diligent search" (Public Officers Law § 89). In this case, however, the employee who conducted the actual search for the documents in question submitted an affidavit which provided an adequate basis upon which to conclude that a "diligent search" for the documents in question had been made (see, Matter of Key v. Hynes, supra). The Supreme Court went further and ordered a hearing at which both this employee and a supervising Assistant District Attorney appeared. We reject the petitioner's contentions that he had the right to be present at this hearing (see generally, Pope v Pope, 198 A.D.2d 406) and that he had the right to the assignment of counsel. The evidence produced at this hearing was more than adequate to show that a diligent search for the documents requested had been made. Bracken, J.P., Miller, Copertino and Hart, JJ., concur.