Opinion
2013-05-16
In re Miguel ANDRADE, Petitioner–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents.
Miguel Andrade, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Miguel Andrade, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered May 19, 2011, denying the petition seeking to annul respondents' determination, dated June 25, 2010, which denied petitioner's request under the Freedom of Information Law (FOIL), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered December 23, 2011, which denied petitioner's motion to reargue, denominated as one for “reargument and reconsideration,” unanimously dismissed, without costs, as taken from a nonappealable paper.
The court properly denied the petition and dismissed the proceeding under the doctrine of res judicata. Petitioner requested disclosure of documents he had sought in a prior FOIL request, which were found to be exempt from disclosure in a prior article 78 proceeding between the same parties ( see Matter of Cobb v. Lombardi, 261 A.D.2d 172, 690 N.Y.S.2d 30 [1st Dept. 1999];see also Matter of Corbin v. Ward, 160 A.D.2d 596, 554 N.Y.S.2d 240 [1st Dept. 1990],lv. denied76 N.Y.2d 706, 560 N.Y.S.2d 988, 561 N.E.2d 888 [1990] ).
The record further establishes that the petition was time-barred. The subject petition was brought in September 2010, more than four months after the November 2007 denial of petitioner's prior FOIL request ( seeCPLR 217[1] ), and his second FOIL request “did not extend or toll his time to commence an article 78 proceeding” ( Matter of Kelly v. New York City Police Dept., 286 A.D.2d 581, 581, 730 N.Y.S.2d 84 [1st Dept. 2001] ).
The appeal from the December 2011 order is dismissed. Petitioner's motion, denominated as one for “reargument and reconsideration,” did not offer new or additional facts that would change the prior determination ( seeCPLR 2221 [e] ), and thus, was essentially a motion to reargue, the denial of which is not appealable ( see Ramos v. Napoli, 95 A.D.3d 637, 943 N.Y.S.2d 883 [1st Dept. 2012] ).
Furthermore, we exercise our discretion to disregard the inaccuracies in the notice of appeal and treat it as valid, particularly since respondent was not misled or otherwise prejudiced by the inaccuracies ( seeCPLR 5520 [c]; Cirillo v. Macy's Inc., 61 A.D.3d 538, 539, 877 N.Y.S.2d 281 [1st Dept. 2009] ).