We affirm. "Where a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" ( Matter ofCobado v. Benziger , 163 A.D.3d 1103, 1105, 80 N.Y.S.3d 529 [2018] [internal quotation marks and citations omitted]; seeMatter of Associated Gen. Contrs. of N.Y. State, LLC v. New York State Thruway Auth. , 173 A.D.3d 1526, 1527, 105 N.Y.S.3d 573 [2019] ). Petitioner's sole contention in its petition was that respondent's failure to provide the requested documents by the anticipated response dates set by respondent constituted a constructive denial of the request.
The Court turns first to the question of whether the petition is moot. Although it is true that "[w]here a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR Article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" ( DeFreitas v. New York State Police Crime Lab , 141 AD3d 1043, 1044 [3d Dept 2016] ; seeCobado v. Benziger , 163 AD3d 1103, 1105 [3d Dept 2018] ), as petitioner correctly maintains, that is not the situation here. In contrast to DeFreitas v. New York State Police Crime Lab and Cobado v. Benziger , supra, where, during the pendency of the proceedings, the respondents fully complied with the petitioners' FOIL requests by producing responsive materials and withholding only demonstrably exempt records (see, e.g. , DeFreitas , supra , 141 AD3d at 1045 ), here the SCPD has provided only a single, nine-page document, and that in response to but one of the ten requests, and has interposed hypothetical assertions of exemption for any other materials it has, or might have, responsive to the request.
Respondent appeals. To begin, we agree with respondent that the claim of constructive denial was rendered moot by the document disclosure (see Matter of Cobado v Benziger, 163 A.D.3d 1103, 1105 [2018]). Moreover, since petitioner did not administratively appeal respondent's decision to withhold certain documents as exempt, or otherwise seek to amend the petition to challenge that determination, the court erred in addressing the validity of the claimed exemptions (see id.).
Respondent appeals. To begin, we agree with respondent that the claim of constructive denial was rendered moot by the document disclosure (see Matter ofCobado v. Benziger, 163 A.D.3d 1103, 1105, 80 N.Y.S.3d 529 [2018] ). Moreover, since petitioner did not administratively appeal respondent's decision to withhold certain documents as exempt, or otherwise seek to amend the petition to challenge that determination, the court erred in addressing the validity of the claimed exemptions (see id. ).
Respondent appeals. To begin, we agree with respondent that the claim of constructive denial was rendered moot by the document disclosure (see Matter of Cobado v Benziger, 163 A.D.3d 1103, 1105 [2018]). Moreover, since petitioner did not administratively appeal respondent's decision to withhold certain documents as exempt, or otherwise seek to amend the petition to challenge that determination, the court erred in addressing the validity of the claimed exemptions (see id.).
Petitioners appeal. Having already determined that petitioners are entitled to an award of counsel fees and litigation costs ( 169 A.D.3d at 1313, 95 N.Y.S.3d 404 ), we must now decide whether Supreme Court providently exercised its discretion "in calculating the reasonable amount of [that] award" ( Matter of Saxton v. New York State Dept. of Taxation & Fin., 130 A.D.3d 1224, 1225, 13 N.Y.S.3d 679 [2015] ; seeImrie v. Ratto, 187 A.D.3d 1344, 1351–1352, 134 N.Y.S.3d 101 [2020] ; Matter ofCobado v. Benziger, 163 A.D.3d 1103, 1107, 80 N.Y.S.3d 529 [2018] ). There is no dispute that petitioners' prior appeal to this Court formed part of their "case under the provisions of" Public Officers Law § 89 ( Public Officers Law § 89[4][c][i] ; see Black's Law Dictionary [11th ed 2019], case [broadly defining term as any "civil or criminal proceeding, action, suit, or controversy at law or in equity"] ), and the expenses incurred to successfully prosecute it could therefore be included in the award of reasonable counsel fees and costs (see e.g.Matter of Rourke v. New York State Dept. of Correctional Servs., 245 A.D.2d 870, 872, 666 N.Y.S.2d 765 [1997] ; Matter ofQuill v. Cathedral Corp., 241 A.D.2d 593, 595, 659 N.Y.S.2d 919 [1997], lv denied 90 N.Y.2d 812, 666 N.Y.S.2d 100, 688 N.E.2d 1383 [1997] ; Podhorecki v. Lauer's Furniture Stores, 201 A.D.2d 947, 947, 607 N.Y.S.2d 818 [1994] ).
Dept. , 30 N.Y.3d 67, 78, 64 N.Y.S.3d 635, 86 N.E.3d 527 [2017], quoting Public Officers Law § 89[4] [former (c)(i), (ii) ]; seeMatter of Competitive Enter. Inst. v. Attorney Gen. of N. Y. , 161 A.D.3d 1283, 1284–1285, 76 N.Y.S.3d 640 [2018] ; Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision , 105 A.D.3d 1120, 1121, 962 N.Y.S.2d 773 [2013] ). The response to petitioner's administrative appeal from the denial of its FOIL request was untimely and, moreover, petitioner substantially prevailed when the requested records were turned over to it during the pendency of this CPLR article 78 proceeding (seeMatter of Whitehead v. Warren County Bd. of Supervisors , 165 A.D.3d 1452, 1453–1454, 86 N.Y.S.3d 241 [2018] ; Matter of Cobado v. Benziger , 163 A.D.3d 1103, 1106, 80 N.Y.S.3d 529 [2018] ). The statutory requirements for an award of counsel fees were accordingly met, leaving the determination of whether to make one "within [Supreme Court's] discretion, subject to review only for an abuse of that discretion" ( Matter of Madeiros v. New York State Educ.
It is well established that when a government agency produces records responsive to a petitioner's FOIL request during the pendency of an Article 78 proceeding, the proceeding is rendered moot. Lambrou v. New York City, 210 A.D.3d 588, 589 (1st Dep't 2022) ("Respondents' review and determination of petitioner's FOIL request after the commencement of this article 78 proceeding rendered the proceeding moot."); Cobado v. Benziger, 163 A.D.3d 1103, 1105 (3d Dep't 2018) ("Where a petitioner receives an adequate response to a FOIL request during the pendency of his or her CLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties." (internal quotation marks and citation omitted))
Likewise, since Petitioner now has a FOIL response, a declaration regarding Respondent's actions would serve no useful purpose. However, the "finding that this proceeding is moot does not preclude petitioner's request for associated ‘costs and fees’ " (Matter of Cobado v Benziger , 163 AD3d 1103, 1105 [3d Dept 2018] ; seeMatter of Global Tel*Link v State of NY Dept. of Correctional Servs. , 68 AD3d 1599, 1601 [3d Dept 2009] ). Counsel Fees
An award of reasonable counsel fees and other litigation costs in a FOIL proceeding is available only where the petitioning party "substantially prevail[s]" (Public Officers Law § 89 [4] [c]), and a petitioner may be said to substantially prevail when he or she "receives all the information that [he or she] requested and to which [he or she] was entitled in response to the underlying FOIL litigation" (Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 A.D.3d at 1074 [internal quotation marks and citations omitted]). The denial petitioner ultimately received was not issued in response to this CPLR article 78 litigation but, instead, upon the State Police's administrative remand (see Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 197 A.D.3d at 810; Matter of Friedland v Maloney, 148 A.D.2d 814, 816 [3d Dept 1989]; compare Matter of Cobado v Benziger, 163 A.D.3d 1103, 1106-1107 [3d Dept 2018]; Matter of Legal Aid Socy. v New York State Dept. of Corr. & Community Supervision, 105 A.D.3d 1120, 1121-1122 [3d Dept 2013]), the propriety of which we do not reach.