Opinion
February 14, 1995
Appeal from the Supreme Court, New York County (William McCooe, J.).
Petitioner has failed to demonstrate that the information requested was either created or obtained by the respondent State college, or was in its possession and control at the time the Freedom of Information Law request was made (see, Department of Justice v. Tax Analysts, 492 U.S. 136, 144-145), and in light of a showing to the contrary, the IAS Court properly dismissed the petition as against the college upon the affidavit of the college's Associate Vice President for Finance, without a hearing (see, Matter of Ahlers v. Dillon, 143 A.D.2d 225).
We reject petitioner's invitation to find respondent Auxiliary Service Corporation to be an "alter ego" of the college for purposes of compelling the college to collect the information from that entity. In any event, assuming arguendo, that the Auxiliary Service Corporation is a governmental agency pursuant to Public Officers Law § 86 (3), the material sought nevertheless would be exempt pursuant to Public Officers Law § 87 (2) (d), because respondents have sufficiently demonstrated that allowing petitioner to take advantage of information gathered at the expense of the Auxiliary Service Corporation's subcontractor would cause substantial injury to the competitive position of that commercial enterprise.
The unpublished decision and order of this Court entered herein on February 7, 1995 is hereby recalled and vacated.
Concur — Ellerin, J.P., Asch, Nardelli and Williams, JJ.
Kupferman, J., concurs solely on the basis of Public Officers Law § 87 (2) (d).