Opinion
15844, 100759/13
11-10-2015
In re Issa KOHLER–HAUSMANN, Petitioner–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents. The Associated Press, Daily News, L.P., The New York Times Company and Propublica, Amici Curiae.
Issa Kohler–Hausmann, Brooklyn, for appellant. Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for respondents. Media Freedom and Information Access Clinic, New York (David A. Schultz of counsel), for amici curiae.
Issa Kohler–Hausmann, Brooklyn, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Media Freedom and Information Access Clinic, New York (David A. Schultz of counsel), for amici curiae.
Opinion Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered January 17, 2014, which, insofar as appealed from as limited by the briefs, denied petitioner's request for attorney's fees or litigation costs, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously modified, on the law, to reinstate the proceeding, remand to Supreme Court for proceedings consistent with this order, and otherwise affirmed, without costs.
After acknowledging receipt of petitioner's FOIL request on August 1, 2012, respondent New York City Police Department (NYPD) extended its time to respond to petitioner's FOIL request to January 15, 2013, pursuant to Public Officers Law § 89(3)(a). By failing to respond for months after that deadline, NYPD constructively denied the FOIL request (see 21 NYCRR 1401.5 [e] ). Contrary to the court's finding, petitioner's administrative remedies were exhausted when NYPD denied her administrative appeal from the constructive denial of her FOIL request (see Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 408, 959 N.Y.S.2d 171 [1st Dept.2013], lv. dismissed 21 N.Y.3d 930, 967 N.Y.S.2d 686, 989 N.E.2d 968 [2013], lv. denied 22 N.Y.3d 854, 2013 WL 5716155 [2013] ).
Although petitioner effectively concedes that the merits of her petition are moot as a result of NYPD's voluntary disclosure, petitioner's claim for attorney's fees and other litigation costs is not moot (see Matter
of New York State Defenders Assn. v. New York State Police, 87 A.D.3d 193, 195, 927 N.Y.S.2d 423 [3d Dept.2011] [holding that “the voluntariness of ... disclosure is irrelevant to the issue of whether petitioner substantially prevailed in [a FOIL] proceeding,” since “to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision”]; Matter of Purcell v. Jefferson County Dist. Attorney, 77 A.D.3d 1328, 1329, 909 N.Y.S.2d 238 [4th Dept.2010] [request for attorney's fees was not rendered moot by disclosure of documents, where agency “offered to produce the majority of the records sought by [the] petitioner if she agreed to withdraw her request for attorney's fees”]; Matter of Powhida v. City of Albany, 147 A.D.2d 236, 238–239, 542 N.Y.S.2d 865 [3d Dept.1989] ).
The attorney petitioner's self-representation does not preclude an award of attorneys' fees. Other similarly worded statutes have been interpreted to authorize an award of attorneys' fees to a prevailing litigant who represented himself or herself or had the benefit of free legal services (see Maplewood Mgt. v. Best, 143 A.D.2d 978, 533 N.Y.S.2d 612 [1st Dept.1988] [Real Property Law § 234 ]; see also Diaz v. Audi of Am., Inc., 57 A.D.3d 828, 873 N.Y.S.2d 308 [2d Dept.2008] [General Business Law § 198–b (Lemon Law) ]; Senfeld v. I.S.T.A. Holding Co., 235 A.D.2d 345, 652 N.Y.S.2d 738 [1st Dept.1997] [Real Property Law § 234 ], lv. dismissed 91 N.Y.2d 956, 671 N.Y.S.2d 717, 694 N.E.2d 886 [1998], lv. denied 92 N.Y.2d 818, 684 N.Y.S.2d 489, 707 N.E.2d 444 [1998] ; Thomas v. Coughlin, 194 A.D.2d 281, 606 N.Y.S.2d 378 [3d Dept.1993] [CPLR 8601 ]; Sharp v. Sharp, 161 A.D.2d 624, 555 N.Y.S.2d 403 [2d Dept.1990] [Domestic Relations Law § 238 ], lv. dismissed 76 N.Y.2d 889, 561 N.Y.S.2d 550, 562 N.E.2d 875 [1990] ; Crooker v. United States Dept. of Treasury, 634 F.2d 48, 49 [2d Cir.1980] [FOIA] ).
Petitioner meets the statutory requirements for seeking “other litigation costs reasonably incurred” by her, since she “has substantially prevailed” and NYPD “failed to respond to [her request] ... within the statutory time” (Public Officers Law § 89[4][c][ii] ; see Matter of New York State Defenders Assn. v. New York State Police, 87 A.D.3d at 195, 927 N.Y.S.2d 423 ).
Accordingly, we remand to Supreme Court for consideration of petitioner's request for attorneys' fees and litigation costs.
MAZZARELLI, J.P., RENWICK, ANDRIAS, MANZANET–DANIELS, JJ., concur.