Summary
holding that a dismissal of the Article 78 proceeding is unwarranted because the agency failed to establish that they had notified petitioner of the availability of an administrative appeal
Summary of this case from Williams v. VanceOpinion
Argued October 18, 1989
Decided November 16, 1989
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Karla Moskowitz, J.
Robert M. Morgenthau, District Attorney (Morrie I. Kleinbart and Marc Frazier Scholl of counsel), appellants pro se. Robert Selcov, Deborah Schneer and David C. Leven for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs.
Petitioner commenced this article 78 proceeding to compel production of certain documents after his Freedom of Information Law request, initially directed to the District Attorney, was denied in a letter signed by the District Attorney's records access officer. Inasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 N.Y.CRR 1401.7 [b]) and failed to demonstrate in this proceeding that procedures for such an appeal had, in fact, even been established (see, Public Officers Law § 87 [b]), he cannot be heard to complain that petitioner failed to exhaust his administrative remedies.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed, without costs, in a memorandum.