Opinion
No. 373 CA 21-01577
07-01-2022
IN THE MATTER OF GEORGE D. MAZIARZ, PETITIONER-APPELLANT, v. WESTERN REGIONAL OFF-TRACK BETTING CORPORATION, RESPONDENT-RESPONDENT.
MICHAEL KUZMA, BUFFALO, FOR PETITIONER-APPELLANT. CONNORS LLP, BUFFALO (REBECCA F. IZZO OF COUNSEL), FOR RESPONDENT-RESPONDENT.
MICHAEL KUZMA, BUFFALO, FOR PETITIONER-APPELLANT.
CONNORS LLP, BUFFALO (REBECCA F. IZZO OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from an order of the Supreme Court, Genesee County (Charles N. Zambito, A.J.), entered March 25, 2021. The order, among other things, denied petitioner's request for attorney's fees and litigation costs.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this CPLR article 78 proceeding to compel respondent to produce records requested by petitioner under the Freedom of Information Law ([FOIL] Public Officers Law art 6), petitioner appeals from an order that, inter alia, denied his request for attorney's fees and litigation costs. We affirm.
As relevant here, a court may assess reasonable attorney's fees and other litigation costs against an agency in a FOIL proceeding where the petitioner "has substantially prevailed, and... the agency failed to respond to a request or appeal within the statutory time" (Public Officers Law § 89 [4] [c] [i]; see Matter of Purcell v Jefferson County Dist. Attorney, 77 A.D.3d 1328, 1329 [4th Dept 2010]). Even if the party meets those requirements, the award of attorney's fees and litigation costs remains discretionary with the court (see Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 A.D.3d 798, 800 [2d Dept 2020]). We agree with petitioner that respondent failed to respond to petitioner's FOIL appeal within the statutory time and that Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not toll respondent's statutory time within which to respond (see Public Officers Law § 89 [4] [a]; Matter of Oustatcher v Clark, 198 A.D.3d 420, 421-422 [1st Dept 2021]). Nevertheless, even assuming, arguendo, that it could be said that petitioner substantially prevailed in this proceeding, we conclude that Supreme Court did not abuse its discretion in denying petitioner's request for attorneys' fees and litigation costs inasmuch as respondent's delay was caused by the ongoing COVID-19 pandemic (cf. Matter of Edmond v Suffolk County, 197 A.D.3d 1297, 1299-1300 [2d Dept 2021]).