Opinion
2021-04826
08-26-2021
IN THE MATTER OF JOSEPH SAPIENZA, AFFORDABLE ELECTRICAL SERVICES BY SAPIENZA ELECTRIC, INC., AND RUPP BAASE PFALZGRAF CUNNINGHAM LLC, PETITIONERS-RESPONDENTS, v. CITY OF BUFFALO, RESPONDENT-APPELLANT.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (WILLIAM P. MATHEWSON OF COUNSEL), FOR RESPONDENT-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CHAD A. DAVENPORT OF COUNSEL), FOR PETITIONERS-RESPONDENTS.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (WILLIAM P. MATHEWSON OF COUNSEL), FOR RESPONDENT-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CHAD A. DAVENPORT OF COUNSEL), FOR PETITIONERS-RESPONDENTS.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, Erie County (John F. O'Donnell, J.), entered February 5, 2020 in a proceeding pursuant to CPLR article 78. The judgment awarded petitioners attorney's fees and costs.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: In this CPLR article 78 proceeding to compel respondent to comply with petitioners' requests pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6), respondent appeals from a judgment determining that petitioners substantially prevailed in the proceeding and awarding petitioners attorney's fees and costs. We affirm.
Contrary to respondent's contention, we conclude that petitioners properly brought this proceeding after respondent failed to meet its anticipated date for producing documents in response to one of petitioners' FOIL requests and ignored petitioners' additional FOIL requests. Respondent's failure to timely respond to petitioners' FOIL requests constituted a denial of access (see Public Officers Law § 89 [3] [a]; [4] [a]) and gave petitioners grounds to commence an article 78 proceeding for review thereof (see Matter of New York Times Co. v City of N.Y. Police Dept., 103 A.D.3d 405, 406 [1st Dept 2013], appeal dismissed 21 N.Y.3d 930 [2013], lv denied 22 N.Y.3d 854 [2013]).
We reject respondent's contention that petitioners failed to exhaust their administrative remedies prior to commencing the instant proceeding. The Public Officers Law provides that "any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body" (§ 89 [4] [a]). Here, petitioners exhausted their administrative remedies by timely sending letters to respondent objecting to its denial of their requests and asking it to consider their letter appeals pursuant to Public Officers Law § 89 (4) (a) (see Matter of Purcell v Jefferson County Dist. Attorney, 77 A.D.3d 1328, 1329 [4th Dept 2010]).
We reject respondent's contention that petitioners were not entitled to attorney's fees because they did not "substantially" prevail within the meaning of FOIL's fee-shifting provision (Public Officers Law § 89 [4] [c] [i]). To the contrary, petitioners received a complete response to their requests only after commencing the instant proceeding (see Matter of Whitehead v Warren County Bd. of Supervisors, 165 A.D.3d 1452, 1453-1454 [3d Dept 2018]; Matter of New York State Defenders Assn. v New York State Police, 87 A.D.3d 193, 195 [3d Dept 2011]). Finally, we see no reason to disturb Supreme Court's award of attorney's fees and costs.