| Matter of Fenstermaker v Edgemont Union Free School Dist. |
| 2008 NY Slip Op 01343 [48 AD3d 564] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Scott L. Fenstermaker,Appellant, v Edgemont Union Free School District et al.,Respondents. |
—[*1] Kehl, Katzive & Simon, LLP, New York, N.Y. (Jeffrey A. Kehl of counsel), forrespondents.
In a proceeding, inter alia, pursuant to CPLR article 78 to review the fee collection practicesof the respondents for documents produced pursuant to the Freedom of Information Law (PublicOfficers Law art 6), the petitioner appeals from (1) an order and judgment (one paper) of theSupreme Court, Westchester County (Loehr, J.), entered September 27, 2006, which denied thepetition, dismissed the proceeding, and granted the respondents' motion to award costs, includingan attorney's fee, against him, and (2) an order of the same court entered November 13, 2006,which, upon its determination that the CPLR article 78 proceeding was frivolous, and upon thesubmission of an affidavit of expenses, awarded costs, including an attorney's fee in the amountof $15,960, plus statutory costs, to the respondents.
Ordered that the order and judgment entered September 27, 2006, and the order enteredNovember 13, 2006, are affirmed, with one bill of costs.
The petitioner challenged the Freedom of Information Law (hereinafter FOIL) fee collectingpractices of the respondent Edgemont Union Free School District. The respondent school districtcharged the petitioner $0.25 per copy for copies made pursuant to his FOIL request. Therespondents correctly assert that this fee is permitted by statute (see Public Officers Law§ 87 [1] [b] [iii]). Further, the school district's decision to delay fulfillment of a subsequentFOIL request until the petitioner [*2]paid the fee owed for hisfirst FOIL request was not arbitrary or capricious (see NY State Dept of State, Comm onOpen Govt Advisory Op No. 9659).
The court providently exercised its discretion in imposing costs, including an attorney's fee,against the petitioner. "In its discretion, a court may award costs and financial sanctions againstan attorney or party resulting from frivolous conduct for initiating a frivolous proceeding" (Kamen v Diaz-Kamen, 40 AD3d937 [2007] [citation omitted]; seeTransaero, Inc. v Biri Assoc. Corp., 39 AD3d 738 [2007]). The frivolous conduct in thiscase was the petitioner's initiation of a proceeding that was completely without merit in law andcould not be supported by any reasonable argument for an extension, modification, or reversal ofexisting law (see 22 NYCRR 130-1.1 [c] [1]). Spolzino, J.P., Skelos, Florio andDickerson, JJ., concur.