| Matter of Timmons v Green |
| 2008 NY Slip Op 10275 [57 AD3d 1393] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Dennis Timmons, Respondent, v Michael C. Green,Monroe County District Attorney, Appellant. |
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Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (William P.Polito, J.), entered December 24, 2007 in a proceeding pursuant to CPLR article 78. The judgment,inter alia, granted the petition.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byvacating those parts granting the petition and as modified the judgment is affirmed without costs, andrespondent is granted 20 days from service of the order of this Court with notice of entry to serve andfile an answer.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, tocompel respondent to provide certain documents sought pursuant to the Freedom of Information Law([FOIL] Public Officers Law art 6). Contrary to the contention of respondent, Supreme Court properlydenied his pre-answer motion to dismiss the petition. We reject respondent's contention that petitionererred in sending his FOIL requests to the Monroe County District Attorney's Office (DA's Office)rather than to the Monroe County Department of Communications, which respondent alleged insupport of his motion is "the official FOIL representative for all Monroe County agencies." As the courtproperly noted, the DA's Office is an agency that is subject to FOIL (see generally Matter ofRivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [2000]; Matter ofMoore v Santucci, 151 AD2d 677 [1989]). While the applicable statutes and regulations allow anagency to designate a records access officer (see Public Officers Law § 87 [1] [b] [ii];21 NYCRR 1401.2 [a]), an agency is not thereby relieved of its burden of responding to FOILrequests. We reject the further contention of respondent that the petition should be dismissed for failureto name the Monroe County Department of Communications as a necessary party. We also rejectrespondent's contentions that petitioner failed to exhaust his administrative remedies (see generallyRivette, 272 AD2d at 649), and that the proceeding is time-barred. The record establishes thatrespondent did not deny petitioner's FOIL requests until March 7, 2007, and petitioner commencedthis proceeding less than four months later (see generally Matter of Swinton v Record AccessOfficers for City of N.Y. Police Dept., 198 AD2d 165 [1993]).
We agree with respondent, however, that the court erred in granting the petition without [*2]first affording respondent the opportunity to serve and file an answer(see CPLR 7804 [f]; Matter ofBethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protectionof City of N.Y., 8 NY3d 1001 [2007]; Matter of Julicher v Town of Tonawanda, 34 AD3d 1217 [2006]). Wecannot conclude that "the facts are so fully presented in the papers of the respective parties that it isclear that no dispute as to the facts exists and no prejudice will result from the failure to require ananswer" (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. ofNassau County, 63 NY2d 100, 102 [1984]; cf. Matter of Kuzma v City of Buffalo, 45 AD3d 1308, 1311 [2007];Matter of Tozzo v Board of Appeals on Zoning of City of New Rochelle, 179 AD2d 810, 811[1992]). We therefore modify the judgment by vacating those parts granting the petition, and we grantrespondent 20 days from service of the order of this Court with notice of entry to serve and file ananswer. Present—Smith, J.P., Centra, Lunn, Fahey and Green, JJ.