| Matter of Saxton v New York State Dept. of Taxation &Fin. |
| 2013 NY Slip Op 04078 [107 AD3d 1104] |
| June 6, 2013 |
| Appellate Division, Third Department |
| In the Matter of Richard T. Saxton et al., Appellants, v NewYork State Department of Taxation and Finance et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Rose, J. Appeal from a judgment of the Supreme Court (McDonough, J.), enteredJanuary 25, 2012 in Albany County, which, among other things, partially grantedpetitioners' application, in a proceeding pursuant to CPLR article 78, to annuldeterminations of respondent Department of Taxation and Finance partially denyingpetitioner Kathleen M. Diina-Feldman's Freedom of Information Law requests.
In connection with a criminal proceeding against petitioner Richard T. Saxton,petitioner Kathleen M. Diina-Feldman, an employee of Saxton's attorney, filed aFreedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL])request with respondent Department of Taxation and Finance (hereinafter Department)seeking "any and all records and investigative files relative to the [Department], City ofSaratoga Springs Police Department and Office of the Saratoga County District Attorneyinvestigation of . . . Saxton." After an extended delay and an administrativeappeal, the Department provided numerous documents to Diina-Feldman and theDepartment's records appeal officer certified that "[w]e have performed a diligent searchfor the records responsive to your FOIL request and I certify that we cannot locate anyother records that are responsive to your request." Petitioners commenced this CPLRarticle 78 proceeding contending, among other things, that a computer "screen shot"produced by the Department revealed the potential existence of additional entriesrelevant to the request that had [*2]not been disclosed.Relying on the Department's certification that a diligent search had been performed andno other records existed, Supreme Court denied the petition to the extent that it soughtthe production of the additional records related to the screen shot. After conducting an incamera review of certain documents that had been withheld, the court directed theDepartment to fully disclose one of the documents and partially disclose the redactionson two other documents. Supreme Court also denied petitioners' request for counsel feesand costs, concluding that they had not substantially prevailed. Petitioners appeal.
After petitioners filed their brief, the Department acknowledged that its priorrepresentations that no documents related to the screen shot existed were not accurateand produced approximately 135 additional records. The Department maintained that itwas not obligated to produce the records because they were not responsive to the FOILrequest, but that it was doing so in order to correct the previous assertions that therecords did not exist. Given the production of the additional records, petitioners' appealon the issue of whether a hearing should have been held to determine their existence ismoot (see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875[2001]; Matter of GlobalTel*Link v State of N.Y. Dept. of Correctional Servs., 68 AD3d 1599, 1600[2009]; Matter of Covington vSultana, 59 AD3d 163, 164 [2009]).
With respect to the request for counsel fees, we find no basis to disturb SupremeCourt's conclusion that, having secured the disclosure of only three additional documentsout of the 18 sought, petitioners did not substantially prevail (see Matter of Mazzone v NewYork State Dept. of Transp., 95 AD3d 1423, 1426 [2012]; Matter of Mack v Howard, 91AD3d 1315, 1317 [2012]; Matter of Henry Schein, Inc., v Eristoff, 35 AD3d 1124,1126 [2006]). Nevertheless, we remit the matter to Supreme Court for reconsideration ofwhether, in light of the additional disclosures, petitioners substantially prevailed and arethus entitled to counsel fees (seeMatter of TJS of N.Y., Inc. v New York State Dept. of Taxation & Fin., 89 AD3d239, 243 [2011]; Matter ofNew York State Defenders Assn. v New York State Police, 87 AD3d 193,196-197 [2011]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.