| Matter of Kohler-Hausmann v New York City PoliceDept. |
| 2015 NY Slip Op 08084 [133 AD3d 437] |
| November 10, 2015 |
| Appellate Division, First Department |
[*1]
| In the Matter of Issa Kohler-Hausmann,Appellant, v New York City Police Department et al.,Respondents. |
Issa Kohler-Hausmann, Brooklyn, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), forrespondents.
Media Freedom and Information Access Clinic, New York (David A. Schultz ofcounsel), for amici curiae.
Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), enteredJanuary 17, 2014, which, insofar as appealed from as limited by the briefs, deniedpetitioner's request for attorney's fees or litigation costs, and dismissed the proceedingbrought pursuant to CPLR article 78, unanimously modified, on the law, to reinstate theproceeding, remand to Supreme Court for proceedings consistent with this order, andotherwise affirmed, without costs.
After acknowledging receipt of petitioner's FOIL request on August 1, 2012,respondent New York City Police Department (NYPD) extended its time to respond topetitioner's FOIL request to January 15, 2013, pursuant to Public Officers Law§ 89 (3) (a). By failing to respond for months after that deadline, NYPDconstructively denied the FOIL request (see 21 NYCRR 1401.5 [e]). Contrary tothe court's finding, petitioner's administrative remedies were exhausted when NYPDdenied her administrative appeal from the constructive denial of her FOIL request (see Matter of New York Times Co.v City of N.Y. Police Dept., 103 AD3d 405, 408 [1st Dept 2013], lvdismissed 21 NY3d 930 [2013], lv denied 22 NY3d 854 [2013]).
Although petitioner effectively concedes that the merits of her petition are moot as aresult of NYPD's voluntary disclosure, petitioner's claim for attorney's fees and otherlitigation costs is not moot (seeMatter of New York State Defenders Assn. v New York State Police, 87 AD3d193, 195 [3d Dept 2011] [holding that "the voluntariness of . . .disclosure is irrelevant to the issue of whether petitioner substantially prevailed in (aFOIL) proceeding," since "to allow a respondent to automatically forestall an award ofcounsel fees simply by releasing the requested documents before asserting a defensewould contravene the very purposes of FOIL's fee-shifting provision" (internal quotationmarks omitted)]; Matter ofPurcell v Jefferson County Dist. Attorney, 77 AD3d 1328, 1329 [4th Dept 2010][request for attorney's fees was not rendered moot by disclosure of documents, whereagency "offered to produce the majority of the records sought by (the) petitioner if sheagreed to withdraw her request for attorney's fees"]; Matter of Powhida v City ofAlbany, 147 AD2d 236, 238-239 [3d Dept 1989]).
The attorney petitioner's self-representation does not preclude an award of attorneys'fees. Other similarly worded statutes have been interpreted to authorize an award ofattorneys' fees to a prevailing litigant who represented himself or herself or had thebenefit of free legal services (see Maplewood Mgt. v Best, 143 AD2d 978 [2dDept 1988] [Real Property Law § 234]; [*2]see also Diaz v Audi of Am.,Inc., 57 AD3d 828 [2d Dept 2008] [General Business Law § 198-b(Lemon Law)]; Senfeld v I.S.T.A. Holding Co., 235 AD2d 345 [1st Dept 1997][Real Property Law § 234], lv dismissed 91 NY2d 956 [1998],lv denied 92 NY2d 818 [1998]; Matter of Thomas v Coughlin, 194 AD2d281 [3d Dept 1993] [CPLR 8601]; Sharp v Sharp, 161 AD2d 624 [2d Dept 1990][Domestic Relations Law § 238], lv dismissed 76 NY2d 889[1990]; Crooker v United States Dept. of the Treasury, 634 F2d 48, 49 [2d Cir1980] [FOIA]).
Petitioner meets the statutory requirements for seeking "other litigation costsreasonably incurred" by her, since she "has substantially prevailed" and NYPD "failed torespond to [her] request . . . within the statutory time" (Public Officers Law§ 89 [4] [c] [ii]; see Matter of New York State Defenders Assn. v NewYork State Police, 87 AD3d at 195).
Accordingly, we remand to Supreme Court for consideration of petitioner's requestfor attorneys' fees and litigation costs. Concur—Mazzarelli, J.P., Renwick,Andrias and Manzanet-Daniels, JJ.