Justice Francois A. Rivera


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Inmate Velez moved to compel the District Attorney (DA) to disclose records, pertaining to documents related to his conviction to challenge it, under Freedom of Information Law (FOIL). The FOIL records access officer denied the request arguing certain items sought contained the victim’s identification, thus, were exempt from disclosure. Velez’s appeal was also denied. Respondent objected to the timeliness of Velez’s Article 78 petition, noting it was brought more than four months after the final appeal became binding. The court found the date the order to show cause was signed was the date of commencement of the action, and not within the four month statute of limitations. Yet, Velez argued his initially sent papers, that were returned to him due to defects, were timely, and the court agreed noting there were different considerations when reviewing the timeliness of an inmate’s commencement of an action by mail. It stated Velez’s lack of control of the filing of his papers warrant the benefit of the date they were stamped received by the Kings County Ex Parte Department in a timely fashion. Yet, the court concluded the determination was not arbitrary or capricious as it was specific, detailed and correct in its application of established law. Thus, the petition was dismissed.