The following papers read on this motion: Notice of Motion to Dismiss and Supporting Papers 1 Petitioner’s Affidavit in Opposition to Motion and Supporting Papers 2 Reply Affirmation and Supporting Papers 3 Upon the foregoing electronically filed papers, the Motion to Dismiss filed by the respondents, Oyster Bay Cove Police Department ["OBCPD"] and Kevin Cronin, in his official capacity as the Chief of Police for the Oyster Bay Cove Police Department ["Cronin"] [collectively, "respondents"], and opposed by the petitioner, Latinojustice PRLDF ["petitioner"], is determined as hereinafter provided. The petitioner commenced this Article 78 proceeding by Verified Petition on July 15, 2022. The petitioner seeks an Order and Judgment pursuant to CPLR §7806 for the following relief: 1) directing the respondents to certify, pursuant to the Freedom of Information Law (“FOIL”) and Public Officers Law §89(3)(a), that the records the petitioner requested could not be found after a diligent search; 2) directing the respondents to appear at an evidentiary hearing to determine whether the respondents maintain additional documents responsive to the petitioner’s FOIL request; 3) to the extent that the respondents concede that they maintain responsive documents, or that a hearing establishes the existence of responsive documents within the respondents’ control, directing the respondents to disclose such records in accordance with their duty under FOIL; 4) awarding the petitioner attorney’s fees and reasonable litigation costs as allowed under Public Officers Law §89(4)(c). In response, the respondents have filed a Notice of Motion for an Order dismissing the Petition pursuant to CPLR §§7804(f), 306-b and 3211(a)(1), (2), (5), (7), (8) and (10). The respondents argue, inter alia, that OBCPD is an administrative arm of non-party Village of Oyster Bay Cove [the "Village"] and cannot sue or be sued; that the Petition fails to state a cause of action against the OBCPD or Cronin; and that the proper and necessary party to this proceeding is the Village, against which no timely proceeding was ever commenced and upon which service of process was never made. Pursuant to the Affidavit of Meena Roldan Oberdick [the "affiant"], an Equal Justice Works Fellow at petitioner LatinoJustice PRLDEF, on November 18, 2021, the petitioner sent a FOIL request to the OBCPD, addressed to its “Freedom of Information Administrator”. Following the lack of any response from OBCPD, on March 7, 2022, the affiant was referred by a Sgt. Margel to the Village’s outside counsel, Chris Wagner of Humes & Wagner LP. Mr. Wagner instructed the affiant to e-mail him the FOIL request and said that either he could treat it as a new request, thereby re-starting the statutory response timeline under FOIL, or the affiant could treat the lack of a response to the request as a denial and file an appeal. Mr. Wagner was forwarded a copy of the petitioner’s FOIL request and the affiant advised Mr. Wagner that petitioner was treating the FOIL request as an appeal “to the Village’s designated appeals officer”. Based on the copies of emails attached to the petitioner’s affidavit opposing the respondents’ motion, Mr. Wagner advised the affiant that an appeal of a FOIL request denial “should always be filed directly with the Village Clerk”. However, he confirmed receipt of the petitioner’s appeal on March 8, 2022, and advised that he would circulate the appeal to the Village Clerk, and that the Appeals Officer would respond within 10 business days. On March 17, 2022, the affiant received a response to the petitioner’s appeal that was prepared by Mr. Wagner “on behalf of the Village’s Appeals Officer”. A copy of Mr. Wagner’s letter, which is printed on the Village’s letterhead, is included as exhibit D to the petitioner’s Verified Petition. In his letter to the petitioner, Mr. Wagner advises that the petitioner’s underlying FOIL request dated November 18, 2021, was not sent to the Village’s Records Access Officer (the Village Clerk) as required by Village Code. Instead, the petitioner’s request was sent to the Village Police Department. Mr. Wagner further advises the petitioner that the Village Clerk and the OBCPD work out of two separate offices and are located approximately 2.5 miles from one another, and that the Village Hall is only open three days a week and is staffed by three part-time employees and the OBCPD has eleven Police Officers in total and no Detectives. Mr. Wagner’s letter further advised that the petitioner’s appeal was granted and “documents that are both responsive to [the petitioner's] request and that are within the Village’s possession are attached” for the petitioner’s review. In this case, the Court finds that the petitioner failed to include all of the necessary parties in this proceeding, as it failed to include the Village and/or the Village’s Records Access Officer as parties to this proceeding. The evidence relied on by the petitioner in support of its Verified Petition and in its opposition to the respondents’ Motion to Dismiss indicates that the Village (through its FOIL Access Officer) is the main body responsible for the determination of the petitioner’s FOIL request and appeal. In this case, the petitioner was specifically advised in writing that FOIL requests should be submitted to the Village’s Records Access Officer, who is the Village Clerk, and not to the OBCPD. Contrary to the petitioner’s arguments, the evidence submitted and relied upon by the parties in support of their respective motion papers indicates that the Village, and the Village Clerk, who acts as the Village’s Records Access Officer, are responsible for the substantive determination of the petitioner’s FOIL request. This is not a case involving a municipal police department that has its own FOIL department and FOIL officer. In light of the foregoing, and based on the specific directions and information set forth in the determination dated March 17, 2022, the Court finds that the Village’s Records Access Officer is a necessary party who “may be affected by [this] proceeding”. (CPLR §7802[a]; see also Snyder v. Village of Hempstead, 199 AD3d 924, 924 [2d Dept 2021] [Article 78 proceeding brought based on FOIL request for records, brought against respondents Village of Hempstead, Hempstead Village Police Department, and Records Access Officer Lisa Cedillo]). As the petitioner has acknowledged that the statute of limitations has expired with respect to these additional necessary parties, the respondents’ application to dismiss the Verified Petition shall be GRANTED, and the Verified Petition shall be dismissed. (See, CPLR §217[1]; see also Germain v. Town of Chester Planning Board, 178 AD3d 926, 927 [2d Dept 2019]; Matter of Karmel v. White Plains Common Council, 284 AD2d 464, 465 [2d Dept 2001]; Baker v. Town of Roxbury, 220 AD2d 961, 963 [3d Dept 1995], leave to appeal denied, 87 NY2d 807 [1996]). Based upon conclusions reached herein, this Court shall not address the remaining arguments set forth in the parties’ respective motion papers. Accordingly, it is hereby ORDERED, that the Respondents’ motion to dismiss the petitioner’s Verified Petition is GRANTED, and the Petitioner’s Verified Petition is DISMISSED. ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED. This constitutes the Decision and Order of the Court. November 16, 2022 Mineola, NY.
