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Matter of King v Castellano, 2023 NY Slip Op 05261 [220 AD3d 863]

October 18, 2023

Appellate Division, Second Department

[*1]

In the Matter of Kirk King, Appellant,

v

John M. Castellano, Respondent.

Kirk King, Fishkill, NY, appellant pro se.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Anastasia Spanakos, and Jill Gross-Marks of counsel; Jordan Miller on the brief), for respondent.

In a proceeding pursuant to CPLR article 78 to compel the production of certain X-rays pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from a judgment of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), dated June 3, 2019. The judgment denied the petition and, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

In June 2018, the petitioner filed a request pursuant to the Freedom of Information Law (Public Officers Law art 6 [hereinafter FOIL]) for the production of certain documents, including X-rays of the complainant in a criminal case, from the Office of the District Attorney, Queens County (hereinafter the agency). The agency denied the petitioner’s request on the ground that a diligent search of its records did not uncover any documents that would satisfy the petitioner’s request for the X-rays, and the agency denied the petitioner’s administrative appeal.

Thereafter, the petitioner commenced this proceeding against the respondent, in his capacity as the agency’s FOIL appeals officer, to compel the production of the X-rays requested in his June 2018 FOIL request. In a judgment dated June 3, 2019, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

Contrary to the petitioner’s contention, the agency’s certification that the requested X-rays could not be found despite a diligent search satisfied its obligation under Public Officers Law § 89 (3) ( see Matter of Rattley v New York City Police Dept. , 96 NY2d 873, 875 [2001]; Matter of Cocchiaraley v Westchester County Health Care Corp. , 209 AD3d 1018 , 1019 [2022]; Matter of Curry v Nassau County Sheriff’s Dept. , 69 AD3d 622 , 622 [2010]). Furthermore, the petitioner failed to offer a factual basis upon which to reject the respondent’s certification ( see Matter of Cocchiaraley v Westchester County Health Care Corp. , 209 AD3d at 1019; Matter of Curry v Nassau County Sheriff’s Dept. , 69 AD3d at 622-623; cf. Matter of Oddone v Suffolk County Police Dept. , 96 AD3d 758 , 759 [2012]).

Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed [*2] the proceeding. Barros, J.P., Maltese, Warhit and Taylor, JJ., concur..