Matter of Mingo v Records Access Officer of the N.Y. County Dist. Attorney’s Off., 2024 NY Slip Op 05030 [231 AD3d 522]

October 10, 2024

Appellate Division, First Department

[*1]

In the Matter of John Mingo, Appellant,

v

Records Access Officer of the New York County District Attorney’s Office, Respondent.

John Mingo, appellant pro se.

Alvin L. Bragg, Jr., District Attorney, New York (Franklin R. Guenthner of counsel), for respondent.

Judgment (denominated an order), Supreme Court, New York County (Arlene P. Bluth, J.), entered August 8, 2022, denying the petition to annul a determination of respondent, dated November 3, 2021, which denied petitioner’s request for records pursuant to the Freedom of Information Law (FOIL), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

We affirm the judgment on the basis that the petition is barred for failure to exhaust administrative remedies within the time permitted by FOIL. In order to preserve his right to judicial review, petitioner was required to exhaust his administrative remedies by filing an administrative appeal within 30 days of the decision partially denying his request (Public Officers Law § 89 [4] [a], [b]; see Matter of McGriff v Bratton , 293 AD2d 401, 402 [1st Dept 2002]). Petitioner submitted his administrative appeal well after the 30 days elapsed, as his time to file his administrative appeal was triggered by the Records Access Officer’s February 10, 2021 letter denying the FOIL request, not the date when petitioner received a disclosure of records ( see Matter of Advocates for Children of N.Y., Inc. v New York City Dept. of Educ. , 101 AD3d 445 , 445 [1st Dept 2012]). Concur—Kern, J.P., Oing, Kennedy, Higgitt, Michael, JJ..