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In the Matter of Barry Leibowicz v. New York State Department of Taxation and Finance et al

State of New York Supreme Court, Appellate Division Third Judicial Department


April 7, 2011

IN THE MATTER OF BARRY LEIBOWICZ, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered April 22, 2010 in Albany County, which, among other things, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents denying petitioner's Freedom of Information Law request.

The opinion of the court was delivered by: Kavanagh, J.

MEMORANDUM AND ORDER

Calendar Date: February 8, 2011

Before: Lahtinen, J.P., Kavanagh, McCarthy and Garry, JJ.

We are not persuaded by petitioner's contention that Supreme Court erred in denying his request to conduct certain discovery, including depositions, with regard to a search performed by respondent New York State Department of Taxation and Finance in response to his request under the Freedom of Information Law (see Public Officers Law art 6).

Affidavits submitted on behalf of respondents certified that, after a diligent search, all documents responsive to the Freedom of Information Law request had been provided to petitioner. This was sufficient to satisfy respondents' obligation pursuant to Public Officers Law § 89 (3) (see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]; Matter of Robles v Borakove, 6 AD3d 216 [2004]). The fact that an additional document -- one that was specifically identified in the petition -- was provided to petitioner after this proceeding was commenced, does not serve to void respondents' re-certification that, after a diligent search, no other relevant documents were in their possession (see Matter of Covington v Sultana, 59 AD3d 163, 164 [2009]). We have reviewed petitioner's remaining contentions, including his claim that his request for counsel fees was improperly denied, and find them to be unavailing.

Lahtinen, J.P., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110407

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