In the Matter of HOWARD I. SMITH, Appellant,
NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL et al., Respondents.
Calendar Date: January 9, 2018
& Porter Kaye Scholer LLP, New York City (Daphne
Morduchowitz of counsel), for appellant.
T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of
counsel), for New York State Office of the Attorney General,
Celli Brinkerhoff & Abady LLP, New York City (Andrew G.
Celli Jr. of counsel), for Eliot Spitzer, respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Ferreira, J.), entered
August 19, 2016 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted respondents' motions
to dismiss the petition.
history of this case is set forth in our prior decisions
involving these parties (Matter of Smith v New York State
Off. of the Attorney Gen., 116 A.D.3d 1209');">116 A.D.3d 1209 ,
lv denied 24 N.Y.3d 912');">24 N.Y.3d 912 ; Matter of Smith
v New York State Off. of the Attorney Gen., 110 A.D.3d
1201 ). Briefly, in 2005, respondent Eliot Spitzer,
then-Attorney General of the State of New York, commenced a
civil enforcement action against petitioner and American
International Group, Inc. (hereinafter AIG), among others. In
September 2007, petitioner submitted a request under the
Freedom of Information Law (see Public Officers Law
art 6 [hereinafter FOIL]) to respondent Office of the
Attorney General (hereinafter OAG) seeking, among things,
communications between OAG or anyone on its behalf and the
press from January 1, 2005 to December 31, 2006 concerning
petitioner. Petitioner's FOIL request was denied and, in
May 2008, petitioner commenced a CPLR article 78 proceeding
challenging OAG's denial.
the pendency of that proceeding, petitioner submitted a
second FOIL request in September 2009 seeking communications
between OAG or anyone on its behalf and AIG. OAG partially
denied this request, prompting a second CPLR article 78
proceeding by petitioner. In June 2011, petitioner and OAG
subsequently reached a settlement agreement with respect to
petitioner's FOIL requests, but left open for resolution
the issue of "any obligations that... OAG may have with
respect to any [emails] that... Spitzer may have sent from a
personal email account and that are not in... OAG's
possession." Supreme Court subsequently issued an order
directing OAG to gain access to Spitzer's private email
account so that OAG could determine what emails should be
disclosed. Upon OAG's appeal, we vacated Supreme
Court's order and remitted the matter for purposes of
joining Spitzer as a necessary party (Matter of Smith v
New York State Off. of the Attorney Gen., 110 A.D.3d at
remittal, petitioner filed an amended petition naming Spitzer
as an additional party. Spitzer thereafter moved to dismiss
the amended petition. During oral argument on the motion,
petitioner and Spitzer agreed to resolve the issue if Spitzer
submitted an affidavit attesting that his personal email
account did not contain any documents responsive to
petitioner's request. In May 2014, Spitzer submitted an
affidavit stating that he retained a digital forensic firm to
search for responsive documents and certified that he did
"not have possession of any records responsive to
[p]etitioner's [r]equest...[, ] and that such records
cannot be found after a diligent search." In September
2014, Supreme Court dismissed the amended petition as moot in
light of the certifications made in Spitzer's affidavit.
No appeal from the September 2014 judgment was taken by
Supreme Court issued its judgment, however, in June 2014,
petitioner submitted another FOIL request covering the same
topics and time period as the previous FOIL requests, but
this time seeking communications concerning Spitzer.
Petitioner also sought responsive communications in
Spitzer's possession, including those sent, received or
copied to Spitzer's private email account. After OAG
denied this request, petitioner commenced this CPLR article
78 proceeding. OAG and Spitzer separately moved to dismiss
the petition. Supreme Court granted the motions and
petitioner now appeals.
appeal centers on whether Spitzer's private email account
contains records responsive to petitioner's June 2014
FOIL request. This issue, however, was already litigated
between the parties and resolved in Supreme Court's
September 2014 judgment. In dismissing petitioner's prior
amended petition, Supreme Court relied on Spitzer's
affidavit and noted that it established that his personal
email account did not contain responsive documents as to the
topics contained in petitioner's 2007 FOIL request.
Petitioner was free to challenge the September 2014 judgment
by taking an appeal therefrom but did not do so. Furthermore,
contrary to petitioner's assertion, our review of the
September 2007 and June 2014 FOIL requests confirms that
petitioner essentially seeks the same documents in both
requests. Based on the foregoing, this proceeding is barred
by res judicata (see Matter of Andrade v New York City
Police Dept., 106 A.D.3d 520, 521 ; Matter of
Mays v New York City Police Dept., 48 A.D.3d 372, 373
; Matter of Ferrara v Superintendent, N.Y. State
Police, 235 A.D.2d 874, 875 , lv denied and
appeal dismissed 90 N.Y.2d 829');">90 N.Y.2d 829 ). In light of our
determination, petitioner's remaining contentions have
been rendered academic.
P.J., Clark, Mulvey and ...