SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA In the Matter of the Application of 96-100 North Main Street, LLC, and DECISION & ORDER Val Serbalik for Judgment pursuant to Tadex #20191609 Article 78 of the CPLR, RJT #45-1-2019-0710 Petitioners, -against- Kimberly Dunn, Records Access Officer For the City of Mechanieville, And the City of Mechanicville, Respondents. Buchanan, J.: This special proceeding is brought by Petitioners under Article 78 of the CPLR sceking judgment directing Respondents to comply with two Freedom of Information Law (FOIL) requests made pursuant to Public Officers Law Article 6. Petitioners also scck attomey fees and sanctions, In their petition, Petitioners describe their attempts to obtain records from the Respondents through two FOTL requests, one dated March 14, 2019, and the second April 11, 2019. The exhibits to the Petition include the two FOIL requests, an email acknowledgment from the Respondents indicating they would soon comply with the first FOIL request, a letter from Petitioners following up on the first FOIL request, and two appeals by Petitioners. In Respondents’ second affirmative defense in their Answer to this proceeding, Respondents state that they will provide the documents. They raise no objection to the documents being requested by Petitioners. Respondents” only objection in this proceeding is to the request to pay attomey fees to Petitioners, and yet Respondents’ continuing failure to comply implics an intentional disregard of its obligations under FOIL. Public Officers Law §89.3(a) requires that within five business days of the receipt of a FOIL request, the recipient must either provide the documents, deny the request in writing, or state in writing when the request will be either granted or denied. If the records are not provided, Public Officers Law §89.4(a) allows the party seeking records to appeal to the governmental entity within thirty days from the date the party made their request for documents, Upon such 1appeal, the governmental entity must reply within ten business days by either providing the documents or providing an explanation for the denial. Petitioners complied with the requirements of the Public Officers Law. As noted above, Respondents do not object to the FOIL requests, but instead complain about having to pay attomey fees for not complying within the statutory time limits. This proceeding is governed by Article 78 of the CPLR, which states that “where there is an adverse party there shall be a verified answer, which must state pertinent and material facts showing the grounds of the respondent's action complained of (CPLR §7804.{d]).) The respondent must serve with its answer “affidavits or other written proof showing such ‘evidentiary facts as shall entitle him to a trial of any issue of fact” (CPLR §7804.(e]). In this case, Respondents’ Answer contains general denials and denials upon insufficient knowledge or information. The answer provides uo pertinent and material facts explaining Respondents’ failure to comply with the FOIL requests, The only stated reason for non-compliance is set forth in Respondents’ second affirmative defense. Respondents’ blame their tardiness on legal advice given to Respondents by individual petitioner Val Serbalik when he served as attorney for the Respondent City of Mechanicvillc. He allegedly provided advice that FOIL matters did not have to be addressed under the time restraints imposed by the Public Officers Law, and that the consequences were ‘not serious for failing to honor the time restraints. Whether that advice was prudent is not before this Court, and his purported advice does not change the law. Respondents have not complied with their obligations under the Public Officers Law, and they continuc to fail to comply. ‘The Court notes that the first FOIL request was served five months ago, the second was served four months ago, and two months have passed since the Respondents’ Answer was signed, yet to the Court's knowledge the documents have still not been provided, Respondents have not stated “pertinent and material facts showing the grounds of [their] action” (CPLR §7804.(d); Matter of Aurigemma vy. New York State Dept. of Taxation & Fin., \28 AD3d 1235 [3d Dept. 2015]). Nor did Respondents present “proof showing such evidentiary facts as shall entitle [them] to a trial of any issue of fact” (CPLR §7804.[e]). This Court will order Respondents to provide the documents sought in the FOLL requests set forth as exhibits “A” and “E” of the petition.‘The only remaining issue is the Petitioner's request for attorney fees. Reasonable attorney's fees may be assessed when the requesting “person has substantially prevailed, and ‘when the agency failed to respond to a request or appeal within the statutory time” (Public Officers Law §89.4, [c][i]). The Court notes that the Respondents have had an extended period of time to comply, but even after the filing of the petition they have remained obstinate, The Respondents’ continuing failure to provide the documents supports an award of attorney fees. ‘The Respondents’ only defense is their misplaced reliance on the advice they claim was provided by their former attorney. The Court will grant reasonable attomey fees and costs to Petitioners. ‘The amount of the award will be determined upon submission of a specific request by Petitioners ‘supported by time records and an explanation of services and expenses. Such request shall be submitted with twenty days of service of this order, and Respondents shall have ten days from service of Petitioners" request to submit any rebuttal to the amount of fees requested. I is hereby, ORDERED that the petition is granted, and Respondents shall provide the documents requested within twenty days of service of this order, and that the request for attorney fees shall be addressed as stated above. Petitioners’ request for sanctions is denied. Dated: Aygust 26, 281% ENTER. Thomas D. Buchanan Supreme Court Justice Notice of Petition; Petition, Answer, Reply