Determining the prevailing party for the purpose of awarding attorney fees and litigation costs in a lawsuit brought pursuant to the Freedom of Information Law

In the Matter of Rosasco v St. James Fire District, 2021 NY Slip Op 06692, decided on December 1, 2021, Troy Rosasco [Petitioner] initiated a proceeding pursuant to CPLR Article 78 to compel the St. James Fire District [Respondents] to comply with a series of requests for documents he made pursuant to the Freedom of Information Law [FOIL]* Respondents moved to dismiss the petition. 

The Supreme Court, among other things, granted the Respondents' motion to dismiss the proceeding and rejected Petitioner's application for an award of attorneys' fees and other litigation costs based on Petitioner's claim that he was the "prevailing party".

In response to Petitioner's appeal of the Supreme Court's ruling, the Appellate Division held that "Supreme Court properly determined that the branch of the Article 78 petition which sought to compel the production of the documents Petitioner sought "was rendered academic" by the Respondents'  disclosure of the materials demanded by Petitioner after Petitioner initiated his Article 78 action.

Citing Matter of Edmond v Suffolk County, 197 AD3d 1297 among other decisions, the Appellate Division explained that where, as here, a petitioner receives "an adequate response to a FOIL request during the pendency of a CPLR Article 78 proceeding, the proceeding should be dismissed as academic because a determination will not affect the rights of the parties."

As to an award of "attorneys' fees and other litigation cost", the Appellate Division opined that Supreme Court properly denied Petitioner's application for such costs as Petitioner "did not establish that the [Respondents] failed to respond to his multiple FOIL requests ... 'Nor did [Petitioner] establish that the [Respondents] denied access to any records without a reasonable basis.'"

In addition, the Appellate Division held that the Supreme Court properly denied that branch of his petition with respect to Petitioner application for a court order directing the retraining of certain employees of the Respondents, citing Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405.

In contrast, in Matter of Jack Jaskaran, [Plaintiff] v The City of New York [Respondents], 2021 NY Slip Op 06762, decided December 2, 2021, the Appellate Division unanimously modified, on the law, Supreme Court's ruling addressing  Plaintiff''s request for attorneys' fees, and remand the matter to lower court for further proceedings consistent it ruling on the issue.

The court opined that Plaintiff had established that he is entitled to recover attorneys' fees, since he had substantially prevailed in the Article 78 proceeding and Respondents had "no reasonable basis for denying access" to the records Plaintiff sought pursuant to the Freedom of Information Law.

In responding to Plaintiff's FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, Respondents, relying on Public Officers Law §87(2)(d, among other sections of the statute, produced only the manual's cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual's developer to release the rest of the manual.

After Plaintiff commenced his Article 78 proceeding, however, Respondents produced the rest of the manual in unredacted form, except for the appendices, with its response to the petition.

Under these circumstances, opined the Appellate Division, Plaintiff substantially prevailed within the meaning of Public Officers Law §89(4)(c), citing Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67.

Further, said the Appellate Division, Respondents did not established that they had a "reasonable basis" for withholding production under Public Officers Law §87(2)(d) and conceded that it sought permission from the manual's developer to release the information only after receiving the Article 78 petition, suggesting that the disclosure was prompted solely by Plaintiff's resort to litigation and that Respondents could have sought permission in response to the FOIL request itself.

This, opined the court, militates against a finding that the Respondent had a "reasonable basis" for withholding production of the material sought by Plaintiff, citing Matter of Madeiros, 30 NY3d at page 79.

* Public Officers Law Article 6, typically referred to as "FOIL".

Click HEREto access the Appellate Division's decision in Rosasco.

Click HEREto access the Appellate Division's decision in Jaskaran.

 

Courts annul appointing authority's termination of a probationary employee finding that the appointing authority failed to demonstrate a legitimate, nondiscriminatory purpose for probationer's termination

 

The Appellate Division's decision, sustaining Supreme Court's granting a probationary employee's CPLR Article 78 petition challenging the appointing authority's decision to terminate her from the position, is set out below:

In the Matter of Antonia F. Triumpho, Respondent,
v
County of Schoharie et al., Appellants.

Decided on December 2, 2021 

2021 NY Slip Op 06727 

Before:Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

Roemer Wallens Gold & Mineaux LLP, Albany(Benjamin D. Heffley of counsel), for appellants.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany(Jennifer C. Zegarelli of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Ferreira, J.), entered June 4, 2020 in Schoharie County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondents terminating petitioner's employment.

Petitioner was employed, as a probationary employee, by respondent County of Schoharie Department of Public Works (hereinafter DPW) from May 2017 to April 2018. Despite receiving two interim probationary reports that indicated her performance was satisfactory during the course of her employment, on April 3, 2018, petitioner was called to a meeting with respondent Daniel Crandell, DPW's Commissioner, at which she was terminated after being told that she was "just not a good fit." Although petitioner received a written termination letter at the close of that meeting, petitioner received no prior warning or notice of any problematic conduct. Notably, petitioner was the only female employee of DPW that was in a position of manual labor at the time of her termination.

Thereafter, petitioner commenced this CPLR article 78 proceeding, alleging that respondents' decision to terminate her was based upon her gender, in violation of the Human Rights Law, and, thus, arbitrary and contrary to law; petitioner further alleged that respondents failed to comply with the terms of 4 NYCRR 4.5 (b) (5) (iii) by not providing her with notice prior to termination. Respondents answered, opposing the petition. Supreme Court found that petitioner's submissions were sufficient to raise an issue of fact as to whether she was terminated in bad faith and, accordingly, ordered a hearing pursuant to CPLR 7804 (h). After a two-day hearing, the court issued a thorough and well-reasoned decision finding that petitioner established, by a preponderance of the evidence, that she was terminated based upon her gender and that respondents did not substantially comply with the requisite notice requirements. The court therefore ordered that petitioner be restored to her position and compensated for back pay and lost benefits. Respondents appeal.

Respondents contend that Supreme Court erred in finding that petitioner was terminated on the basis of gender and granting the petition. "An employee's probationary appointment may be terminated without a hearing for any reason or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason" (Matter of Messenger v State of New York Dept. of Corr. & Community Supervision, 151 AD3d 1433, 1433 [2017] [internal quotation marks and citations omitted]; see Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]). "Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason" (Matter of Petkewicz v Allers, 137 AD3d 1045, 1046 [2016] [citations omitted]; see Matter of Johnson v City of New York, 34 AD3d 484, 485 [2006]).

In support of her application, petitioner submitted the two interim probationary reports, dated July 10, 2017and November 13, 2017, that had been completed during her employment. Both of these reports indicate that petitioner performed satisfactory work and was recommended to be retained in her probationary status. Petitioner also furnished the termination letter that she had been given on April 3, 2018, which informed her that respondents "ha[d] decided to terminate [petitioner's] service with [DPW] effective Friday April 6, 2018, prior to the end of [petitioner's] [one]-year probationary period." At the CPLR 7804 (h) hearing, petitioner testified that, aside from clerical and cleaning staff, DPW had approximately 70 employees and that she was the only female. Petitioner explained that her position included, among other duties, flagging, manual labor, shoveling and detailing vehicles. Petitioner testified that, on her assignments, there was not always a bathroom readily available and there were no portable toilets at work sites, so someone would take her in one of respondents' trucks to find one; eventually, she was permitted to go alone. Petitioner averred that there were occasions where there was no bathroom nearby and that she would have to "find an area on the side of a back road or in the woods." Petitioner explained, in detail, one occasion in February 2018 and another in March 2018 when she was on her menstrual cycle and needed to use a restroom and that Michael Stone, the foreperson, was dismissive of her request. During the incident in March 2018, after ignoring her request, Stone walked away, only to go over to her male counterparts and make a comment to which they started laughing while looking directly at her. After this March 2018 incident, petitioner worked in the shop the rest of the week while on her menstrual cycle.

Petitioner recalled that, during her July 2017 sit-down evaluation, she asked Patrick Slater, her supervisor, if there was anything she could do to improve, and Slater did not indicate any problems with her performance, attitude or attendance. Petitioner asserted she received substantially the same feedback at a later evaluation in November 2017, except that, this time, she had disclosed to Slater that she did not like the way that Stone had been treating her and that it appeared to her that she was being treated differently than her male counterparts. Petitioner testified that Slater told her that that was how "Stoney" was and to brush it off. Petitioner testified that, when she was informed at the April 3, 2018meeting that she was being terminated, the reason Crandell gave her was, "It's just not a good fit." Petitioner asserted that she was very shocked and did not see the termination coming, such that she asked for an explanation three times; again, petitioner was told that "some people fit in here and some people don't, and you just don't fit in." Petitioner confirmed that she received no notice of her termination prior to the meeting on April 3, 2018. When asked why petitioner did not file a complaint for sexual harassment,^[FN1]which she testified was ongoing, petitioner averred that she was just trying to fit in and was concerned that her complaint would not be taken seriously. According to petitioner, she was getting to a point where she felt she had to report the harassment; she had made a comment to "some of the other guys" to that effect and that she was fired less than a week later.

Additionally, petitioner proffered an affidavit from a coworker who had worked alongside her on various occasions. The coworker averred that he "never witnessed [p]etitioner refuse an assignment or not complete an assignment satisfactorily," and he described petitioner as "extremely reliable and genuinely interested in learning about various tasks and operating equipment." The coworker also averred that he had been "surprised to learn of [petitioner's] termination" in light of her "strong work ethic and willingness to perform any task." Another coworker, who worked with petitioner approximately once per week, testified similarly to his surprise over petitioner's termination due to her strong work ethic. He also testified that, at one point, petitioner questioned why she was assigned to "flagging" so often, but she did not refuse any assignment. When asked if petitioner complained about flagging more than her male counterparts, the coworker replied in the negative, asserting that "[n]obody likes to flag." A DPW supervisor, who had observed petitioner working on approximately 10 occasions, averred that petitioner had a good work ethic based upon the fact that "whenever [he] witnessed her, she was working just like everyone else, if not more so." The supervisor testified that he was surprised by petitioner's termination because he had never heard her complain about or refuse assignments.

Respondents also called a number of witnesses, including Crandell, who testified that he was responsible for all hiring and firing decisions at DPW. He explained that the termination process typically involves receipt of the employee's quarterly probationary reports and discussions with that employee's immediate supervisor who, for petitioner, was formerly Slater, followed by Mark Skinner. According to Crandell, comments that petitioner "wasn't following directions" and was "complaining" started "three to four months into her employment"; such comments came from Stone, Slater and Skinner. Crandell ultimately made the decision to terminate petitioner based upon reports from supervisors that "she was argumentative and very often didn't want to do certain things." Crandell recalled having told petitioner that she was being terminated because she was "not a good fit," but he denied that the decision had anything to do with petitioner's gender. Crandell also testified that petitioner's termination did not have anything to do with her bathroom usage. Crandell acknowledged that the applicable civil service rules provide that petitioner was to be advised of her status and progress and that he had not done so; Crandell stated that he "would assume" that supervisors would have done so. Crandell confirmed that petitioner did not receive any written notice prior to her termination. Slater testified that, although Stone had come to him with complaints regarding petitioner, Slater marked her performance as satisfactory for both her July 2017 and November 2017 reviews because "[s]he was borderline at that time." According to Slater, he had first begun hearing complaints about petitioner six months into her employment but did not so indicate on her interim reports. Slater confirmed that he met with petitioner regarding each interim report and that they did not discuss her complaints about flagging; Slater also confirmed that petitioner had brought up concerns that she had with Stone at one of her evaluations.

Stone also testified, explaining that he supervised petitioner approximately 40% of the time. Stone recalled that petitioner "did really well" at first but had "started getting a little laxed [sic] on what she wanted to do, when she wanted to do it." Stone testified that "[n]obody likes to flag" and replied in the negative when asked if her complaints differed from other members of the crew. Stone stated that he did not have any issues with petitioner's performance and that she generally met his expectations, but that his issue with petitioner was her "attitude." When asked to elaborate, Stone stated that his issue was "[j]ust the nagging and wanting to not flag . . . and [petitioner] act[ing] like [he] was treating her different because of being a woman [rather] than a man." Stone averred that petitioner's complaints were more intense than her male counterparts, specifically averring, "Because a guy, I guess, would just shut up and do it, where [petitioner] would just keep nagging." Stone denied having made jokes about petitioner's gender or being a woman to DPW employees; however, on cross-examination, Stone acknowledged that he did make jokes about petitioner to other DPW employees. Stone also confirmed that he had spoken to Crandell about petitioner's bathroom usage, which he averred was two or three times a day, and had stated that "it was beginning to be a bad habit." Skinner testified that he had supervised petitioner approximately for three weeks out of the total time of her employment and that petitioner complained about flagging "[o]n a couple of occasions" but that it was "[n]ot everyday." Skinner conceded that petitioner did not complain about flagging any more than her male counterparts, but that her complaints were "a lot more intensified." Other witnesses corroborated that petitioner had complained about flagging, but ultimately conceding that it was not more than other employees.

Given the foregoing, petitioner met her burden of establishing that her termination from probationary employment was for an impermissible reason by proffering her satisfactory probationary reports and testimony by coworkers and supervisors as to her work ethic and job performance, as well as testimony establishing that her conduct did not substantially differ from that of her male counterparts (see Matter of Capece v Schultz, 117 AD3d 1045, 1046 [2014]; cf. Miranda v ESA Hudson Val., Inc., 124 AD3d 1158, 1161 [2015]). Accordingly, "[t]he burden of persuasion . . . shifted to [respondents] to establish that [their] actions were motivated by a legitimate business reason" (Matter of Johnson v City of New York, 34 AD3d at 485; see Matter of Capece v Schultz, 117 AD3d at 1046).

To that end, Supreme Court found that, "[i]n the absence of any credible evidence that her work performance provided a basis for her termination, [it was] compelled to find that the only reason she was terminated was because of her gender." Significantly, the court found respondents' assertions regarding "[p]etitioner's alleged argumentative attitude" to "reflect more of a post-termination justification for her dismissal than a valid or proper basis for the termination of her employment." Although respondents assert that petitioner's termination was due to her attitude toward flagging duty, this allegation is belied by testimony from most, if not all, of the witnesses that nearly all DPW employees dislike flagging and make complaints similar to that of petitioner. Similarly, the credibility of such assertions are undermined by testimony that petitioner's job performance was satisfactory and that she was never spoken to regarding such purported conduct (see Matter of Board of Educ. of Deer Park Union Free School Dist. v New York State Pub. Empl. Relations Bd., 167 AD2d 398, 400 [1990], lv denied 77 NY2d 805 [1991]; compare Matter of Suleman v State of N.Y. Dept. of Taxation & Fin., 27 AD3d 1040, 1042 [2006]). Thus, respondents failed to meet their burden of establishing a legitimate, nondiscriminatory purpose for petitioner's termination (see Matter of Capece v Schultz, 117 AD3d at 1046; Matter of Johnson v City of New York, 34 AD3d at 485; compare Matter of Solomon v New York State Off. of Children & Family Servs., 170 AD3d 1297, 1298 [2019], lv denied33 NY3d 908 [2019]). Thus, Supreme Court properly annulled the determination and reinstated petitioner to her probationary position of laborer and determined that she was entitled to receipt of full back pay (see Matter of Capece v Schultz, 117 AD3d at 1046; Matter of Johnson v City of New York, 34 AD3d at 486). Finally, we are unpersuaded by respondents' remaining contention that Crandell complied with civil service rules when terminating petitioner as it is undisputed that petitioner did not receive written notice at least one week prior to her termination (see 4 NYCRR 4.5 [b] [5] [iii];* Matter of Santucci v City of Mount Vernon, 165 AD3d 803, 804 [2018]).

Egan Jr., J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

Footnotes

Footnote 1: Petitioner testified regarding multiple instances of alleged sexual harassment, both by coworkers and Stone, but primarily by Stone. This included one incident when Stone approached her with a stop/slow paddle for directing traffic and asked petitioner "if [she'd] like to be spanked"; petitioner stated that she responded by telling Stone firmly to "stay away."

*N.B. 4 NYCRR 4.5[b][5][iii] controls with respect to the employees in the Classified Service of the State of New York  as the employer. RULES FOR THE CLASSIFIED CIVIL SERVICE OF SCHOHARIE COUNTY, in pertinent part, provide as follows:

RULE XIII

PROBATIONARY TERM

5. Report on Probationer’s Service:

The appointing authority and supervisor of the probationer shall carefully evaluate the probationer’s work performance of the duties and responsibilities of the position. The supervisor shall also, from time to time during the probationary term, advise the probationer of his/her status and progress. A probationer whose services are to be terminated for unsatisfactory service shall be given written notice prior to such termination and, upon request, shall be granted an interview with the appointing authority or his/her representatives.

Legislation authorizes Monre County to authorize certain tax exemptions on property owned by members of volunteer firefighter companies or voluntary ambulance services

New York State Governor Hochul signed a bill authorizing Monroe County to grant tax exemption on property owned by members of volunteer firefighter companies or voluntary ambulance services in Monroe County. The new law, Chapter 652 of the Laws of 2021, permits Monroe County to provide a 10% exemption to qualifying members of such organizations.

 

Monroe County may provide a 10% real property tax exemption to volunteer firefighter or emergency workers who have been a part of the organization for two years.

 

"When trouble calls, our volunteer firefighters and emergency workers are there to answer," Governor Hochul said. "These selfless volunteers deserve our full support, and I'm proud to sign legislation that rewards them for their sacrifice and encourages others to join their ranks to keep our communities in Monroe County safe."

 

The real property tax exemption will be taken off the assessed value of property for city, village, town, part town, special district, school district, fire district or county purposes. The act takes effect on January 1, 2022.

 

Senator Samra Brouk said: "Here in Monroe County, our volunteer firefighters and ambulance personnel have time and time again answered the call to serve our community. These are brave women and men who take great risks in the interest of the public good, asking for nothing in return. Their volunteerism is a great service to our community and our state, which is why I was proud to carry legislation that creates an exemption on their property taxes. While there is no way to adequately thank these volunteers for their bravery and commitment to their work, this is a small step to ensure they receive the support and gratitude they deserve. I am grateful to my colleague, Assemblymember Jen Lunsford for carrying this bill in the Assembly, and to Governor Kathy Hochul for signing this legislation in service of our communities."

 

Assemblymember Jen Lunsford said: "Monroe County's volunteer firefighters and ambulance workers have always been there for us, receiving no compensation for their service, yet committing themselves to helping our community in a time of need. This legislation enables us to be there for them, providing a 10% real property tax exemption in recognition of their sacrifice and service.  I want to thank local leaders for their support of this legislation such as County Legislator John Baynes, Senator Brouk for her partnership and Governor Hochul for recognizing the importance of this legislation and the positive impact it will have for those actively serving our community."

The text of Chapter 652 is set out below:

LAWS OF NEW YORK, 2021

CHAPTER 652

AN ACT to amend the real property tax law, in relation to providing a tax exemption on real property owned by members of volunteer fire companies or voluntary ambulance services in a certain county

Became a law December 1, 2021, with the approval of the Governor.  Passed by a majority vote, three-fifths being present.

 The People of the State of New York, represented in Senate and Assembly, do enact as follows:

 Section 1. The real property tax law is amended by adding a new section 466-k to read as follows:

 § 466-k. Volunteer firefighters and volunteer ambulance workers;  certain county. 1. Real property owned by an enrolled member of an incorporated volunteer fire company, fire department or incorporated voluntary ambulance service or such enrolled member and spouse residing in any county having a population of more than seven hundred thirty-five thousand and less than seven hundred fifty thousand inhabitants, based upon and recorded by the two thousand ten federal census, shall be exempt from taxation to the extent of ten percent of the assessed value of such property for city, village, town, part town, special district, school district, fire district or county purposes, exclusive of special assessments, provided that the governing body of a city, village, town, school district, fire district or county, after a public hearing, adopts a local law, ordinance or resolution providing therefor.

 2. Such exemption shall not be granted to an enrolled member of an incorporated volunteer fire company, fire department or incorporated voluntary ambulance service residing in such county unless:

 (a) the applicant resides in the city, town or village which is served by such incorporated volunteer fire company or fire department or incoporated voluntary ambulance service;

 (b) the property is the primary residence of the applicant;

 (c) the property is used exclusively for residential purposes; provided however, that in the event any portion of such property is not used exclusively for the applicant's residence but is used for other purposes, such portion shall be subject to taxation and the remaining portion only shall be entitled to the exemption provided by this section; and

 (d) the applicant has been certified by the authority having jurisdiction for the incorporated volunteer fire company or fire department as an enrolled member of such incorporated volunteer fire company or fire department for at least two years or the applicant has been certified by the authority having jurisdiction for the incorporated voluntary ambulance service as an enrolled member of such incorporated voluntary ambulance service for at least two years. It shall be the duty and responsibility of the municipality, school district and/or fire district which adopts a local law, ordinance or resolution pursuant to this section to determine the procedure for certification.

 3. Any enrolled member of an incorporated volunteer fire company, fire department or incorporated voluntary ambulance service who accrues more than twenty years of active service and is so certified by the authority having jurisdiction for the incorporated volunteer fire company, fire department or incorporated voluntary ambulance service, shall be granted the ten percent exemption as authorized by this section for the remainder of his or her life as long as his or her primary residence is located within such county provided that the governing body of a city, village, town, school district, fire district or county, after a public hearing, adopts a local law, ordinance or resolution providing therefor.

 4. Application for such exemption shall be filed with the assessor or other agency, department or office designated by the municipality, school district and/or fire district offering such exemption on or before the taxable status date on a form as prescribed by the commissioner.

 5. No applicant who is a volunteer firefighter or volunteer ambulance worker who by reason of such status is receiving any benefit under the provisions of this article on the effective date of this section shall suffer any diminution of such benefit because of the provisions of this section.

 § 2. This act shall take effect on the first of January next succeeding the date on which it shall have become a law and shall apply to taxable status dates occurring on or after such date.

 

 

Counsel fees and litigation costs awarded as the custodian of records demanded pursuant to the Freedom of Information Law did not have a reasonable basis for denying access to the records

Individual substantially prevailing in challenging a denial to access to certain public records sought pursuant to the New York State Freedom of Information Law awarded counsel fees and litigation costs

Contrary to Supreme Court's finding, the Appellate Division held that the fact that the disclosure under certain demands that stemmed from a mutual accord between the parties does not change the analysis, as "the voluntariness of an agency's disclosure after the commencement of a CPLR Article 78 proceeding will not preclude a finding that a litigant has substantially prevailed."

The text of the Appellate Division's decision in this action is set out below.

On January 9, 2019, Joseph Aron — the principal attorney for petitioner — submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to respondent seeking records pertaining to real property tax assessments in the Town of Fallsburg, Sullivan County. Demand No. 1 sought "[a]ny communications between [respondent] . . . and Vacation Village homeowners or their representatives relating to tax assessments of homes in Vacation Village."^[FN1]Demand Nos. 2-5 pertained to property tax grievances filed by homeowners in Vacation Village, seeking, among other things, copies of all such filed grievances, the determinations thereof and communications between respondent's employees related thereto. Demand Nos. 6-8 sought "all filings in [CPLR] article 78 proceedings . . . regarding tax assessments of homes in Vacation Village," as well as "copies of all filings [and appeals] in [CPLR] article 78 proceedings . . . regarding tax assessments of homes in [respondent] . . . for the last three years." Demand No. 9 sought records "containing the description, address and sale price of all homes sold in Loch Sheldrake for the past five years."

The next day, a representative of respondent acknowledged the request and advised that it would be forwarded to the appropriate department for review. On January 30, 2019, respondent sent Aron a generic "[FOIL] Response Form" stating that his request was "defective or not specific enough" to be processed. Construing that communication as a denial, Aron — in a letter dated February 4, 2019 — administratively appealed. By letter dated February 25, 2019, respondent acknowledged receipt of the appeal and provided a more substantive response. As to demand No. 1, respondent explained that there were 234 parcels in Vacation Village and asked Aron to clarify whether he was requesting a search of all employee records for responsive documents or only a search of the records maintained by the Assessor's Office. With respect to demand Nos. 2-5, respondent informed Aron that the grievance documents he sought were scanned on a computer database maintained by respondent and could be accessed by making an appointment to use respondent's viewing program. Respondent granted Aron's request regarding demand Nos. 6-8 to the extent of providing "copies of the [CPLR a]rticle 78 proceedings that have been served on [respondent] regarding Vacation Village" in the past five years, "as well as all [CPLR a]rticle 78 proceedings that have been served on [respondent] in the last [three] years regarding single family homes" and any appeals of such proceedings. Demand No. 9 was denied on the basis that "[s]ale information is of public record in the County Clerk's office" and respondent [*2]"do[es] not break up sales by hamlet, nor do[es] [it] have a means to do so."

Following that determination, respondent provided documents responsive to demand Nos. 6-8 relative to single family homes. In March 2019, Aron sent an email to a representative of respondent requesting that, to the extent that the responsive records pertaining to demand Nos. 2-5 were in electronic format, they be copied onto a flash drive that he would provide.^[FN2] Respondent informed Aron that the records could not be uploaded onto a flash drive due to their voluminous nature, reiterating that he could schedule an appointment to access the records by using respondent's viewing program.^[FN3]

Petitioner thereafter commenced this CPLR article 78 proceeding against respondent seeking, among other things, a declaration that respondent acted unlawfully in withholding the outstanding records, an order directing that the outstanding records be disclosed, and an award of counsel fees and litigation costs under Public Officers Law § 89 (4) (c). By order dated January 7, 2020, Supreme Court denied the petition as to demand Nos. 1 and 9, granted the petition as to demand Nos. 6-8 to the extent of directing respondent to disclose any responsive documents pertaining to multifamily homes, and scheduled an evidentiary hearing as to whether documents pertaining to demand Nos. 2-5 "were maintained in a format and file size that could reasonably be transferred to and produced on a flash drive." The court held the issue of counsel fees in abeyance pending the outcome of the hearing. Shortly thereafter, respondent tendered an affidavit certifying that all of the homes in Vacation Village were single family and, therefore, no responsive documents pertaining to multifamily homes existed under demand Nos. 6-8.

Petitioner moved to reargue the January 2020 order and respondent moved to renew. Both parties also moved for an award of counsel fees. By order entered May 12, 2020, Supreme Court denied both motions, set the matter down for an evidentiary hearing and denied the respective requests for counsel fees. Respondent's attorney subsequently sent an email to petitioner and Supreme Court advising that respondent was agreeable to providing petitioner with the responsive documents pertinent to demand Nos. 2-5 in digital format and, thus, an evidentiary hearing was no longer necessary. Consequently, by consent order entered August 14, 2020, Supreme Court canceled the evidentiary hearing and directed respondent to furnish such responsive documents by September 14, 2020. These documents were produced in accordance with the consent order and totaled approximately 7,000 pages.

Petitioner again moved for an award of counsel fees pursuant to Public Officers Law § 89 (4) (c) (ii), arguing, among other things, that it had substantially prevailed in the proceeding because, as a result of the litigation, it had received responsive documents pertaining to demand Nos. 2-5 and "received a certification[*3]" under demand Nos. 6-8 that no multifamily homes existed. Petitioner further argued that respondent did not have a reasonable basis for denying access to the withheld records. Respondent opposed the motion.

By order entered November 5, 2020, Supreme Court denied petitioner's request for counsel fees. The court noted that it had affirmed the denial of records under demand Nos. 1 and 9 and, although petitioner "technically prevailed" on demand Nos. 6-8, its success "was not substantial" because the certification obtained "involved a subset of records . . . which was narrow in comparison to the overall scope of the FOIL request." As to demand Nos. 2-5, the court emphasized, among other things, that it never rendered a decision as to whether respondent's initial refusal to transfer the documents to a thumb drive was unreasonable. Rather, such documents had been disclosed in the format requested by petitioner due to a mutual agreement. Petitioner appeals from the November 2020 order.

As a threshold matter, respondent argues that the appeal must be dismissed because the November 2020 order does not constitute a final judgment (see CPLR 5701 [b] [1]; Matter of Alexander M. v Cleary, 188 AD3d 1471, 1473 [2020]; see also CPLR 5701 [a] [1]). We agree with respondent that the November 2020 paper — which is denominated a "decision and order" and neither grants nor dismisses the petition — is akin to a nonfinal interlocutory order and, therefore, no appeal lies as of right (see Matter of Greece Town Mall, L.P. v New York State, 140 AD3d 1380, 1382 n 1 [2016]; see also CPLR 5701 [a] [1]). However, in the interest of judicial economy, we treat the notice of appeal as a request for permission to appeal and grant the request (see CPLR 5701 [c]; Matter of Greece Town Mall, L.P. v New York State, 140 AD3d at 1382 n 1; Matter of Lally v Johnson City Cent. Sch. Dist., 105 AD3d 1129, 1132 n 2 [2013]).

Next, we reject respondent's contention that, by settling the proceeding as it related to demand Nos. 2-5 through a consent order that did not contain a provision preserving petitioner's claim for counsel fees, petitioner has waived such a claim or is equitably estopped from pursuing it. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. Such a waiver must be clear, unmistakable and without ambiguity" (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1484 [2012] [internal quotation marks, ellipsis and citations omitted], affd 21 NY3d 255 [2013]). Equitable estoppel, by contrast, is a doctrine imposed as a matter of fairness that "preclude[s] a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). As the August 2020 consent [*4]order was silent on the issue of counsel fees, petitioner's acceptance of its terms can hardly constitute a "clear" and "unmistakable" waiver of such a claim (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d at 1484). Moreover, there is no evidence that petitioner took affirmative acts that would support a reasonable belief that it intended to abandon its claim for counsel fees, rendering the doctrine of equitable estoppel inapplicable.

We agree with petitioner that Supreme Court erred in denying its request for counsel fees. As relevant here, a court in a FOIL proceeding "shall assess, against such agency involved, reasonable [counsel] fees and other litigation costs

. . . in any case . . . in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" to the records sought ^[FN4](Public Officers Law § 89 [4] [c] [ii]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 78-79 [2017]; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1074 [2020]). "'A petitioner substantially prevails under Public Officers Law § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation'" (Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d at 1074, quoting Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 169 AD3d 1307, 1311 [2019], lv dismissed 34 NY3d 1010 [2019]).

Petitioner substantially prevailed in the litigation. Through use of the judicial process, petitioner received documents responsive to demand Nos. 2-5 in the medium it desired and obtained a certification under demand Nos. 6-8 pertaining to multifamily homes (see Matter of Legal Aid Socy. v New York State Dept. of Corr. & Community Supervision, 105 AD3d 1120, 1122 [2013]). Contrary to Supreme Court's finding, the fact that the disclosure under demand Nos. 2-5 stemmed from a mutual accord between the parties does not change the analysis, as "the voluntariness of an agency's disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed" (Matter of Cobado v Benziger, 163 AD3d 1103, 1106 [2018]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 79). Moreover, respondent did not have a reasonable basis for the precommencement denial of the records responsive to demand Nos. 2-5, as evidenced by its subsequent production of said documents in electronic form. As petitioner substantially prevailed and respondent did not have a reasonable basis for denying access to the records, Supreme Court erred in denying petitioner's request for counsel fees and litigation costs (see Public Officers Law § 89 [4] [c] [ii]; Matter of New York Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336, 339-340 [2011]; Matter of [*5]New York State Defenders Assn. v New York State Police, 87 AD3d 193, 197 [2011]).

Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, motion granted and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

Footnotes

Footnote 1:Unless otherwise specified, the demands sought records spanning back five years.

Footnote 2: Aron indicated that he was in New York City and would prefer to avoid traveling to Sullivan County.

Footnote 3: These email communications are not included in the record but are referenced in the order on appeal.

Footnote 4: Where the petitioner substantially prevailed and the agency failed to respond to the request or appeal within the statutory time frame, the decision to award counsel fees lies within the trial court's discretion (see Public Officers Law §89 [4] [c] [i]). Petitioner does not argue that respondent failed to comply with the statutory time frames listed in the Public Officers Law.

Audits and reports recently issued by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Click on the text highlighted in color to access the complete audit report..

STATE DEPARTMENTS AND AGENCIES

Division of Criminal Justice Services: Monitoring and Administration of Public Protection Grant Programs (Follow-Up) (2021-F-21)

An audit released in April 2020 found that the Division had adequately administered and monitored the Gun Involved Violence Elimination (GIVE) and SNUG (“guns” spelled backward) grant program contracts reviewed to ensure that the related grant expenses were supported and allowable under the contracts. Auditors identified one exception related to documentation of the authorization or receipt of confidential funds. Since the initial audit, the division reduced and ultimately eliminated confidential funds from its GIVE contract awards. As such, the recommendation from the initial audit is not applicable.

 

New York City Department of Information Technology and Telecommunications (DoITT): Controls Over and Revenues From .nyc Generic Top-Level Domains (2020-N-3)

A top-level domain (TLD) is the last part of an Internet address, such as .com, .net, or .org. In March 2012, DoITT entered into a franchise agreement with a vendor to apply for the “.nyc” generic TLD (gTLD) and to operate, manage, maintain, and market the .nyc gTLD program. Auditors found DoITT collected only one of the four agreed-upon revenue sources in the city’s contract with the vendor during the audit scope and amended the contract several times with no supporting documentation explaining why. Auditors also found DoITT’s Franchise Administration Team, tasked with managing the contract and collecting the revenue from the vendor, did not monitor or require the registry operator’s compliance with the contract. 

 

New York State Health Insurance Program (NYSHIP): CVS Health – Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2021-F-18)

An audit issued in August 2020 found CVS Health did not collect and remit all rebate revenue that it invoiced to drug manufacturers for rebate-eligible prescription drug claims paid on behalf of the Empire Plan, the primary health benefits plan for NYSHIP; therefore, Civil Service did not receive $453,029 in rebate revenue for the period of Jan. 1, 2014 through Dec. 31, 2018. In a follow-up, auditors determined CVS Health has made progress in addressing the problems identified in the initial audit.

 

State Education Department (SED): E&D Children Center, Inc. – Compliance With the Reimbursable Cost Manual (2020-S-44)

E&D is a New York City-based organization approved by SED to provide preschool Special Education Itinerant Teacher services to children with disabilities who are between the ages of 3 and 5 years. The New York City Department of Education refers students to E&D and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2015, auditors identified $711,676 in reported costs that did not comply with requirements for reimbursement.

 

Multiple Agencies: Improving Government Efficiency and Effectiveness (2021-D-2)

The report summarizes select audits that highlight SGA’s efforts to promote fiscal responsibility and brings renewed attention to ideas that could result in cost savings or revenue enhancements for the State and New York City. The audits, all released within the past five fiscal years, demonstrate significant financial impact. The issues and risks they identified should inform agencies with similar programs on improving efficiency in their own operations and strengthening internal controls to prevent excess costs.

 

Inappropriate Medicaid Payments

State Comptroller Thomas P. DiNapoli released three reports that found more than $100 million in improper payments made by the Department of Health (DOH) for the Medicare buy-in program, maternity care, and drug and therapy claims. Nearly $400,000 in premiums may have been paid for deceased individuals.

“The Medicaid program provides critical health care services to millions of New Yorkers but the program is dogged by oversight problems and payment errors,” DiNapoli said. “Over the years, we’ve uncovered billions of dollars of waste and abuse in the system. DOH should act on our recommendations to ensure significant unnecessary expenses and preventable mistakes don’t end up costing taxpayers.”

The New York State Medicaid program is administered by DOH and is a federal, state, and local government funded program that provides a wide range of medical services to economically disadvantaged populations, including low-income children and their families, seniors, and people with disabilities. As of March 2021, New York’s Medicaid program had approximately 7.3 million recipients and claim costs totaled more than $68 billion.

 

Improper Medicare Payments

The first audit released today looked at Medicaid recipients who are also enrolled in Medicare. Under the Medicare buy-in program, Medicaid pays Medicare premiums for individuals who meet buy-in program eligibility requirements. Auditors found Medicaid made $31.7 million in improper Medicare premium payments from Jan. 1, 2015 through Dec. 31, 2019 for 42,586 individuals. Medicaid also paid $372,716 in Medicare premiums for 282 individuals identified as deceased. Auditors found Medicaid paid $23.6 million in premiums for 3,439 individuals who were automatically added to the buy-in program with coverage beginning more than two years retroactively, despite limitations on this.

 

Questionable Managed Care Payments

The second audit released examined Medicaid recipients who receive their services through managed care. DOH pays managed care organizations (MCOs) a monthly premium for each enrolled recipient and, in turn, the MCOs pay for services their members require. MCOs can also receive a one-time Supplemental Maternity Capitation Payment (SMCP) for prenatal and postpartum physician care and delivery costs. However, MCOs are not eligible to receive SMCPs for maternity cases that end in termination or a miscarriage.

Auditors identified approximately $55 million in improper and questionable SMCPs to MCOs from Aug. 1, 2015 to July 31, 2020. They found $29.1 million was paid without the required supporting data; $23.4 million was paid where the data or other evidence indicated the maternity case ended in termination or miscarriage; and $2.4 million was paid when the SMCP date of service preceded the birth by one to six months.

 

Overpayments for Prescription Drugs

A report released in October 2019 examined payments made for prescription drugs and therapy services. It found Medicaid paid $20.1 million for services that should have been paid by Medicare. The payments included $18.6 million for physical, occupational, and speech therapy services, and $1.5 million for prescription drugs. A follow-up report released today found DOH made some progress in addressing the prior problems identified; however, since the initial audit, auditors identified another $17.7 million in payments that should have been paid by Medicare.

DOH generally agreed with many of the recommendations that DiNapoli’s auditors provided in each audit. Read DOH’s responses in the reports.

 

Audits

Department of Health Medicaid Program: Improper Payments of Medicare Buy-In Premiums for Ineligible Recipients

Department of Health Medicaid Program: Improper Supplemental Maternity Capitation Payments to Managed Care Organizations

Department of Health Medicaid Program: Overpayments for Therapy Services and Prescription Drugs Covered by Medicare (Follow-Up)

 

New York Needs to Improve Cybersecurity Support to Local Governments and Public Authorities  

 New York State Comptroller Thomas P. DiNapoli released an audit that found the Division of Homeland Security and Emergency Services cannot assure the critical cybersecurity support they are providing to state agencies, local governments, and public authorities through their Cyber Incident Response Team is achieving the desired outcomes or is targeting the appropriate customers and their needs.

NYS Common Retirement Fund Reports Second Quarter Results

The New York State Common Retirement Fund’s estimated return in the second quarter of the State Fiscal Year 2021-22 was 1.15% for the three-month period ending Sept. 30, 2021, according to New York State Comptroller Thomas P. DiNapoli. It ended the quarter with an estimated value of $267.8 billion.

DiNapoli Urges NYC to Shore Up Rainy-Day Fund

In a report released this week, New York State Comptroller Thomas P. DiNapoli urged New York City officials to better prepare for financial downturns by evaluating the city’s rainy-day reserve fund, establishing targets for how much should go into the fund each year and setting the conditions for withdrawals. His report found the city’s reserve policies are not as robust as other large U.S. cities, and with recent changes in state and local law enabling the use of these funds, called on the city to define how these resources are accumulated and used.

NYS Comptroller DiNapoli and the Fire and Police Pension Association of Colorado Statements on Proposed Settlement of Boeing Lawsuit

New York State Comptroller Thomas P. DiNapoli and the Fire and Police Pension Association of Colorado (FPPA) issued statements regarding the proposed settlement of their derivative lawsuit against the directors of The Boeing Company. State Comptroller DiNapoli, as trustee of the New York State Common Retirement Fund, and the FPPA were appointed co-lead plaintiffs in the lawsuit.

State Comptroller DiNapoli and Orange County District Attorney Hoovler Announce Guilty Plea in Bethel Tax Collector Pension Fraud Case

State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that former Town of Bethel Tax Collector Debra Gabriel, of Bethel, pleaded guilty before Judge Peter Feinberg in the Town of Rockland Justice Court to Offering a False Instrument for Filing in the Second Degree, in connection with a scheme to defraud the New York State and Local Retirement System. Gabriel, 62, had resigned her public office and retired in August 2020.