2016.08.12 Article 78 Complete - Filed

~-
AUG 12 20tB
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEE1'iS
--~--~-------~-----------------------------------------------------)(
In the Matter of the Application of
Index No.
;26 / t
- T 5 0 _3
ROBERT LOSCALZO.
Petitioner.
for a Judgment Pursuant to Ar1icle 78 of the
Civil Practice Lav.rs and Rules
- against -
NOTICE OF
VERIFIED PETITION
OFFICE OF THE QUEENS BOROUGH PRESIDENT

and MELINDA KATZ. QUEE"\;S BOROUGH
PRESIDENT,
Respondents.
---------------------------------------------------------------------)(
PLEASE TAKE NOTICE that. upon the annexed Verified Petition of ROBERT
LOSCALZO ("Petitioner'"). dated August I 0.2016 and accompanying exhibits annexed thereto,
together vvith the ~v!emorandum of La\v in Support thereof. Petitioner will move this Court, by
and through his attorney;. Sheehan & Associates. P.C.~ at 9:30 oclock in the forenoon of
September 6. 2016. or as soon thereafter as counsel can be heard~ at the Motion Support Part of
the Courthouse. locat:ed at 88-i l Sutphir: Boulevard. Jamaica Ne\v York, 11435, for a Judgment
pursuant to Article 78 :if the New York Civil Practice Law and Rules cCPLR ..):
(I)
Diredng Respondents to provide Petitioner all records

requested in Petitioner's Request of May 12. 2016, pursuant to
Article 6 ("Freedom oflnformation Law~') of the New York
Public Officers Law (N.Y. Pub. Oft: Law.. ). within ten (I 0)
calendar days:
(2)
A\varding Petitioner reasonable attorney's fees and costs as

provided for under N.Y. Pub. Off. Law 89(4)(c); and
(3)
Granting such other and further relief as this Court deems just
and proper.
PLEASE TAKE FURTHER NOTICE that. pursuant to CPLR 7804(c).

Respondents' ans\vers and supporting affidavits, if any. shall be served and filed at least five (5)
days before the date this Petition is noticed to be heard: and Petitioner's reply and supporting
affidavits, if any, \viii be served at least one (I) day before the date this Petition is noticed to be
heard.
Dated: August I0, 20 ! 6
Great Neck. New York
pencer Sheehan
SHEEHAN & ASSOCIATES, P.C.
89 l Northern Boulevard
Suite 201
Great Neck. NY 1I 021
Tel: (516) 303-0552
Attorne_vs for Petitioner
TO:
Office of the Queens Borough Piesident
120-55 Queens Boule\ ard
Kew Gardens. NY l 1~ ! 5
Melinda Katz
Queens Borough Presidem
120-55 Queens Boulevard
Kew Gardens, NY 1 l ;.: I 5
INDEX NO.
/2016
COUNTY OF QUEE1\S
ROBERT LOSCALZO.
Petitioner.
For a Judgment Pursuant to Article 78 of the

Civil Practice Laws and Rules
- AGAINST -
OFFICE OF THE QCEENS BOROUGH PRESIDENT

and MELINDA KATZ. QUEE'S BOROUGH
PRESIDENT
Respondents.
NOTICE OF VERIFIED PETITION

Sheehan & Associates, P.C .
.4 ttorne,ys for Petitioner
891 K orthern Boulevard
Suite 201
Great N eek, NY 11021
Tel: (516) 303-0552
Fax:(516)234-7800
spencer'.g spencersheehan.com
Pursuant to 22 NYCRR l 30-1.1. the undersigned. an attorney admitted to practice in the courts of
New York State. certir1es thm. upon infonnarion, and belief. funned after an inquiry reasonable
under the circumstances. the contentions contained in the annexed documents are not frivolous.
Dated: August 10. 20 I 6
Great Neck. New York
SUPREME COURT OF THE ST ATE OF NEW YORK

COUNTY OF QUEENS
~-----~----~-----------------------------------------------------)(
Index No.
ROBERT LOSCALZO.
Petitioner,
- against -
VERIFIED PETITION
OFFICE OF THE QUEENS BOROUGH PRESIDENT

and MELINDA KATZ. QUEENS BOROUGH
PRESIDENT.
Respondents.
---------------------------------------------------------------------)(
Petitioner ROBERT LOSCALZO (";Petitioner~'), by and through his attorneys,
Sheehan & Associates. P.C.. respectfully alleges as follows:
INTRODUCTIO~
I.
This is special proceeding against Respondent OFFICE OF THE QUEENS
BOROUGH PRESIDEI\T and Respondent MEUNDA KATZ, QUEENS BOROUGH

PRESIDENT t~oiiectively ... Respondents .. ).
'
This special proceeding is brought pursuant to Article 78 of the New York
Civil Practice Law and Rules , .. CPLR'~) and Article 6 rFreedom of Information Law" or
;'FOIL') of the Ne\,". 'l:{ork Public Officers Law (N.Y. Pub. Off. Law'). 84-90.
PARTIES
3.
Queens.
Petitioner is a natural person and citizen of the State ofNew York, County of
4.
Petitioner is a videographer who has chronicled Willets Point since 2007.
5.
Respondent OFFICE OF THE QUEENS BOROUGH PRESIDENT is an
agency of the City of New York.

6.
Respondent MELINDA KATZ, QUEENS BOROUGH PRESIDENT, is the
Queens Borough President.

7.
The principal office of Respondents is in the County of Queens, State of New
York.
JURISDICTION AND VENUE
8.
N.Y. Pub. Off. Law 89(4)(b) authorizes a person who has been denied
access to records in an appeal determination under N.Y. Pub. Off. Law 89(4)(a) to
commence a special proceeding for review of such denial pursuant to Article 78 of the CPLR.
9.
This Court has jurisdiction over this special proceeding pursuant to CPLR
Article 78.
10.
Respondents determination herein was affected by an error of law. CPLR
7803(3).
11.
Venue is proper in the County of Queens since Respondents made the
determinations complained of in the County of Queens. CPLR 506(b).

12.
Venue is proper in the County of Queens as the principal office of
Respondents is located in the County of Queens. CPLR 506(b).

PROCEDURAL HISTORY
13.
On May 12, 2016, Petitioner mailed a request for records to the Records
Access Officer of Respondents (Request). Exhibit A, Petitioners Request.
14.
Petitioner s Request \.Vas received by Respondents on or around May 16,
15.
By r-.fa!' 23. 20 l 6. Respondents had not made the records requested by
2016.
Petitioner available to Petitioner.

16.
By May 13. 2016. Respondents had not denied Petitioner~s Request in
17.
By May 23. 2016. Respondents had not furnished to Petitioner a written
writing.
acknowledgement of the receipt of Petitione(s Request and a statement of the approximate

date, which should have been reasonable under the circumstances of the request, when
Petitioner's Request would be granted or denied. including~ where appropriate, a statement
that access to the records requested by Petitioner would be determined in accordance with
N.Y. Pub. Off. Law 89(5).

18.
Respondents denied Petitioners Request on May 23.2016.
19.
As a result of the foregoing, Respondents failed to comply with N.Y. Pub.
Off. Law 89(3)(a).

20.
On June 4. 2016~ Petitioner timely appealed the denial of his Request by
mailing his appeal to che Records Appeals Officer of Respondents. Exhibit B,'" Petitioner's
Appeal.
21.
Petitioner s Appeal was received by Respondents on or around June 6, 2016.
22.
By June 20. 2016. Respondents had not fully explained in writing to the
Petitioner the reasons for further denial.

23.
By June 20. 2016. Respondents had not provided Petitioner access to the
records sought by Petitioner.

24.
Respondents denied Petitioner access to the records sought in an appeal
determination under N.Y. Pub. Off. Law 89(4)fa} on June 20, 2016.
As a result of the foregoing, Respondents failed to comply with N.Y. Pub.
Off. Law 89(4)(a).
26.
This Petition is timely as it is filed \vithin four months of Respondents' denial
of Petitioner's Appeal.
FACTUAL BACKGROUND
27.
Willets Point is an industrial and manufacturing enclave of approximately
sixty-mo (62) acres located in the County of Queens.

28.
In 2008. the Council of the City ofNew York approved a redevelopment plan
for Willets Point.

29.
Since that time. the City ofNe\v York has awarded development rights for
one-third of the site ,:23 acres).
30.
Wich:n the other thirty-nine (39) acres. :Scores ofindustrial and manufacturing
businesses continue w operate as they have for decades.
31.
Despite the continued ,.,.-iability of \Villets Point. the area has not received
basic municipal ser,;ices commensurate \vith its activit}.

Throughout this neighborhood~ roadways are dilapidated and potholes are one
of the most distinguishing features.
33.
This neglect has hindered the economic productivity of the businesses of
Willets Point and their employees.
34.
Members of the Willets Point community have repeatedly requested that the
City of New York resurface the roads of the area. but to no avail.
35.
Property and business owners have come together in an effort to more
effectively advocate for repair of the areas streets, forming Willets Point United, Inc.
36.
[twas reported that Respondents held t\vo recent meetings at Queens Borough
Hall. I20-55 Queens Boulevard, Ke"v Gardens, 1\Y 11415, which addressed the abovedescribed conditions in Willets Point. 1
37.
According to p:ess accounts. the first meeting was held on January 29, 2016.
38.
After news of the January 29, 2016 meeting became known. a representative
of WPU contacted Respondents and requested to be included in the second meeting,

scheduled for March, 20 i 6.
39.
Respondents did not repiy to \\rpu~s request.
40.
The second meeting occurred on March 3.2016.
41.
The attendees at both meetings consisted of Respondents. members of the
New York State Assembly. repr,ese:1tatives of the Ne",. York City Department of
Transportation CDOT") ar.d several local business O\vners. 2
47
Among the subjects purportedly discussed at the meetings were the run-down
condition of the streets in \i'Vi11ets Point and how and when they might be repaved.
..
4.) .
Petitioner requested records relating to the meetings of January 29, 2016 and
1 Madina Toure, Willets Point 2roup :-'eels excluded from BPs street regair meetings~ TimesLedger (March 10,
2016). https::'lperrna.cc/D6H2-3 S96: Victoria Zunitch. Willets Pt. activists cite secret meetings.' Queens Chronicle
(March 10. 2016). https:/lpermu.cc'B-1964L.Y.f..
2
Id.
March 3~ 2016.
44.
The records sought included but were not limited to (i) lists of participants
who were asked to attend. (ii) topics of discussion, (iii) pre- and post-meeting
communications between Respondents and participants, and (iv) documents and materials
exchanged between Respondents and participants.
FIRST CAUSE OF ACTION
Wrongful Denial of Petitioner's Appeal

45.
Petitioner repeats and realleges each and every allegation contained in
paragraphs .. I" through 44~' as if fully set forth herein.

46.
Petitioners Request was mailed to the appropriate person.
47.
Petitioners Request reasonably described the records sought.
48.
Within five (5) business days of receiving Petitione(s Request, Respondents
did not make the records requested by Petitioner available to Petitioner.

49.
Within five (5,l business days of receiving Petitioner~s Request, Respondents
did not deny the request of Petitioner.

50.
Within five (5) business days of receiving Petitioners Request~ Respondents
did not furnish to Petitioner a . .vritten acknowledgement of the receipt of such request and a
statement of an approximate date when Petitioners Request would be granted or denied.
51.
Therefore. Respondents denied Petitioner~ s Request.
,-..,.....
Petitioner appealed Respondents~ denial of Petitioner~s Request.
53.
Petitioners Appeal of the denial of his Petitioner's Request was mailed to the
appropriate person.
54.
Within ten ( l O) days of receiving Petitioner~ s Appeal, Respondents did not
provide access to the records sought by Petitioner.
55.
Within ten ( l 0) days of receiving Petitioner's AppeaL Respondents did not
fully explain in writing to Petitioner the reasons for further denial.
56.
Therefore. Re5pondents denied Petitioner~s Appeal of the denial of
Petitione(s Request.
57.
FOIL requires that Respondents make available for public inspection and
copying all records unless a specific exemption to disclosure is claimed.
58.
Respondems ct;d not claim the records requested by Petitioner were subject
to a specific exemption to disclosure.

59.
Therefore. Respondents violated FO[L.
60.
Petitioner exhausted his administrative remedies in first seeking an appeal
determination from Respondents.
61.
Petitioner has r:o other remedy at la""
REQUESTED RELIEF
WHERFORE. Petition.er requests that this Court issue a judgment pursuant to CPLR
Article 78. as follows:
(I)
Diredng Respondents to provide Petitioner all records
requested by Petitioner with In ten ( l 0) calendar days;

(2)
Awarding Petitioner reasonable attorney's fees and costs as

provided for under N.Y. Pub. Off. Law 89(4)(c); and
(3)
Granting such other and further relief as this Court deems just
and p,oper.
Dated: August I0, 20 ! 6

Great Neck, New York
By:
pencer Sheehan
89 l Northern Boulevard
Suite 201
Great Neck, NY 11021
Tel: (516) 303-0552
Attorneys for Petitioner
VERIFICATION
Spencer Sheehan. being duly sworn. subscribes and affirms pursuant to CPLR 2106
under the penalties of perjury:
l. I am not a party to the within special proceeding.
2. I am an attorney with Sheehan & Associates, P.C.
3. I am the attorney for Petitioner in the within special proceeding.
4. I am admitted to practice law in the Courts of the State of New York.
5. I have read the Petition and know the contents thereof.
6. The Petition is true to my knowledge, except as to the matters therein stated to be
alleged on information and belief, and that as to those matters I believe them to be
true.
7. The grounds for my belief as to all matters not stated upon knowledge is based
upon commudcations \vith Petitioner and a review of documents relevant to this
special proceeding.
8. This verificatior. is not made by the party (Petitioner) because the Petitioner
resides and \vorks in a county different from \vhere Sheehan & Associates, P.C.
maintains its oftice.
Dated: August 10, 20 l 6

Great Neck~ New York
INDEX NO.
12016
COUNTY OF QUEENS
[n the Matter of the Application of
ROBERT LOSCALZO,
Petitioner.
For a Judgment Pursuant to Anicle 78 of the
-AGAfNST OFFICE OF THE QLEENS BOROUGH PRESIDENT

and MELfNDA KATZ. QUEE\rS BOROUGH
PRESIDENT.
Respondents.
VERIFIED PETITION
Sheehan & Associates, P .C.
A ttorne..,vs for Petitioner
891 ~ orthern Boulevard
Suite 201
Great Neck, ~y 11021
Tel: (516) SOS-0552
Fax:(516) 234-7800
spencer@spencersheehan.com
Pursuant to 22 NYCRR 130-1.1. the undersigned, an attorney admitted to practice in the courts of
New York State. certifies that. upon information, and belief, formed after an inquiry reasonable
under the circumstances. the ccntentions contained in the annexed ocuments are not frivolous.
Dated: August 1O. 20 i 6
Great Neck, Ne\v York

COUNTY OF QUEENS
----------------------------------------------------------------------)(
Index No.
[n the Matter of the Application of
ROBERT LOSCALZO,
Petitioner,
- against OFF[CE OF THE QUEENS BOROUGH PRESIDENT
and MELINDA KATZ, QUEENS BOROUGH
PRESIDENT,
Respondents.
---------------------------------------------------------------------)(
MEMORANDUM OF LAW
L.~ SUPPORT OF VERIFIED PETITION
SHEEHA1' & ASSOCLi\ TES, P.C.

891 Northern Boulevard
Suite 201
Tel: (516) 303-0552
Table of Contents
Table of Authorities ....................................................................................................................... iii
PRELIMfNAR Y STA TEMENT .................................................................................................... I
AD!\t1INISTRA TIVE PROCEEDINGS .......................................................................................... l

ARGUMENT .................................................................................................................................. 2
I.
FOIL ESTABLISHED A BROAD RIGHT OF ACCESS TO RECORDS ..................... 2
[I.
PETITIONER'S FOIL REQUEST CONFORMED TO LAW ........................................ 2

A. Transmission of FOIL Request ................................................................................. 2
8.
Substance of Request ................................................................................................ 3
C.
Records Sought are those of an Agency .................................................................... 3
III. RESPONDENTS DENIED PETITIONER'S REQUEST AND APPEAL ..................... 4

IV. PETITIONER IS ENTITLED TO ATTORNEY'S FEES AND COSTS ........................ 5
CONCLUSION ............................................................................................................................... 7
11
Table of Authorities
Cases
Buffalo News v. Buffalo Enter. Dev. Corp., 644 N.E.2d 277, 84 N.Y.2d 488,493, 619
N.Y.S.2d 695 (1994) ................................................................................................................... 4
Capital iVewspapers v. Burns, 6i N. Y.2d 562, 565-66, 505 N. Y.S.2d 576, 496 N.E.2d
665 (1986) ................................................................................................................................... 2
Council ofRegulated Adult Liquor Licensees v. City ofNew York Police Department,
300 A.D.2d 17, 18-19, 75 l N.Y.S.2d 438 (App. Div. lst Dep't 2002} ...................................... 5
Konigsberg v. Coughlin, 68 N.Y.2d 245,249.508 N.Y.S.2d 393,501 N.E.2d I (1986) .............. 3

1'1/atter of Bader v. Bove, 273 A.D.2d 466,467, 710 N.Y.S.2d 379 (App. Div. 2d Dep't
2000) ........................................................................................................................................... 3
lvfatter ofFink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463
(1979) .......................................................................................................................................... 2
.1.vlatter ofJaronczykv. Mangano, 121 A.D.3d 995,997,996 N.Y.S.2d 291 (App. Div. 2d
Dep 't 20 14) ................................................................................................................................. 6

Matter ofLegal Aid Society v.Yew York State Dept. of Corrections and Community
Supervision, 105 A.D.3d 1120, 1122, 962 N.Y.S.2d 773 (App. Div. 3d Dep't 2013) ............... 6
i\llatter of Livson v. Town of Greenburgh. N.Y. Slip Op 5570 (App. Div. 2d Dep't 2016) ............ 2
i\llatter qfRobertson v. Chairman, 122 Misc.2d 829, 83 l, 471 N.Y.S.2d 1015 (Sup. Ct.
Queens County 1984) ................................................................................................................. 5
Matter of Ryan v. Mastic Volunteer Ambulance Co., 212 A.D.2d 716,717,622 N.Y.S.2d
795 (App. Div. 2d Dep't l 995) ................................................................................................... 4
iii
1.\1atter of South Shore Press, Inc. v. Havemeyer, 136 A.D.3d 929, 93 l, 25 N.Y.S.3d 303
(App. Div. 2d Dep't 2016) .......................................................................................................... 6
Town of Waterford v. NY State Dep 't. of Environmental Conservation, 967 N. E.2d 652,
18 N.Y.3d 652,944 N.Y.S.2d 429(2012) .................................................................................. 2
Statutes
CPLR 3120 ................................................................................................................................... 3

N.Y. Pub. Off. Law 84 ................................................................................................................. 2
N.Y. Pub. Off. Law 86(3) ............................................................................................................ 3
N.Y. Pub. Off. Law 86(4) ............................................................................................................ 3
N.Y. Pub. Off. Law 87(2) ............................................................................................................ 2
N.Y. Pub. Off. Law 89(3) .................................................................................................... 2, 3, 6
N.Y. Pub. Off. Law 89(3)(a) ............................................................................................ 3, 4, 5, 6
N.Y. Pub. Off. La"" 89(4) ............................................................................................................ 3
N.Y. Pub. Off. Lavv 89(4)(a) ........................................................................................................ 5
N.Y. Pub. Off. La"" 89( 4)(b) .................................................................................................... 1, 5
N.Y. Pub. Off. Lavv 89(4)(c) ........................................................................................................ 6
Regulations
21 NYCRR 1401.2(a) ..................................................................................................................... 3

21 NYCRR 1401.5(e) ..................................................................................................................... 5
21 NYCRR 1401.7(b) ..................................................................................................................... 3
21 NYCRR 1401.7(e) ..................................................................................................................... 5
21 NYCRR 140 l .7(f) ...................................................................................................................... 5
Other Authorities
iv
N.Y.C. Charter 81 ....................................................................................................................... 4

N.Y.C. Charter 82 ....................................................................................................................... 4
N.Y.C. Charter 211 ...................................................................................................................... 4
PRELIMINARY STATEMENT
Petitioner ROBERT LOSCALZO ("Petitioner"), by and through his undersigned
attorneys, Sheehan & Associates, P.C., respectfully submits this Memorandum of Law in
Support ("Memorandum of Law") of the Verified Petition ("Petition") against Respondent
OFFICE OF THE QUEENS BOROUGH PRESIDENT and Respondent MELINDA KATZ,
QUEENS BOROUGH PRESIDENT (collectively, ~'Respondents").
Petitioner requested records from Respondents in accordance with Article 6 ("Freedom of
Information Law" or "FOIL") of the New York Public Officers Law C'N.Y. Pub. Off. Law"),
84-90 and the implementing regulations located at Title 21, Chapter XXV of the New York
Codes, Rules and Regulations ("NYCRR").
The basis for this action is Respondents' denial of access of records requested by
Petitioner in an appeal determination under N.Y. Pub. Off. Law 89(4)(a).
ADMINISTRATIVE PROCEEDINGS
On May 12, 2016. Petitioner requested records from Respondents (''Request"). Petition,
, 13. On May 23, 2016, Respondents denied Petitioner's Request. Petition, 1 18.
On June 4, 2016, Petitioner appealed Respondents' denial of his Request ("' Appeal").
Petition, ,r 20. On June 20, 2016, Respondents denied Petitioner's Appeal. Petition, 124.
Therefore, Petitioner has exhausted his administrative remedies and is authorized to bring
this proceeding for a review of Respondents' denial of his appeal pursuant to Article 78 of the
New York Civil Practice Law and Rules C'CPLR"). N.Y. Pub. Off. Law 89(4)(b).
ARGUMENT
I.
FOIL ESTABLISHED A BROAD RIGHT OF ACCESS TO RECORDS
The Freedom of Information Law was enacted by the New York State legislature to
create a broad right of public access to government records in order to foster transparency and
accountability in government. N.Y. Pub. Off. Law 84; see also Town of Waterford v. NT State
Dep't. of Environmental Conservation, 967 N.E.2d 652, 18 N.Y.3d 652,944 N.Y.S.2d 429
(2012); Capital 1Vewspapers v. Burns, 67 N.Y.2d 562, 565-66, 505 N.Y.S.2d 576,496 N.E.2d
665 (1986) (''The Freedom of Information Law expresses this State's strong commitment to open
government and public accountability and imposes a broad standard of disclosure upon the State
and its agencies.").
Since FOIL operates under the premise that the public is vested with an inherent right to
kno\v and that official secrecy is anathematic to our form of government," state and municipal
agencies are required to provide all agency records upon a proper request, except for those that
fall within one of the statute's exemptions. ,.\latter of Fink v. Lejkovvirz, 4 7 N. Y.2d 567. 5 71, 419
N.Y.S.2d 467,393 N.E.2d 463 (1979); Matter of Livson v. Toii.,n of Greenburgh, N.Y. Slip Op
5570 (App. Div. 2d Dep't 2016) (Affirming that exemptions to disclosure should be narrowly
construed' so as to ensure maximum public access to government documents."); N. Y. Pub. Off.
Law 87(2).
II.
PETITIONER'S FOIL REQUEST CONFORMED TO LAW

A.
Transmission of FOIL Request
Petitioner conveyed his Request and Appeal in writing via the United States Postal
Service. Petition, ,r,r 13, 20; N.Y. Pub. Off. Law 89(3).
Petitioner's Request was properly directed to the Records Access Officer. Exhibit ''A,"
p. l; 21 NYCRR 140 I .2(a). Petitioner's Appeal was directed to a person distinct from the
records access officer - the "Records Appeal Officer." Exhibit "'8," p. l; 21 NYC RR 140 I. 7(b ).
8.
Substance of Request
FOIL broadly defines 'record" to mean "any information kept, held, filed, produced, or
4
reproduced by, with or for an agency or the state legislature, in any physical form whatsoever."
N.Y. Pub. Off. Law 86(4).
As the information sought by Petitioner included various types of information, such as
proposals, presentations and correspondence, the Request was within the scope of N. Y. Pub. Off.
Law 89(4).
Petitioner's Request reasonably described the records requested. Exhibit "A," pp. 3-5;
N.Y. Pub. Off. Law 89(3)(a). The requested records were related to t\Vo dates-January 29,
2016 and March 3, 2016. Moreover, the itemization of the records sought was sufficiently
descriptive to ;enable the agency to locate the records in question." Konigsberg v. Coughlin, 68
N.Y.2d 245,249.508 N.Y.S.2d 393,501 N.E.2d l (1986) (recognizing that the requirement of
N.Y. Pub. Off. Law 89(3) that the records be reasonably described" does not meet the more
stringent specification standard imposed by CPLR 3120).
Therefore, Petitioner satisfied the burden required by N.Y. Pub. Off. Law 89(3).
1.vfatter of Bader v. Bove, 273 A.D.2d 466,467, 710 N.Y.S.2d 379 (App. Div. 2d Dep't 2000).
C.
Records Sought are those of an Agency
Petitioner requested records from the Office of the Queens Borough President, an
4
;
agency" within the meaning of N. Y. Pub. Off. Law 86(3 ). (Defining an "agency'' as ~'any
..,
.J
state or municipal department, board, bureau, division, commission, committee, public authority,
public corporation, council, office or other governmental entity performing a governmental or
proprietary function for the state or any one or more municipalities thereof.").
The Office of the Borough President was created by Chapter 4 of the New York City
Charter. N.Y.C. Charter 81.
The Borough President has authority to act in a governmental capacity and performs
governmental functions on behalf of the City of New York, a municipality. N.Y.C. Charter 82;
Matter of Ryan v. Mastic Volunteer Ambulance Co., 212 A.D.2d 716,717,622 N.Y.S.2d 795
(App. Div. 2d Dep't l 995)(finding no merit to an appellant's contention that it was not an agency
pursuant to FOIL since it performs a governmental function for the benefit of a municipal
subdivision and receives all of its funding from said subdivision.). Moreover, funding for the
Office of the Borough President derives from public monies. N.Y.C. Charter 211.
All of the above factors support a conclusion that the Office of the Borough President is
an agency for the purposes of FOIL. Buffalo News v. Buffalo Enter. Dev. Corp., 644 N.E.2d 277,
84 N.Y.2d 488,493,619 N.Y.S.2d 695 (1994) (determining an entity was "undeniably
governmental" after examining its creation, funding and responsibilities).
III.
RESPONDENTS DENIED PETITIONER'S REQUEST Al~ APPEAL
Within five (5) business days of the receipt of Petitioner's Request, Respondents were
required to make the records requested by Petitioner available to Petitioner, deny the request of
Petitioner or furnish to Petitioner a written acknowledgement of the receipt of such request and a
statement of an approximate date when Petitioner's Request would be granted or denied. N.Y.
Pub. Off. Law 89(3)(a).
Respondents" failure to take any of the actions permitted by N.Y. Pub. Off. Law
89{3)(a) constituted a denial of Petitioner's Request. Petition, ,r 18; N. Y. Pub. Off. Law
89(4)(a); 21 NYCRR 1401.S(e); MatterofRobertson v. Chairman, 122 Misc.2d 829,831,471
N.Y.S.2d 1015 (Sup. Ct. Queens County 1984).
Petitioner appealed the denial of his Request within thirty (30) days of Respondents'
denial. Petitioner's Appeal included the date and location of his Request, a description of the
records which were denied and his name and return address. Exhibit ~-s"; 2 l NYCRR 140 l .7(e).
Within ten (10) days of receiving Petitioner's Appeal, Respondents were required to
provide access to the records sought by Petitioner or fully explain in writing to Petitioner
the reasons for further denial. N.Y. Pub. Off. Law 89(4)(a); 21 NYCRR 1401.7(f).
Respondents' failure to take any of the actions permitted by N.Y. Pub. Off. Law
89(4 )(a) constituted a denial of access to records requested by Petitioner. Petition, 124.
Petitioner has therefore exhausted his administrative remedies and is entitled to bring the
present proceeding for review of Respondents' denial in the appeal determination of
Respondents. N. Y. Pub. Off. Law 89( 4 )(b ): Council of Regulated Adult Liquor Licensees v.
City ofNew York Police Department, 300 A.D.2d I 7, I 8-l 9. 75 l N.Y.S.2d 438 (App. Div. 1st
Dep't 2002) (""Petitioners exhausted all administrative remedies when. after submitting their
appeal of the Department's initial denial of their request, they received no reply from the
Department within the statutorily mandated 10-day response period.'').
IV.
PETITIONER IS ENTITLED TO ATTORNEY'S FEES AND COSTS
In accordance with the fee-shifting provisions of FOIL~ Petitioner seeks reasonable

attorney's fees and costs. The purpose of awarding reasonable attorney's fees and costs is to
'create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage
every unit of government to make a good faith effort to comply with the requirements of FOIL."
1.vlatter of South Shore Press. Inc. v. Havemeyer, 136 A.D.3d 929, 931, 25 N.Y.S.3d 303 (App.
Div. 2d Dep't 2016).
N.Y. Pub. Off. Law 89(3) prescribes certain permitted responses from an agency upon
receipt of a FOIL request. These include granting or denying some or all of the request or
providing an approximate date when same will occur. The counsel fee provision makes no
distinction between the agency's responses to a FOIL request in assessing whether a person has
substantially prevailed." N.Y. Pub. Off. Law 89(4)(c); Matter ofLegal Aid Society v. Nei1/
York State Dept. of Corrections and Community Supervision, 105 A.D.3d I 120, 1122, 962
N.Y.S.2d 773 (App. Div. 3d Dep't 2013).

It matters not if an agency complies with N.Y. Pub. Off. Law 89(3 )(a) subsequent to the
commencement of legal proceedings. This is because the counsel fee provision was added to
FOIL in recognition that persons seeking a response from an agency might sometimes be
required to resort to costly litigation. Matter ofJaronczyk v. :.v!angano. 12 l A.D.3d 995, 997,
996 N.Y.S.2d 29I (App. Div. 2d Dep't 2014) (Recognizing that providing access to documents
during the pendency of proceedings is insufficient to moot the question of a petitioners
entitlement to attorney's fees and costs).
CONCLUSION
For the foregoing reasons, Petitioner respectfully requests that this Court direct
Respondents to disclose all records responsive to Petitioner's Request and award Petitioner
attorney's fees and costs.
Dated: August 10, 2016
By:
S ncer Sheehan
Suite 201
Tel: (516) 303-0552
INDEX NO.
/2016
COUNTY OF QUEENS
ln the Matter of the Application of
ROBERT LOSCALZO,
Petitioner,
-AGAINSTOFFlCE OF THE QUEENS BOROUGH PRESlDENT
and MELINDA KATZ, QUEENS BOROUGH
PRESlDENT,
Respondents.
MEMORANDUM OF LAW
IN SUPPORT OF VERIFIED PETITION
Sheehan & Associates, P.C.
Suite 201
Great N eek, NY 11021
Tel: (516) 303-0552
Fax:(516) 234-7800
spencerrgspencersheehan.com
Pursuant to 22 NYCRR I30- l. l, the undersigned, an attorney admitted to practice in the courts
of New York State, certifies that, upon information. and belief, fonned after an inquiry
reasonable under the circumstances, the contentions contained in the annexed documents are not
frivolous.
Dated: August l 0, 2016
EXHIBIT A
169-06 22nd Avenue

Whitestone, New York 11357
May 12, 2016
r
Records Access Officer

Office of the Queens Borough President
Kew Gardens, New York 11424
Re:
Note: This FOIL Request pertains to records that

were created and/or that came under the purview of
FOIL at QBP between October 1, 2015, inclusive,
and May 12, 2016, inclusive.
~
RECORDS ACCESS REQUEST

Pursuant to New York State Freedom of Information Law
Requester's ID: FOIL_QBP_ 160512
Dear Records Access Officer:

This is a records access request ("Request") made pursuant to the New York
State Freedom of Information Law ("FOIL"), which is contained within the New York
State Public Officers Law ("POL"), 84 et seq., for certain records, specified below, of
the Office of the Queens Borough President ("QBP") that pertain to recently-held
meetings attended by members of the public (non-agency persons).
Background:
The following information is provided to assist in identifying records that are

responsive to the Request.
QBP has confirmed to the press that two meetings were recently arranged by
QBP and held at Queens Borough Hall to discuss aspects of Willets Point, Queens - a
meeting on January 29, 2016 (the "January 29, 2016 Meeting") and a meeting on March
3, 2016 (the "March 3, 2016 Meeting").
Per the Times Ledger newspaper1 :
"Willets Point United says it is upset that it was not invited to meetings set
up by Borough President Melinda Katz about illegally parked trucks and
the dilapidated streets in the area under the shadow of Citi Field.
The Jan. 29 and March 3 meetings were attended by the city Department
of Transportation; City Councilwoman Julissa Ferreras (D-East Elmhurst);
Gene Kelty, chairman of Community Board 7; the MTA; the city Economic
Development Corporation; Fodera Foods at 129-02 Northern Blvd.; House
Madina Toure, "Willets Point group feels excluded from street repair meetings," Times
Ledger, March 10, 2016. Accessible online at:
http://www.timesledger.com/stories/2016/11/willetspointmeetings_2016_03_ 11_q.htm1
of Spices at 127-40 Willets Point Blvd.; and Tully Construction at 127-50

Northern Blvd., among others.
State Assemblyman Jeffrion Aubry (D-Corona) had asked Katz to arrange
the meetings ....
A DOT spokesman said that at the meetings, the agency said it is
requesting $9.1 million as part of its upcoming budget submission for
potential street reconstruction work in Willets Point."
Per the Queens Chronicle newspaper2:
"'The meetings at Borough Hall were scheduled at the Assemblymember's
long-standing request to discuss the growing community concerns of
trucks parking overnight and/or abandoned in the area; invitations to both
meetings were directed to businesses involved in the issue, including but
not limited to Tully Construction and Fodera Foods,' said spokesman
Michael Scholl. Katz's office didn't clarify which Assembly member it was
referring to as of press time.
Jose Bayona, a DOT spokesperson, emailed confirmation that repaving
was discussed at the meeting.
A DOT official stated at the meeting last week that we are requesting $9.1
million as part of our upcoming budget submission for potential Capital
project for an engineered resurfacing treatment street work in Willets
Point. As DOT has stated previously, repairing Willets Point streets is
beyond our in-house capabilities. While this is not a proposed street
reconstruction project, the goal of this proposal would include surveying,
milling, paving and additional Capitally eligible treatments to provide a
smoother driving surface,' he said."
1
Records Presently Requested:
Pursuant to the Freedom of Information Law ("FOIL"), which is contained within

the New York State Public Officers Law, 84 et seq., I am writing to request to receive
duplicates of the following records:
Victoria Zunitch, "Willets Pt. activists cite 'secret meetings,'" Queens Chronicle, March
1O, 2016. Accessible online at: http://www.qchron.com/editions/queenswide/willets-pt-activistscite-secret-meetings/article_ 1c61 d 1ce-cb35-521 d-81 ce-37cf70871 a89.html
Page 2 of 7
For the January 29, 2016 Meeting (whether originally scheduled for January 29, 2016 or
for any other date that was eventually rescheduled for January 29, 2016):
(1)
All records that constitute each and every invitation to attend the meeting
(including such invitations for any originally scheduled date and each
rescheduled date), sent in any form to each member of the public not
representing an agency, including invitations sent to representatives of Fodera
Foods, House of Spices, Tully Construction and all other non-agency entities.
(2)
All records that constitute each and every response of each member of the public
to any invitation to attend the meeting.
(3)
All records that constitute communications, in either direction, between (a) each
member of the public who was invited to the meeting and/or involved in planning
the meeting, and (b) any representative of QBP and/or any other agency involved
with the meeting, prior to the time of the meeting, concerning any of the following:
(i)
any aspect whatsoever of the meeting;
(ii)
planning for the meeting;
(iii)
scheduling and/or rescheduling the meeting;
(iv)
agendas for the meeting;
(v)
materials to be shared and/or discussed during the meeting;
(vi)
which entities and/or people to invite, or not invite, to the meeting;
(vii)
whether or not any representative of Willets Point United Inc. would or

should be invited to attend the meeting;
(viii)
the interest of Willets Point United Inc. in the meeting.
(4)
All records that constitute sign-in sheets, attendance sheets, or that otherwise
document who attended the meeting.
(5)
All records shared during the meeting, in either direction, between (a) any
member of the public and (b) any representative of QBP and/or any other
agency, including without limitation presentations, proposals, plans and budgets,
concerning any topic of the meeting, including without limitation the condition of
Willets Point streets and/or resurfacing, repaving or otherwise changing the
condition of Willets Point streets.
(6)
All minutes of the meeting.
(7)
All electronic recordings of the meeting or any portion thereof, including without
limitation audio recordings, audio-visual recordings and digital still images.
Page 3 of 7
(8)
All records that constitute post-meeting communications, in either direction,

between (a) each member of the public who was invited to the meeting, involved
in planning the meeting and/or attended the meeting, and (b) any representative
of QBP and/or any other agency involved with the meeting, after the time of the
meeting up to and including May 12, 2016, concerning any of the following:
(i)
(ii)
any topic of the meeting, including without limitation the condition of

Willets Point streets and/or resurfacing, repaving or otherwise changing
the condition of Willets Point streets;
(iii)
materials shared and/or discussed during the meeting;
(iv)
the interest of Willets Point United Inc. in the meeting;
(v)
press enquiries concerning the meeting;
(vi)
press reports concerning the meeting.
For the March 3, 2016 Meeting (whether originally scheduled for March 3. 2016 or for
any other date that was eventually rescheduled for March 3, 2016):
(1)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Page 4 of 7
(vii)

(viii)
(4)
(5)
(6)
(7)
(8)

(i)
(ii)

(iii)
(iv)
(v)
(vi)
This Request seeks records that were created and/or that came under the
purview of FOIL at QBP between October 1, 2015, inclusive, and May 12, 2016,
inclusive.
Please be advised that records that have been communicated or shared with the
public and that are responsive to this Request are not exempt from disclosure pursuant
to POL 87(2)(9).
Page 5 of 7
The term "record" as used within this Request has the identical meaning as the
same term defined by POL 86(4), i.e.:
"any information kept, held, filed, produced or reproduced by, with or for
an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets, forms,
papers, designs, drawings, maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."
Please be advised that, in consideration of the above-quoted definition of
"record" (which encompasses information that is kept, held or filed "for'' an agency), a
record need not be in the physical possession of an agency, in order for the record to be
considered responsive to a records access request made of the agency. Accordingly, I
ask that you please ensure that the search for records that are responsive to the
Request encompasses all "records", including those that are kept, held or filed by any
entity "for" QBP, in addition to records that are in the physical possession of QBP.
Pursuant to POL 87(5)(a), I hereby request that QBP provide the requested
records in commonly readable electronic form (e.g., Adobe Portable Document Format
(PDF)) on CD-R disc.
I reserve the right to request, at a later date, other records not described above.
If you find that this Request does not adequately describe the records sought,
then I request to be so notified in writing, and to be provided an opportunity to confer
with you in order to attempt to reformulate the Request in a manner that will enable you
to identify the records sought.
I request to receive each record in its entirety, but if any complete record is not
extant, then I request to receive any portion of each requested record that exists.
I request to receive the maximum possible amount of each responsive record's
content, irrespective of the perceived significance of any particular content.
Time is of the essence in this matter. If some portions of the requested records
are more readily available or more wholly qualified for disclosure than others for any
reason, then I request to receive any available portions at the earliest opportunity.
Please do not delay making any portion of the requested records available because
other portions of the requested records are not yet found, redacted, qualified for
disclosure or otherwise prepared for release.
If this Request is denied in whole or in part, I ask that you please specify the
statutory exemption(s) claimed for each record or portion thereof to which access is
denied. If you choose to withhold any record in its entirety, then please specify, in
Page 6 of 7
addition to the statutory exemption(s) claimed for each record or portion thereof, the
date of and (if the record is a document) the number of pages in the entire record.
Please advise me of any destruction of records relating to this Request, and include the
date of and authority for such destruction. If any part of a requested record does not
exist, then I request to be so notified in writing.
I am willing to pay duplication costs for preparation of duplicate records in
fulfillment of this Request, up to a maximum amount of $10.00 USO. If you estimate that
the fees will exceed this limit, then please inform me first so that I may consider how to
proceed. I reserve the right to inspect all responsive records in lieu of, or in addition to,
obtaining duplicates of some or all of them.
I request that all of your communications with me concerning this Request be in
writing, and I expect an acknowledgment of this Request within five working days. In the
event that QBP does not comply with applicable law, then I will deem this Request to
have been denied and eligible for appeal. Please be advised that, in the event that I
commence a court proceeding pursuant to Article 78 of the Civil Practice Law and Rules
in connection with this Request, the court in such a proceeding may assess, pursuant to
FOIL and against QBP, reasonable attorney's fees and other litigation costs reasonably
incurred by me as a consequence of such proceeding; and I shall seek to recover all
such costs.
Please also be kindly advised that any person who, with intent to prevent public
inspection of a record pursuant to FOIL, willfully conceals or destroys any such record
shall be guilty of a violation of 240.65 of the New York State Penal Law, and may
serve up to fifteen days in jail and/or be fined up to $250.00 per such violation.
I look forward to your reply. Thank you in advance for your anticipated
cooperation and assistance. Please address all correspondence to:
Robert Loscalzo
169-06 22nd Avenue
~~
Robert Loscalzo
Page 7 of 7
EXHIBITB
169-06 22nd Avenue

June 4, 2016
Records Appeals Officer
Re:
APPEAL - RECORDS ACCESS REQUEST

Dear Records Appeals Officer:

This is an Appeal from a denial of access by the Office of the Queens Borough
President ("QBP") to records thereof that are responsive to the above-referenced
records access request dated May 12, 2016 ("Request; Attachment A) made pursuant
to FOIL, which is contained within the New York State Public Officers Law ("POL 84
et seq.
11
11
),
Upon receipt of the Request, QBP was required to respond in one of the ways
specified by FOIL within five business days. (POL 89(3)(a); 21 NYCRR 1401.5(c).)
Records of the United States Postal Service (Attachment B) indicate that QBP
received the Request on May 16, 2016. QBP was required to respond to the Request
within five business days - i.e., by May 23, 2016.
However, as of this writing, I have received no response whatsoever to the
Request. QBP has failed to respond to the Request by the statutory deadline, which
constitutes a failure to conform to the provisions of POL 89(3)(a). Such failure
constitutes a denial of the Request that may be appealed. (POL 89(4)(a).) Moreover,
QBP's failure to timely respond to the Request is the type of circumstance described by
21 NYCRR 1401.5(e)(1 ), which is deemed a denial of the Request that may be
appealed.
Relief Sought:
This Appeal requests that QBP produce all records that are responsive to the
Request, as specified within the Request.
Please be advised that this Appeal causes the shorter timeframe applicable to
FOIL appeals now to apply to the fulfillment of the Request. QBP must decide this
Appeal within ten business days of its receipt by QBP (POL 89(4)(a)); and, if the
appeal decision grants access to responsive records, then QBP also must provide
access to such records within ten business days of QBP's receipt of this Appeal.
Please also be advised that, in the event that QBP does not resolve this Appeal
within the statutory time, and l commence a court proceeding pursuant to Article 78 of
the Civil Practice Law and Rules in connection with the Request, the court in such a
proceeding shall be entitled to assess, pursuant to POL 89(4)(c) and against QBP,
reasonable attorney's fees and other litigation costs reasonably incurred as a
consequence of such proceeding; and I shall seek to recover all such costs.
Please further be advised that any person who, with intent to prevent public
Thank you for your attention to this important matter. I look forward to your reply
within ten business days. Please address all correspondence to:
Robert Loscalzo
169-06 22nd Avenue
Robert Loscalzo
2 enclosures
Page 2 of 2
Attachment A
Records Access Request dated May 12, 2016
169-06 22nd Avenue

May 12, 2016
Records Access Officer
Re:
Note: This FOIL Request pertains to records that

were created and/or that came under the purview of
FOIL at OBP between October 1, 2015, inclusive,
and May 12, 2016, inclusive.
RECORDS ACCESS REQUEST

Dear Records Access Officer:

This is a records access request ("Request") made pursuant to the New York
State Freedom of Information Law ("FOIL"), which is contained within the New York
State Public Officers Law ("POL"), 84 et seq., for certain records, specified below, of
the Office of the Queens Borough President ("QBP") that pertain to recently-held
meetings attended by members of the public (non-agency persons).
Background:
The following information is provided to assist in identifying records that are

responsive to the Request.
QBP has confirmed to the press that two meetings were recently arranged by
QBP and held at Queens Borough Hall to discuss aspects of Willets Point, Queens - a
meeting on January 29, 2016 (the "January 29, 2016 Meeting") and a meeting on March
3, 2016 (the "March 3, 2016 Meeting").
Per the Times Ledger newspaper1 :
"Willets Point United says it is upset that it was not invited to meetings set
up by Borough President Melinda Katz about illegally parked trucks and
the dilapidated streets in the area under the shadow of Citi Field.
The Jan. 29 and March 3 meetings were attended by the city Department
of Transportation; City Councilwoman Julissa Ferreras (D-East Elmhurst);
Gene Kelty, chairman of Community Board 7; the MTA; the city Economic
Development Corporation; Fodera Foods at 129-02 Northern Blvd.; House
Madina Toure, "Willets Point group feels excluded from street repair meetings," Times
Ledger, March 10, 2016. Accessible online at:
http://www.timesledger.com/stories/2016/11 /willetspointmeetings_2016_03_ 11_q.htm I
of Spices at 127-40 Willets Point Blvd.; and Tully Construction at 127-50

Northern Blvd., among others.
State Assemblyman Jeffrion Aubry (D-Corona) had asked Katz to arrange
the meetings ....
A DOT spokesman said that at the meetings, the agency said it is
requesting $9.1 million as part of its upcoming budget submission for
potential street reconstruction work in Willets Point."
Per the Queens Chronicle newspaper2:
"The meetings at Borough Hall were scheduled at the Assemblymember's
long-standing request to discuss the growing community concerns of
trucks parking overnight and/or abandoned in the area; invitations to both
meetings were directed to businesses involved in the issue, including but
not limited to Tully Construction and Fodera Foods,' said spokesman
Michael Scholl. Katz's office didn't clarify which Assembly member it was
referring to as of press time.
Jose Bayona, a DOT spokesperson, emailed confirmation that repaving
was discussed at the meeting.
'A DOT official stated at the meeting last week that we are requesting $9.1
million as part of our upcoming budget submission for potential Capital
project for an engineered resurfacing treatment street work in Willets
Point. As DOT has stated previously, repairing Willets Point streets is
beyond our in-house capabilities. While this is not a proposed street
reconstruction project, the goal of this proposal would include surveying,
milling, paving and additional Capitally eligible treatments to provide a
smoother driving surface,' he said."
Records Presently Requested:
Pursuant to the Freedom of Information Law ("FOIL"), which is contained within

the New York State Public Officers Law, 84 et seq., I am writing to request to receive
duplicates of the following records:
Victoria Zunitch, "Willets Pt. activists cite 'secret meetings,"' Queens Chronicle, March
1O, 2016. Accessible online at: http://www.qchron.com/editions/queenswide/willets-pt-activistscite-secret-meetings/article_ 1c61 d1 ce-cb35-521 d-81 ce-37cf70871 a89.htm I
Page 2 of 7
For the January 29, 2016 Meeting (whether originally scheduled for January 29, 2016 or
for any other date that was eventually rescheduled for January 29, 2016):
( 1)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)

(viii)
(4)
(5)
(6)
(7)
Page 3 of 7
(8)

(i)
(ii)

(iii)
(iv)
(v)
(vi)
For the March 3, 2016 Meeting (whether originally scheduled for March 3. 2016 or for
any other date that was eventually rescheduled for March 3, 2016):
(1)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Page 4 of 7
(vii)

(viii)
(4)
(5)
(6)
(7)
(8)

(i)
any aspect whatsoever of the meeting:
(ii)

(iii)
(iv)
(v)
(vi)
This Request seeks records that were created and/or that came under the
purview of FOIL at QBP between October 1, 2015, inclusive, and May 12, 2016,
inclusive.
Please be advised that records that have been communicated or shared with the
public and that are responsive to this Request are not exempt from disclosure pursuant
to POL 87(2)(g).
Page 5 of 7
The term "record" as used within this Request has the identical meaning as the
same term defined by POL 86(4), i.e.:
"any information kept, held, filed, produced or reproduced by, with or for
an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets, forms,
papers, designs, drawings, maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."
Please be advised that, in consideration of the above-quoted definition of
"record" (which encompasses information that is kept, held or filed "for" an agency), a
record need not be in the physical possession of an agency, in order for the record to be
considered responsive to a records access request made of the agency. Accordingly, I
ask that you please ensure that the search for records that are responsive to the
Request encompasses all "records", including those that are kept, held or filed by any
entity "for" QBP, in addition to records that are in the physical possession of QBP.
Pursuant to POL 87(5)(a), I hereby request that QBP provide the requested
records in commonly readable electronic form (e.g., Adobe Portable Document Format
(PDF)) on CD-R disc.
I reserve the right to request, at a later date, other records not described above.
If you find that this Request does not adequately describe the records sought,
then I request to be so notified in writing, and to be provided an opportunity to confer
with you in order to attempt to reformulate the Request in a manner that will enable you
to identify the records sought.
I request to receive each record in its entirety, but if any complete record is not
extant, then I request to receive any portion of each requested record that exists.
I request to receive the maximum possible amount of each responsive record's
content, irrespective of the perceived significance of any particular content.
Time is of the essence in this matter. If some portions of the requested records
are more readily available or more wholly qualified for disclosure than others for any
reason, then I request to receive any available portions at the earliest opportunity.
Please do not delay making any portion of the requested records available because
other portions of the requested records are not yet found, redacted, qualified for
disclosure or otherwise prepared for release.
If this Request is denied in whole or in part, I ask that you please specify the
statutory exemption(s) claimed for each record or portion thereof to which access is
denied. If you choose to withhold any record in its entirety, then please specify, in
Page 6 of 7
addition to the statutory exemption(s) claimed for each record or portion thereof, the
date of and (if the record is a document) the number of pages in the entire record.
Please advise me of any destruction of records relating to this Request, and include the
date of and authority for such destruction. If any part of a requested record does not
exist, then I request to be so notified in writing.
I am willing to pay duplication costs for preparation of duplicate records in
fulfillment of this Request, up to a maximum amount of $10.00 USO. If you estimate that
the fees will exceed this limit, then please inform me first so that I may consider how to
proceed. I reserve the right to inspect all responsive records in lieu of, or in addition to,
obtaining duplicates of some or all of them.
I request that all of your communications with me concerning this Request be in
writing, and I expect an acknowledgment of this Request within five working days. In the
event that QBP does not comply with applicable law, then I will deem this Request to
have been denied and eligible for appeal. Please be advised that, in the event that I
commence a court proceeding pursuant to Article 78 of the Civil Practice Law and Rules
in connection with this Request, the court in such a proceeding may assess, pursuant to
FOIL and against QBP, reasonable attorney's fees and other litigation costs reasonably
incurred by me as a consequence of such proceeding; and I shall seek to recover all
such costs.
Please also be kindly advised that any person who, with intent to prevent public
I look forward to your reply. Thank you in advance for your anticipated
cooperation and assistance. Please address all correspondence to:
Robert Loscalzo
169-06 22nd Avenue
~~
Robert Loscalzo
Page 7 of 7

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~-

OFFICE OF THE QUEENS BOROUGH PRESIDENT

Diredng Respondents to provide Petitioner all records

A\varding Petitioner reasonable attorney's fees and costs as

PLEASE TAKE FURTHER NOTICE that. pursuant to CPLR 7804(c).

Attorne_vs for Petitioner

For a Judgment Pursuant to Article 78 of the

OFFICE OF THE QCEENS BOROUGH PRESIDENT

NOTICE OF VERIFIED PETITION

Great Neck. New York

SUPREME COURT OF THE ST ATE OF NEW YORK

In the Matter of the Application of

OFFICE OF THE QUEENS BOROUGH PRESIDENT

This is special proceeding against Respondent OFFICE OF THE QUEENS

BOROUGH PRESIDEI\T and Respondent MEUNDA KATZ, QUEENS BOROUGH

This special proceeding is brought pursuant to Article 78 of the New York

Petitioner is a videographer who has chronicled Willets Point since 2007.

Respondent OFFICE OF THE QUEENS BOROUGH PRESIDENT is an

agency of the City of New York.

Respondent MELINDA KATZ, QUEENS BOROUGH PRESIDENT, is the

Queens Borough President.

The principal office of Respondents is in the County of Queens, State of New

Respondents determination herein was affected by an error of law. CPLR

Venue is proper in the County of Queens since Respondents made the

determinations complained of in the County of Queens. CPLR 506(b).

Venue is proper in the County of Queens as the principal office of

Respondents is located in the County of Queens. CPLR 506(b).

Access Officer of Respondents (Request). Exhibit A, Petitioners Request.

Petitioner s Request \.Vas received by Respondents on or around May 16,

By r-.fa!' 23. 20 l 6. Respondents had not made the records requested by

Petitioner available to Petitioner.

By May 13. 2016. Respondents had not denied Petitioner~s Request in

By May 23. 2016. Respondents had not furnished to Petitioner a written

acknowledgement of the receipt of Petitione(s Request and a statement of the approximate

N.Y. Pub. Off. Law 89(5).

Respondents denied Petitioners Request on May 23.2016.

As a result of the foregoing, Respondents failed to comply with N.Y. Pub.

Off. Law 89(3)(a).

On June 4. 2016~ Petitioner timely appealed the denial of his Request by

Petitioner s Appeal was received by Respondents on or around June 6, 2016.

Petitioner the reasons for further denial.

records sought by Petitioner.

Respondents denied Petitioner access to the records sought in an appeal

This Petition is timely as it is filed \vithin four months of Respondents' denial

Willets Point is an industrial and manufacturing enclave of approximately

sixty-mo (62) acres located in the County of Queens.

for Willets Point.

one-third of the site ,:23 acres).

businesses continue w operate as they have for decades.

basic municipal ser,;ices commensurate \vith its activit}.

This neglect has hindered the economic productivity of the businesses of

Willets Point and their employees.

Property and business owners have come together in an effort to more

of WPU contacted Respondents and requested to be included in the second meeting,

Respondents did not repiy to \\rpu~s request.

The second meeting occurred on March 3.2016.

The attendees at both meetings consisted of Respondents. members of the

FIRST CAUSE OF ACTION

Wrongful Denial of Petitioner's Appeal

Petitioner repeats and realleges each and every allegation contained in

paragraphs .. I" through 44~' as if fully set forth herein.

Petitioners Request was mailed to the appropriate person.

Petitioners Request reasonably described the records sought.