Matter of Binghamton Precast & Supply Corp. v. New York State Thruway Auth.


Matter of Binghamton Precast & Supply Corp. v New York State Thruway Auth. (2021 NY Slip Op 04399) Matter of Binghamton Precast & Supply Corp. v New York State Thruway Auth. 2021 NY Slip Op 04399 Decided on July 15, 2021 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:July 15, 2021 531431 [*1]In the Matter of Binghamton Precast & Supply Corp., Appellant, vNew York State Thruway Authority, Respondent. Calendar Date:May 27, 2021 Before:Lynch, J.P., Clark, Aarons and Colangelo, JJ. Hinman Howard & Katell, LLP, Binghamton (Albert J. Millus Jr. of counsel), for appellant. Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent. Aarons, J. Appeal from a judgment of the Supreme Court (Koweek, J.), entered May 7, 2020 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's Freedom of Information Law request. In December 2018, petitioner, a manufacturing company, submitted a request under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) to respondent pertaining to the solicitation of bids for construction contracts. According to petitioner, The Fort Miller Co., Inc., one of petitioner's competitors, was selected as a supplier for construction projects in violation of competitive bidding requirements. After respondent requested additional time to respond to the FOIL request, respondent ultimately notified petitioner in July 2019 that, as relevant here, it did not possess responsive documents. Petitioner's administrative appeal was subsequently denied. Petitioner thereafter commenced this CPLR article 78 proceeding seeking, among other things, a "meaningful and honest response" to its FOIL request and an evidentiary hearing. Supreme Court dismissed the petition, prompting this appeal by petitioner. An agency that cannot find documents properly requested under FOIL must certify that it does not possess the requested documents or that such documents could not be located upon a diligent search (see Public Officers Law § 89 [3] [a]; Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]; Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d 1043, 1044 [2016]). As relevant here, petitioner requested as item number 2, "[a]ll 'backdrop contracts' awarded to Fort Miller from January 1, 2016 to present, and all bid documents relating to any such contracts." As item number 3, petitioner requested "[a]ll documents relating to the selection of Fort Miller as a sole source provider for precast contract products in connection with [certain construction projects]." The record contains an affidavit from an attorney with respondent responsible for responding to FOIL requests. The attorney averred, consistent with the July 2019 response to petitioner, that respondent was not in possession of documents responsive to petitioner's FOIL request. The attorney specifically stated that Fort Miller "was never selected as a sole source provider"[FN1] for the construction projects at issue and that respondent …

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