INDEX
NO.
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NO.
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DOC.
NO.
109
NYSCEF
DOC.
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RECEIVED
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SUPREME
COURT
OF
THE
STATE
NEW YORK
E1LEEN
HON.
A.
NEW YORK
OF
COUNTY
RAKOWER
PRESENT:
PART
Justice
·
Index
Number
BSF
INWOOD
: 157569/2019
INDEX NO.
LLC
HOLDING,
MOTION DATE
vs
NEW
Y ORK
Sequence
ARTICLE
Number
Replying
Upon
MOTION SEQ. NO.
: 001
m!mbend
papers,
of Motion/Order
Answering
OF
78
The following
Notice
DEPARTMENT
CITY
Affidavits
1 to
to Show Cause
-
, were
-
read on this motion
-
Affidavits
to/for
Exhibits
No(s).
Exhibits
No(s).
Affidavits
the foregoing
No(s).
papers,
it is ordered
that
this
=:"::
__
is
o
Dated:
, J.S.C.
7...g
HON.
1. CHECK
...-
ONE:
............MOTION
2. CHECK AS APPROPRIATE:
3. CHECK
IF APPROPRIATE:
.......
CASE
IS:
O
DENIED
GRANTED
SETTLE
ElLEEN
DISPOSED
GRANTED
NON-FINAL
FIDUCIARY
DISPOSITION
OTHER
IN PART
SUBMIT
ORDER
DO NOT POST
O
RAKOWER
A.
0
APPOINTMENT
ORDER
REFERENCE
INDEX
NO.
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NO.
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NYSCEF
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NO.
109
NYSCEF
DOC.
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COURT
SUPREME
COUNTY
OF
THE
STATE
NEW YORK:
OF
NEW YORK
OF
PART
6
--------------------------------------------In
the
Matter
----------X
Application
the
of
INWOOD
BSF
of
Index
LLC
HOLDING,
No.
157569/2019
Petitioner,
DECISION
For
of
a Judgment
the
to
Pursuant
Civil
Law
Practice
and
Rules,
- against
NEW YORK
-
DEPARTMENT
CITY
AND
PRESERVATION
ORDER
and
78
Article
OF HOUSING
Mot.
1
Seq.
DEVELOPMENT,
Respondent.
-------------------------------------------------------X
HON.
EILEEN
BSF
Petitioner
pursuant
for
to
an
and
to
Program
declare
In
to
the
Civil
of
New
York,
if
alternative,
no
§ 3001.
Respondent
cross
Relevant
Program
Pilot
The
"Pursuant
buildings
identify
York
lawful
at
4).
City
Council
occupants
Respondent
owned
exist,
to
all
on
responsive
located
Respondent's
Petitioner
seeks
Pilot
dismiss
78")
Housing
Petitioner
by
Respondent's
moves
of
disclose
"Building")
documents
to
to
action
("Article
Department
"HPD")
(the
this
Rules
and
City
building
York
added
unlawfully
Law
York
or
the
brings
("Petitioner")
Practice
New
involvement
was
CPLR
York
("Respondent"
New
the
Petitioner
pursuant
New
the
Respondent
Avenue,
List.
LLC
Holding,
Development
related
Vermilyea
66
of
compelling
Preservation
J.S.C.
Inwood
78
Article
Order
documents
RAKOWER,
A.
the
at
Pilot
Court
the
Program
Verified
to
List
Petition.
Background
List
to
Law
Local
that
shared
believed
within
2018,
certain
to
of
a likelihood
specified
a Pilot
was
[Respondent]
characteristics
led
implemented
1 of
required
to,
which
distress',
'building
of
suspected
harassment
Districts."
(Verified
Community
Program
List
to
identify
inter
if
the
of
a building
alia,
New
existing
Petition
was
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65
under
distress.
a building
"A
whether
a
it
full
within
the
of
is
in
order
ending
since
February
tenants
FOIL
Respondent
by
the
if
2018,
the
if
November
8,
Buildings
(Verified
Petition
was
at
for
found
active
more
to
4).
Request
1, 2018
and
Petitioner
2018,
a FOIL
sent
seeking:
"Specifically,
and
Information
any
the
supporting
and
City
'score'
Building's
Qualification
below
Freedom
State
of
Index;
formula
'score,'
on
[Respondent]'s
Building
and
method
[Respondent]'s
A
to
following
the
Laws:
The
2.
the
documentation
pursuant
information,
1.
requests
[Petitioner]
information
3.
subject
an
('AEP')
owner
building's
of
('DOB')
was
building
program
the
was
building
of
enforcement
or
1, 2016,
agency."
a city
the
Index
regardless
List,
Department
24,
July
if
District,
whether
Qualification
Program
Pilot
as
such
Building
York
alternative
[Respondent]'s
harassing
to
New
the
a building,
rank
Respondent's
Community
by
period
On November
to
on
added
a specified
issued
five-year
be
also
may
to
criteria
necessary
located
months
Petitioner's
used
certain
"score"
building
in
four
guilty
the
vacate
participate
than
Respondent
had
("BQI").
to
RECEIVED
03/19/2020
RECE IVE D NYSCEF:
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02/19/2020
employed
of
by
calculation,
to
[Respondent]
including
the
calculate
the
and
list
other
of
the
record
data,
information,
utilized
to
the
calculate
documentation
'score.'
or
any
...
In
Freedom
behalf
of
of
the
[Petitioner]:
custody
inclusion
Hosing
emergency
notes,
memoranda,
of
to
the
Pilot
records
of
repair
this
copies
of
which
pertain
Program
List,
and
as
well
correspondence,
opinions,
Firm
to
files,
2
the
any
other
but
not
of
or
unpaid
statements,
determinations,
forms,
in
Building's
violations
paid
on
records
including,
printouts,
folders,
State
requests
other
any
of
as
and
City
closed
records
Code,
charges,
York
Laws,
open
Maintenance
New
the
Information
[Respondent]'s
limited
to
pursuant
addition,
photographs,
the
Request
be
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NO.
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NO.
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or
letters
inclusion
an
identical
response
(Verified
Petition
12,
2018
sent
on
argues
FOIL
at
Program
is
9).
the
Request
asserts
that
an
if
failed
that
it
Petitioner's
has
seeking
Request,
the
response
to
included
a spreadsheet
also
calculate
records
FOIL
the
spreadsheet
the
BQI
score
of
appeal.
the
and
the
BQI
that
the
to
individual
Petitioner
on
the
that
be
Petitioner
then
included
be
its
would
that
Respondent,
by
should
Pilot
pursuant
Program.
done
Building
on
contends
Pilot
not
exempt
from
law."
(Verified
data
the
requested
building
underlying
was
the
buildings
include
analysis.
Building
to
at
in
issue
BQI
on
the
for
has
a column
each
BQI
of
of
score
labeled
it
for
that
as
at
it
disclosed
every
in
it
7-8).
"BDI"
3
8,
four
in
Building
provided
a pdf
the
full
numbers
argues
in
the
Request")
FOIL
2018
that
in
that
included
and
includes
28,
documents
RCNY
28
it
prior
avers
building
Respondent
the
building.
also
FOIL
Respondent
Petitioner's
BQI,
Law
28,
that
November
on
2019
as
Request
November
and
identified
for
that
proceeding.
Request,
contends
calculation
Memo
this
Districts
score
contends
dismissed
asserts
FOIL
Petitioner's
2018
1,
in
the
Respondent
to
be
Respondent
("November
FOIL
2019
Community
the
records
Request
containing
score.
for
28,
records.
November
the
should
proceeding
Respondent
FOIL
to
the
responsive
responsive
Request
list
that
proceeding.
November
the
methodology
53-03."
(Respondent's
the
Petitioner's
contrary
can
"BQI")
the
all
another
included
the
Respondent
2019,
purportedly
plainly
analysis
argues
all
78
sent
similar
which
to
to
Petition
2019,
7,
8,
the
refusal
produce
were
and
analysis
include
disclosed
Article
Program
an
demonstrate
disclosed
Petitioner
Pilot
April
to
"failure
(the
Respondent
it
because
2019,
to
opposition,
certified
out
pursuant
furnish
List.
Program
moot
analysis
has
In
to
not
January
2018
12,
documents
statistical
Respondent
Respondent
Pilot
the
On
Respondent
Index
sought
for
that
carrying
Qualification
Building
required
after
only
"did
FOIL
Contentions
capricious,
asserts
Petitioner's
[Respondent]'s
On
at3).
December
requested
and
arbitrary
for
response.
Respdndent's
the
why
Petitioner
List
FOIL
to
state
disclosure
Petition
to
to
or
documents,
that
to
response
response
explanation
Parties'
Petitioner
a
a written
was
that
sent
the
on
the
Building's
List."
Program
Respondent's
December
Respondent's
Pilot
that
provide
sought."
information
the
appealed
nor
and/or
Respondent
contends
sought
furnish
Index
2018,
'score'
Building's
[Respondent]'s
12,
Petitioner
information
sent
on
December
Request.
the
Qualification
Building
On
to
pertaining
on
the
§ 53-02(2)(a),
all
data
that
text
of
used
"sets
28
that
even
column
are
to
forth
RCNY
though
actually
§
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Respondent
this
matter.
further
argues
had
when
request
its
that
for
basis
disclosure
in
"substantially
if
award
its belief
27,2019."
March
of
prevailed"
not
"[e]ven
an
however,
a reasonable
by
has
avers
prevailed,
substantially
Respondents
Petitioner
Respondent
Moreover,
Petitioner
that
of
that
fees
it
Court
the
not
is
granted
that
finds
as
automatic,
FOIL
Petitioner's
Memo
(Respondent's
Law
of
at
13).
Legal
"To
a broad
promote
on
duty
Law
Officers
89
NY2d
for
public
to
for
"At
record
not
to
Officers
Ct,
NY
in
Law
§
"failed
agency
had
the
POL
to
of
not
prepare
in
any
(1st
enumerated
maximum
ensure
with
construed,
material
No.
v
indeed
not
in
a
diligent
after
York
has
agency
see,
shall
Article
or
be
maintained
when
met
WL
by
certifies
it
search.
2010
402817/08,
New
omitted);
this
possessed
are
Russo,
("an
1999)
FOIL
any
No.
v
(citations
record
prepare
Brown
; See,
Dept
'[n]othing
records
to
entity
Covington
that
under
v Russo,
any
existence...")
obligations
Covington
open
the
requested
2010]
561-562
requested
of
narrowly
the
Dept.,
presumptively
"To
be
Police
City
one
require
entity."
County
(providing
agency's
basis
after
where
to
fees
if
a party
a request
basis"
interest
a court
law
litigation
court
finds
to
for
finds
the
or
See
Public
2158247
the
reasonable
attorney's
prevailed"
and
"substantially
within
appeal
denial.
the
POL
See
costs
to
a party
'the
(1)
public,'
that
the
statutory
4
§
statutory
time";
89(4)(c).
The
a court
provision,
fee-shifting
general
withholding
that
has
for
award
may
FOIL's
to
and
the
in
a court
§ 89(4)(c),
"[p]ursuant
stated,
significant
Only
to
"reasonable
proceeding
reasonable
are
not
such
558,
§ 89(3)
respond
counsel
clearly
[c]).
an
incurred
no
has
reasonable
in
to
costs
agency
AD2d
entity
that
NY
Ct,
to
York
Public
(see,
[Sup
2010]
Pursuant
Appeals
any
possession
89(3)."
County
litigation
Law
274-275.
are
does
by
that
at
Id.
public
thus
are
within
the
imposes
omitted).
FOIL
[Sup
New
v
fall
exemptions
maintained
documents
they
(citation
however,
to
records
demonstrate
275
2158247
"Thus,
not
at
264
require
entity").
is
to
agency
or
Officer's
construed
it
the
time,
create
Public
that
the
Department,
to
Law
documents,
WL
2010
duty
such
same
available
Gould
FOIL
the
accountability,
records
unless
87(2)."
§
copying
Id.
public
government
Officers
possessed
Police
also,
Public
the
"All
and
on
resting
exemption."
402817/08,
no
[1996].
government
qualifies
City
274
and
its
make
declaration])."
to
[legislative
inspection
burden
the
§ 84
of
government
government
267,
exemptions
access
open
Standard
that
record
and
record'(Public
prerequisites
fees
and
when
the
and
the
Court
of
award
prevailed'
may
'substantially
involved
(2)
'the
agency
Officers
have
in
was,
been
fact,
of
lacked
Law
satisfied
§
89
a
[4]
may
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NO.
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it
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exercise
Care
discretion
its
Ctr.
v.
award
to
or
5 N.Y.3d
Signor,
attorneys'
decline
441
435,
fees."
Beechwood
Restorative
[2005].
Discussion
satisfies
Respondent
Respondent
submits
Officer
in
certifies
that
that
it
to
disclosed
the
by
To
the
was
unlawfully
finds
that
relevant
extent
Respondent
The
ORDERED
Petition
Respondents
Accordingly,
attorneys'
for
fees
it
is
that
is
to
Program
has
is
are
have
after
its
"hereby
FOIL
request
search."
diligent
a
Covington
No.
v Russo,
2010].
Court
the
pursuant
List
to
met."
County
declare
that
that
CPLR
to
documents
shown
not
located
Access
Respondent
that
89(3).
§
Records
the
responsive
FOIL
responsive
Petitioner
and
Wherefore
Pilot
the
were
NY
Ct,
seeks
provided
manner.
capricious
and
records
under
Petitioner
to
added
factors,
all
agency
[Sup
states
POL
to
("Saffan"),
Saffan
Petitioner
2158247
that
Saffan
Dina
"obligations
WL
2010
of
pursuant
requirement
Respondent.
at
Respondent's
402817/08,
request
has
certification
Affidavit
unit
maintained
are
Therefore,
or
the
FOIL
the
the
to
the
the
§ 3001,
Court
considered
Petitioner,
acted
Respondent
Building
in
an
arbitrary
denied.
to
Cross-Motion
Dismiss
is
Petitioner's
granted.
denied.
hereby
the
Petition
is
denied
and
Respondent's
Cross-Motion
granted.
This
is
constitutes
the
Decision
and
Order
of
the
Court.
All
other
relief
denied.
FEBRUARY
Dated:
, 2020
Eileen
.
5
A.
Rakower
J.S.C.
requested
is