1. SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SCHENECTADY
RASHAD SCOTT,
Petitioner,
-against-
JOHN R. POLSTER, Corporation Counsel; Index # 2014-0683
MARYANNE MCCUTCHEON, Information Access
Officer
Respondents.
For a Judgment Pursuant to Article 78 of the Civil Practice
Law and Rules
_________________________________________________
Verified Answer and Memorandum of Law In Opposition to Petitioner’s
Order to Show Cause
Respectfully Submitted,
______________________________
Carl G. Falotico, Esq.
Corporation Counsel
City of Schenectady
By: Krystina K. Smith, Esq.
Assistant Corporation Counsel
105 Jay Street, Room 201
Schenectady, New York 12305
(518) 382-5073
Counsel for the Respondents
Dated: March 9, 2015
Schenectady, New York

2. TABLE OF CONTENTS
Verified Answer to Petitioner’s Order to Show Cause…………………………………………..1
Memorandum of Law…………………………………………………………………………….2
Background………………………………………………………………………………2
Argument
I. This Court should grant Respondent’s Motion to Dismiss because this
Proceeding is barred by the Statute of Limitations………………………..4
a. Petitioner’s 2013 request is a duplicate of the previously denied
and/or constructively denied 2009 request………..………………4
b. The Statute of Limitations for an Article 78 Proceeding is four
months…………………………………………………………….5
c. The Petitioner is statutorily barred from seeking review of the 2009
denial by seeking review of the duplicate 2013 denial……………7
II. The denial of the 2013 request was neither arbitrary nor capricious
because there is a rational and substantive basis on which to support that
denial………………………………………………………………………8
III. If this Petition is not time-barred by the Statute of Limitations and the
Court does not uphold the original denial, then the Respondent-Agency
still has the right to request proof of an ability to pay before making the
requested copies of documents available to the Petitioner………………10
Conclusion……………………………………………………………………………….11

3. Verified Answer in Opposition to Petitioner’s Order to Show Cause
Respondents, as and for the answer to the Order to Show Cause sworn by the Petitioner on April
1, 2014, respectfully allege as follows to the numbered paragraphs of the Affidavit in Support of
Order to Show Case:
Paragraph 1 Admit
Paragraph 2 Admit that the Petitioner is pursuing the Article 78 proceeding in response
to the denial of his FOIL Request on January 2, 2014, but wish to make clear that this denial was
in response to a FOIL request dated December 18, 2013, which was a duplicate of the March 22,
2009 request mentioned in the affidavit. The Respondent also denies that it must now provide all
of the requested documents, not redacted, to the Petitioner without the payment of fees.
Paragraph 3 Lack of knowledge or sufficient information to form a belief regarding the
allegations of this paragraph
Paragraph 4 Admit
Paragraph 5 Deny, as this proceeding constitutes nothing more than a belated attempt
to challenge the response to the petitioner’s initial 2009 request, which is barred by the
applicable statute of limitations
The Respondents seek to add the following:
Paragraph 6 Respondents deny each and every allegation of the Order to Show Cause
not herein specifically admitted
Paragraph 7 The Respondent makes a motion to dismiss this Article 78 Petition, in the
form of an Order to Show Cause, because the Petitioner has failed to comply with the applicable
statute of limitations.

4. Memorandum of Law
Background
In his Article 78 Petition, Rashad Scott, a convicted murderer, seeks to compel the City
of Schenectady to disclose records pertaining to his arrest on February 19, 1998. Petitioner seeks
these records for the purposes of “a demand for examination pursuant to Section 50-h of the
General Municipal Law.” (Petitioner’s Exhibit “A” March 22, 2009 FOIL Request at 2). To
date, the City of Schenectady is not in receipt of any Notice of Claim filed by the Petitioner
against the City of Schenectady or its departments.
Petitioner’s request is essentially a laundry list of items related to the investigation which
led to his indictment, arrest, trial, and conviction of the crimes of murder in the second degree
(two counts), robbery in the first degree (four counts), robbery in the second degree, burglary in
the first degree (four counts), assault in the first degree, assault in the third degree, and
conspiracy in the fourth degree. People v. Scott, 294 A.D.2d 661 (2002).
He submitted his first request on March 22, 2009. (Petitioner’s Exhibit “A” March 22,
2009 FOIL Request). He then submitted a duplicate request on December 19, 2013.
(Petitioner’s Exhibit “C” December 19, 2013 FOIL Request). The Petitioner asserts in paragraph
2 of his Order to Show Cause that the Respondent did not deny the 2009 request until January
2nd, 2014, but his own exhibits demonstrate that the denial submitted on January 2nd, 2014 was
issued in response to the duplicate request submitted on December 19, 2013. (Petitioner’s
Exhibits A, C, and D).
The Petitioner maintains that the City failed to respond to his 2009 request and uses this
as the basis for the resubmission of his request in December 2013. While the City maintains that
it did timely deny the 2009 request, it cannot offer affirmative proof because it does not have in

5. its possession the records from the 2009 request. New York State guidelines require that the
City maintain such documents for a period of six months. (See Respondent’s Exhibit “1” MU-1
Records Retention and Disposition Schedule). However, in its stead, the Respondent submits the
affidavit of its Information Access Officer, Maryanne McCutcheon. Ms. McCutcheon was the
person responsible for processing the 2009 request and, in her sworn statement, concluded that
she likely denied the 2009 request on the grounds that the requested documents were previously
made available to the Petitioner during the discovery phase of his criminal trial or at the end of
said trial. (Respondent’s Exhibit “2” Affidavit of Maryanne McCutcheon Paragraph 14). This
position is supported by the sworn affidavit of the Petitioner’s former attorney at trial, Mr. Lee
Greenstein, Esq. (See Respondent’s Exhibit “3” Affidavit of Prior Counsel).
The Statute of Limitations, to review the denial of the 2009 request, has long since
expired. The Petitioner has provided no evidence that he timely appealed the 2009 determination
in an application to designated head of the governing body pursuant to Public Officer’s Law
Article 6 Section 86-4 or that he timely commenced this Article 78 proceeding. The Petitioner
cannot use the resubmission of his 2009 request, in the form of the December 2013 request, as
the means to get around the tolling of the Statute of Limitations. Even if the City failed to
respond timely to the 2009 request, as the Petitioner alleges in his order to show cause, then that
failure to respond is considered a constructive denial of the 2009 request which would begin the
tolling of the statute of limitations.
ARGUMENT
I. This Court should grant Respondent’s Motion to Dismiss because this Proceeding is
barred by the Statute of Limitations
A. Petitioner’s 2013 request is a duplicate of the previously denied and/or
constructively denied 2009 request.

6. The Freedom of Information request, currently before this court, is a duplicate request.
In his Order to Show Cause, the Petitioner attached several exhibits, specifically Exhibits “A”
and “C.” Exhibit “C” is the second request, dated December 19, 2013. This document outlines
seventeen specific categories of information that the Petitioner is requesting pursuant to Public
Officer’s Law Sections 84-89. However, the Petitioner previously requested these very same
seventeen items in his request dated March 22nd, 2009, which is Petitioner’s Exhibit “A.” A
review of these documents, by this Court, lends itself to only one credible conclusion: that the
2013 request is essentially identical to the prior 2009 request, the denial of which petitioner
failed to seek judicial review.
B. The Statute of Limitations for an Article 78 Proceeding is four months.
In order to challenge the denial of the 2009 request, the Petitioner ought to have filed suit
within four months of said denial by the Respondent. New York State Civil Practice Law Article
2 Section 217 provides that a proceeding against a body or officer must be commenced within
four months after the determination to be reviewed becomes final and binding upon the
petitioner. In this case, the Petitioner has argued that the City failed to respond to his March
22nd, 2009 FOIL Request.
The Respondent can only assert, based on information and belief that it responded timely
to the 2009 request. Additionally, the Respondent argues, that based on the Petitioner’s own
assertions, the statute of limitations began to run after the Respondent-City’s constructive denial
of the 2009 request. Public Officer’s Law Article 6 Section 89-4(a) states:
“that if neither a response to a request nor an acknowledgement of the receipt of a request
is given within five business days, if an agency delays responding for an unreasonable
time beyond the approximate date of less than twenty business days given in its
acknowledgement, if it acknowledges that a request has been received, but has failed to
grant access by the specific date given beyond twenty business days, or if the specific

7. date given is unreasonable, a request may be considered to have been constructively
denied.”
Here, the Petitioner has submitted a copy of correspondence sent to him by the Respondents on
April 10, 2009. (See Petitioner’s Exhibit “A” Letter from Corporation Counsel’s Office). This
letter indicates that he will receive a response within twenty days from that date of that letter.
The Respondent maintains that it followed proper procedure and issued a denial of the
Petitioner’s 2009 request within twenty days. In support of that assertion, the Respondent has
submitted the affidavit of its Information Access Officer, Maryanne McCutcheon, as evidence of
normal and routine office procedures at the time Petitioner submitted his 2009 request.
Affidavits showing that normal office procedures existed and were followed to assure that the
determination was communicated and received by the petitioner within a certain time-frame are
sufficient to shift the burden of persuasion to the petitioner. See Matter of Fortunator v.
Workers’ Comp. Bd. of N.Y., 270 A.D.2d 641 (3d Dept.), lv. Denied, 95 N.Y.2d 761 (2000). In
this case, the Respondent submits this affidavit as sufficient evidence to show that it was in
compliance with the requirements of the Public Officer’s Law regarding the 2009 request.
Should this Court discount that evidence, the Respondent continues to assert that this
proceeding is untimely. The Appellate Division dismissed an Article 78 Petition as untimely in
Van Steenburg v. Thomas. 242 A.D.2d 802 (1997). In that case, the petitioner made a FOIL
request in August 1994, for records in connection with his arrest, indictment, and conviction. Id.
It followed that the State Agency denied access to portions of the requested investigative reports
on October 4, 1994. Id. In May 1996, the petitioner made a second FOIL request for, among
other things, the previously denied reports that was then denied a second time. Id. Only then did
the petitioner to commence an Article 78 proceeding to review the May 1996 denial. Id. The
Appellate Division went on to find that the 1996 proceeding “is a belated attempt to appeal the

8. October 4, 1994 denial of access to information and is therefore barred by the Statute of
Limitations.” Id. at 803. In making this determination, the Court looked to the factual
circumstances: the petitioner asserted that he submitted an administrative appeal of the 1994
request and the respondent denied receipt. Id. It reasoned that upon respondent’s failure to
address the appeal within 10 days, the petitioner was deemed to have exhausted his
administrative remedies, thereby enabling him to seek judicial review of the denial thereof and
commencing the four-month Statute of Limitations. Id.
In this case, if as the Petitioner contends, the City did not respond within twenty days,
then the Respondent argues that the request was constructively denied as of Friday, May 8th
2009. As such, the Respondent argues that the statute of limitations begins to run from the date
the determination sought to be reviewed becomes final and binding, which here is May 8th, 2009.
See Matter of DeMilio v. Borghard, 55 N.Y.2d 216, 220 (1982); Matter of Rakiecki v. State
Univ. of N.Y., 31 A.D.3d 1015 (3d Dep’t 2006). This is the date, at which point, the Petitioner
had exhausted his administrative remedies that would allow him to seek relief under Article 78.
Therefore, the Statute of Limitations expired as of September 8, 2009.
C. The Petitioner is statutorily barred from seeking review of the 2009 denial by
seeking review of the duplicate 2013 denial.
In seeking to review the denial of the December 19, 2013 request, the Petitioner is
actually seeking review of the denial of the March 22, 2009 request. The Respondent believes it
has successfully established that the 2013 request is merely a duplicate of the 2009 request: as
the requested items are identical in both.
When two identical FOIL requests are submitted by a petitioner and denied by a
respondent agency, the Court must look to the first request on the issue of whether Article 78
review is timely brought. In Vann v. Callahan, the petitioner, a prison inmate, submitted several

9. requests between March 1994 and February 1995 to the State Police, under the Freedom of
Information Law, for documents related to his 1991 conviction of murder in the second degree.
Vann v. Callahan, 16 A.D.3d 849 (2005). The petitioner’s requests were all denied and in
June 2003, he submitted the FOIL request at issue the court. Id. The court noted that the
requested information in the June 2003 request were essentially the same documents that the
petitioner had sought eight years earlier. Id. The court noted that the petitioner had failed to
seek judicial review of the earlier denials, which resulted in the proceedings then before the
Court being dismissed as they were barred by the Statute of Limitations. Id.
The same occurred in Hilden-Menendez v. New York City Police Dept. 260 A.D.2d 262
(1999). However, in Hilden-Menendez, the Court relied on the respondent agency’s constructive
denial of the initial FOIL request based on facts similar to those before this Court. See Id. In
that case, the Respondent maintained that it did not respond to petitioner’s request because it
never received it and argued that even if it had received it, it would not have responded or would
have denied it, because it sought the same information as a prior request that had been fully
processed. Id. The Court then held that, upon review of the two requests, that they were
duplicative and, accordingly, the proceeding was properly dismissed as a belated attempt to seek
judicial review of the denial of the first request. Id. at 603.
In this case, the Court must look to the March 2009 request when determining whether
the Petitioner’s attempt at judicial review is timely brought. Since his 2009 request is identical
in sum and substance to his 2013 request, the action is time-barred and it would be proper for the
Court to grant Respondent’s motion to dismiss.
II. The denial of the 2013 request was neither arbitrary nor capricious because
there is a rational and substantive basis on which to support that denial.

10. If the Court denies Respondent’s motion to dismiss, then the Respondents maintains that
the denial of the December 2013 request was proper. In his Order to Show Cause, the Petitioner
attached a copy of the Response Letter, dated January 2, 2014, from the Information Access
Officer stating why she denied his request: “information was previously released to District
Attorney’s Office as part of an ongoing prosecution.” (See Petitioner’s Exhibit “D”).
Essentially, the Respondent argues that the information requested was made available to the
Petitioner during the discovery phase of his trial.
In Riley-James v. Soares, the petitioner requested from respondent’s office copies of any
documents pertaining to promises made or funds given to witnesses at his trial and any
documents pertaining to proposed plea agreements. Riley-James v. Soares, 33 A.D.3d 1171,
1172 (2006). Respondent later argued, during the timely-brought Article 78 proceeding, that it
previously provided the requested materials to petitioner’s then defense counsel. Id. The Court
did not find this assertion, that petitioner had failed to come forward with an adequate showing
that the records requested are no longer available through [his] criminal defense counsel, to be
sufficient credible evidence on which to deny the request. Id. It noted that such a statement was
far from a sworn assertion that the requested materials indeed were turned over to defense
counsel and certainly failed to demonstrate, through documentary proof that copies of such
documents were previously furnished to defense counsel. Id.
In fact, the court cited and relied upon by Petitioner’s counsel in chambers, Rose v.
Albany County District Attorney’s Office, relied upon the holding in Riley-James for its position
that the respondent-agency must provide competent proof that the documents responsive to these
requests were previously provided to petitioner during discovery in his criminal action. Rose v.
Albany County District Attorney’s Office, 111 A.D.3d 1123, 1126 (2013).

11. In Moore v. Santucci, the Court noted that the mere fact that disclosure was available to
the applicant through some other discovery device, such as under CPLR Article 31 in a plenary
action or under CPL Article 240 in a criminal proceeding, does not ipso facto preclude FOIL
relief, if warranted. Moore v. Santucci, 1515 A.D.2d 677, 678 (1989). However, it went on to
note that a Court could uphold a denial when the petitioner or his attorney previously received a
copy of the [requested] agency record pursuant to an alternative discovery device and currently
possesses a copy. Id.
Here, the Respondent has obtained an affidavit from Petitioner’s prior attorney: Lee
Greenstein, Esq. (Respondent’s Exhibit “3” Affidavit of Prior Counsel). Mr. Greenstein
represented the Petitioner in regards to his February 19, 1998 arrest in regards to an incident that
occurred on March 12, 1997. In Paragraph 7, he states that he has maintained Mr. Scott’s file as
it is his practice and that he responded to a similar request made by Mr. Scott some years ago.
Therefore, the Respondent asserts that it has submitted affirmative evidence in support of the
determination made by the Information Access Officer, thereby demonstrating that such
determination was neither arbitrary, nor capricious and should be upheld.
III. If this Petition is not time-barred by the Statute of Limitations and the Court
does not uphold the original denial, then the Respondent-Agency still has the
right to request proof of an ability to pay before making the requested copies
of documents available to the Petitioner.
The Respondent agency has the right to require that the Petitioner provide proof of ability
to pay for the requested documents prior to preparing them. The Respondents return to the
Appellate Division decision of Moore v. Santucci for the position that it is not responsible to
provide these documents to the Petitioner free of charge, despite the fact that he claims
indigence. In Santucci, the Court reasoned that “in the event the petitioner’s request for a copy
of a specific record is not moot, the agency must furnish another copy upon payment of the

12. appropriate fee. Moore v. Santucci, 1515 A.D.2d 677, 678 (1989), see also Public Officers Law
§87, Sheehan v. Syracuse, 521 N.Y.S.2d 207.
The purpose of the Freedom of Information Law is to make information available for
inspection by the general public, and if a member of the public requests that copies be made,
then a fee can be charged. Public Officer’s Law §87(c)(iv) states “that preparing a copy shall not
include search time or administrative costs and that no fee shall be charged unless at least two
hours of agency employee time is needed to prepare a copy of the record requested. The person
making the request will be informed of the cost or if an outside professional service would need
to be retained to obtain a copy of the record.”
Additionally, Schenectady City Code §57-7 allows for the charging of $0.25 per page of
requested documents. In this case, the Petitioner has requested a seventeen-year-old case file
which will take time to find. One can assume, based on the nature of the documents requested,
that the record is voluminous and will take time to properly redact and photocopy. The
Respondent finds no place in the law where fees charged under the Freedom of Information Law
are waived based on claims of indigence. The Law requires only that the documents be made
available, not that they be provided free of charge because the person requesting the documents
is currently incarcerated and therefore, unable to view them in person.
CONCLUSION
This petition is barred by the statute of limitations. Petitioner’s 2013 request is identical
to his 2009 request; the denial or constructive denial of which he did not timely request review.
As such, the Respondent makes a motion to dismiss on those grounds.
However, should the Court find that this Petition is timely; the Respondent continues to
assert that its denial of the 2013 request was neither arbitrary nor capricious. The Respondent

13. maintains that the Petitioner had and may continue to have access to this information through his
prior attorney, Lee Greenstein Esq. Mr. Greenstein has submitted an affidavit in support of this
position. Lastly, the Petitioner is not entitled to this information free of charge, but must show
an ability to pay for the requested documents before the Respondent takes the time and effort to
not only make them available for inspection, as required to by law, but to make true and accurate
copies for the Petitioner’s later use.
WHEREFORE, the Respondents respectfully request that the Petition, which requests
relief under CPLR Article 78 be dismissed.
Dated: March 9, 2015
______________________________
Krystina K. Smith, Esq.
Assistant Corporation Counsel
Attorney for Respondents
105 Jay Street
Schenectady City Hall
Schenectady, New York 12305

14. VERIFICATION
State of New York: SS:
County of Schenectady:
Maryanne McCutcheon being duly sworn, deposes, and says that she is the Information Access
Officer and a Respondent-Defendant in the within matter; that deponent has read the foregoing
Verified Answer and knows the contents thereof; that the same is true to deponent’s own
knowledge, except as to matters therein stated to be alleged on information and belief, and that as
to those matters deponent believes it be true.
_________________________________
Maryanne McCutcheon
City of Schenectady
Information Access Officer
Sworn before me, this 9th day of March, 2015