Carty v. New York City Police Department

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered June 16, 2006, which denied the motion to amend the petition to include Freedom of Information Law requests for documents not previously sought, and granted respondent’s cross motion to dismiss the proceeding as moot, unanimously affirmed, without costs.

This proceeding was rendered moot by respondent’s certification that it had conducted a diligent search for the records that could not be located (Matter of Rattley v New York City Police Dept., 96 NY2d 873 [2001]; Matter of Alicea v New York City Police Dept., 287 AD2d 286 [2001]). Amendment of the petition to seek additional documents not previously requested was properly denied for petitioner’s failure to exhaust administrative remedies, a burden not negated by respondent’s purported failure to respond to the amended request in a timely fashion (Matter of Taylor v New York City Police Dept. FOIL Unit, 25 AD3d 347 [2006], lv denied 7 NY3d 714 [2006]). Concur— Andrias, J.P., Gonzalez, Sweeny, McGuire and Malone, JJ.