Preview
FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
- ------------------------------------------------------------------- X
ANTHONY FASANO,
Index No.
Petitioner,
VERIFIED PETITION
-against-
NASSAU COUNTY and NASSAU COUNTY CIVIL
SERVICE COMMISSION,
Respondent(s),
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules
- ------------------------------------------------------------------- X
TO THE ABOVE-NAMED RESPONDENT(S):
Petitioner, ANTHONY FASANO, by and through his attorneys, GUERCIO & GUERCIO,
LLP, as and for her Verified Petition alleges as follows:
PRELIMINARY STATEMENT
1. That, this Article 78 proceeding pursuant to the Freedom of Information Law
(“FOIL”), Article 6 of the Public Officers Law, seeks to vindicate the rights of Petitioner,
ANTHONY FASANO (“Petitioner”), and of the public to access records regarding Respondents
NASSAU COUNTY and NASSAU COUNTY CIVIL SERVICE COMMISSION (collectively
“Respondent”).
2. That, Respondent has refused to produce public records in response to a FOIL
request by Petitioner, which sought records relating to an expected decision being made by Nassau
County Civil Service. That Respondent has entirely failed to respond Petitioner’s repeated
attempts to resolve this matter at the administrative level.
3. That, having exhausted its administrative remedies, Petitioner now asks the Court to
order the production of requested documents within 30 days of this Court’s order, award Petitioner
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its costs and attorney’s fees in this proceeding, and granting such other and further relief as this Court
deems just and proper.
PARTIES/VENUE
3. That, Petitioner, ANTHONY FASANO, is a member of the public, as that term is
used in Article 6 of the Public Officers Law and a resident of the State of New York.
4. That, Respondent, Nassau County, is a municipal agency organized under the laws
of the State of New York with its principal place of business in Nassau County, and is otherwise
considered an agency under FOIL.
5. That, Respondent Nassau County Civil Service Commission is a municipal agency
organized under the laws of the State of New York with its principal place of business in Nassau
County, and is otherwise considered an agency under FOIL.
FACTS
FOIL Request
6. That, on May 15, 2024, Petitioner made a FOIL request on Respondent seeking five
categories of records. A true and accurate copy of the FOIL request made by the undersigned is
attached hereto as Exhibit “1”.
7. The FOIL request sought five categories of records:
8.
1. The entire case file relating to the Commission's investigation and determination relating to
Martin DarConte, in which a letter dated May 9, 2024, was issued to Mr. DarConte;
2. All correspondence issued to either the Farmingdale UFSD or Martin DarConte relating to the
residency investigation on Mr. DarConte;
3. All complaints received by the Commission concerning Mr. DarConte's residency status;
4. The official examination announcement noted in bold in the Commission's May 9, 2024,
correspondence sent to Mr. DarConte;
5. A copy of the "investigation report" noted in the May 9, 2024, correspondence issued to Mr.
DarConte.
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9. This FOIL request specifically notified Respondents that a signed authorization was
available from both Mr. DarConte and the Farmingdale UFSD.
10. Petitioner specifically requested a certification for all records produced and a
certification for all records that could not be located.
11. Petitioner sought the records to be produced in electronic format and e-mailed to
Petitioner.
12. This FOIL request was made on Respondent’s official form for FOIL.
13. Five business days from May 15, 2024, is May 22, 2024. However, by May 22,
2024, Respondent failed to acknowledge receipt of the FOIL request in violation of Public Officers
Law § 89(3)(a).
FOIL Denial and Appeal
14. On May 23, 2024, after no response had been received, Petitioner deemed his
request to be constructively denied pursuant to 21 NYCRR § 1401.5(e)(1) and 1401.7(c).
15. On May 23, 2024, Petitioner overnighted a formal appeal of his constructive denial
to Respondent. Respondent received the appeal on May 24, 2024. A true and accurate copy of the
FOIL Appeal and tracking information are attached hereto as Exhibit “2”.
16. On May 28, 2024, Respondent responds to the outstanding FOIL request but not
the appeal. A true and accurate copy of Respondent’s May 28, 2024, response is attached hereto
as Exhibit “3”.
17. In the response, Respondent grants in part and denies in part the FOIL request. The
response does not say which categories of the FOIL request were granted and which were denied. Instead,
it simply says: “Attached please find the document you have requested. Excluded were inter/intra
agency materials and are not subject to FOIL under §87 2.(g) of the Freedom of Information Law.
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This completes the Nassau County Civil Service Commission’s reply to your FOIL request.”
18. The only record produced was the exam announcement.
19. There was no certification produced for either the record produced or the other
categories where no records were produced.
20. There was no individualized response to any specific category of the FOIL request.
21. On May 28, 2024, Petitioner formally appeals—once again. Respondents received
the appeal on May 29, 2024. A true and accurate copy of the FOIL appeal and the tracking
information for the overnight delivery are attached hereto as Exhibit “4”.
22. As noted in the appeal, Petitioner highlighted that Respondents’ blanket denial for
the intra/inter-agency exemption was improper.
23. Petitioner further stated that it was improper not itemize the denial to each specific
category.
24. Moreover, Petitioner explained that the response failed to provide the requested and
required certifications.
25. Petitioner further outlined that it would seek relief in the courts if an appropriate
and proper response was not received.
26. 10 business days from May 29, 2024, is June 12, 2024.
27. On June 12, 2024, Petitioner received a telephone call from Brian Libert, from the
Office of Counsel for Nassau County. Mr. Libert acknowledged receipt of the appeal and requested
the prior correspondence from Civil Service.
28. On that same day, at approximately 10:08 a.m., Petitioner forwarded the e-mail to
Mr. Libert.
29. Mr. Libert then grants the appeal, stating: “I agree with you that the email is
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insufficient as a denial of any records which were withheld. I have asked Civil Service to review
your initial request again and provide more detail, if appropriate.”
30. Mr. Libert continues: “Your appeal is granted, to the extent that Civil Service needs
to articulate exactly what is exempt. I cannot review it until they make that determination.”
31. A true and accurate copy of the within e-mail communication is attached hereto as
Exhibit “5”.
32. In an e-mail that same day, Petitioner objected to the adequacy of the appeal
response.
33. Petitioner stated: “Your response does not provide a time in which civil service is
required to provide me a further response. FOIL also does not authorize a remand in this instance
(see, e.g., FOIL-AO-19,639 [“There is nothing in the Law that authorizes a FOIL appeal officer to
remand a FOIL request back to the records access officer for further review.”]; FOIL-AO-
15,096).”
34. “Further, the appeal response does not respond to the entirety of my raised issues,
including the blanket withholding of records under the intra/inter agency exemption. Your
response also does not indicate you personally reviewed these records to make this determination.
I’m not sure how an appellate function has been undertaken in this instance without that step.
Moreover, there is no discussion about the issues I raised pertaining to each category of record,
and there is no discussion from you concerning the issues raised about the certifications.”
35. “I must reiterate the pressing need to have these records. My office has properly
followed the mandates of FOIL and we are entitled to these records, whether in whole or in part.
Please note it is our intention to commence an Article 78 if a sufficient and proper response is not
received from you by close of business on June 14, 2024.”
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36. Thereafter, Mr. Libert responded in an e-mail as follows: “I was attempting to resolve this matter
through less formal steps in order to potentially accomplish what you were asking. I understand
you want to follow a very strict procedural standard. I will reply to your request.”
37. A true and accurate copy of Petitioner’s e-mail and Mr. Libert’s response are attached hereto as
Exhibit “6”.
38. Thereafter, Petitioner responded that he was looking “forward to having a full and complete appeal
response by this Friday [June 14, 2024].”
39. On June 15, 2024, after no further response was received from Mr. Libert, Petitioner again e-
mailed Mr. Libert.
40. Petitioner apprised Mr. Libert that the necessary documents for an Article 78 had been drafted and
would be filed by June 17, 2024, if no response had been received.
41. A true and accurate copy of these further good faith attempts to resolve this matter at the
administrative level are attached hereto as Exhibit “7”.
42. That, to date, no further response has been received by Respondents.
43. That, to date, Respondent has not attempted to contact Petitioner to request
additional time.
44. That, the date of this Petition is within 120 days from the date of Respondent’s
failure to timely provide a proper FOIL response to Petitioner’s appeal and within 120 days from
the date of Respondent’s formal denial.
45. The legal arguments contained in Petitioner’s Memorandum of Law dated June 18,
2024, are incorporated herein by reference.
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AS AND FOR THE FIRST CAUSE OF ACTION
46. Petitioner repeats, reiterates, and realleges each and every allegation set forth in
the proceeding paragraphs of this Verified Petition with the same force and effect as if same
were more fully set forth at length herein.
47. Respondent has engaged in a pattern and practice of failing to comply with its
obligations under New York Public Officers Law section 84 et seq., Section 1401.5 of the
Rules and Regulations of the State of New York, and Article 6-a of the Personal Privacy
Protection Law by improperly denying requests and ignoring appeals, ignoring statutory
deadlines, and ultimately failing to disclose to Petitioner the requested documents to which it
is entitled.
WHEREFORE, Petitioner prays for an order:
1. Compelling Respondent to perform the duties required by New York Public
Officers Law section 84 et seq and 21 NYCRR 1401.5 by producing the documents requested in
Petitioner’s FOIL requests within 30 days of this Court’s order or, if no such records exist,
producing a certification to that effect, and providing a sufficient response to Petitioner’s FOIL
request and appeal;
2. Awarding Petitioner its costs and attorney’s fees in this proceeding, both in that
Respondent had no reasonable basis to deny the FOIL requests and that it failed to timely respond;
3. Granting such other and further relief as this Court deems just and proper.
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Dated: Farmingdale, New York
June 19, 2024
GUERCIO & GUERCIO, LLP
ATTORNEYS FOR PETITIONER
77 Conklin Street
Farmingdale, New York 11735
(516) 694-3000
.
By:
ANTHONY J. FASANO
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-------------------------------------------------------------------- X
ANTHONY FASANO,
Index No.
Petitioner,
VERIFICATION
-against-
NASSAU COUNTY and NASSAU COUNTY CIVIL
SERVICE COMMISSION,
Respondent(s),
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules
ANTHONY FASANO being duly sworn, deposes and says:
I am the Petitioner in the above-entitled action. I have read the foregoing Verified
Petition and know the contents thereof. The same are true to my knowledge, except as to matters
therein stated to be alleged on information and belief and as to those matters I believe them to
be true.
CPLR 2106 Statement: I affirm this 19th day of June 2024, under the penalties of perjury
under the laws of New York, which may include a fine or imprisonment, that the foregoing is
true, and I understand that this document may be filed in an action or proceeding in a court of
law.
.
_________________________________
ANTHONY FASANO
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Preview
FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU - ------------------------------------------------------------------- X ANTHONY FASANO, Index No. Petitioner, VERIFIED PETITION -against- NASSAU COUNTY and NASSAU COUNTY CIVIL SERVICE COMMISSION, Respondent(s), For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules - ------------------------------------------------------------------- X TO THE ABOVE-NAMED RESPONDENT(S): Petitioner, ANTHONY FASANO, by and through his attorneys, GUERCIO & GUERCIO, LLP, as and for her Verified Petition alleges as follows: PRELIMINARY STATEMENT 1. That, this Article 78 proceeding pursuant to the Freedom of Information Law (“FOIL”), Article 6 of the Public Officers Law, seeks to vindicate the rights of Petitioner, ANTHONY FASANO (“Petitioner”), and of the public to access records regarding Respondents NASSAU COUNTY and NASSAU COUNTY CIVIL SERVICE COMMISSION (collectively “Respondent”). 2. That, Respondent has refused to produce public records in response to a FOIL request by Petitioner, which sought records relating to an expected decision being made by Nassau County Civil Service. That Respondent has entirely failed to respond Petitioner’s repeated attempts to resolve this matter at the administrative level. 3. That, having exhausted its administrative remedies, Petitioner now asks the Court to order the production of requested documents within 30 days of this Court’s order, award Petitioner 1 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 its costs and attorney’s fees in this proceeding, and granting such other and further relief as this Court deems just and proper. PARTIES/VENUE 3. That, Petitioner, ANTHONY FASANO, is a member of the public, as that term is used in Article 6 of the Public Officers Law and a resident of the State of New York. 4. That, Respondent, Nassau County, is a municipal agency organized under the laws of the State of New York with its principal place of business in Nassau County, and is otherwise considered an agency under FOIL. 5. That, Respondent Nassau County Civil Service Commission is a municipal agency organized under the laws of the State of New York with its principal place of business in Nassau County, and is otherwise considered an agency under FOIL. FACTS FOIL Request 6. That, on May 15, 2024, Petitioner made a FOIL request on Respondent seeking five categories of records. A true and accurate copy of the FOIL request made by the undersigned is attached hereto as Exhibit “1”. 7. The FOIL request sought five categories of records: 8. 1. The entire case file relating to the Commission's investigation and determination relating to Martin DarConte, in which a letter dated May 9, 2024, was issued to Mr. DarConte; 2. All correspondence issued to either the Farmingdale UFSD or Martin DarConte relating to the residency investigation on Mr. DarConte; 3. All complaints received by the Commission concerning Mr. DarConte's residency status; 4. The official examination announcement noted in bold in the Commission's May 9, 2024, correspondence sent to Mr. DarConte; 5. A copy of the "investigation report" noted in the May 9, 2024, correspondence issued to Mr. DarConte. 2 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 9. This FOIL request specifically notified Respondents that a signed authorization was available from both Mr. DarConte and the Farmingdale UFSD. 10. Petitioner specifically requested a certification for all records produced and a certification for all records that could not be located. 11. Petitioner sought the records to be produced in electronic format and e-mailed to Petitioner. 12. This FOIL request was made on Respondent’s official form for FOIL. 13. Five business days from May 15, 2024, is May 22, 2024. However, by May 22, 2024, Respondent failed to acknowledge receipt of the FOIL request in violation of Public Officers Law § 89(3)(a). FOIL Denial and Appeal 14. On May 23, 2024, after no response had been received, Petitioner deemed his request to be constructively denied pursuant to 21 NYCRR § 1401.5(e)(1) and 1401.7(c). 15. On May 23, 2024, Petitioner overnighted a formal appeal of his constructive denial to Respondent. Respondent received the appeal on May 24, 2024. A true and accurate copy of the FOIL Appeal and tracking information are attached hereto as Exhibit “2”. 16. On May 28, 2024, Respondent responds to the outstanding FOIL request but not the appeal. A true and accurate copy of Respondent’s May 28, 2024, response is attached hereto as Exhibit “3”. 17. In the response, Respondent grants in part and denies in part the FOIL request. The response does not say which categories of the FOIL request were granted and which were denied. Instead, it simply says: “Attached please find the document you have requested. Excluded were inter/intra agency materials and are not subject to FOIL under §87 2.(g) of the Freedom of Information Law. 3 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 This completes the Nassau County Civil Service Commission’s reply to your FOIL request.” 18. The only record produced was the exam announcement. 19. There was no certification produced for either the record produced or the other categories where no records were produced. 20. There was no individualized response to any specific category of the FOIL request. 21. On May 28, 2024, Petitioner formally appeals—once again. Respondents received the appeal on May 29, 2024. A true and accurate copy of the FOIL appeal and the tracking information for the overnight delivery are attached hereto as Exhibit “4”. 22. As noted in the appeal, Petitioner highlighted that Respondents’ blanket denial for the intra/inter-agency exemption was improper. 23. Petitioner further stated that it was improper not itemize the denial to each specific category. 24. Moreover, Petitioner explained that the response failed to provide the requested and required certifications. 25. Petitioner further outlined that it would seek relief in the courts if an appropriate and proper response was not received. 26. 10 business days from May 29, 2024, is June 12, 2024. 27. On June 12, 2024, Petitioner received a telephone call from Brian Libert, from the Office of Counsel for Nassau County. Mr. Libert acknowledged receipt of the appeal and requested the prior correspondence from Civil Service. 28. On that same day, at approximately 10:08 a.m., Petitioner forwarded the e-mail to Mr. Libert. 29. Mr. Libert then grants the appeal, stating: “I agree with you that the email is 4 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 insufficient as a denial of any records which were withheld. I have asked Civil Service to review your initial request again and provide more detail, if appropriate.” 30. Mr. Libert continues: “Your appeal is granted, to the extent that Civil Service needs to articulate exactly what is exempt. I cannot review it until they make that determination.” 31. A true and accurate copy of the within e-mail communication is attached hereto as Exhibit “5”. 32. In an e-mail that same day, Petitioner objected to the adequacy of the appeal response. 33. Petitioner stated: “Your response does not provide a time in which civil service is required to provide me a further response. FOIL also does not authorize a remand in this instance (see, e.g., FOIL-AO-19,639 [“There is nothing in the Law that authorizes a FOIL appeal officer to remand a FOIL request back to the records access officer for further review.”]; FOIL-AO- 15,096).” 34. “Further, the appeal response does not respond to the entirety of my raised issues, including the blanket withholding of records under the intra/inter agency exemption. Your response also does not indicate you personally reviewed these records to make this determination. I’m not sure how an appellate function has been undertaken in this instance without that step. Moreover, there is no discussion about the issues I raised pertaining to each category of record, and there is no discussion from you concerning the issues raised about the certifications.” 35. “I must reiterate the pressing need to have these records. My office has properly followed the mandates of FOIL and we are entitled to these records, whether in whole or in part. Please note it is our intention to commence an Article 78 if a sufficient and proper response is not received from you by close of business on June 14, 2024.” 5 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 36. Thereafter, Mr. Libert responded in an e-mail as follows: “I was attempting to resolve this matter through less formal steps in order to potentially accomplish what you were asking. I understand you want to follow a very strict procedural standard. I will reply to your request.” 37. A true and accurate copy of Petitioner’s e-mail and Mr. Libert’s response are attached hereto as Exhibit “6”. 38. Thereafter, Petitioner responded that he was looking “forward to having a full and complete appeal response by this Friday [June 14, 2024].” 39. On June 15, 2024, after no further response was received from Mr. Libert, Petitioner again e- mailed Mr. Libert. 40. Petitioner apprised Mr. Libert that the necessary documents for an Article 78 had been drafted and would be filed by June 17, 2024, if no response had been received. 41. A true and accurate copy of these further good faith attempts to resolve this matter at the administrative level are attached hereto as Exhibit “7”. 42. That, to date, no further response has been received by Respondents. 43. That, to date, Respondent has not attempted to contact Petitioner to request additional time. 44. That, the date of this Petition is within 120 days from the date of Respondent’s failure to timely provide a proper FOIL response to Petitioner’s appeal and within 120 days from the date of Respondent’s formal denial. 45. The legal arguments contained in Petitioner’s Memorandum of Law dated June 18, 2024, are incorporated herein by reference. 6 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 AS AND FOR THE FIRST CAUSE OF ACTION 46. Petitioner repeats, reiterates, and realleges each and every allegation set forth in the proceeding paragraphs of this Verified Petition with the same force and effect as if same were more fully set forth at length herein. 47. Respondent has engaged in a pattern and practice of failing to comply with its obligations under New York Public Officers Law section 84 et seq., Section 1401.5 of the Rules and Regulations of the State of New York, and Article 6-a of the Personal Privacy Protection Law by improperly denying requests and ignoring appeals, ignoring statutory deadlines, and ultimately failing to disclose to Petitioner the requested documents to which it is entitled. WHEREFORE, Petitioner prays for an order: 1. Compelling Respondent to perform the duties required by New York Public Officers Law section 84 et seq and 21 NYCRR 1401.5 by producing the documents requested in Petitioner’s FOIL requests within 30 days of this Court’s order or, if no such records exist, producing a certification to that effect, and providing a sufficient response to Petitioner’s FOIL request and appeal; 2. Awarding Petitioner its costs and attorney’s fees in this proceeding, both in that Respondent had no reasonable basis to deny the FOIL requests and that it failed to timely respond; 3. Granting such other and further relief as this Court deems just and proper. 7 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 Dated: Farmingdale, New York June 19, 2024 GUERCIO & GUERCIO, LLP ATTORNEYS FOR PETITIONER 77 Conklin Street Farmingdale, New York 11735 (516) 694-3000 . By: ANTHONY J. FASANO 8 of 9 FILED: NASSAU COUNTY CLERK 06/19/2024 06:27 PM INDEX NO. 610748/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/19/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------- X ANTHONY FASANO, Index No. Petitioner, VERIFICATION -against- NASSAU COUNTY and NASSAU COUNTY CIVIL SERVICE COMMISSION, Respondent(s), For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules ANTHONY FASANO being duly sworn, deposes and says: I am the Petitioner in the above-entitled action. I have read the foregoing Verified Petition and know the contents thereof. The same are true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters I believe them to be true. CPLR 2106 Statement: I affirm this 19th day of June 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. . _________________________________ ANTHONY FASANO 9 of 9