Motion to Be Relieved or Withdraw as Counsel in Benjamin Chevat Director of 9/11 Health Watch v. New York City Department Of Environmental Protection| Trellis.Law

On June 20, 2024 a Motion-Secondary was filed involving a dispute between Benjamin Chevat Director Of 9 11 Health Watch, and New York City Department Of Environmental Protection, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------X
In the Matter of the Application of
Benjamin Chevat, Director of 9/11
Health Watch, Index No.

Petitioner,

For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules

-against-

New York City Department of Environmental Protection,

Respondent.
-----------------------------------------------------------------------X

ATTORNEY’S AFFIRMATION IN SUPPORT OF THE VERIFIED PETITION

ANDREW J. CARBOY, an attorney duly licensed to practice law in the Courts of the

State of New York, affirms the following under penalties of perjury:

1. I am a member of Law Offices of Andrew J. Carboy LLC.

2. Along with Turken Heath & McCauley LLP, we represent the interests of the

following: Karen Klingon, Executrix of the Estate of Robert Klingon (resident of lower

Manhattan); Yvonne Baisley, Executrix of the Estate of FDNY Firefighter Robert Fitzgibbon; Phil

Alvarez on behalf of his brother, NYPD Detective Luis G. Alvarez, deceased; Charlotte Berwind,

Executrix of the Estate of volunteer firefighter Charles E. Flickinger, Jr.; and Benjamin Chevat,

Director of 9/11 Health Watch, who presents a verified petition in this proceeding.

3. These World Trade Center disaster responders, residents of lower Manhattan, and their

families, along with a non-profit organization advocating for patients afflicted by toxic exposures

in the aftermath of September 11th, sought documents that should be freely available to them and

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all New Yorkers. Pursuant to the Freedom of Information Law, on September 8, 2023, they

requested various records from the New York City Department of Environmental Protection

(“DEP”) concerning the response of the City of New York (“City”) to the September 11, 2001

collapse of the World Trade Center, along with historical records and disaster preparation

materials. (Exhibit 1: September 8, 2023 Freedom of Information Request) (“FOIL request”)

4. On January 31, 2024, the DEP denied the FOIL request. (Exhibit 2: DEP January

31, 2024 denial of FOIL request #2023-826-03980)

5. Thereafter, on February 13, 2024 (Exhibit 3) and February 28, 2024 (Exhibit 4),

we appealed the denial of the FOIL request. On February 29, 2024, the DEP denied our appeal.

(Exhibit 5). The DEP denial of appeal is a “final and binding” determination appropriately the

subject of this Article 78 proceeding. CPLR Sec. 217(1). This proceeding is commenced within

four months of the denial, and is timely.

6. Petitioners seek the following relief:

A) A declaration that the February 29, 2024 appeal denial (Exhibit 5) was arbitrary and

capricious as the DEP failed to establish, with any precision or evidence, that a diligent

search for the requested materials was actually performed.

B) An Order directing the DEP to search its archives, again, with diligence for the

October 2001 memorandum from Deputy Mayor Robert M. Harding referenced in May

14, 2017 New York Times article entitled, “Ground Zero Illnesses Clouding Giuliani’s

Legacy.” (“Harding memo”), and related materials (as more fully set forth in Exhibit

1), and report, in detail, as to the steps it undertook during the search and provide all

materials responsive to this particular component of the FOIL request.

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C) As Petitioners demonstrate, below, that the requested materials do, in fact, exist, a

declaration that the February 29, 2024 appeal denial (Exhibit 5) was arbitrary and

capricious as the DEP failed to establish, with any precision or evidence, that the

requested materials do not exist.

D) As Petitioners demonstrate that the requested materials do, in fact, exist, a hearing to

ascertain the scope and duration of any search previously undertaken by DEP in

response to the FOIL request, with live testimony taken from DEP personnel.

E) An Order directing DEP to provide Petitioners with the anticipated cost of compliance

with the FOIL request (Exhibit 1) to the extent of locating and producing the Harding

memo, in advance of DEP incurring such expenses. At this juncture, the City has not

provided the Petitioners with any sense or detail of the expected cost of compliance

with the request. Petitioners do not commit to pay an uncertain and open-ended bill for

this endeavor.

The FOIL Request to DEP
7. Pursuant to the Freedom of Information Law, on September 8, 2023, we requested

various records from DEP concerning the response of the City of New York to the September 11,

2001 collapse of the World Trade Center, along with historical records and disaster preparation

materials. (Exhibit 1) To streamline matters, however, Petitioners now seek only the Harding

memo, described below from the DEP.

8. Among other items, set forth in Exhibit 1 in full, we requested the following

documents and information:

October 2001 memorandum from Deputy Mayor Robert M. Harding referenced in
May 14, 2017 New York Times article entitled, “Ground Zero Illnesses Clouding
Giuliani’s Legacy.” (“Harding memo”)

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Underlying documents, studies, reports, assessments, memoranda, factual bases
and other written information that informed the Harding memo’s estimate or
projection of anticipated future claims from WTC toxic exposure.

All documents setting forth the names and titles of recipients of the Harding
memo in 2001 and 2002.

All documents setting forth the manner in which the Harding memo was
communicated and the reasons for its communication in 2001 and 2002 (e.g.,
litigation; lobbying; inter-government communication; intra-government
communication; Freedom of Information request).

With respect to the following provision of the Air Transportation Safety and
System Stabilization Act of 2001, Pub. L. No. 107-42, 115 Stat. 230 (2001):

All background and briefing materials, including assessments, surveys, studies,
projections, risk projections, environmental testing data, and toxicological data,
including from City agencies provided to Mayor Rudolph W. Giuliani in
September, October and November 2001, and Mayor-elect Michael R.
Bloomberg, in November 2001, with respect to proposed limitations on liability
for the City in connection with efforts to secure such limitations.

With respect to daily public briefings held by Mayor Rudolph W. Giuliani
(“Mayor”) in September, October and November 2001:

a. Written materials for the substance of all of the briefings, provided in advance to
the Mayor, such as texts, talking points, slide decks, graphs, and charts;

b. All draft briefings; and

c. All commentary provided to the Mayor about proposed briefings, and identifying
the sender and/or commentator.

With respect to discussions, deliberations and/or debate concerning recent (2018-
2023) requests for release of all City September 11th/World Trade Center
disaster records to the public (e.g., February 16, 2023 letter request of Reps.
Nadler and Goldman):

a. All writings setting forth reasons as to why the records should not be released;

b. All writings setting forth reasons as to why the records should be released; and

c. All assessments as to the “litigation risks” posed by release of some or all of the

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records.

Any memos, communications with respect to the reporting of New York Daily
News columnist Juan Gonzalez from September, October, November or December
of 2001.

Inventories, pre-dating September 11, 2001, of hazardous substances contained in
WTC buildings, including but not limited to materials found in x-ray equipment,
materials found in radiation oncology equipment, diesel fuel stored under WTC 7,
polychlorinated biphenyls, asbestos, other radioactive materials, carcinogens,
and materials known to have neurotoxic effects if released and/or subject to
burning.

All exercises, projections, estimates, simulations, analyses, studies and reports,
whether obtained by, created by or created at the direction of your
agency/department from February 26, 1993 through September 10, 2001
concerning: a terrorist attack or potential terrorist attack on the World Trade
Center Complex, disaster and/or rescue responses to such an attack; hazards
resulting from such an attack, including release of contaminants/toxins from such
an attack, including those resulting from structure collapses; mitigation measures
considered to reduce hazards posed by release of contaminants/toxins from such
an attack, including those resulting from structure collapses; evacuation protocol
for surrounding neighborhoods and other geographic locations potentially or
actually affected by the release of contaminants; and air quality issues and
potential problems resulting from such an attack, including those resulting from
structure collapses.

From February 26, 1993 through September 10, 2001: all exercises, simulations,
directives, memoranda, reports and analyses concerning the aftermath of a
potential terrorist attack on the World Trade Center, whether obtained by,
created by or created at the direction of your agency/department.

All communications to and from the Port Authority of New York and New Jersey,
such as letters, memoranda, reports, status updates and other writings (be they
paper or electronic) dating from February 26, 1993 through September 10, 2001,
concerning: A) the removal of asbestos containing materials (“ACM”) from the
World Trade Center; B) recommendations for removal of ACM from the World
Trade Center; C) hazards posed by the presence of ACM in the World Trade
Center in the event of a disaster, such as a terrorist attack; and D) the
significance of the February 26, 1993 World Trade Center bombing with respect
to efforts to remove ACM.

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All notes, memoranda and other writings created by the City Department of
Design and Construction concerning information conveyed by the Port Authority
of New York and New Jersey that subsequent to the 1993 World Trade Center
bombing, a program to remove ACM was initiated.

All notes, memoranda and other writings created by your agency/department
concerning information conveyed by the Port Authority of New York and New
Jersey that subsequent to the 1993 World Trade Center bombing, a program to
remove ACM was initiated.

Documents setting forth the progress of efforts to remove ACM from the World
Trade Center for the time period beginning February 26, 1993 and concluding on
September 10, 2001.

Results of dust and air testing conducted outdoors and indoors at the World
Trade Center between February 26, 1993 and August 1, 1993 whether conducted
at the direction of your agency/department or obtained by your
agency/department.

All communications, draft plans, draft directives, evaluations and assessments
concerning the potential evacuation and duration of evacuation of neighborhoods
in Brooklyn, New York following the collapse of the World Trade Center on
September 11, 2001.

All communications, draft plans, draft directives, evaluations and assessments
concerning the potential evacuation and duration of evacuation of neighborhoods
in New York, New York following the collapse of the World Trade Center on
September 11, 2001.

All records of protocols for testing and cleaning as well as clearance for occupation
of each school below Houston Street from September 12, 2001 through April 2002.

As shared with, sent or delivered to the Mayor’s Office from September 11, 2001
through April 2002: all projections, estimates, and assessments as to the number
of expected injuries resulting from exposure to toxins and products of combustion
released from the World Trade Center Site.

As shared with, sent or delivered to the Law Department of the City of New York
from September 11, 2001 through April 2002: all projections, estimates, and
assessments as to the number of expected injuries resulting from exposure to toxins
and products of combustion released from the World Trade Center Site.

As referenced in the letter of Mayor Eric Adams of March 22 , 2023 to the Hon.
Jerrold Nadler and the Hon. Daniel Goldman, United States House of

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Representatives, documents, not publicly disclosed to date by the City of New York,
concerning the collapse of the World Trade Center on September 11, 2001,
including the release of toxins, and air or dust testing and reopening of schools.
By letter to Mayor Adams, dated February 16, 2023, Representatives Nadler and
Goldman sought

information in the City’s records pertaining to the earliest analyses of the toxins,
dust, and fumes blanketing lower Manhattan and Brooklyn;

the Harding memo and “any correspondence that led to his writing and drafting of
this memo”

internal notes or memos regarding the Department of Education’s decision to
move kids and teachers back into schools in the frozen zone below Houston. We
know that there were parents who expressed strong concerns and even protested
this move. What were the deliberations in the DOE? What testing was done to
determine the safety of the schools?

Any records, communications, or memos from the New York City Departments of
Health and the Environmental Protection that address the scope and toxicity of
the WTC plume and the dust, and the exposures New Yorkers experienced

Mayor Adams responded, in his letter of March 22, 2003, that the City would not
release this information absent “necessary federal legislation to make production
of documents…legally feasible.”

The DEP’S Denial of the FOIL Request
9. On January 31, 2024, without substantive explanation, DEP denied the FOIL

request. (Exhibit 3) In a conclusory “auto-generated” response, DEP advised:

The Department of Environmental Protection (DEP) has closed your FOIL request
FOIL-2023-826-03980 for the following reasons:

• Your request under the Freedom of Information Law (FOIL) is being closed
because this agency does not have the records requested. You should direct your
request to a different agency.

Please contact the Mayor's Office for this request.

10. DEP produced no records whatsoever. The entirety of the denial is reprinted,

above. Frustratingly, DEP refers the requesting parties to the Mayor’s Office for the responsive

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documents; however, in its response (Exhibit 8) to the same FOIL request (Exhibit 1), the

Mayor’s Office of Emergency Management denies the existence of these materials. (“A diligent

search for records responsive to your request did not locate any such records…your request is

denied”)

DEP’s Final and Binding Denial of
Petitioners’ Administrative Appeal

11. We administratively appealed (Exhibits 3 and 4: Administrative Appeal and

Supplement) the denial for two reasons. First, in its initial denial (Exhibit 2) DEP failed to

appropriately “certify that it does not have possession of such record or that such record cannot

be found after diligent search.” N.Y. Pub. Off. Law § 89 (McKinney) Instead, DEP offered a

boilerplate response, devoid of detail concerning any search, and lacking certification. The initial

denial was improper and conclusory, violative of New York’s Public Officers Law. The denial

of the administrative appeal is similarly improper, as no firsthand information of any search is

provided.

12. The DEP appeal determination is as follows:

Determination

I hereby certify that a diligent search was performed in DEP’s records in response to your
FOIL request, and no responsive records were found. In light of the above, your appeal is
denied. This letter is DEP’s final determination with respect to your appeal. (Exhibit 5)

13. With respect to its denial of the appeal (Exhibit 5), DEP again failed to establish

its personnel conducted any search. Indeed, DEP’s final denial speaks vaguely of a “diligent

search” being “performed.” (Exhibit 5) Significantly, we cannot tell from the statement of

DEP’s FOIL Appeals Officer, Russell Pecunies, whether this assertion is based upon hearsay or

whether he, in fact, actually performed a search. Without such foundation, this determination was

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arbitrary and capricious. Its shortcoming also entitles the Petitioners to an evidentiary hearing

under Article 78 and FOIL.

14. Second, the public record demonstrates that DEP maintains the requested materials,

as more fully detailed below. Such indicia of the records’ existence now entitle the Petitioners to

an evidentiary hearing in this Article 78 proceeding. To deny Petitioners these materials was,

again, arbitrary and capricious. To streamline matters, however, Petitioners now seek only the

Harding memo, described above, from the DEP.

Indicia that Requested Documents
Exist and Remain in Control of DEP
15. The DEP’s interim and final administrative denials of the FOIL request (Exhibit 2

and 5) provide no detail of the search it claims to have undertaken for the information and

documents sought. It is not even clear who, if anyone, at the agency made the search. The FOIL

Appeal Officer does not claim to have done so, but asserts, without foundation, that such a search

was made. (Exhibit 5)

16. The DEP’s assertions that it “does not have the records requested” (Exhibit 2) and

“no responsive records were found” (Exhibit 5) are undercut by the public record and admissions

made by New York City officials, including the Mayor himself and DEP managers. For this

reason, Petitioners “articulate a demonstrable factual basis to support (the) contention that the

requested documents” exists and “were within…the control” of the DEP. Gould v. New York

City Police Dept., 89 N.Y.2d 267, 279 (Ct. Appl 1996) (Reciting standard for evidentiary hearing

in Article 78 proceeding where agency denies existence of documents responsive to FOIL request)

City Public Statements about DEP Role in September 11th Response

17. To date, the City’s public information website makes clear DEP’s leading role in

lower Manhattan following the collapse of the World Trade Center. “By the evening of September

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11th, the City’s Department of…Environmental Protection began to assess environmental

conditions and what protections would be necessary.”

(https://www.nyc.gov/site/911health/about/historical-context.page) This narrative description is

also available in an official City publication (Exhibit 10: Assessing the Health Impacts of 9/11,

Report and Recommendation to Mayor Bloomberg) The DEP assessments included the air quality

and other test results sought in the Freedom of Information request.

Court Decisions Recite DEP Role in September 11th Response
and Earlier Response to 1993 World Trade Center Bombing

18. The DEP’s role in responding to toxic releases from the World Trade Center attacks

of September 11, 2001 and from the 1993 World Trade Center bombing cannot be reasonably

disputed. So instrumental to the responses was the DEP, its participation is described in published

court decisions.

19. On September 14, 2001, DEP “issued a letter to owners of buildings affected by

the collapse of the World Trade Center towers. That letter indicated that the dust and debris should

be … assumed to be asbestos-containing material.” In re World Trade Ctr. Lower Manhattan

Disaster Site Litig., 44 F. Supp. 3d 409, 417, 2014 WL 4446153 (S.D.N.Y. 2014) September 9

2014. To date, the DEP has not identified or produced documents underlying this “assumption”

in response to our FOIL request.

20. With respect to historical data we requested that DEP maintains concerning the

1993 World Trade Center attacks (Exhibit 1), it is a matter of record that it did so.

21. On March 26, 1993, “Department of Environmental Protection advised ‘The World

Trade Center Community’ that, based on its testing and monitoring that began ‘within one hour

of the blast,’ ‘all data we have reviewed indicate that the air in the World Trade Center Complex

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is safe.’” Port Auth. of New York and New Jersey v Affiliated FM Ins. Co., 245 F Supp 2d 563,

576 [DNJ 2001], affd, 311 F3d 226 [3d Cir 2002]

DEP Admits its Leading Role in Assessment of Air Quality after September 11th

22. DEP also describes its efforts to assess air quality in the aftermath of the September

11th attacks in NYC Water, an internal DEP publication. Certainly, this important information is

responsive to our FOIL requests.

Exhibit 7: NY City Water, September 11, 2017:
#NeverForget: A Look Back at DEP’s 9/11Response

Meanwhile, DEP’s Hazardous Materials Specialists arrived on the
scene, establishing a command post at Reade Street after taking
shelter from the collapse in the World Financial Center parking
garage. The specialists took bulk samples of asbestos-containing
materials from the surrounding area and had them analyzed by our
asbestos lab. Through this sampling, a perimeter was established
with a comprehensive asbestos air-monitoring program of 38
monitoring stations in the downtown area. DEP specialists would
remain onsite for months, overseeing operations over 16–18 hour
shifts. Among DEP’s Environmental Compliance staff on scene was
Chief of Enforcement Joe Scafidi, an integral part of emergency
operations throughout the recovery effort.

DEP Concluded that Air in Lower Manhattan was Unsafe when
Other Agencies, including the Office of Emergency Management Disagreed

23. Further supporting Petitioner’s position is Exhibit 11, an October 6, 2001

memorandum from the City Department of Health, discussing DEP’s activities and positions

concerning the air quality in lower Manhattan. As CNN reported, the “City allowed people to

return to Manhattan after the collapse of the World Trade Center towers even though officials were

told the air was not yet safe, according to an internal memo from a New York City Health

Department official. The October 6, 2001, memo states that the city Office of Emergency

Management -- called OEM -- and the Department of Environmental Protection -- referred to

as DEP-- disagreed over the air quality following the September 11, 2001 terror attacks. CNN

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coverage, September 7, 2006 Memos: NYC told Ground Zero air was Unsafe. https: // www.

cnn.com /2006/US/09/07/nyc.air/index.html

Kelly McKinney, associate commissioner of the health department
described: "According to OEM, some city blocks north and south
of Ground Zero are suitable for re-occupancy. DEP believes the
air quality is not yet suitable for re-occupancy. I was told the
mayor's office was directing OEM to open the target areas next
week." (Exhibit 11)

On October 5, 2001, U.S. Environmental Protection Agency told
the city's health department that there were concerns about worker
safety at the World Trade Center site. "In addition to standard
construction/demolition site safety concerns, this site also poses
threats to workers related to potential exposure to hazardous
substances." (Exhibit 11)

Mayor Adams’ Letter of March 22, 2023

24. Annexed as Exhibit 9 are a series of letters between Honorable Jerrold Nadler,

Honorable Dan Goldman, and Honorable Caroline Maloney, United States House of

Representatives, and the Office of the Mayor. Since 2021, the Representatives have sought

previously unreleased documents, from City agencies, concerning the response to the September

11th attacks, writing and meeting with the Mayor’s Office in this effort. To date, the City has not

responded in any meaningful way to these requests from the elected officials.

25. On March 22, 2023 (Exhibit 9), Mayor Adams wrote to the members of Congress,

acknowledging that such previously unreleased documents existed, but advising that they would

not be disclosed. The Mayor cited “litigation risks” as a barrier. The Mayor requested both federal

funding and additional federal protections for the City before the documents would be released.

Id. At no point in the correspondence to the Congressional delegation did City Hall cite a specific

FOIL exemption enabling it to withhold the documents. Further, “litigation risks” are not

recognized as a basis to deny Petitioners’ FOIL request or those of members of Congress.

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26. Although DEP did not cite such risks in denying Petitioners’ request, it is clear that

such concern now guides the City’s response to any request for September 11th materials, as

evidenced by the pronouncements of Mayor Adams. (Exhibit 9) This prioritization, improper

and at odds with the broad purposes of FOIL, is a further basis to deem the DEP’s denial arbitrary

and capricious. The Harding memo and related materials should be disclosed, at once.

ARGUMENT

I. The City’s Litigation Risk Concern Does not
Preclude a Meaningful FOIL Response

27. The City’s concern about future litigation, arising from disclosure of the Harding

memo sought by Petitioners and the Congressional delegation, is no basis to deny the FOIL

request.

28. The Freedom of Information Law “imposes a broad duty on government to make

its records available to the public. (Public Officers Law Sec. 84 [legislative declaration])

Moreover, access to government records does not depend on the purpose for which the records are

sought.” Gould v. New York City Police Dep't, 89 N.Y.2d 267, 274 (Ct App. 1996) New York

Courts have long held that “all government records are presumptively open for public inspection

unless specifically exempted from disclosure as provided in the Public Officers Law Sec. 87(2).”

Fappiano v. New York City Police Department, 95 N.Y.2d 738, 746 (Ct. App., 2001). Under

FOIL, City “records are presumptively open to public inspection, without regard to need or

purpose of the applicant.” Beechwood Restorative Care Ctr. v. Signor, 5 N.Y.3d 435, 440-41 (Ct.

App. 2005)

29. In Petitioner’s matter, DEP denies that the requested materials exist, including the

Harding memo, notwithstanding evidence of their creation and retention by DEP, described above,

and asserts, without demonstrable basis, that a “diligent search” for them was performed. Putting

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these facts in the context of declarations from the Mayor’s Office that no records concerning the

response to September 11th will be released in the absence of additional federal protections

(immunity), the DEP denial is arbitrary and capricious. That the release of the DEP records may

pose, as the Mayor describes, “litigation risks,” is no reason to withhold them. Although FOIL

does exempt from disclosure communications between government agencies, such exemption does

not apply to “instructions to staff that affect the public.” All of the material Petitioners seek

concern matters affecting the public. (Public Officers Law Sec. 87(2)(g))

II. Having Established that the Materials Requested Exist,
Petitioners are Entitled to an Evidentiary Hearing

30. The DEP fails to establish the nonexistence of the materials requested by

Petitioners, including the Harding memo. The Petitioners “articulate a demonstrable factual basis

to support (their) contention that the requested documents existed” and “were within

the…Department’s control.” This standard, articulated by the Court of Appeals in Gould v. New

York City Police Dep't, 89 N.Y.2d 267, 279 (Ct. App 1996) should govern the outcome of this

Article 78 proceeding. See also, Jewish Press, Inc. v. New York State Police, 207 A.D.3d 971,

973 (3rd Dept 2022) Court decisions and materials from the DEP and City Department of Health,

detailed above, demonstrate factual questions as to the existence of the requested information.

31. The City’s decision to make September 11th-related materials, such as the Harding

memo, available to the public only upon condition of further federal funding and protection

(Exhibit 9) is another factor to consider, making it even more likely that these materials exist and

were simply not “located” and disclosed. These unusual issues may only be resolved at an

evidentiary hearing. See, e.g., Binghamton Precast & Supply Corp. v. New York State Thruway

Auth., 196 A.D.3d 944, 946 (3d Dept. 2021)(granting such a hearing); and Oddone v. Suffolk

Cnty. Police Dep't, 96 A.D.3d 758, 760–62 (2nd Dept. 2012) (Improper to dismiss Article 78 FOIL

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proceeding where “allegations in petition, if proven, would provide a factual basis to support the

petitioner’s contention that additional documents relating to the…investigation…exist and are

within the Police Department’s control.”)

III. The Description of the “Search” Undertaken by DEP is Deficient

32. Although the Court of Appeals does not require a responding agency to provide a

“detailed description of the search” or “specify the manner in which an agency must certify that

the documents cannot be located,” [See, Rattley v. New York City Police Department, 96 N.Y.2d

873, 875 (Ct. App. 2001)], in this instance, the details provided by the DEP remain insufficient.

The denial remains arbitrary and capricious. The initial denial (Exhibit 2) does not even reference

a diligent search. The denial of the administrative appeal (Exhibit 5) merely certifies, for the first

time that a search was performed. The author of the appeal denial, DEP’s Russell Pecunies, does

not indicate how he knows such a search was performed. He does not attest to having performed

it, himself. We do not know whether he relies upon hearsay. These facts are akin to those in

Oddone, 96 A.D.3d 758, 760–62. The respondents failed to establish that their “determination,”

a denial, “was not arbitrary and capricious” as the Appeal Officer provided no evidence that such

a search was actually done. As in Oddone, the “determination of the Appeals Officer (of the DEP)

was not based on any evidence in the record.” Accordingly, the Petitioners are entitled to a

determination that the denial was arbitrary and capricious and a hearing. “Even where an entity,”

as here, “certifies that it was unable to locate requested documents after performing a diligent

search, the person requesting the documents may nevertheless be entitled to a hearing on the issue”

by articulating “a demonstrable factual basis” that the documents exist and that the “search” is not

substantiated. Id. citing Gould, 89 N.Y.2d 267, 279.

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Conclusion

33. For the reasons set forth above, Petitioners demonstrate their entitlement to the

following relief:

A) A declaration that the February 29, 2024 appeal denial (Exhibit 5) was arbitrary and

capricious as the DEP failed to establish, with any precision or evidence, that a diligent

search for the requested materials, including the Harding memo, was actually

performed.

B) A declaration that the February 29, 2024 appeal denial (Exhibit 5) was arbitrary and

capricious as the DEP failed to establish, with any precision or evidence, that a diligent

search for the requested materials was actually performed.

C) An Order directing the DEP to search its archives, again, with diligence for the

October 2001 memorandum from Deputy Mayor Robert M. Harding referenced in May

14, 2017 New York Times article entitled, “Ground Zero Illnesses Clouding Giuliani’s

Legacy.” (“Harding memo”), and related materials (as more fully set forth in Exhibit

1), and report, in detail, as to the steps it undertook during the search and provide all

materials responsive to this particular component of the FOIL request.

D) As Petitioners demonstrated that the requested materials do, in fact, exist, a declaration

that the February 29, 2024 appeal denial (Exhibit 5) was arbitrary and capricious as

the DEP failed to establish, with any precision or evidence, that the requested materials

do not exist.

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E) As Petitioners demonstrate that the requested materials do, in fact, exist, a hearing to

ascertain the scope and duration of any search previously undertaken by DEP in

response to the FOIL request, with live testimony taken from DEP personnel.

F) An Order directing DEP to provide Petitioners with the anticipated cost of compliance

with the FOIL request with respect to fulfilling the FOIL request (Exhibit 1) to the

extent of locating and producing the Harding memo, in advance of DEP incurring such

expenses. At this juncture, the City has not provided the Petitioners with any sense or

detail of the expected cost of compliance with the request. Petitioners do not commit

to pay an uncertain and open-ended bill for this endeavor.

Dated: June 20, 2024

____________________________
Andrew J. Carboy

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Motion-Secondary: Benjamin Chevat Director of 9/11 Health Watch v. New York City Department Of Environmental Protection

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