Chaves v. Office of the District Attorney , 940 N.Y.S.2d 591 ( 2012 )

Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 7, 2009, dismissing the petition brought pursuant to CPLR article 78 seeking to annul a determination of respondent, dated April 29, 2008, which denied his requests under the Freedom of Information Law (FOIL), unanimously affirmed, without costs.

The court erred in dismissing the petition as time-barred. The record shows that petitioner sought to commence this action well before the statute of limitations expired, but that the court did not consider and sign petitioner’s order to show cause commencing the proceeding until after the limitations period had expired. Petitioner should not be penalized for this oversight (see e.g. Lovett v City of New York, 6 Misc 3d 1032[A], 2005 NY Slip Op 50278[U] [Sup Ct, NY County 2005]; see also Matter of Grant v Senkowski, 95 NY2d 605, 609-610 [2001]).

Although the proceeding was timely commenced, dismissal was nevertheless proper. Petitioner seeks evidence related to his convictions for murder and other felonies, which occurred more than 25 years ago. Respondent was under no obligation to maintain evidence after all appeals had been exhausted (see People v Watkins, 189 AD2d 623, 624 [1993], lv denied 81 NY2d 978 [1993]), and was not under an obligation to maintain that evidence for more than 25 years following petitioner’s convictions (see e.g. People v Ahlers, 285 AD2d 664 [2001], lv denied 97 NY2d 701 [2002]). Moreover, the record shows that respondent diligently searched for any and all available records responsive to petitioner’s FOIL requests, and was, indeed, able to produce some of the materials (see Matter of Rattley v New York City Police Dept., 96 NY2d 873 [2001]). Concur — Andrias, J.P., Sweeny, Moskowitz, Freedman and Manzanet-Daniels, JJ.