Cobb v. Lombardi , 690 N.Y.S.2d 30 ( 1999 )

—Judgment, Supreme Court, New York County (Norman Ryp, J.), entered on or about May 8, 1997, which, in a CPLR article 78 proceeding to compel respondents’ Freedom of Information Law (FOIL) disclosure of certain records, granted respondents’ cross motion to dismiss the petition on the ground of res judicata, and dismissed the proceeding, unanimously modified, on the law, to vacate the judgment, deny the motion with respect to all requested items except those numbered 1 and 2, remand the matter to respondents for a determination as to which of the remaining requested items are not duplicative of items that were the subject of petitioner’s prior article 78 proceeding against respondents, and whether any such nonduplicative items are subject to FOIL disclosure, and otherwise affirmed, without costs.

The petition was propérly dismissed as barred by res judicata to the extent it seeks items to which access was denied in the prior article 78 proceeding between the parties. However, as respondents concede, some of the items now sought were not specifically designated in petitioner’s prior request for records, and, as to those items, there should be a remand for a determination as to which, if any, are not duplicative of the previously requested items. Upon review of the two requests, we can eliminate only items 1 and 2 of the current request as duplicative of items 9 and 10 of the prior request. Since the prior article 78 proceeding was finally decided against petitioner before the decision in Matter of Gould v New York City Police Dept. (89 NY2d 267), there is no merit to petitioner’s argument that respondents must reconsider his first request in light of that case (see, Matter of Gowan v Tully, 45 NY2d 32, 36; Matter of Pelt v Police Dept., 258 AD2d 382). Concur — Rosenberger, J. P., Nardelli, Lerner, Saxe and Friedman, JJ.