Yiatin Chu v Community Educ. Council for Dist. One 2024 NY Slip Op 31358(U) April 18, 2024 Supreme Court, New York County
Docket Number: Index No. 151673/2021 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.151673/2021 CHU, YIATIN vs. COMMUNITY EDUCATION COUNCIL

Motion No. 001 Page 1 of 6 The petition seeking relief related to a Freedom of Information Law (“FOIL”) request is

decided as described below.

Background

Petitioner explains that respondent Community Education Council for District One

(“CEC”) is a governing body for the New York City public schools in District One. She observes

that she is the parent of a child currently attending a school in the district. Petitioner alleges that

CEC held a regular meeting on July 15, 2020 that was held virtually due to the then

- ongoing

1 The Court recognizes that although this proceeding was only transferred to the undersigned this week, this proceeding has been pending for many years. The Court therefore apologizes, on behalf of the Court system, for the inexcusable delay in the resolut ion of this proceeding.



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14
Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 151673/2021

MOTION DATE 04/17/2024 1

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION YIATIN CHU,

Petitioner,

- v
-
COMMUNITY EDUCATION COUNCIL FOR DISTRICT ONE, NAOMI PENA, in her official capacity as President of Community Education Council for District One, and DANIELLE SULLIVAN, in her official capacity as Records Access Officer of Community Education Council for District One,

Respondent s

.

------------------------------------------------------------------- -- ------------ X

The following e-filed documents, listed by NYSCEF document number (Motion 001)1-16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43

wer e read on this motion to/for A RTICLE 78 (BODY OR OFFICER)

. 

### FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 151673/2021

NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/18/2024

1 of 6 

### [* 1]151673/2021 CHU, YIATIN vs. COMMUNITY EDUCATION COUNCIL

Motion No. 001 Page 2 of 6 COVID

- 19 p andemic. She contend s that at the meeting, respondent Pena (the CEC president)

referred to a complaint forwarded by a unit within the Department of Education alleging that

petitioner “doxed” a high school student

. Petitioner insists she asked for a video recording of the meeting the next day and alleges

that she communicated with various people over the next few weeks regarding this recording.

She contends that she was told in August 2020 that CEC held a vote in their executive session

denying her request for a copy of the video.

Petitioner then filed a FOIL request on August 28, 2020 for a copy of the meeting. She

contends that she did not hear back and so she filed an appeal of this “constructive denial” on

O ctober 2, 2020. Again, petitioner insists that she received no response and so she filed the

instant proceeding.

In its answer, respondents contend that they no longer have the recording. They observe

that respondent Sullivan (the administrative assista nt for CEC) typically recorded these virtual

meetings. Respondents stress that at this particular meeting in July 2020, CEC decided to stop

using this particular Zoom account due to cost concerns and so respondents stopped paying the

bills for this account , which led to it being downgraded to a basic plan. They emphasize that they

thought, however, that the meeting was recorded as it was their common practice to record these

meetings.

Respondents contend that respondent Pena sought legal advice about turn ing over the

recording after petitioner informally requested a copy and that she was still waiting for a

response; they insist that is why respondent did not respond to petitioner’s FOIL request. They

add that on April 21, 2021, respondent Sullivan check ed the relevant folder for the “abandoned” 

### FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 151673/2021

NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/18/2024

2 of 6 

### [* 2]151673/2021 CHU, YIATIN vs. COMMUNITY EDUCATION COUNCIL

Motion No. 001 Page 3 of 6 Zoom account for CEC and could not find this recording. They include screenshots to support

this contention ( e.g., NYSCEF Doc. No. 29).

Respondents insist that they reached out to Zoom about this recording and we re given a

free trial license to search for the meeting on the cloud and could not find it. They also claim

that asked the Zoom representative to find the recording but that was also unsuccessful.

Respondents maintain that they could not find the requeste d record after a diligent search.

In reply, petitioner insists that she was never told that the recording did not exist during

her informal requests for a copy in the weeks following the meeting. She insists that she is

entitled to recover legal fees und er these circumstances. Petitioner demands $8,925.00 in legal

fees (at an hourly rate of $350).

Discussion

As an initial matter, the Court finds that respondents properly certified that they do not

possess the recording in question ( Rattley v New York City Police Dept. , 96 NY2d 873, 875 , 730

NYS2d 768 [2001] ). That renders petitioner’s request for a copy of the recording as moot; the

Court cannot force respondents to turn over a recording they do not possess. The Court observes

that it is unclear from this record whether respondents ever recorded the meeting in question.

The remaining issue here involves legal fees. FOIL provides that :

“ The court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which suc h person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access ” ( Public Officers Law § 89 [4][c]). 

### FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 151673/2021

NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/18/2024

3 of 6 

### [* 3]151673/2021 CHU, YIATIN vs. COMMUNITY EDUCATION COUNCIL

Motion No. 001 Page 4 of 6 There is no question that resp ondents failed to respond to the FOIL request in a timely

manner under section (i) above ; in fact, they did not respond at all until after this proceeding was

commenced. The remaining factor is whether petitioner substantially prevailed. “A petitioner

‘ su bstantially prevail s’ under Public Officers Law § 89(4)(c) when it receives all the information

that it requested and to which it is entitled in response to the underlying FOIL litigation”

( Competitive Enter. Inst. v Attorney Gen. of New York , 161 AD3d 128 3, 1286 , 76 NYS3d 640

[3d Dept 2018] [internal quotations and citations omitted]).

Here, petitioner received the relevant information about the recording (that r e s p o n d e n t s

apparently d o n o t p o s s e s s a c o p y ) only after she commenced this litigation ; she did not receive

an y response to her initial FOIL request . That is, respondents admit they ignored her FOIL

request a n d h e r a d m i n i s t r a t i v e a p p e a l : “ Respondents did not respond to Petitioner's

administrative appeal, because they still had not yet received the requested legal advice”

(NYSCEF Doc. No. 26, ¶ 50 [respondents’ answer] ). That they were waiting for legal advice is

not a basis to completely ignore a FOIL request

. Re spondents could have easily acknowledged

the request, stated they were waiting for legal advice and set an anticipated response date (a s is

the practice of many other governmental bodies).

Instead, respondents gave petitioner “the run around.” They never acknowledged, even

during her informal requests for the recording, that they did not have a copy of the meeting. They

a l l e g e d l y even told her tha t they voted to not give it to her, which clearly gave the impression t o

p e t i t i o n e r that they had it. In other words, they forced petitioner to bring a petition in order to

get the critical information

– information to which she was clearly entitled

. “The award of

attorney's fees is intended to create a clear deterrent to unreasonable delays and denials of access

and thereby encourage every unit of government to make a good faith effort to comply with the 

### FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 151673/2021

NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/18/2024

4 of 6 

### [* 4]151673/2021 CHU, YIATIN vs. COMMUNITY EDUCATION COUNCIL

Motion No. 001 Page 5 of 6 requirements of FOIL” ( Matter of S. Shore Pres s, Inc. v Havemeyer , 136 AD3d 929, 931, 25

NYS3d 303 [2d Dept 2016] [internal quotations and citations omitted ]). T h e c i r c u m s t a n c e s h e r e

d e m o n s t r a t e t h e f

u n d a m e n t a l p u r

p o s e o f F O I L

. P e t i t i o n e r w a s d i s c u s s e d a t a public meeting and

asked for the recording

. A f t e r s h e f i l e d h e r F O I L r e q u e s t , s he should have been p r o m p t l y

pro vided w i t h that recording o r told that it d i d not exist. That is the whole purpose of the

attorneys’ fee provision, to get a government a l a g e n c y to do what they are supposed to do

without making t h e r e q u e s t o r c o m m e n c e a proceeding in S u p r e m e C o u r t

. The Court makes no finding that there was “evidence tampering” as suggested by

petitioner in reply although it is curious that respondents never mentioned that they did not

possess a copy of the meeting until April 2021, many months after petitioner’s i n f o r m a l d e m a n d s

a n d a f t e r h e r FOIL request in August 2020.

Because respondents ignored their obligations and forced petitioner to c o m m e n c e t h i s

p r o c e e d i n g , th e Court therefore gra nts petitioner legal fees in the amount of $8,925.00 as

requested (petitioner’s counsel charge d $350 per hour). This is an inherently reasonable amount

of fees for a proceeding in New York County

. As a point of reference, Big Law partners now

charge nearly $2,000 an hour, with some charging up to $2,600 (Dan Roe, Top Big Law Partners

Are Earning More Than $2,400 Per Hour, as Rates Continue to Climb , New York Law Journal,

Jan. 10, 2024). Of course, a FOIL proceeding may not justify that high of an hourly ra te; but the

point is that $350 an hour for an attorney who has been practicing for 40 years (such as

petitioner’s counsel) is, on its face, a reasonable rate as is the total requested in this proceeding.

The Court observes that petitioner may request cost s and disbursements by submitting a

bill of costs to the County Clerk.

Accordingly, it is hereby 

### FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 151673/2021

NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/18/2024

5 of 6 

### [* 5]151673/2021 CHU, YIATIN vs. COMMUNITY EDUCATION COUNCIL

Motion No. 001 Page 6 of 6 ADJUDGED that the petition is granted only to the extent that petitioner is entitled to a

judgment in her favor and against respondents in the amount of $8,92 5.00 plus costs and

disbursements

, a n d t h e C l e r k s h a l l e n t e r j u d g m e n t a c c o r d i n g l y upon presentation of proper

papers therefor.

4/1 8 /2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: X CASE DISPOSED NON

- FINAL DISPOSITION

GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

### FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 151673/2021

NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/18/2024

6 of 6

# □**□**

[* 6]