Key Points

  • In Docket 2025-01613, the Second Department held that Aron Law exhausted its administrative remedies because the Town of Hempstead's time to decide the firm's FOIL appeal had expired.
  • The court held the records claim in that case moot because the firm received all responsive records not properly withheld during the litigation, but it granted the firm's request for attorneys' fees and litigation costs.
  • The firm substantially prevailed because the town did not decide the FOIL appeal within 10 business days and produced additional documents after the suit was filed; the case was remitted to Nassau County Supreme Court to set the award.
  • In Docket 2025-01656, the court affirmed dismissal for failure to exhaust because the town had not denied the request; it was still extending its estimated response date when the firm sued.
  • Both decisions were unanimous and unsigned, issued by the same four-justice panel on October 14, 2026.

The Town of Hempstead must pay a Brooklyn law firm's attorneys' fees in a public-records dispute over the town's school bus stop-arm enforcement program because the town missed its deadline to decide the firm's administrative appeal, a New York appeals court ruled on Oct. 14.

In a companion decision the same day, the same panel of the Appellate Division, Second Department, upheld the dismissal of a second suit by the firm, Aron Law PLLC, holding that it sued while the town was still extending its estimated response date. Both decisions were unanimous and unsigned. Justice Mark C. Dillon presided over the panel, which included Justices Deborah A. Dowling, Janice A. Taylor and James P. McCormack.

Together, the rulings mark where a requester's right to sue begins under the Freedom of Information Law, or FOIL, the state public-records statute. A town that produces records only after being sued can owe the requester's legal bills even though the records dispute itself has become moot, the court held. But in the second case, a town that said it was still gathering information and had not yet decided whether to grant or deny the request had not issued a denial that could be appealed, the court held.

Both decisions begin from the principle that "FOIL imposes a broad duty on government [agencies] to make [their] records available to the public," quoting an earlier decision. An agency's failure to meet the statute's response deadlines "constitute[s] a denial," and a denied requester may file a written appeal, which the agency must decide within 10 business days.

The first dispute began on June 1, 2023, when Aron Law asked the town for seven categories of records about the training given to the town's technicians and specialists who carry out the School Bus Stop Arm Program. On June 27, the town produced only one document: a master agreement with BusPatrol America LLC relating to the "School Bus Stop Arm Enforcement Program." The firm appealed immediately.

The firm then brought a proceeding under Article 78 of New York's Civil Practice Law and Rules, seeking the remaining records and attorneys' fees. After the suit was filed, the town turned over a PowerPoint presentation and a list of town technicians, then moved to dismiss. Felice J. Muraca of Nassau County Supreme Court granted the motion in January 2025.

The appellate panel held that the trial court erred in finding that the firm had failed to exhaust its administrative remedies, a rule that generally requires a party to pursue an agency's internal appeal before suing. "As the Town's time to respond to the petitioner's appeal had expired, and as this was its final response, the court should have determined that the petitioner had, in fact, exhausted its administrative remedies," the panel wrote.

The firm still lost its bid for the records themselves. The panel found that "the record supports the Town's contention that the petitioner received all records responsive to its FOIL request during the proceeding, not properly withheld, through the Town's disclosure and as discovery responses." A records claim is moot once the requester receives an adequate response while the case is pending, the panel said.

The fee claim survived. The Legislature authorized fee awards in FOIL cases "to create a clear deterrent to unreasonable delays and denials of access," the panel wrote, quoting an earlier decision. The statute allows a court to assess fees when the requester has "substantially prevailed" and the agency "failed to respond to a request or appeal within the statutory time." A requester substantially prevails, the court said, when the lawsuit "ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure."

Both conditions were met. The town "did not timely determine the petitioner's FOIL appeal within 10 business days of receiving it," and it produced more documents after the suit was filed. "Thus, the petitioner was the substantially prevailing party," the panel held. It ordered the trial court to grant the fee request and sent the case back to Nassau County Supreme Court to set the amount.

The second case grew out of a Feb. 28, 2024, email request for documents and communications about new "processing guidelines" and "evidence packages" mentioned in a contract amendment between the town and BusPatrol. The town acknowledged the request on March 4 and asked for more information. On March 26, it said the request could not be handled within the 20-day period and set April 23 as a more reasonable response date.

On May 1, the firm told the town it was appealing the town's "constructive denial" of the request. Emails the town later submitted to the court showed that it answered the appeal by moving its estimated response date to June 3, and on June 3 it moved the date again, to July 31. The firm sued on June 28, and the town argued that the firm had not exhausted its remedies because it filed before July 31.

Conrad D. Singer of Nassau County Supreme Court agreed and dismissed the case in January 2025. The appellate panel affirmed. "Under the circumstances, there was no denial providing a basis for the petitioner to appeal," the court wrote, explaining that the town had told the firm "that it was still gathering information regarding the FOIL request and had not yet determined whether to grant or deny the request."

The town sent its response on Sept. 6, 2024, and the firm never appealed it, the court noted. The panel affirmed that dismissal with costs; in the 2023 case, it modified the judgment without costs or disbursements.

Aron Law represented itself through Joseph H. Aron. The town was represented by Joshua M. Liebman of Rosenberg Calica Birney Liebman & Ross LLP.

The 2023 case now returns to Nassau County Supreme Court for a determination of reasonable attorneys' fees and litigation costs. The second decision leaves the dismissal of the 2024 case in place.