Opinion
1240, 1240A
May 30, 2002.
Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered January 3, 2000, which, in an action against defendant police department seeking damages for failure to properly investigate harassing phone calls made to plaintiff, refer her complaints to the District Attorney for prosecution, and timely comply with her Freedom of Information Law requests, granted defendant's motion to dismiss the complaint for failure to state a cause of action, and denied plaintiff's cross motion seeking, in effect, a default judgment, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 24, 2000, which denied plaintiff's motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.
FARIDA BURTIS, PRO SE Plaintiff-appellant.
LINDA H. YOUNG, for Defendants-respondents.
Buckley, J.P., Rosenberger, Lerner, Rubin, Marlow, JJ.
Defendant's investigation of plaintiff's claims of harassing phone calls involved an exercise of discretion for which defendant cannot be held liable in negligence absent an allegation that any of the police officers with whom plaintiff spoke specifically promised to perform a particular act on her behalf (see, Cuffy v. City of New York, 69 N.Y.2d 255, 260; see also, Tango v. Tulevech, 61 N.Y.2d 34, 40). Plaintiff's FOIL claims are barred by the res judicata effect of a prior order holding that her FOIL requests had been supplied. Moreover, money damages are not available for an agency's failure to comply with a FOIL request, relief being limited to an administrative appeal and a CPLR article 78 proceeding (Public Officers Law § 89; see, Matter of DeCorse v. City of Buffalo, 239 A.D.2d 949, 949-950). Plaintiff's claim that defendant backdated its motion to dismiss the complaint so as to avoid the consequences of an order conditionally granting a default judgment unless it answered or moved with respect to the complaint within 20 days was fully investigated by the Chief Clerk of the Supreme Court, and no basis exists to conduct the evidentiary hearing which plaintiff seeks in connection with such claim. We have considered and rejected plaintiff's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.