In the Matter of Robin Tellier, Appellant, v. New York City Police Department, Respondent

In the Matter of Robin Tellier, Appellant, v New York City Police Department, Respondent. [698 NYS2d 490] [MAJORITY] —Order, Supreme Court, New York County (Charles Ramos, J.), entered May 19, 1998, which, in a proceeding pursuant to CPLR article 78, granted respondent’s cross motion to dismiss the petition seeking to compel the production of documents pursuant to a Freedom of Information Law (FOIL) request, unanimously affirmed, with costs. The petition for records pursuant to FOIL was properly dismissed as moot to the extent that respondent provided petitioner with records responsive to the request during the pendency of the litigation (see, Matter of Malerba v Kelly, 211 AD2d 479). The petition was otherwise properly dismissed for petitioner’s failure to exhaust his administrative remedies, since his administrative appeal respecting requested records alleged to have been improperly withheld by respondent had not yet been determined (see, supra; Matter of Newton v Police Dept., 183 AD2d 621, 624). We have considered petitioner’s remaining contentions and find them unavailing. Concur— Ellerin, P. J., Rosenberger, Nardelli, Mazzarelli and Friedman, JJ.