
    In the Matter of Calvin Johnson, Appellant, v Robert M. Morgenthau, as District Attorney of New York County, Respondent.
    [625 NYS2d 21]
   Order, Supreme Court, New York County (Lewis Friedman, J.), entered January 13, 1994, which denied petitioner’s application under the Freedom of Information Law for access to documents relating to the criminal proceeding against him prosecuted by respondent, without prejudice to petitioner pursuing an administrative appeal, unanimously modified, on the law, to reverse the denial of the application and dismiss the proceeding as moot, and otherwise affirmed, without costs.

It appears that due to an inadvertent mishandling of petitioner’s document request, respondent did not make the requested records available or deny the request in writing within five business days, as required by Public Officers Law § 89 (3). Petitioner promptly took an administrative appeal, which was received by respondent’s records access officer before the actual request for documents, and promptly initiated this CPLR article 78 proceeding a month later when the only response he had received was a letter that an effort was being made to locate the requested documents and that the appeal was being held in abeyance while the request was processed. While the article 78 was sub judice, respondent denied petitioner’s request on the ground that the documents requested had been provided to petitioner’s attorney in the course of the criminal proceeding (citing Matter of Moore v Santucci, 151 AD2d 677), and advised petitioner that he had the right to take an administrative appeal. Respondent’s denial of petitioner’s document request prior to the determination of the article 78 proceeding, and accompanying acknowledgment of petitioner’s right to take an administrative appeal, rendered the article 78 proceeding moot, and we accordingly modify to effect its dismissal (Matter of Newton v Police Dept., 183 AD2d 621, 624). Concur—Rosenberger, J. P., Ellerin, Rubin, Ross and Tom, JJ.  