SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN

GORDON JENKINS,

Plaintiff,

-against-

Decision & Order

THEODORE HUTCHINS, VICTOR MARINELLO, JR., CARMEN RUE, SCOTT SCHOONMAKER and RAY NARGIZIAN,

Defendants.

Motion Return Date: January 19, 2010 RJI No.: 52-29900-09

Index No.: 4039/09

APPEARANCES: Ferrick Lynch MacCartney, P.L.L.C.

Attorneys for Plaintiff .

96 South Broadway

South Nyack, New York 10960 By: Brian D. Nugent, Esq.

McCabe & Mack, L.L.P.

Attorneys for Defendants Victor Marinello, Jr., Carmen

Rue, Scott Schoonmaker and RayNargizian 63 Washington Street

P.O. Box 509

Poughkeepsie, New York 12602-0509 By: David L. Posner, Esq.

Sackett, J.:

Defendants Victor Marinello, Jr. (Marinello), Carmen Rue (Rue), Scott Schoonmaker (Schoonmaker), and Ray Nargizian (Nargizian) move pursuant to CPLR 3211 (a) (5) and (7) for an order dismissing plaintiffs Gordon Jenkins' causes of action in this declaratory judgment action on the grounds that the fourth cause of action is barred by the statute of limitations and all of the causes of action fail to state a cause of action, and alternatively pursuant to CPLR 3212 for summary judgment.

Plaintiffs fourth cause of action asserts that prior to a public meeting in April 2009, Marinello, Rue, and Schoonmaker engaged in discussions and deliberations of public business that constituted a violation of the "Open Meetings Law" provisions of Public Officers Law § 100, et. seq. Respondents point out that the public meeting at issue actually occurred on July 6, 2009. A declaratory judgment action has a six-year statute oflimitations

unless the nature of the underlying action reveals that the dispute could be resolved as a specific action or proceeding for which there is a prescribed limitation (Yecies_v Sullivan, 221

. AD2d 433 [199S]; Solnick v Whalen, 49 NY2d 224, 229 [1980]). The salutary result of applying the shorter statute of limitations of other actions or proceedings is to preclude dilatory litigants from using the six-year bar as a means of evading the shorter time requirements of the other action or proceeding (Solnickv Whalen, 49 NY2d 224, 230 [1980]). Plaintiff could have raised his Open Meetings Law challenge in an article 78 proceeding. The statute of limitations for Article 78 proceedings is four months (CPLR § 217 [1]). Plaintiff raised his fourth cause of action on or about December 7,2009, a month after the four-month statute of limitations ended, and plaintiffs fourth cause of action would therefore appear to be time-barred.

Once a defendant has demonstrated that the statute of limitations has expired, the burden is on the plaintiff to establish the applicability of CPLR § 203 (D's "relation-back doctrine" Cardamone v Ricotta, 47 AD3d 6S9, 660 [2008]; Naniv Gould, 39AD3ds08, S09 . [2007]). CPLR § 203 (D states: "A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."

CPLR § 203 (D's "relation-back doctrine" permits a plaintiff to interpose a claim or cause of action which would ordinarily be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint (Pendleton_v City of New York, 44 AD3d 733, 736 [2007]). Even a new legal theory of recovery may be asserted, so long as it arises from the same transactions alleged in the original complaint (Pendleton v City of New York, 44 AD3d 733, 736 [2007]). The sine qua non of the "relation-back doctrine" is notice of the facts and occurrences. Where the allegations of the original complaint gave the defendants notice of the facts and occurrences giving rise to the new cause of action, the new cause of action may be asserted. However, where the original allegations did not provide the defendants notice of the need to defend against the allegations of the amended complaint, the doctrine is unavailable (Pendleton v City of New York, 44 AD3d 733,736 [2007]).

Plaintiffs original complaint does not even mention, much less put defendants on notice that plaintiff was challenging the defendants' alleged private meetings prior to the

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meeting in question. The Court rejects plaintiffs argument that "relation-back doctrine" applies to causes of action challenging newactivities that share a common characteristic with activities that are challenged in the original complaint. Thus, plaintiffs original allegation that Marinello, Rue, and Schoonmaker acted improperly in approving N argizian at a meeting does not open the door to belatedly challenging Marinello's, Rue's; and Schoonmaker's

actions prior to the meeting at which they approved Nargizian. Accordingly, plaintiffs fourth cause of action is barred by the four-month statute of limitations.

Turning back to plaintiffs first cause of action seeking a declaration that Marinello's, Rue's, and Schoonmaker's appointment of N argizian as Town Manager was contrary to law, CPLR 3211 (a) (7) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: ... the pleading fails to state a cause of action." On a CPLR 3211 (a) (7) motion, the Court's role is limited to deciding whether the facts as alleged in the complaint fit within a cognizable legal theory (Maas v Cornell Uniu., 94 NY2d 87, 91 [1999]; Cron v Harqro Fabrics, 91 NY2d 362,366 [1998]). When doing so, the Court must afford the complaint a liberal construction, accept as true the allegations contained therein, and accord the proponent of the cause of action the benefit . of every favorable inference and cognizable legal theory (Skibinsky v State Farm Fire & Cas.

Co., 6 AD3d 975, 976 [2004]; 1455 Washington Ave. Assoc. v Rose & Kiernan.Lnc., 260 AD2d 770, 771 [i999]).

There are limits to the deference to be given plaintiffs allegations. Under New York rules of procedure, conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts (Vanscoy v NAMIC USA Corp., 234 AD2d 680,682 [1996]; Muka v Greene County, 101 AD2d 965,965 [1994]). The Court may not supplement the pleadings by providing unalleged facts necessary to state a cause of action; such omissions must result in dismissal (Weimer v City of Johnstown,249 AD2d 608,611 [1998]). Where allegations consist of bare legal conclusions, or factual claims that are either inherently incredible or faulty, or are flatly contradicted by the documentary evidence, they are not entitled to deferential consideration by the Court (Maas v Cornell Uniu., 94 NY2d 87,91 [1999]; Beattie v Brown & Wood, 243 AD2d 395 [1997]; Ullmann v Norma Kamali, Inc., 207 AD2d 691, 692 [1994]).

Despite the fact that plaintiff has amended his complaint in an attempt to buttress it against defendants' motion to dismiss the original complaint for failure to state a cause of action, plaintiffs allegations continue to be insufficient and fall for the most part into the

category of bare legal conclusions that either misstate the law or are not supported by nonconclusory factual allegations. One of the new arguments that plaintiff has introduced into his amended complaint is that "legislative equivalency doctrine" required that the residency . requirement set forth in Public Officers Law § 3 could only be canceled in Nargizian's case by "enactment of a local law."

Petitioners' reliance upon "legislative equivalency doctrine" is misplaced. The rationale behind "legislative equivalency doctrine" is that laws should be changed by acts of equal dignity and import. The doctrine dictates that existing legislation be repealed ot modified only by a legislative act that is at least equal to the procedure used to enact it (Matter of Torre v County of Nassau, 86 NY2d 421,426 [1995]; Matter of New York Pub. Interest Research Group v Dinkins, 83 NY2d 377,384 [1994]; Matter of Gallagher v Regan, 42 NY2d 230, 234 [1977]). For 'example, a position created in a County Charter or Administrative Code could not be eliminated by adoption ofa County budget that omits an appropriation for that particular position; a local law amending the County Charter or Administrative Code would be required (Matter of Gallagher v Regan, 42 NY2d 230,234 [1977]). Similarly a zoning code or ordinance may not be amended by use of a resolution (Matter of Brunswick Smart Growth, Inc. v Town Bd. of Town of Brunswick, 51 AD3d 1119, 1120 [2008]). Consistent with the rule that a legislative act can be changed by a correlative legislative act, a position that is created by a legislative resolution or ordinance could be abolished by a resolution or ordinance (Matter of Lamb v Town of Esopus, 35 AD3d 1004, 1005 [2006]; Matter of Heron v City Of Binghamton, 307 AD2d 524, 525 [2003]).

Plaintiffs claim that a "local law" needed to be enacted in order to satisfy the purported requirements of "legislative equivalency doctrine" must be rejected first because the residency requirement was created 'by state law, not local law. Plaintiff has failed to identify any "local law" by which the residency requirement was created in the first place. Thus, there was no violation of "legislative equivalency doctrine" as a result of defendants' failure to enact a "local law" that appointed Nargizian as Town Manager or that permitted a non-resident of the Village to serve in that post. The Court also finds that plaintiff has failed to state a cause of action in support of his conclusion that Municipal Home Rule Law § 10 was violated. That statute authorizes local governments to adopt local laws, but does not require them to take all of their actions by enacting local laws.

The Court finds that plaintiff has also failed to state a cause of action in support of his conclusion that Marinello's, Rue's, and Schoonmaker's appointment of Nargizian was

contrary to Village Law § 3-300. Petitioner's conclusion that Village Law§ 3-300 was violated by Marinello, Rue, and Schoonmaker is not supported by any relevant factual allegations. Village Law § 3-300(2) provides in pertinent part that: "the board of trustees of a village may provide, in lieu of any other residencyrequirement imposed by law, that any appointed village officer may reside within a county in which the village is wholly or partially situated." Plaintiffs conclusory allegations regarding the resolution appointing Nargizian fail to set forth how this statutory requirement was violated and instead refer to matters that are not listed in the statute as requirements.

Plaintiffs second cause of action is noteworthy for abandoning some of plaintiffs previous erroneous conclusory claims and substituting new conclusory claims rather than alleging specific facts, such as the particular local law which plaintiff asks the Court to invalidate. While plaintiffs tactic shields his new claims from dismissal based on the statute oflimitations, it leaves his claim vulnerable to dismissal for failure to state a cause of action. As noted previously, the Court may not supplement the pleadings by providing unalleged facts necessary to state a cause of action or accept the truth of allegations consisting of bare legal conclusions. Thus, the Court finds that plaintiff has failed to state a cause of action and rejects plaintiffs conclusion that he has, in his position as Mayor, somehow recovered the power to appoint the Town Manager pursuant to Village Law § 4-400. Village Law § 23- 2202 provides that Village Law § 4-400 does not repeal or affect the provisions of Monticello's Village Manager form of government (Matter of Briggs v Harmin, 96 AD2d 616 [1983]). Monticello has had a Village Manager form of government since 1954. Plaintiff has not addressed defendants' allegations that the Monticello Trustees, including plaintiff when he was a Trustee, have been exercising the authority to appoint the Village Manager for those 55 yeats. Plaintiff has also failed to dispute the fact that the provision in the Village Code pursuant to which Marinello, Rue, and Schoonmaker most recently exercised that authority to appoint the Village Manager was enacted in 1999, well beyond the four-month statute of limitations for challenging procedures by which that law was enacted (Schiener v Town of Sardinia, 48 AD3d 1253, 1254 [2008]).

Plaintiffs third cause of action seeking a declaration that plaintiff has "the power to terminate and appoint the Village Attorney under the circumstances herein" must also be dismissed for failure to state a cause of action. Notwithstanding the opportunity to revise his complaint, plaintiff still fails to address the matters raised in defendants' motion to dismiss the original complaint. The new cause of action is as incomprehensible as the

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second cause of action. Plaintiff has failed to set forth what are the "circumstances herein." Plaintiff has failed to setforth how his actions were disregarded by Marinello, Rue, and Schoonmaker. In a maneuver that parallels his failed strategy in the second cause of action, plaintiff has failed to specify by what "state and local law" he claims to have the power to terminate and appoint the Village Attorney. While plaintiffs tactic may have the effect of temporarily shielding his claim from dismissal based on Local Law 45-12'S also being beyond the four-month statute of limitations, plaintiffs tactic invites dismissal for failure to state a cause of action.

Accordingly, Marinello's, Rue's, Schoonmaker's, and Nargizian's motion to dismiss the complaint in its entirety with prejudice is granted.

This shall constitute the decision, order and judgment of the Court. The original Decision, Order & Judgment and all papers are being forwarded to the Sullivan County Clerk's Office for" filing. Counsel are not relieved from the provisions of CPLR 2220 regarding service with notice of entry.

SO ORDERED.

Dated:

Monticello, New York April (, ,2010

Papers considered:

Notice of Motion dated November 10, 2009; Mfirmation of David L. Posner, Esq. dated November 10, 2009; Affirmation of Brian D. Nugent, Esq. dated December 7, 2009; Mfirmation of David L. Posner, Esq. dated January 4,2010; Mfirmation of David L. Posner, Esq. dated January 5, 2010; Mfirmation of Brian D.Nugent, Esq. dated January 18, 2009.

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