Capruso v. Vill. of Kings Point

• Decision Date: 16 November 2010
• Citation: 912 N.Y.S.2d 244,78 A.D.3d 877
• Parties: Daniel CAPRUSO, et al., respondents, v. VILLAGE OF KINGS POINT, etc., et al., appellants. (Action No. 1) State of New York, respondent, v. Village of Kings Point, appellant. (Action No. 2).
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 244

78 A.D.3d 877

Daniel CAPRUSO, et al., respondents,

v.VILLAGE OF KINGS POINT, etc., et al., appellants. (Action No. 1)

State of New York, respondent,

v.Village of Kings Point, appellant. (Action No. 2).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 16, 2010.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman and Todd Harris Hesekiel of counsel), for appellants in both actions.

Albert K. Butzel, New York, N.Y., and Super Law Group, LLC, New York, N.Y. (Reed W. Super and Alexandra I. Hankovszky of counsel), for respondents in ActionNo. 1(one brief filed).

Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek, Ann P. Zybert, Norman Spiegel, and Janice Taylor of counsel), for respondent in ActionNo. 2.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, RANDALL T. ENG, and L. PRISCILLA HALL, JJ.

In two related actions for certain declaratory and injunctive relief, the defendants in ActionNo. 1 appeal, as limited by thejoint brief, from so much of an order of the Supreme Court, Nassau County(Feinman, J.), dated July 29, 2009, as granted the motion of the plaintiffs in ActionNo. 1, for a preliminary injunction, conditioned on their posting of an undertaking, and denied their cross motion to dismiss the complaint in that action, and the defendant in ActionNo. 2 appeals, as limited by the joint brief, from so much of an order of the same court dated November 18, 2009, as granted the motion of the plaintiff in ActionNo. 2 for a preliminary injunction and denied its cross motion to dismiss the complaint in that action.

ORDERED that the appeal from so much of the order dated July 29, 2009, as granted the plaintiffs' motion for a preliminary injunction is dismissed as academic; and it is further,

ORDERED that the order dated July 29, 2009, is affirmed insofar as reviewed; and it is further,

ORDERED that the order dated November 18, 2009, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the respondents.

In March 2009the plaintiffs in ActionNo. 1(hereinafter the plaintiffs) commenced that action against the Village of Kings Point, the Village Mayor, and the Village Board of Trustees(hereinafter collectively the Village defendants) seeking declaratory and injunctive relief predicated on allegations of the Village's current and proposed use of certain dedicated parkland (hereinafter the alleged parkland) for nonpark purposes without the approval of the New York State Legislature(hereinafter the State Legislature) in violation of the public trust doctrine ( seeFriends of Van Cortlandt Park v. City of New York,95 N.Y.2d 623, 630, 727 N.Y.S.2d 2, 750 N.E.2d 1050).The plaintiffs moved for a preliminary injunction to prevent the Village from moving forward with its plans for the proposed use of the alleged parkland during the pendency of the action.The Village defendants cross-moved to dismiss the complaint as time-barred and based on laches.In the order dated July 29, 2009, the Supreme Court, inter alia, granted the plaintiffs' motion, conditioned on their posting of an undertaking, and denied the Village defendants' cross motion.The Village defendants appeal from that order.

Meanwhile, in September 2009, when the plaintiffs were unable to post an undertaking in the amount required by the foregoing order, the State of New York(hereinafter the State), as parens patriae on behalf of its citizens and residents, commenced ActionNo. 2 against the Village seeking similar declaratory and injunctive relief based on the public trust doctrine only with respect to the Village's proposed use of the alleged parkland for nonpark purposes without the approval of the State Legislature.Like the plaintiffs in ActionNo. 1, the State moved for a preliminary injunction to prevent the Village from moving forward with its plans for the proposed use of the alleged parkland during the pendency of the action.In the order dated November 18, 2009, the Supreme Court, inter alia, granted the State's motion and denied the Village's cross motion.The Village appeals from that order.

Contrary to the appellants' contention, the statute of limitations did not bar the subject actions.A municipality's current and ongoing use of dedicated parkland for nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine is a continuing wrong that the municipality has the ability to control and abate.Thus, here, although the Village purportedly has been using the alleged parkland for nonpark purposes without the approval of the State Legislature since, at the latest, around July 1946, insofar as the plaintiffs'second cause of action seeks declaratory and injunctive reliefpredicated on allegations of the...