City Council of City of Saratoga Springs v. Town Bd. of Town of Greenfield

• Decision Date: 16 January 1968
• Citation: 286 N.Y.S.2d 325,29 A.D.2d 167
• Parties: In the Matter of CITY COUNCIL OF the CITY OF SARATOGA SPRINGS, Petitioner, v. TOWN BOARD OF the TOWN OF GREENFIELD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 325

286 N.Y.S.2d 325

29 A.D.2d 167

In the Matter of CITY COUNCIL OF the CITY OF SARATOGA SPRINGS, Petitioner, v. TOWN BOARD OF the TOWN OF GREENFIELD, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 16, 1968.

Edward A. Tracy, Ballston Spa, for respondent.

Howard C. Nolan, Jr., Albany, for petitioner.

Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and GABRIELLI, JJ.

HERLIHY, Justice.

The Town Board of the Town of Greenfield moves to dismiss a petition filed, pursuant to subdivision 1 of section 712 of the General Municipal Law, by the City Council of the City of Saratoga Springs for an adjudication and determination of the issue of whether the proposed annexation to the City of Saratoga Springs of territory in the Town of Greenfield is in the over-all public interest.

The motion to dismiss is premised on the failure of the city to commence a proceeding under CPLR article 78 within the 30 days prescribed by subdivision 3 of section 711 of the General Municipal Law to review the town's determination that the annexation petition failed to comply with the provisions of the municipal annexation law; that such failure rendered the annexation proceedings a nullity; and that, therefore, the present petition for an adjudication and determination of the issue of over-all public interest is academic. The town alleges as a ground for disapproval that there was a failure to state the number of inhabitants in the district proposed to be annexed and that the City of Saratoga Springs 'acted as a part of the Hearing and Determining Board of Judges in this Matter', and that these grounds presented questions which came within the purview of paragraphs a, b. c or d of subdivision 1 of section 705 of the statute and which are referred to in subdivision 3 of section 711 as being subject to review in an article 78 proceeding.

The city counters, not by a denial of the town's claim, but that subdivision 3 of section 712 of the statute provides for a consolidation of the proceedings. That section provides:

'The appellate division may stay or transfer and consolidate with the proceeding brought pursuant to subdivision one of this section any other proceeding brought against one of the parties pursuant to the provisions of article seventy-eight of the civil practice law and rules (CPLR) concerning a matter described in paragraphs a, b, c or d of subdivision one of section seven hundred five of this article and pending in any court.' (§ 712(...