Colton v. Town Bd. of Town of Amherst
| Decision Date | 30 April 2010 |
| Citation | 899 N.Y.S.2d 498,72 A.D.3d 1638 |
| Parties | In the Matter of Judy COLTON, Individually and as President of Northwest Amherst Residents Association, Inc., A Not-For-Profit Corporation, Omar Elnasser, Joseph Grifasi, Ann Grifasi, Lucian Parlato, Josephine Parlato, and Daniel Ward, Individually and as A Member of Town Board of Town of Amherst, Petitioners-Appellants, v. TOWN BOARD OF TOWN OF AMHERST, et al., Respondents, and Ciminelli Development Company, Inc., Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Richard J. Lippes & Associates, Buffalo (Gregg S. Maxwell of Counsel), for Petitioners-Appellants.
PRESENT: MARTOCHE, J.P., SMITH, PERADOTTO, AND GREEN, JJ.
Petitioners commenced this proceeding pursuant to CPLR article 78 challenging respondents' actions with respect to the proposed development of vacant property in the Town of Amherst (Town). Supreme Court properly granted the motion of respondent Ciminelli Development Company, Inc. to dismiss the petition insofar as it is brought by petitioner Daniel Ward, individually and as a member of the Town Board, a respondent herein. Ward lacks standing to bring this proceeding in his individual capacity as a resident of the Town because "[h]e failed to allege any 'injury that is in some way different from that of the public at large' " ( Matter of Oaks v. Town of Phelps, 55 A.D.3d 1257, 864 N.Y.S.2d 579). In addition, Wardlacks standing to bring this proceeding in his capacity as a member of the Town Board ( see Caruso v. New York City Police Dept. Pension Funds, Arts. 1 & 2, 72 N.Y.2d 568, 574-576, 535 N.Y.S.2d 349, 531 N.E.2d 1281). The record does not support the contention of Ward that the challenged actions of the Town Board nullified his vote and usurped his power as a Town Board member, thereby providing him with standing ( cf. Silver v. Pataki, 96 N.Y.2d 532, 539-540, 730 N.Y.S.2d 482, 755 N.E.2d 842, rearg. denied 96 N.Y.2d 938, 733 N.Y.S.2d 377, 759 N.E.2d 376). Rather, Ward is merely a member of the Town Board who voted in the minority with respect to the proposed development, and he thus has not suffered any injury sufficient to provide him with standing ( see Matter of Posner v. Rockefeller, 26 N.Y.2d 970, 311 N.Y.S.2d 15, 259 N.E.2d 484).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
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