McCrory v. Vill. of Mamaroneck
| Decision Date | 27 October 2011 |
| Parties | In the Matter of the Application of Suzanne McCRORY, Petitioner, v. VILLAGE OF MAMARONECK, Respondent. |
| Court | New York Supreme Court |
Suzanne J. McCrory, Mamaroneck, Petitioner, pro se.
Silverberg Zalantis, LLP, Tarrytown, for respondent.
Keane & Beane, P.C., White Plains, for proposed intervenors.
Upon consideration of all of the foregoing, and for the following reasons, the motions to transfer, to intervene and to dismiss for failure to join necessary parties are denied, and the application for judgment pursuant to article 78 is granted.
Unless otherwise indicated, the following facts are either undisputed or established by the record.
Petitioner is a resident of the Village of Mamaroneck. MBYC operates a private club located on the shore of Long Island Sound in the Village of Mamaroneck and filed with the Planning Board for the Village of Mamaroneck an application for approval of its plan to redevelop its property. Various aspects of that application and related applications before other officials, boards and agencies of the Village have been the subject of several actions and special proceedings before this court. One such litigation was a plenary action in which, inter alia, MBYC sought from the Village damages caused by delays in the processing and determination of such applications. See Mamaroneck Beach & Yacht Club, Inc., et al v. Board of Trustees of the Village of Mamaroneck, et al, Index No. 8818/05 (S.Ct.West.Co.), (hereafter, the "Damages Action").
Pursuant to its authority under CPLR 3103(a) to regulate discovery in civil actions, on June 16, 2006, this court (Lippman, J.) issued a protective order in the Damages Action, inter alia, directing that:
(Confidentiality Order, a copy of which is annexed to the Order To Show Cause With Stay1 [hereafter, "OTSC"] as Exhibit B, at 1).
The Confidentiality Order delineated the following procedure for designating Confidential Material:
2. (b) Designation of documents or other materials or information as Confidential Material shall be made by stamping the documents or materials with the words "CONFIDENTIAL" at the time of production of the documents or other materials to counsel for the party or parties receiving the Confidential Material (the "receiving party"). Portions of deposition and hearing transcripts that reference Confidential Material may be designated as Confidential Material by any party or witness in writing, served on the parties and (if the witness is a non-party) the witness within five (5) business days after receipt of the transcript from the party noticing the deposition ... In such a case, each party, and (if the witness is a non-party) the witness shall stamp the covers of original and each copy of the transcript in their possession with the word "CONFIDENTIAL." Depositions and hearing transcripts shall automatically be treated as Confidential Material until the expiration of the five-business-day period described above.
(Id. at 2).
The Confidentiality Order provided that Confidential Material so designated could be disclosed only to certain persons or entities, none of whom are involved in the instant proceeding, and only under certain conditions, none of which are relevant to the instant proceeding, and otherwise prohibited the disclosure of designated Confidential Material to "a non-party." (See id., ¶ 3, at 3–5). Further, Confidential Material was to be returned to the producing party or destroyed by the receiving party "[w]ithin 60 calendar days of the final determination, including appeals, or other termination of" the Damages Action (id., ¶ 8, at 6).
During the discovery phase of the Damages Action, depositions were taken of Bernard J. Rosenshein, then president of MBYC, and Lisa Rosenshein, then vice president of MYBC. Transcripts of those depositions (collectively hereafter, the "Rosenshein Deps") are currently in the possession of the Village.
By Stipulated Consent Judgment (hereafter, "SCJ," a copy of which is annexed to the OTSC as Exhibit A) So Ordered by this Court on September 8, 2010, the Damages Action and several other actions, proceedings, and claims between the parties were, "subject to terms and conditions of this Stipulated Consent Judgment, hereby settled and resolved" (SCJ, ¶ 1, at 5); also, each party "irrevocably waive[d] any right it may have to appeal from the [SCJ]" (id., ¶ 11, at 18). A Stipulation Of Discontinuance With Prejudice of the Damages Action (hereafter, "SDWP," a copy of which is annexed to the Affirmation Of Jonathan D. Lupkin, Esq. [hereafter, "Lupkin Aff."] as Exhibit 3) was executed by MBYC's attorneys on September 16, 2010, and counter-executed by the attorneys for the Village on September 20, 2010. Pursuant to the SCJ, the executed SDWP was to be held in escrow by the attorneys for the Village pending satisfaction of the terms of the SCJ at which point "the Pending Actions [including the Damages Action] shall be discontinued and the Parties shall file without further notice [the SDWP] with the Westchester County Clerk." (SCJ, ¶ 19, at 19–20). According to the records of the Westchester County Clerk, the SDWP was filed on January 13, 2011. Petitioner herein was neither a party to the Damages Action or any of the actions proceedings and claims settled thereby, nor a signatory to the SCJ or SDWP.
By e-mail to the Village of Mamaroneck Deputy Clerk dated November 17, 2010, petitioner submitted an application pursuant to article 6 of the Public Officers Law () for access to (A copy of that e-mail is part of Exhibit 1 in the Certified Record.2 ) On December 1, 2010, having received no response to her request, petitioner sent an e-mail to the Village Manager—who is also "the FOIL appeal officer" (Affidavit [of Richard Slingerland] In Opposition To Petition [hereafter, "Slingerland Aff."] at 1)—for the Village in which she said, "I am appealing, pursuant to FOIL, the apparent default denial of my request for the records requested by the email reproduced below." (Rec. Ex. 1). By e-mail sent to petitioner on December 1, 2010, the Village Manager responded: "I have received your request under FOIL, and will look into this matter immediately, to advise whether the records you have requested are releasable under FOIL." (Rec. Ex. 1).
On December 13, 2010, the Village Manager advised petitioner that he had denied her request in its entirety (Slingerland Aff. at 3). At petitioner's request, the Village Manager agreed to "confer with the Committee on Open Government [hereafter, the "COG"]."3 (Id. at 3).
By e-mail dated January 4, 2011, and sent at 1:15 p.m., the Village Manager advised petitioner, "I have spoken with the [COG] about your request, and I am discussing it further with Counsel to the Village on this matter, who are researching documents to provide me with information and court directives that may apply to this matter." (Rec. Ex. 8). By e-mail sent that same date at 3:46 p.m. the Village Manager advised petitioner:
(Rec. Ex. 10).
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