Rural Cmty. Coal., Inc. v. Vill. of Bloomingburg

Decision Date02 April 2015
Docket Number519346.
Citation6 N.Y.S.3d 758,127 A.D.3d 1304,2015 N.Y. Slip Op. 02828
PartiesRURAL COMMUNITY COALITION, INC., et al., Respondents–Appellants, v. VILLAGE OF BLOOMINGBURG et al., Defendants, and Town of Mamakating et al., Respondents, and Shalom Lamm et al., Appellants–Respondents.
CourtNew York Supreme Court — Appellate Division

Whiteman Osterman & Hanna, LLP, Albany (John J. Henry of counsel), appellants-respondents.

Montalbano, Condon & Frank, P.C., New City (Kurt E. Johnson of counsel), for respondents-appellants.

Jacobowitz & Gubits, LLP, Walden (J. Benjamin Gailey of counsel), for respondents.




Cross appeals from an order of the Supreme Court (Schick, J.), entered July 31, 2014 in Sullivan County, which partially denied certain defendants' motion to dismiss the complaint against them.

This case involves a challenge to a townhouse project in the Village of Bloomingburg, Sullivan County. The underlying facts are set forth in more detail in our recent decision involving an earlier appeal (118 A.D.3d 1092, 987 N.Y.S.2d 654 [2014] ). Briefly, defendants Shalom Lamm and Kenneth Nakdimen, individually and through defendant corporations (hereinafter collectively referred to as the developer defendants), have been pursuing the project since 2006. As part of the project, a portion of property in the Town of Mamakating, Sullivan County was annexed in 2006 by Local Law No. 3 (2006) of the Village of Bloomingburg (hereinafter the 2006 local law), with both defendant Town of Mamakating and defendant Village of Bloomingburg supporting such annexation. After construction started in 2012, some of the current plaintiffs brought an earlier action, which Supreme Court (Cahill, J.) dismissed; no appeal was taken. In 2014, this action was commenced alleging, among other things, that the 2006 local law was void. The Town essentially agreed with plaintiffs' position and also asserted cross claims. Supreme Court (Schick, J.) granted plaintiffs a preliminary injunction. This Court reversed (118 A.D.3d 1092, 987 N.Y.S.2d 654 [2014], supra ). By such time, the Village—which had elected a new mayor—changed its position in the pending litigation to opposing the validity of the 2006 local law. Thereafter, in addressing the developer defendants' current motion to dismiss, Supreme Court converted that part of the motion to dismiss to one for summary judgment regarding only plaintiffs' cause of action challenging the validity of the annexation, and the court granted summary judgment to plaintiffs on such issue, declaring that the 2006 local law authorizing the annexation was void ab inito. As for the rest of plaintiffs' claims and the Town's cross claims, Supreme Court granted the developer defendants' motion to dismiss. The developer defendants and plaintiffs each appeal from different aspects of Supreme Court's order.

Plaintiffs' challenge to the 2006 local law was untimely. Supreme Court found that, because residents of the annexed area had not voted on the annexation in 2006, the annexation was null and void, no statute of limitations applied and the property remained in the jurisdiction of the Town. At the time the annexation occurred, there was authority authorizing annexations that had occurred without a formal vote in some limited situations, such as where the affected residents made clear their consent (see e.g. Matter of City of Rensselaer v. Town Bd. of Town of N. Greenbush, 169 A.D.2d 936, 937, 564 N.Y.S.2d 836 [1991] ; Matter of City of Saratoga Springs v. Town of Greenfield, 34 A.D.2d 364, 368, 312 N.Y.S.2d 4 [1970], lv. denied 28 N.Y.2d 482, 319 N.Y.S.2d 1027, 267 N.E.2d 891 [1971] ). However, in 2008, the Court of Appeals clarified the law holding that, where there are residents in the affected area, a formal, secret vote must be taken (see Matter of City of Utica v. Town of Frankfort, 10 N.Y.3d 128, 133–135, 855 N.Y.S.2d 1, 884 N.E.2d 1000 [2008] ).

The current action was commenced over seven years after the annexation and nearly six years after the clarifying decision in Matter of City of Utica v. Town of Frankfort (supra ). This is not a situation of an ongoing border disagreement between municipalities (see e.g. Town of Saranac v. Town of Plattsburgh, 218 A.D.2d 866, 867, 630 N.Y.S.2d 394 [1995] ). In fact, at the time of the annexation in 2006, such action was supported by the Town and the Village, and the record contains notarized statements of support by affected residents. Currently, the Town, the Village and many of the affected residents urge in unanimity the opposite result, i.e., that the annexation should now be set aside. Given such agreement, if this was merely an attempt to delineate boundaries, it could be easily resolved....

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