Slutzky v. Cuomo

• Decision Date: 06 February 1986
• Citation: 114 A.D.2d 116,498 N.Y.S.2d 550
• Parties: Orville A. SLUTZKY, Appellant, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 550

498 N.Y.S.2d 550

114 A.D.2d 116

Orville A. SLUTZKY, Appellant, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Feb. 6, 1986.

Walter J. Heffernan (Larry F. Gardner, of counsel), Windham, for appellant.

Robert Abrams, Atty. Gen. (Lawrence A. Rappoport, of counsel), Albany, for respondents.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

LEVINE, Justice.

The instant action concerns an agreement regarding the operation and management of the Gore Mountain Ski Center (Gore), which is located in Warren County and consists of lands owned by the State which are a part of the Adirondack Park Forest Preserve (see, ECL 9-0101). The N.Y. Constitution, article XIV, § 1, mandates that such lands "shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private." The same clause also provides that "herein contained shall prevent the state from constructing, completing and maintaining * * * ski trails * * * on the slopes of Gore". In 1970, the Legislature established the Department of Environmental Conservation (DEC) (L.1970, ch. 140) and vested it with the power to administer Gore (see, ECL 9-0903 In 1981, defendant State Olympic Regional Development Authority (ORDA) was created as a public benefit corporation with the authority to enter into contracts to maintain and manage State-owned and other Olympic facilities (Public Authorities Law § 2606). Thereafter, the Legislature mandated that DEC and ORDA enter into an agreement transferring to ORDA DEC's authority to operate the facility at Gore (Public Authorities Law § 2614).

Plaintiff commenced the instant suit pursuant to State Finance Law article 7-A, seeking a declaration as to the legality of the agreement which was subsequently entered into by DEC and ORDA and an injunction restraining DEC, ORDA and defendant Mario Cuomo, as Governor of New York, from taking any action in furtherance of that agreement. Plaintiff alleged that the agreement violated N.Y. Constitution, article XIV, § 1 in that it constituted a lease of State lands and improperly delegated State authority to operate Gore to ORDA, an entity which was not a State agency. Special Term determined that the agreement was not a lease, that ORDA was a State agency for the purposes of N.Y. Constitution, article XIV, § 1, and that the agreement was otherwise lawful and constitutional. This appeal by plaintiff ensued.

Special Term was correct in upholding the validity of the agreement. Plaintiff's claim that the subject agreement constitutes a lease is without merit. Whether an agreement regarding the use of real property constitutes a lease depends upon the degree of transfer of control and possession for a specified rental (Feder v. Caliguira, 8 N.Y.2d 400, 404, 208 N.Y.S.2d 970, 171 N.E.2d 316; Matter of Riverview Apts. Co. v. Golos, 97 A.D.2d 917, 918, 470 N.Y.S.2d 758, lv. dismissed 62 N.Y.2d 976, 479 N.Y.S.2d 372, 468 N.E.2d 297). The agreement under review narrowly restricts ORDA's dominion over the property. In its management of Gore, ORDA is required to (1) maintain, at a minimu, the space, activities and level of public recreation which were previously provided by DEC; (2) provide the staff necessary for undertaking the completion of a unit management plan for the facility, in conformance with Executive Law § 816, the Adirondack Park State Land Master Plan, and DEC's "Unit Management Planning Policy and Procedures Manual"; (3) honor DEC's prior agreements concerning Gore; (4) obtain DEC's approval prior to making any capital improvements; and (5) undertake repairs requested by DEC at the State's expense. Additionally, DEC retains the right to use and reconstruct the radio tower on Gore and remains liable for all claims arising from the use of the premises and property. DEC also retains the right to enter the property without notice at any time. Accordingly, the agreement "delegates insufficient dominion and control" to ORDA to be constituted a lease (Matter of Riverview Apts. Co. v. Golos, supra, p. 918, 470 N.Y.S.2d 758). In purpose and effect, it is nothing more than an operating agreement concerning the facility. Moreover, the reciprocal financial obligations of DEC and ORDA under the agreement cannot properly be viewed as representing rent (see, Feder v. Caliguira, supra, 8 N.Y.2d p. 406, 208 N.Y.S.2d 970, 171 N.E.2d 316).

We are similarly unpersuaded by plaintiff's remaining contentions. The State may properly delegate its authority concerning skiing facilities under N.Y. Constitution, article XIV, § 1 to a State agency (see, Helms v. Reid, 90 Misc.2d 583, 599, 394 N.Y.S.2d 987). Whether ORDA may be considered a State agency for the purposes of N.Y. Constitution, article XIV, § 1 requires a particularized inquiry into the nature of ORDA and the provision of law claimed to be applicable to it (see, Grace & Co. v. State Univ....