State Univ. of N.Y. v. Town of Amherst

• Decision Date: 18 February 2011
• Citation: 81 A.D.3d 1476,916 N.Y.S.2d 872
• Parties: In the Matter of STATE UNIVERSITY OF NEW YORK, Petitioner/ Plaintiff-Appellant-Respondent, v. TOWN OF AMHERST, Satish Mohan, Individually and in his Official Capacity as Supervisor of Town of Amherst, Town Board of Town of Amherst, Zoning Board of Appeals of Town of Amherst, GMH Communities, LP, College Park Investments, LLC, David Lade, Nancy Lade, William S. Schlegel, Jose Olivera, Michele Olivera, Lester C. Busdiecker, Matthew Marotta, Pamela Marotta, Mark R. Kellam, Paul Cummins, Pamela Cummins, Ettore Infanti, Martin Keitz, Kimberly Mast, Jeffrey Brooks, Barbara Brooks, Daniel P. Hull, Thomas Ketchum, in his Official Capacity as Director of Town of Amherst Building Department, Respondents/ Defendants-Respondents, and Eugene Tenney, Respondent/ Defendant-Respondent-Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 872

81 A.D.3d 1476

In the Matter of STATE UNIVERSITY OF NEW YORK, Petitioner/ Plaintiff-Appellant-Respondent,

v.TOWN OF AMHERST, Satish Mohan, Individually and in his Official Capacity as Supervisor of Town of Amherst, Town Board of Town of Amherst, Zoning Board of Appeals of Town of Amherst, GMH Communities, LP, College Park Investments, LLC, David Lade, Nancy Lade, William S. Schlegel, Jose Olivera, Michele Olivera, Lester C. Busdiecker, Matthew Marotta, Pamela Marotta, Mark R. Kellam, Paul Cummins, Pamela Cummins, Ettore Infanti, Martin Keitz, Kimberly Mast, Jeffrey Brooks, Barbara Brooks, Daniel P. Hull, Thomas Ketchum, in his Official Capacity as Director of Town of Amherst Building Department, Respondents/ Defendants-Respondents, and Eugene Tenney, Respondent/ Defendant-Respondent-Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 18, 2011.

respondent/defendant-respondent-appellant.

Hopkins & Sorgi, PLLC, Williamsville (Sean W. Hopkins of Counsel), for respondents/defendants-respondents GMH Communities, LP, College Park Investments, LLC, David Lade, Nancy Lade, William S. Schlegel, Jose Olivera, Michele Olivera, Lester C. Busdiecker, Matthew Marotta, Pamela Marotta, Mark R. Kellam, Paul Cummins, Pamela Cummins, Ettore Infanti, Martin Keitz, Kimberly Mast, Jeffrey Brooks, Barbara Brooks and Daniel P. Hull.

MEMORANDUM:

Petitioner/plaintiff (petitioner) contends in each appeal that Supreme Court erred in granting the motions of respondents/defendants (respondents) to dismiss the hybrid CPLR article 78 proceeding/declaratory judgment action concerning rezoning. According to respondents, petitioner lacked the capacity and authority to sue inasmuch as petitioner's Board of Trustees had neither authorized the commencement of these lawsuits nor ratified them after they were commenced. We reject petitioner's contention. "Capacity to sue is a threshold question involving the authority of a litigant to present a grievance for judicial review. The issue of capacity often arises when a governmental entity seeks to bring suit" (Matter of Town of Riverhead v. New York State Bd. of Real Prop. Serve., 5 N.Y.3d 36, 41, 799 N.Y.S.2d 753, 832 N.E.2d 1169; see Matter of Graziano v. County of Albany, 3 N.Y.3d 475, 478-479, 787 N.Y.S.2d 689, 821 N.E.2d 114). " 'Being artificial creatures of statute, such entities have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate' " (Town of Riverbed, 5 N.Y.3d at 41-42, 799 N.Y.S.2d 753, 832 N.E.2d 1169, quoting Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 155-156, 615 N.Y.S.2d 644, 639 N.E.2d 1). Pursuant to Education Law §§ 352 and 353 and petitioner's bylaws, all of petitioner's corporate powers are to be exercised by the Board of Trustees. As a result, a lawsuit brought in petitioner's name must be authorized by the Board of Trustees or another entity or individual designated by the Board of Trustees and given the express authority to authorize the lawsuit. After petitioner has been...