Tenney v. Hodgson Russ, LLP

• Decision Date: 26 July 2012
• Docket Number: 514183
• Citation: 2012 NY Slip Op 05783
• Parties: EUGENE C. TENNEY, Appellant, v. HODGSON RUSS, LLP, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2012 NY Slip Op 05783

EUGENE C. TENNEY, Appellant,
v.
HODGSON RUSS, LLP, et al., Respondents.

514183

Appellate Division of the Supreme Court of the State of New York

Decided and Entered: July 26, 2012
Calendar Date: May 29, 2012

Before: Peters, P.J., Lahtinen, Spain, Malone Jr. and Garry, JJ.

Law Offices of Eugene C. Tenney, Buffalo (Eugene C. Tenney of counsel), for appellant.

Hagerty & Brady, Buffalo (Michael A. Brady of counsel), for Hodgson Russ, LLP and others, respondents.

Hodgson Russ LLP, Buffalo (Kevin M. Kearney of counsel), for Robert G. Shibley and others, respondents.

MEMORANDUM AND ORDER

Peters, P.J.

Appeal (transferred to this Court by order of the Appellate Division, Fourth Department) from an order of the Supreme Court (Whalen, J.), entered October 7, 2011 in Erie County, which granted defendants' motion to dismiss the complaint.

Plaintiff owned real property in the Town of Amherst, Erie County adjacent to the North Campus of the University at Buffalo, an institution operated by the State University of New York (hereinafter SUNY), which he contracted to sell to GMH Communities, LP, an entity planning to build a large student housing complex thereon. Because the complex was not permitted on the property as originally zoned, the sale was made contingent upon the area being rezoned, and the Town initially granted that relief in March 2007.

SUNY thereafter commenced a series of proceedings challenging the rezoning and other actions taken by the Town in furtherance of the proposed development, naming the Town, plaintiff and others as respondents. The Town promptly agreed to annul the rezoning of plaintiff's property upon the ground that it violated the Town's comprehensive plan. Plaintiff

Page 2

responded by asserting that SUNY lacked capacity to bring the proceedings and, moreover, that the litigation amounted to tortious interference with the contract to sell his property to GMH. As is relevant here, Supreme Court dismissed the proceedings for lack of capacity to sue due to the failure of the SUNY Board of Trustees to authorize them, but rejected plaintiff's further contention that SUNY's actions in undertaking the litigation were frivolous. The court also transferred plaintiff's tortious interference counterclaim to the Court of...