Town Bd. of Town of Brighton ex rel. Town of Brighton v. W. Brighton Fire Dep't, Inc.

• Decision Date: 27 March 2015
• Docket Number: 110 CA 14-01110
• Parties: In the Matter of TOWN BOARD OF TOWN OF BRIGHTON, on behalf of TOWN OF BRIGHTON, and West Brighton Fire Protection District, Petitioners–Plaintiffs–Respondents, v. WEST BRIGHTON FIRE DEPARTMENT, INC., Respondent–Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1433

7 N.Y.S.3d 736

2015 N.Y. Slip Op. 02581

In the Matter of TOWN BOARD OF TOWN OF BRIGHTON, on behalf of TOWN OF BRIGHTON, and West Brighton Fire Protection District, Petitioners–Plaintiffs–Respondents

v.WEST BRIGHTON FIRE DEPARTMENT, INC., Respondent–Defendant–Appellant.

110 CA 14-01110

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

March 27, 2015.

Pinsky Law Group, PLLC, Syracuse (Bradley M. Pinsky Of Counsel), for Respondent–Defendant–Appellant.

Hannigan Law Firm PLLC, Albany (Terence S. Hannigan of Counsel), for Petitioners–Plaintiffs–Respondents.

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, AND VALENTINO, JJ.

OpinionMEMORANDUM:

Petitioners-plaintiffs, the Town Board of the Town of Brighton (Town Board), on behalf of the Town of Brighton (Town), and the West Brighton Fire Protection District (FPD) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, judgment declaring that respondent-defendant, West Brighton Fire Department, Inc. (WBFD), must comply with the terms of the contract entered into by the Town Board and the WBFD in July 2011 (2011 contract). The Town Board is the governing body of the FPD, which has for many years contracted annually with the WBFD to provide fire protection in the FPD. The WBFD is a volunteer fire department that is comprised of approximately 24 volunteers and supported by two paid “career” firefighters employed by the FPD and paid by the Town. Concerns with respect to the WBFD's ability to provide reliable and effective service in the FPD led the Town to contract with the City of Rochester (City) for the City of Rochester Fire Department (RFD) to provide services in the FPD beginning in 2002.

On July 25, 2012, the Town Board, by resolution, terminated the 2011 contract with the WBFD upon determining that the RFD would provide fire protection in the WBFD service area. Moreover, on July 29, 2012, the Town notified the WBFD's current president that the 2011 contract was terminated and demanded that the WBFD “promptly take all necessary action to transfer all of its personal and financial property to the Town ..., and transfer all of its real property to the Town['s] ... Local Development Corporation.” On the same date, the Town Board, on behalf of the Town, and the FPD commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a judgment directing the WBFD to “comply forthwith with the provisions of [the 2011 contract], including, but not limited to all of the provisions ... relating to the transfer of real and personal property and other assets to the [p]etitioner[s].”

We note at the outset that the Town Board lacks capacity to bring this proceeding/action. As “artificial creatures of statute,” governmental entities such as the Town Board “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” (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 ; 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 ). Here, Town Law § 65(1) provides in relevant part that “[a]ny action or special proceeding for or against a town, or for its benefit, ... shall be in the name of the town,” and that “[t]he town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town” (see Matter of Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 264–265, 476 N.Y.S.2d 775, 465 N.E.2d 314 ). Under the circumstances of this case, we exercise our power pursuant to CPLR 2001 to correct that irregularity and to amend the caption by substituting the Town for the Town Board, “on behalf of” the Town (see Boyd v. Town of N. Elba, 28 A.D.3d 929, 930 n., 813 N.Y.S.2d 247, lv. dismissed 7 N.Y.3d 783, 820 N.Y.S.2d 545, 853 N.E.2d 1113 ; see also Schwartzberg v. State of New York, 121 Misc.2d 1095, 1098–1099, 469 N.Y.S.2d 836, affd. 98 A.D.2d 902, 471 N.Y.S.2d 251 ). We therefore modify the order accordingly.

As an additional preliminary matter, we note that, although a CPLR article 78 proceeding may be brought against public or private corporations that “take on a quasi-governmental status” (Siegel, N.Y. Prac. § 558 at 989 [5th ed.] ; see Matter of Gray v. Canisius Coll. of Buffalo, 76 A.D.2d 30, 33, 430 N.Y.S.2d 163 ), such “a ... proceeding is ‘not the proper vehicle to resolve contractual rights' ” (Matter of Carlile v. Waite, 265 A.D.2d 889, 889, 696 N.Y.S.2d 920 ; see Kerlikowske v. City of Buffalo, 305 A.D.2d 997, 997, 758 N.Y.S.2d 739 ). Moreover, a declaratory judgment action is also not a proper vehicle to resolve the contractual rights herein because “ ‘a full and adequate remedy is already provided by another well-known form of action’ ” (Automated Ticket Sys. v. Quinn, 90 A.D.2d 738, 739, 455 N.Y.S.2d 799, affd. 58 N.Y.2d 949, 460 N.Y.S.2d 533, 447 N.E.2d 82 ; see Main Evaluations v. State of New York, 296 A.D.2d 852, 853, 745 N.Y.S.2d 355, appeal dismissed and lv. denied 98 N.Y.2d 762, 751 N.Y.S.2d 846, 781 N.E.2d 911 ). Pursuant to CPLR 103(c), however, “[i]f a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution.” We thus exercise our discretion under CPLR 103(c) and convert this hybrid CPLR article 78 proceeding/declaratory judgment action to an action for specific performance (see Matter of Felmont Natural Gas Stor. Co. v. Hudacs, 175 A.D.2d 565, 566–567, 572 N.Y.S.2d 232 ; Matter of Oshinsky v. Nicholson, 55 A.D.2d 619, 619, 389 N.Y.S.2d 410 ).

We conclude on the merits that, contrary to the WBFD's contention, Supreme Court properly granted the Town's motion for summary judgment and directed the WBFD to transfer certain assets and funds pursuant to the 2011 contract, inasmuch as the Town established as a matter of law that it is entitled to specific performance. “ ‘Specific performance is a discretionary remedy which is an alternative to the award of damages...