Opinion
2014-03-19
Marilyn KLUBENSPIES, et al., appellants, v. TOWN OF CLARKSTOWN, et al., respondents.
Feerick Lynch MacCartney PLLC, South Nyack, N.Y. (Dennis E.A. Lynch of counsel), for appellants. Rosenberg Calica & Birney LLP, Garden City, N.Y. (Edward M. Ross and Judah Serfaty of counsel), for respondents.
Feerick Lynch MacCartney PLLC, South Nyack, N.Y. (Dennis E.A. Lynch of counsel), for appellants. Rosenberg Calica & Birney LLP, Garden City, N.Y. (Edward M. Ross and Judah Serfaty of counsel), for respondents.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In a taxpayers' action pursuant to General Municipal Law § 51 and to recover damages for civil rights violations pursuant to 42 USC § 1983, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Jamieson, J.), entered January 23, 2012, as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action of the amended complaint.
ORDERED that the appeal by the plaintiff Michael Araneo is dismissed; and it is further,
ORDERED that the order is affirmed insofar as appealed from by the plaintiff Marilyn Klubenspies; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The appeal by the plaintiff Michael Araneo must be dismissed since he is not aggrieved by the portion of the order appealed from ( seeCPLR 5511). The portion of the order appealed from granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action of the amended complaint, which alleged violations of General Municipal Law § 51, and that cause of action was asserted only on behalf of the plaintiff Marilyn Klubenspies and not on behalf of Araneo ( seeCPLR 5511).
The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action of the amended complaint. The alleged conduct which formed the basis of this cause of action pursuant to General Municipal Law § 51 related to certain hiring practices and employment policies of the defendant Town of Clarkstown and the defendant Town Supervisor Alexander J. Gromack. The amended complaint did not allege how those defendants' hiring practices and employment policies “are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes” ( Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328 [internal quotation marks omitted]; see Matter of Bernstein v. Feiner, 13 A.D.3d 519, 521, 787 N.Y.S.2d 357;Matter of Schulz v. Town of Kingsbury, 229 A.D.2d 707, 645 N.Y.S.2d 567). Accordingly, the Supreme Court properly concluded that the first cause of action of the amended complaint failed to state a cause of action ( see Korn v. Gulotta, 72 N.Y.2d 363, 372, 534 N.Y.S.2d 108, 530 N.E.2d 816;Matter of La Barbera v. Town of Woodstock, 29 A.D.3d 1054, 1056–1057, 814 N.Y.S.2d 376;Matter of Bernstein v. Feiner, 13 A.D.3d at 521, 787 N.Y.S.2d 357;Lavin v. Klein, 12 A.D.3d 244, 244–245, 783 N.Y.S.2d 815).
The main brief submitted on behalf of the plaintiffs on appeal did not raise an issue regarding so much of the order as, in effect, denied that branch of their cross motion which was for leave to serve a second amended complaint. This issue was raised for the first time in the reply brief. Thus, the plaintiffs abandoned whatever argument they may have had with respect to that portion of the order ( see Shaw v. Bluepers Family Billiards, 94 A.D.3d 858, 860, 941 N.Y.S.2d 691). Moreover, contrary to Klubenspies' contention, the Supreme Court did not grant that branch of the defendants' motion which was for summary judgment dismissing the amended complaint.
The defendants' remaining contentions are not properly before this Court.