Opinion
83 CA 21-00120
04-22-2022
IN THE MATTER OF DANIEL R. SACK, PLAINTIFF-PETITIONER-RESPONDENT, v. CITY OF BUFFALO COMMON COUNCIL AND TM MONTANTE DEVELOPMENT LLC, DEFENDANTS-RESPONDENTS-APPELLANTS.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CARIN S. GORDON OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT CITY OF BUFFALO COMMON COUNCIL. LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (JAMES P. BLENK OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT TM MONTANTE DEVELOPMENT LLC. ARTHUR J. GIACALONE, BUFFALO, FOR PLAINTIFF-PETITIONER-RESPONDENT.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CARIN S. GORDON OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT CITY OF BUFFALO COMMON COUNCIL.
LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (JAMES P. BLENK OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT TM MONTANTE DEVELOPMENT LLC.
ARTHUR J. GIACALONE, BUFFALO, FOR PLAINTIFF-PETITIONER-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
Appeals from a judgment (denominated order) of the Supreme Court, Erie County (Mark A. Montour, J.), entered December 17, 2020 in a proceeding pursuant to CPLR article 78 and declaratory judgment action. The judgment, inter alia, annulled and set aside a resolution of defendant-respondent City of Buffalo Common Council.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motions are granted and the petition-complaint is dismissed.
Memorandum: Plaintiff-petitioner (plaintiff) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a declaration that defendant-respondent City of Buffalo Common Council's designation of a certain Urban Development Action Area was illegal. Defendants-respondents (defendants) moved to dismiss the petition-complaint (complaint) on, inter alia, standing grounds. Supreme Court denied the motions, holding as relevant here that plaintiff had common-law taxpayer standing, but not traditional standing, to challenge the disputed designation. The court subsequently granted judgment in plaintiff's favor. Defendants appeal, and we now reverse.
Preliminarily, we note that a CPLR article 78 proceeding "is not the proper vehicle to test the validity of a legislative enactment" such as an Urban Development Action Area designation (Kamhi v Town of Yorktown, 141 A.D.2d 607, 608 [2d Dept 1988], affd 74 N.Y.2d 423 [1989]). Plaintiff's hybrid article 78 proceeding and declaratory judgment action is thus properly a declaratory judgment action alone (see Parker v Town of Alexandria, 138 A.D.3d 1467, 1467-1468 [4th Dept 2016]; Centerville's Concerned Citizens v Town Bd. of Town of Centerville, 56 A.D.3d 1129, 1129 [4th Dept 2008]).
On the merits, we agree with defendants that plaintiff lacks common-law taxpayer standing (see Matter of Colella v Board of Assessors of County of Nassau, 95 N.Y.2d 401, 410-411 [2000]; see generally Matter of Schulz v State of New York, 81 N.Y.2d 336, 344-345 [1993]; Matter of Urban League of Rochester, N.Y. v County of Monroe, 49 N.Y.2d 551, 554 [1980]; Boryszewski v Brydges, 37 N.Y.2d 361, 362-364 [1975]). Moreover, we reject plaintiff's contention-raised as an alternative ground for affirmance-that he has traditional standing (see Sloninski v City of New York, 173 A.D.3d 801, 802 [2d Dept 2019]; Matter of Brighton Residents Against Violence to Children v MW Props., 304 A.D.2d 53, 57 [4th Dept 2003], lv denied 100 N.Y.2d 514 [2003]; Matter of Unger v Public Health Council, 215 A.D.2d 988, 989 [3d Dept 1995], lv denied 87 N.Y.2d 807 [1996]; see generally Consumers Union of U.S., Inc. v State of New York, 5 N.Y.3d 327, 352 [2005]; Society of Plastics Indus. v County of Suffolk, 77 N.Y.2d 761, 769-775 [1991]). Thus, because plaintiff has neither traditional standing nor common-law taxpayer standing to challenge the disputed designation, the court should have granted defendants' motions to dismiss the complaint on that basis (see Colella, 95 N.Y.2d at 408). Defendants' remaining contentions are academic in light of our determination.