Opinion
CV15-0590
08-09-2016
James W. McCulley, Petitioner/, Plaintiff, v. New York State Department of Environmental Conservation; (FORMER) COMMISSIONER OF ENVIRONMENTAL CONSERVATION FOR THE STATE OF NEW YORK, JOSEPH J. MARTENS; (FORMER) ACTING COMMISSIONER OF ENVIRONMENTAL CONSERVATION FOR THE STATE OF NEW YORK, PETER M. IWANOWICZ; COMMISSIONER OF ENVIRONMENTAL CONSERVATION FOR THE STATE OF NEW YORK, BASIL SEGGOS; EXECUTIVE DEPUTY COMMISSIONER OF ENVIRONMENTAL CONSERVATION FOR THE STATE OF NEW YORK, MARC GERSTMAN, Respondents/, Defendants, Town of North Elba, Petitioner/Plaintiff, v. New York State Department of Environmental Conservation; JOSEPH J. MARTENS, FORMER COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; and BASIL SEGGOS, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondents/Defendants.
Briggs Norfolk LLP, Lake Placid (Matthew D. Norfolk of counsel), for petitioner/plaintiff in Proceeding/Action No. 1. Whitson & Rogers, Elizabethtown (Debra A. Whitson of counsel), for indispensable party Town of Keene in Proceeding/Action No. 1. Briggs Norfolk LLP, Lake Placid (Ronald J. Briggs of counsel), for petitioner/plaintiff in Proceeding/Action No. 2. Eric T. Schneiderman, Attorney General, Albany (Susan L. Taylor of counsel), for respondents/defendants in Proceeding/Action Nos. 1 and 2.
Briggs Norfolk LLP, Lake Placid (Matthew D. Norfolk of counsel), for petitioner/plaintiff in Proceeding/Action No. 1. Whitson & Rogers, Elizabethtown (Debra A. Whitson of counsel), for indispensable party Town of Keene in Proceeding/Action No. 1. Briggs Norfolk LLP, Lake Placid (Ronald J. Briggs of counsel), for petitioner/plaintiff in Proceeding/Action No. 2. Eric T. Schneiderman, Attorney General, Albany (Susan L. Taylor of counsel), for respondents/defendants in Proceeding/Action Nos. 1 and 2. Robert J. Muller, J.
James W. McCulley is an avid snowmobiler and has served as President of the Lake Placid Snowmobile Club since 1996. Beginning in 2000, McCulley began searching for new snowmobile trails in the Lake Placid area and came across Old Mountain Road, a roadway that traverses through the Towns of North Elba and Keene in Essex County. McCulley thereafter made an inquiry to the New York State Department of Environmental Conservation (hereinafter the DEC) as to why Old Mountain Road was not a designated snowmobile trail. In response, he was advised "that because Old Mountain Road was not a town road or public highway and was within a New York State designated Wilderness area, it was considered New York State forest preserve land and motorized vehicles were, therefore prohibited" [McCulley Certified Statement of Material Facts, at ¶ 4]. McCulley then proceeded to make several requests to the DEC pursuant to the Freedom of Information Law (see Public Officers Law art 6). Based upon the documents obtained, he ultimately concluded that Old Mountain Road was a town road and, as such, that the DEC had no authority to prohibit the use of motorized vehicles thereon.
This roadway — established some time in the 1800s — has also been known as Old Military Road, the Northwest Bay Road and the Jackrabbit Trail.
McCulley thereafter determined to bring a legal challenge to the DEC's jurisdiction over Old Mountain Road. To that end, on March 20, 2003, he drove to Old Mountain Road in North Elba, unloaded his snowmobile and drove it over the road to Keene and back. McCulley then informed the DEC of what he had done and a charge was filed against him in the Keene Justice Court for violation of 6 NYCRR 196.2, which provides as follows: "(a) The use of snowmobiles on State lands within the forest preserve is hereby permitted: "(1) on trails designated and marked by the Department of Environmental Conservation as a SNOWMOBILE TRAIL,' when the trail traveled is completely covered with snow or ice; and "(2) on frozen lakes and ponds, when access to same may be gained by public highways or by trails designated and marked by the Department of Environmental Conservation as a SNOWMOBILE TRAIL.' "(b) The use of snowmobiles on State lands within the forest preserve other than as set forth in subdivision (a) of this section is hereby prohibited."
McCulley was found guilty of the charge and convicted on August 25, 2003. He then appealed this conviction to the County Court of Essex County (Halloran, J.) and, on March 23, 2005, the conviction was reversed on the facts and in the interest of justice (see People v McCulley, 7 Misc 3d 1004[A], 2005 NY Slip Op 50439[U] [Essex County Ct 2005]). In its decision, County Court expressly found as follows: "The prosecution's argument that [Old Mountain Road] was a highway created by use which has been abandoned is rejected. The evidence is clear that it is a highway created by law, i.e., by the New York State legislature, and that the public continues to use it extensively for hiking and cross-country skiing, and less extensively for snowmobile riding, ATV riding, and rock climbing" (id. at *16).
This decision received substantial media coverage in the Lake Placid area, with McCulley being interviewed on several occasions and "express[ing] [his] personal views and opinions of the DEC and its position with respect to Old Mountain Road and its refusal to follow the law" [McCulley Certified Statement of Material Facts, at ¶ 15].
On May 21, 2005, DEC Forest Ranger Joseph Lapierre telephoned McCulley at the direction of his superiors to inquire whether McCulley had any plans of operating a motor vehicle on Old Mountain Road. McCulley interpreted this inquiry to be a challenge and told LaPierre that he would be driving his pickup truck on Old Mountain Road the next morning at 10:00 A.M. LaPierre then went to the roadway prior to 10:00 A.M. and posted new DEC signs declaring it to be off-limits to motorized vehicles. McCulley arrived as scheduled, driving his truck along Old Mountain Road from North Elba over the boundary line into Keene and then back while LaPierre took photographs. As a result of this incident, McCulley was again charged with violating 6 NYCRR 196.2, this time in the North Elba Justice Court. The charge was later withdrawn on June 13, 2005.
On June 14, 2005, the DEC served McCulley with a summons for an enforcement proceeding relative to the May 21 incident. This proceeding alleged violations of 6 NYCRR 196.1, which provides, in pertinent part: "(a) No person shall operate a motorized vehicle in the forest preserve except as permitted in subdivision[] (b) . . . of this section. "(b) Operation of motorized vehicles is permitted on roads: "(1) that are under the jurisdiction of the State Department of Transportation or a town or county highway department, in accordance with applicable State and local laws; . . . ."
McCulley then commenced an action against the DEC in the United States District Court for the Northern District of New York on June 29, 2005 alleging, inter alia, malicious prosecution and violation of his constitutional rights. The action was subsequently stayed pending the conclusion of the enforcement proceeding, with the District Court (Kahn, J.) finding "that the State of New York has a deep interest in the interpretation and application of its State constitutional provisions, laws, and regulations (such as the Highway and Environmental Conservation laws so intricately woven into the fabric of this case)" (see McCulley v N.Y.S. Dept. of Envtl. Conservation, 593 F Supp 2d 422, 432 [ND NY 2006]).
Insofar as the significance of the instant case is concerned, the Report-Recommendation and Order of Federal Magistrate Judge David R. Homer — which was adopted in part by the District Court — observes as follows:
"[The] DEC views this dispute with McCulley over [Old Mountain] Road and the decision of the Essex County Court in People v McCulley as significant for DEC's management of State lands in forest preserves. According to [the] DEC, those lands and preserves include hundreds of miles of old town roads which, like [Old Mountain] Road, [the] DEC believes have been abandoned and therefore become State land. Thus, [the] DEC believes that if the People v McCulley precedent prevails, its ability to protect and preserve wilderness areas of the State will be impaired" [Report-Recommendation and Order, attached as Exhibit to Norfolk Memorandum of Law dated November 17, 2015, at 8, n 7].
A hearing was held before the DEC Chief Administrative Law Judge James T. McClymonds (hereinafter the ALJ) in the enforcement proceeding on November 13, 14 and 15, 2007. The ALJ thereafter issued his Hearing Report on March 27, 2009, finding Old Mountain Road to be a town road and recommending dismissal of the charge against McCulley. On May 19, 2009, Alexander B. Grannis — former Commissioner of the DEC — issued a Decision and Order (hereinafter the 2009 Decision) adopting the ALJ's recommendations in their entirety and dismissing the charge.
On June 5, 2009, DEC staff filed a motion seeking clarification of certain aspects of the 2009 Decision as it pertained to Old Mountain Road. Specifically, DEC staff wanted " to ensure proper implementation of Article 14 of the New York State Constitution, the Adirondack Park State Land Master Plan, Article 9 of the [Environmental Conservation Law], and the regulations promulgated thereunder" [Administrative Return, Volume 1, R198]. With that said, DEC staff expressly indicated that the DEC "was not seeking reversal of the dismissal of the action against [McCulley]" [Administrative Return, Volume 1, R198]. The Adirondack Council and the Adirondack Park Agency (hereinafter the APA) thereafter sought to intervene by motions dated June 29, 2009 and July 9, 2009, respectively. McCulley subsequently appeared in opposition to all motions.
In March 2010, while these motions remained pending, McCully settled his federal action with the DEC agreeing to pay him $58,000.00 toward his legal fees.
On December 30, 2010, Peter M. Iwanowicz — former Acting Commissioner of the DEC — issued a Ruling (hereinafter the 2010 Ruling) granting the motions filed by DEC staff, the Adirondack Council and the APA. The 2010 Ruling further established a briefing schedule relative to the items sought to be clarified, with the DEC staff to file its brief on or before February 4, 2011 and McCulley, the Adirondack Council and the APA to file their responsive briefs on or before March 11, 2011.
On July 22, 2015, Joseph J. Martens — former Commissioner of the DEC — issued a Decision and Ruling (hereinafter the 2015 Decision) clarifying the 2009 Decision and finding that Old Mountain Road no longer exists as a public highway. Specifically, the 2015 Decision found as follows: "Even though the ALJ took official notice of the [Adirondack Park State Land] Master Plan in the 2007 administrative hearing, [DEC] staff did not offer the Master Plan into evidence, or otherwise rely upon Executive Law § 816 or the Master Plan in support of its argument that Old Mountain Road was abandoned . . . . "For purposes of considering issues regarding road abandonment in such proceedings, however, the Master Plan must be considered, and it was error to fail to proffer the Master Plan as evidence that Old Mountain Road was closed" [2015 Decision, attached as Exhibit "A" to Petition/Complaint in Proceeding/Action Nos. 1 and 2, at 5].
As part of the Adirondack Park Agency Act (Executive Law, art 27, § 800 et seq.), "the Legislature authorized and directed the APA to develop, in consultation with [the] DEC, a, master plan for management of state lands'" (Matter of Adirondack Mtn. Club Inc. v Adirondack Park Agency, 33 Misc 3d 383, 387 [Sup Ct, Albany County 2011], quoting Executive Law § 816 [1]). "The master plan authorized by Executive Law § 816, known as the Adirondack Park State Land Master Plan, is subject to approval by the Governor" (Matter of Adirondack Mtn. Club Inc. v Adirondack Park Agency, 33 Misc 3d at 387; see Executive Law § 816 [1]). "[The] DEC was directed to develop, in consultation with the APA, individual management plans for units of land classified in the [Adirondack Park State Land Master Plan]" (Matter of Adirondack Mtn. Club Inc. v Adirondack Park Agency, 33 Misc 3d at 387; see Executive Law § 816 [1]). "Together, the [Adirondack Park State Land Master Plan] and the individual unit plans . . . guide the development and management of state lands in the Adirondack Park'" (Matter of Adirondack Mtn. Club Inc. v Adirondack Park Agency, 33 Misc 3d at 387, quoting Executive Law § 816 [1]). The statute directs that both the Adirondack Park State Land Master Plan and the individual unit plans be "reviewed periodically" (Executive Law § 816 [2]). Amendments to the Adirondack Park State Land Master Plan, prepared by the APA in consultation with the DEC, are also subject to the governor's approval (see id.). To the extent that the Adirondack Park State Land Master Plan and amendments thereto are subject to approval by the governor, "it has been construed as having[] the force of a legislative enactment'" (Matter of Adirondack Mtn. Club Inc. v Adirondack Park Agency, 33 Misc 3d at 387, quoting Helms v Reid, 90 Misc 2d 583, 604 [Sup Ct, Hamilton County 1977]).
The 2015 Decision then concluded that "[t]he Master Plan and the related arguments in the submitted papers, as well as the record below, make it clear that Old Mountain Road had been closed and abandoned and that no legal right-of-way for public use existed" [2015 Decision, at 9].
On November 18, 2015, McCulley commenced a combined CPLR article 78 proceeding and declaratory judgment action (hereinafter Proceeding/Action No. 1) against the DEC, Martens and Iwanowicz, as well as Basil Seggos, Commissioner of the DEC, and Marc Gerstman, Executive Deputy Commissioner of the DEC. McCulley also named North Elba and Keene as indispensable parties. Thereafter, on November 23, 2015, North Elba commenced a combined CPLR article 78 proceeding and declaratory judgment action (hereinafter Proceeding/Action No. 2) against the DEC, Martens and Seggos. The Petitions/Complaints in these related matters set forth virtually identical causes of action, with the only difference being that McCulley seeks restitution and incidental damages while North Elba does not. These causes of action are as follows:
(1) respondents/defendants (hereinafter respondents) failed to perform a duty enjoined upon them by law, as they were compelled to reject the motions for clarification submitted by DEC Staff, the APA, and the Adirondack Council, or at the very least deny the motions for clarification as there was no legal or factual basis for the relief requested in [the] motions (see CPLR 7803 [1]);
(2) respondents lacked legal authority, jurisdiction and power to reconsider and review the 2009 Decision and then issue a determination which substantially modified and effectively reversed substantive and material factual and legal findings in the 2009 Decision (see CPLR 7803 [2]);
(3) the 2015 Decision was made in violation of lawful procedure, was affected by an error of law and was arbitrary and capricious and was an abuse of discretion (see CPLR 7803 [3]);
(4) the 2015 Decision is not supported by substantial evidence (see CPLR 7803 [4]); and
(5) petitioners/plaintiffs are entitled to a declaratory judgment that Old Mountain Road has been since its creation and continues to be, an active and open town road and public right of way, which has not been abandoned, discontinued or closed by North Elba.
Presently before the Court is (1) respondents' motion in Proceeding/Action No. 1 to convert the declaratory judgment cause of action to a CPLR article 78 proceeding and transfer the matter in its entirety to the Appellate Division; and (2) respondents' motion in Proceeding/Action No. 2 to dismiss or, alternatively, to convert the declaratory judgment cause of action to a CPLR article 78 proceeding and transfer the matter in its entirety to the Appellate Division. The motions will be addressed in seriatim.
Motion to Transfer in Proceeding/Action No. 1
Initially, respondents contend that McCulley's declaratory judgment cause of action duplicates the claims set forth in his third cause of action under CPLR 7803 (3) and, as such, it must be converted to a CPLR article 78 proceeding. In opposition, McCulley contends that the declaratory judgment cause of action is not duplicative because it "seeks a judgment declaring the status of Old Mountain Road in present-day, not when [he] was ticketed in 2005" [Norfolk Memorandum of Law dated January 22, 2016, at 9].
" Where . . . governmental activity is being challenged, the immediate inquiry is whether the challenge could have been advanced in a CPLR article 78 proceeding'" (Matter of Adirondack Med. Center-Uihlein v Daines, 119 AD3d 1175, 1176 [2014], quoting Spinney at Pond View, LLC v Town Bd. of the Town of Schodack, 99 AD3d 1088, 1089 [2012] [internal quotation marks and citation omitted]; accord Thrun v Cuomo, 112 AD3d 1038, 1040 [2013], lv denied 22 NY3d 865 [2014]).
Here, McCulley is not challenging any legislation, but is instead "challenging the determinations of an administrative agency applying such legislation, rendering this the type of challenge that should be brought under CPLR article 78" (Matter of Adirondack Med. Center-Uihlein v Daines, 119 AD3d at 1176). The Court therefore finds that McCulley's declaratory judgment cause of action should be converted to a CPLR article 78 proceeding.
The Court further finds that McCulley's contention that the declaratory judgment cause of action is not duplicative is wholly without merit. The present-day status of Old Mountain Road is intricately tied to its status not only in 2005 but throughout its history. Indeed, the history of a roadway is at the very center of any inquiry as to whether it has been abandoned (see e.g. Matter of Smigel v Town of Rensselaerville, 283 AD2d 863, 864 [2010]; Ciarelli v Lynch, 69 AD3d 1008, 1010 [2010]). There can be no real dispute that the outcome of the CPLR article 78 claims relative to the 2015 Decision will necessarily determine the outcome of any declaratory judgment cause of action.
Turning now to the issue of transfer, respondents contend that — because McCulley's fourth cause of action raises the substantial evidence issue — CPLR 7804 (g) mandates transfer of the proceeding to the Appellate Division. McCulley, on the other hand, contends that because the 2015 Decision considered evidence outside the record of the underlying proceeding — namely, the Adirondack Park State Land Master Plan (hereinafter the Master Plan) — transfer is inappropriate.
CPLR 7804 (g) provides as follows: "Where the substantial evidence issue specified in [CPLR 7803 (4)] is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced."
" The mere fact that [a] petition alleges the lack of substantial evidence supporting the determination is not dispositive, for the question of whether an article 78 proceeding must be transferred to the Appellate Division is one to be decided by [Supreme Court]'" (Matter of Bonded Concrete v Town Bd. of Town of Rotterdam, 176 AD2d 1137, 1137 [1991], quoting Matter of Save the Pine Bush v Planning Bd. of City of Albany, 83 AD2d 741, 741 [1981]). An issue specified in CPLR 7803 (4) "arises only where a quasi-judicial hearing has been held and evidence taken pursuant to law" (Matter of Bonded Concrete v Town Bd. of Town of Rotterdam, 176 AD2d at 1137, quoting Matter of Save the Pine Bush v Planning Bd. of City of Albany, 83 AD2d at 741).
Here, while the 2015 Decision itself pertained to the motions for clarification, these motions were directed to the 2009 Decision, which undisputedly arose from a quasi-judicial hearing. Moreover, in the opening paragraph of the 2015 Decision, Martens states that he has "reviewed the submissions filed pursuant to the . . . 2010 Ruling as well as the underlying record" [2015 Decision, at 4]. He then states in the concluding paragraph that his findings are based upon "the record below" [2015 Decision, at 9]. Under the circumstances, there is no question that the 2015 Decision is based upon a quasi-judicial hearing (compare Matter of Bonded Concrete v Town Bd. of Town of Rotterdam, 176 AD2d at 1138; Seaview Assn. of Fire Is. v Department of Envtl. Conservation of State of NY, 123 AD2d 619, 619 [1986]; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 83 AD2d at 741).
Inasmuch as McCulley contends that the Master Plan was not part of the record of the quasi-judicial hearing, the Court finds such contention to be without merit. While the Master Plan was not submitted into evidence during the administrative hearing, it was nonetheless considered. The ALJ's Hearing Report states as follows: "The 1972, 1979, 1987, and 2001 versions of the . . . Master Plan were the subject of a pre-hearing motion by [DEC] staff. In the motion, staff requested that the ALJ take official notice of the Plans (see 6 NYCRR 622.11 [a] [5]). At the hearing, [McCulley] objected on grounds of relevance and materiality. Upon respondent's request, I reserved decision at the hearing . . . . "I conclude that the Plans are relevant and material to the [DEC's] designation of the Sentinel Range as Wilderness Area, and to the [DEC's] guidelines for the management and use of Wilderness Areas. Accordingly, I take official notice of the Plans to this extent" [Hearing Report, attached as Exhibit "B" to Petition/Complaint in Proceeding/Action Nos. 1 and 2, at 4, n 12].
The record simply reflects that the ALJ did not find the Master Plan to be of the same significance as Martens. If anything, this difference of opinion is a factor to be considered in determining whether the 2015 Decision is supported by substantial evidence. The Court therefore finds that Proceeding/Action No. 1 should be transferred to the Appellate Division.
Based upon the foregoing, respondents' motion to convert the declaratory judgment cause of action to a CPLR article 78 proceeding in Proceeding/Action No. 1 and transfer the matter to the Appellate Division is granted in its entirety.
Briefly, McCulley has filed a motion for partial summary judgment on his third cause of action in Proceeding/Action No. 1 and respondents, in turn, have filed a cross motion to strike the motion for partial summary judgment or, alternatively, to hold the motion in abeyance pending a determination on their motion to transfer. Inasmuch as Proceeding/Action No. 1 is now being transferred to the Appellate Division, the Court denies the motion and cross motion as moot. Motion to Dismiss or Transfer in Proceeding/Action No. 2
Initially, respondents contend that they are entitled to dismissal of Proceeding/Action No. 2 based upon North Elba's lack of capacity to challenge the 2015 Decision.
"It is well settled that municipal corporate bodies, as subdivisions of the state, cannot contest the actions of the state which affect them in their governmental capacity or as representatives of their inhabitants'" (Matter of New York Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d 756, 758 [2011], appeal dismissed 17 NY3d 947 [2015], lv denied 18 NY3d 806 [2012], quoting Matter of County of Oswego v Travis, 16 AD3d 733, 735 [2005]; accord Matter of Bethpage Water Dist. v Daines, 67 AD3d 1088, 1090 [2009], lv denied 14 NY3d 707 [2010]; see City of New York v State of New York, 86 NY2d 286, 290-292 [1995]). "[T]his rule applies with equal force to the actions of state agencies: a municipality lacks the capacity to challenge a state agency's interpretation of statutes and regulations where . . . the result impacts the municipality in its governmental capacity'" (Matter of New York Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d at 758-759, quoting Matter of Bethpage Water Dist. v Daines, 67 AD3d at 1091; see City of Utica v Daines, 53 AD3d 922, 923-924 [2008]; Matter of County of Seneca v Eristoff, 49 AD3d 950, 950-951 [2008]; Matter of County of Oswego v Travis, 16 AD3d at 735). There are, however, four exceptions to this general rule: "(1) [where there exists] an express statutory authorization to bring such a suit; (2) where the State legislation adversely affects a municipality's proprietary interest in a specific fund of moneys; (3) where the State statute impinges upon Home Rule' powers of a municipality constitutionally guaranteed under article IX of the State Constitution; and (4) where the municipal challengers assert that if they are obliged to comply with the State statute they will by that very compliance be forced to violate a constitutional proscription" (City of New York v State of New York, 86 NY2d 286, 291-292 [1995] [citations and internal quotation marks omitted]).
Here, North Elba contends that it has capacity to sue because the 2015 Decision undermines its Home Rule powers by violating its rights to use, regulate and govern the land within its boundaries. In this regard, North Elba relies upon Town of Verona v Cuomo (136 AD3d 36 [2015]), which recognizes "the power to regulate land use [as] one of the core powers of local governance'" (id. at 41, quoting Matter of Wallach v Town of Dryden, 23 NY3d 728, 743 [2014]).
In Matter of Wallach v Town of Dryden (supra), the Court of Appeals observed as follows:
"Article IX, the home rule' provision of the New York Constitution, states that every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law . . . except to the extent that the legislature shall restrict the adoption of such a local law. To implement this constitutional mandate, the state legislature enacted the Municipal Home Rule Law, which empowers local governments to pass laws both for the protection and enhancement of their physical and visual environment and for the government, protection, order, conduct, safety, health and well-being of persons or property therein. The legislature likewise authorized towns to enact zoning laws for the purpose of fostering the health, safety, morals, or the general welfare of the community. As a fundamental precept, the legislature has recognized that the local regulation of land use is [a]mong the most important powers and duties granted . . . to a town government" (id. at 742).
North Elba has always considered Old Mountain Road to be a town road, passing a resolution in 1971 which "expressly authoriz[ed] snowmobiles to use and access Old Mountain Road[, which] resolution has not been repealed or modified and continues in full force and effect" [Petition/Complaint in Proceeding/Action No. 2, at ¶ 19]. Inasmuch as the 2015 Decision finds Old Mountain Road to be abandoned and effectively removes it from the control of North Elba, the Court finds that North Elba has the capacity to challenge the Decision.
Based upon the foregoing, respondents' motion to dismiss Proceeding/Action No. 2 is denied in its entirety.
In accordance with the discussion above, respondents' motion to convert the declaratory judgment cause of action to a CPLR article 78 proceeding in Proceeding/Action No. 2 and transfer the matter to the Appellate Division is granted in its entirety.
Therefore, with respect to Proceeding/Action No. 1, having considered the Petition/Complaint with exhibits attached thereto, verified November 17, 2015; Certification of Record of Matthew D. Norfolk, Esq., dated November 17, 2015; Certified Statement of Material Facts of James W. McCulley with exhibits attached thereto, sworn to November 17, 2015; Memorandum of Law of Matthew D. Norfolk, Esq. with appendix attached thereto, dated November 17, 2015; Affirmation of Nicholas C. Buttino, Esq., dated January 14, 2016; Answer, verified January 12, 2016; Administrative Return (11 Volumes); Memorandum of Law of Nicholas C. Buttino, Esq., dated January 14, 2016; Affirmation of Matthew D. Norfolk, Esq., dated January 22, 2016; Memorandum of Law of Matthew D. Norfolk, Esq., dated January 22, 2016; Reply Memorandum of Law of Nicholas C. Buttino, Esq., dated February 3, 2016; Letter Brief of Matthew D. Norfolk, Esq. dated June 10, 2016; and Letter Brief of Nicholas Buttino, Esq., dated June 16, 2016; and oral argument having been heard on June 3, 2016 with Matthew D. Norfolk, Esq. appearing on behalf of petitioner, Susan L. Taylor, Esq., Nicholas Buttino, Esq. and Meredith G. Lee-Clark, Esq. appearing on behalf of respondents and William A. Tansey, Esq. appearing on behalf of Keene;
And, with respect to Proceeding/Action No. 2, having considered the Petition/Complaint with exhibits attached thereto, verified November 20, 2015; Affirmation of Meredith G. Lee-Clark, Esq., dated January 13, 2016; Answer, verified January 12, 2016; Administrative Return (11 Volumes); Memorandum of Law of Meredith G. Lee-Clark, Esq., dated January 13, 2016; Affirmation of Ronald J. Briggs, Esq., dated January 29, 2016; Memorandum of Law of Ronald J. Briggs, Esq., dated January 29, 2016; and Reply Memorandum of Law of Meredith G. Lee-Clark, Esq., dated February 3, 2016; and oral argument having been heard on June 3, 2016 with Ronald J. Briggs, Esq. appearing on behalf of petitioner and Susan L. Taylor, Esq., Nicholas Buttino, Esq. and Meredith G. Lee-Clark, Esq. appearing on behalf of respondents, it is hereby
ORDERED, with respect to Proceeding/Action No. 1, that respondents' motion to convert the declaratory judgment cause of action to a CPLR article 78 proceeding and transfer the matter to the Appellate Division is granted in its entirety; and it is further
ORDERED, with respect to Proceeding/Action No. 1, that McCulley's motion for partial summary judgment and respondents' cross motion to, inter alia, strike the motion for partial summary judgment, are denied as moot; ORDERED, with respect to Proceeding/Action No. 2, that respondents' motion to dismiss is denied in its entirety; and it is further
ORDERED, with respect to Proceeding/Action No. 2, that respondents' motion to convert the declaratory judgment cause of action to a CPLR article 78 proceeding and transfer the matter to the Appellate Division is granted in its entirety.
The original of this Decision and Order has been filed by the Court together with the above-referenced submissions and the Notice of Petition and Summons in Proceeding/Action No. 1, dated November 17, 2015, Notice of Motion to Transfer in Proceeding/Action No. 1, dated January 14, 2016, Notice of Petition and Summons in Proceeding/Action No. 2, dated November 20, 2015 and Notice of Motion to Dismiss and, in the alternative, to Transfer in Proceeding No. 2, dated January 13, 2016. Counsel for respondents is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all other parties in accordance with CPLR 5513. Dated:August 9, 2016 Lake George, New York ____________________________________ ROBERT J. MULLER, J.S.C. ENTER