Opinion
Index No. 202252
10-12-2022
In the Matter of the Application of Buenos Hill, Inc., a New York Corporation, and William R. DiCenzo, Sr., Petitioners/Plaintiffs, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The City of Saratoga Springs; the County of Saratoga; the New York State Department of Transportation; and Susan Barden, Albert Flick, Bradley Birge, Mark Torpey, Sara Boivin, Ruth Horton, Todd Fabozzi, Patrick Cogan, Meg Kelly, Jason Kemper, Michael Valentine, Tom Lewis, Michael Keegan and Paul Korowajczyk, both individually and in their official capacities, Respondents/Defendants.
For Petitioners: William R. DiCenzo, Jr., Esq. For Respondents: Michael P. Naughton, Sr., Esq.; Melissa A. Latino, Esq.
Unpublished Opinion
For Petitioners: William R. DiCenzo, Jr., Esq.
For Respondents: Michael P. Naughton, Sr., Esq.; Melissa A. Latino, Esq.
THOMAS D. BUCHANAN SUPREME COURT JUSTICE
This proceeding comes before the Court on motions by the several defendants/respondents seeking dismissal and/or summary judgment.
The City Defendants. The City of Saratoga Springs and the first nine of the listed individual defendants, who are either current or former City officials, are referred to collectively as the "City Defendants." The City Defendants move to dismiss the Verified Petition, first pointing out that Petitioners failed to serve process upon them in compliance with the Order to Show Cause issued by the Court. Indeed, when an order to show cause is used to initiate a proceeding, strict compliance with the court-ordered method of service is necessary in order for the court to obtain personal jurisdiction over the responding parties (see e.g. Matter of Czajka v. Dellehunt, 125 A.D.3d 1177 [3d Dept 2015]; Matter of Theodore T., 78 A.D.3d 955 [2d Dept 2010]). The Order to Show Cause in this case required Petitioners to serve the City Defendants by personal service upon the offices of either the City Clerk or the City Attorney. The affidavit of service states that the City Defendants were served by personal delivery to "Kerry Huyben, of the Saratoga Springs City Clerk's Office." Ms. Huyben submits an affidavit with this motion in which she states that she is not affiliated with the City Clerk's Office and has not held herself out as such. Instead, she is the Executive Assistant to the Mayor.
The attempted service on the City Defendants thus did not conform to the requirements of the Order to Show Cause, which deprives this Court of personal jurisdiction over these defendants. This proceeding must therefore be dismissed as against the City Defendants. Petitioners' argument that the process server was directed to the Mayor's office because the Mayor was, at that time, serving as Acting City Attorney would present a closer question if the affidavit of service stated that Ms. Huyben was served on behalf of the City Attorney's office. But, that it not what it says. The affidavit identifies Ms. Huyben as being served on behalf of the City Clerk and is thus insufficient.
The County Defendants. The County of Saratoga and county officials Jason Kemper, Michael Valentine and Tom Lewis are referred to collectively as the "County Defendants." The County Defendants have served an Answer, and thus, their motion seeks summary judgment dismissing the Verified Petition. The County Defendants make several arguments in support of their motion, but two are dispositive.
First, the County Defendants point to CPLR §7801, which provides that Article 78 cannot be used to challenge a determination that is not final. They point out that the advisory recommendation issued by the County Planning Board to the City Planning Board was just that, an advisory recommendation that the City Planning Board was not obligated to follow, and thus was not final (see e.g. Matter of Headriver, LLC v. Town Board of Town of Riverhead, 307 A.D.2d 314 [2d Dept 2003]). The County Defendants also point to the fact that none of them took any action to deny Petitioners' special use permit or to prevent the beneficial use of Petitioners' property.
A fair reading of the Verified Petition shows that Petitioners make no material factual allegations against the County Defendants. In response to this motion, Petitioners submit an affirmation of counsel containing various allegations about the competence of the individual County Defendants and their participation - willingly or unwittingly - in a larger conspiracy to extort honest citizens or deprive them of their property rights. These allegations, however, amount to innuendo rather than material evidentiary facts. Indeed, counsel frequently admits his own lack of actual knowledge. Petitioners' submissions are insufficient to resist the County Defendants' motion (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). On the record here, Petitioners simply offer no basis for Article 78 review of the County Defendants' actions and fail to articulate a legitimate claim against the County Defendants.
The State Defendants. The New York State Department of Transportation and its employees Michael Keegan and Paul Korowajczyk are referred to collectively as the State Defendants. Petitioners' sixth cause of action alleges malicious prosecution by the individual State Defendants regarding the "screen wall" erected by Petitioners and the maintenance of the land along the boundary between Petitioners' property and State Route 29. The State Defendants point out that this cause of action fails to state a claim for malicious prosecution for the straightforward reason that no criminal prosecution was ever instituted against Petitioners (cf. Michaels v. State of New York, 203 A.D.3d 1345 [3d Dept 2022]).
In response, Petitioners assert that the sixth cause of action is mislabeled and should allege selective enforcement. The elements of a claim for selective enforcement are (1) the plaintiff was selectively treated and (2) the selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure the plaintiff (see Pirro v. Board of Trustees of Village of Groton, 203 A.D.3d 1263 [3d Dept 2022]). The Verified Petition has much to say about the malicious intent of the various defendants in this matter, but sufficient allegations of selective treatment are lacking.
The factual allegations made in support of this claim are based on Petitioners' FOIL request for records of permits for work in the DOT right-of-way. While pointing to three neighboring businesses that allegedly did not obtain permits, Petitioners acknowledge that nine such permits were issued in the vicinity of Petitioners' property, one of which was obtained by a nearby development. If anything, the Verified Petition alleges that the three projects lacking a permit were singled out for favorable treatment, rather than Petitioners being singled out for selective enforcement.
The parties' remaining contentions have been considered, but do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by The City Defendants to dismiss the Verified Petition is granted; and it is further
ORDERED, that the motion by The County Defendants seeking summary judgment dismissing the Verified Petition is granted; and it is further
ORDERED, that the motion by The State Defendants do dismiss the Verified Petition is granted; and it is further
ORDERED, that the Verified Petition in this matter is hereby dismissed.
Papers considered:
Notice of Motion/Amended Notice of Motion (City); Affirmation of Leah Everhart, Esq., with annexed exhibits; Affidavit of Susan Barden; Affidavit of Kerry Huyben; Affidavit of Meg Kelly; Memorandum of Law; Reply Memorandum of Law
Notice of Motion (County); Affirmation of Michael Naughton, Esq., with annexed exhibit; Affidavit of Michael Valentine, with annexed exhibits; Affidavit of Jason Kemper; Memorandum of Law;
Notice of Motion (State); Memorandum of Law; Reply Memorandum of Law
Affirmation of William R. DiCenzo, Esq., with annexed exhibits; Affidavit of Wayne Currier; Affidavit of Samuel Starratt; Affidavit of Henry Smith, Jr.; Verified Petition with annexed exhibits and accompanying affidavits