Opinion
Index EF21-358
10-27-2021
Victor Lamoureux, on behalf of FRIENDS FOR RESPONSIBLE VESTAL ZONING, an unincorporated association, Petitioner, v. Town of Vestal Town Board; LCD ACQUISTIONS, LLC; and BHL VENTURES, LLC, Respondents.
TOOHER & BARONE, LLP By: Meave M. Tooher, Esq., William F. Demarest, III, Esq. Attorneys for Petitioner HINMAN, HOWARD & KATTELL, LLP, By: Sarah Grace Campbell, Esq. Attorneys for Respondents, LCD Acquisitions, LLC And BHL Ventures, LLC Via NYSCEF DAVID S. BERGER Attorney for Respondent, Town of Vestal 605 Vestal Park Way
TOOHER & BARONE, LLP By: Meave M. Tooher, Esq., William F. Demarest, III, Esq. Attorneys for Petitioner
HINMAN, HOWARD & KATTELL, LLP, By: Sarah Grace Campbell, Esq. Attorneys for Respondents, LCD Acquisitions, LLC And BHL Ventures, LLC
Via NYSCEF DAVID S. BERGER Attorney for Respondent, Town of Vestal 605 Vestal Park Way
Mark G. Masler, J.
Petitioner commenced this CPLR article 78 proceeding on behalf of Friends for Responsible Vestal Zoning, an unincorporated association, against the Vestal Town Board, LCD Acquisitions, LLC (LCD), and BHL Ventures, LLC (BHL), seeking to set aside the Town Board's negative declaration of significance pursuant to the New York State Environmental Quality Review Act and its resolution approving a local law which rezoned six parcels to permit construction of a housing complex by LCD on land presently owned by BHL. On August 18, 2021, a demand to change venue was filed on behalf of all three respondents, pursuant to CPLR 511, asserting that venue in Cortland County is improper under Town Law § 66 (1) and demanding that venue be changed to Broome County, the county in which the Town of Vestal is situated. On August 23, 2021, petitioner's counsel filed an affirmation asserting that venue in Cortland County is proper pursuant to CPLR 506 (b). On August 27, 2021, LCD and BHL filed a timely motion to change venue. By notice filed on August 30, 2021, the court advised that return of the petition would be held in abeyance pending determination of the motion to change venue. The Town Board has not made any motion regarding venue, but on September 30, 2021, its counsel filed an affidavit in support of the motion that was made by LCD and BHL. Petitioner opposes the motion.
In commencing this proceeding, petitioner asserted, pursuant to CPLR 506 (b), that venue is proper in Cortland County, which is a county within the judicial district where respondent Town Board made the decisions challenged in the proceeding. All three respondents contend that venue in Cortland County is not proper. They rely on Town Law § 66 (1), which provides that "[t]he place of trial of all actions and proceedings against a town or any of its officers or boards shall be the county in which the town is situated" (emphasis added). The Appellate Division, Fourth Department, recently held that there is no conflict between Town Law § 66 (1) and CPLR 506 (b) and that Town Law § 66 (1), as the more specific statute, controls determination of the proper venue for proceedings against a town or any of its officers or boards (see Matter of Zelazny Family Enters., LLC v Town of Shelby, 180 A.D.3d 45, 48-49 [2019]). Thus, the proper venue for this proceeding is Broome County, the county within which the Town of Vestal is situated.
Petitioner's attempt to distinguish Matter of Zelazny Family Enters., LLC v Town of Shelby - on the basis that the court did not consider the application of CPLR 7804 (b) (which provides for venue of CPLR article 78 proceedings as specified by CPLR 506 [b]) because it involved a hybrid CPLR article 78 proceeding and declaratory judgment action - is not persuasive. The Appellate Division expressly held that there is no conflict between Town Law § 66 (1) and either CPLR 504 (2) or CPLR 506 (b) in concluding that Town Law § 66 (1) was "directly applicable" to the hybrid proceeding and action that had been brought against a town and its board (Matter of Zelazny Family Enters., LLC v Town of Shelby, 180 A.D.3d at 48).
However, the inquiry does not end with determination that venue does not, in the first instance, properly lie in Cortland County, for petitioners also contend that the Town Board has waived its right to object to improper venue and, further, that the Town Board's waiver precludes LCD and BHL from seeking a change of venue based on Town Law § 66 (1). A motion to change venue on the ground that the designated venue was improper must be made within 15 days after service of a demand to change venue (see CPLR 511 [b]; Valley Psychological, P.C. v Government Empls. Ins. Co., 95 A.D.3d 1546, 1547 [2012]). A motion to change venue on the ground that the designated venue is improper made more than 15 days after service of a demand to change venue must be denied as untimely (see Martirano v Golden Wood Floors Inc., 137 A.D.3d 612, 613 [2016]; Jackson v City of New York, 127 A.D.3d 552, 552 [2015]; Singh v Becher, 249 A.D.2d 154, 154 [1998]). Thus, by failing to make a motion to change venue within 15 days after filing its demand pursuant to CPLR 511 (b), the Town Board waived its right to compel venue of this proceeding in Broome County pursuant to Town Law § 66 (1).
With respect to petitioner's argument that LCD and BHL do not have standing to assert that venue must be placed in accordance with Town Law § 66 (1), venue provisions that are enacted for the convenience of a municipality, such as Town Law § 66 (1), may be invoked only by a municipality and, when waived by a municipality, may not be invoked by other parties (see Arduino v Molina-Ovando, 141 A.D.3d 622, 623 [2016]; Forteau v County of Westchester, 196 A.D.2d 440, 441 [1993]; Yasgour v City of New York, 169 A.D.2d 673, 674 [1991]; City of New York v Town of Colchester, 28 Misc.2d 426, 428 [Sup Ct, New York County 1961], affd 16 A.D.2d 772 [1962]). Accordingly, LCD and BHL are precluded from seeking a change of venue pursuant to Town Law § 66 (1). The argument made by LCD and BHL that the venue may be placed in Broome County on discretionary grounds, notwithstanding the Town of Vestal's failure to make a timely motion to change venue pursuant to CPLR 511 (b), may not be considered because no motion was made for such relief (see Cintas Corp. v Ralph Pontiac-Honda, 256 A.D.2d 1094, 1095 [1998], citing Pitegoff v Lucia, 97 A.D.2d 896, 896-897 [1983]). The Town Board's remaining contention - that venue is proper in Broome County pursuant to CPLR 507 - is likewise not properly before the court and, in any event, lacks merit.
Based on the foregoing, respondents' motion to change venue is denied. The petition shall be returnable on December 9, 2021 at 9:00 a.m. by Microsoft Teams at a link which the court will provide prior to the return date. Answering papers shall be filed by November 19, 2021 and any reply thereto shall be filed by December 7, 2021.
This decision constitutes the order of the court. The filing of this decision and order, or transmittal of copies hereof, by the court shall not constitute notice of entry (see CPLR 5513).
The following documents were filed with the Clerk of the County of Cortland:
Demand to change venue dated August 18, 2021.
Affirmation of proper venue by Meave M. Tooher dated August 23, 2021.
Notice of motion to change venue dated August 27, 2021.
Unsworn affidavit of Sarah Grace Campbell, Esq., in support of motion to change venue by LCD Acquisitions, LLC, and BHL Ventures, LLC, dated August 27, 2021.
Affirmation of Meave M. Tooher in opposition to change of venue dated September 24, 2021.
Affidavit of David S. Berger, Esq., in support of motion to change venue, sworn to September 30, 2021.
Reply "affirmation" of Sarah Grace Campbell, Esq., dated September 30, 2021.