| Aiardo v Town of E. Greenbush |
| 2009 NY Slip Op 05670 [64 AD3d 849] |
| July 2, 2009 |
| Appellate Division, Third Department |
| Suzanne Aiardo et al., Appellants, v Town of East Greenbush etal., Respondents. |
—[*1] Joseph B. Liccardi, Town Attorney, Rensselaer, for Town of East Greenbush and others,respondents. McNamee, Lochner, Titus & Williams, P.C., Albany (Mathew P. Barry of counsel), forStephanie Wacholder, respondent.
Kane, J. Appeal from an order of the Supreme Court (Donohue, J.), entered March 26, 2008in Rensselaer County, which, among other things, granted defendants' motions to dismiss thecomplaint.
Plaintiffs and defendant Stephanie Wacholder are neighbors who own real property acrossthe street from one another in the Town of East Greenbush, Rensselaer County. The Town ownsa narrow triangular parcel (hereinafter the parcel) that abuts Wacholder's property and is acrossthe street from plaintiffs' property. This parcel was deeded to the Town for park or recreationalpurposes but, because of its shape and topography, the Town has never used or improved it.Since purchasing her property in 1969, Wacholder has maintained a portion of the parcel nearesther property by raking, removing debris, trimming trees, landscaping and plowing snow. Whenshe placed a shed on the parcel in 2004, the Town required her to move the shed to her ownproperty. In 2005, she obtained a permit to blacktop her driveway. According to plaintiffs, theblacktop extends onto the parcel and connects her driveway with former tennis courts on theparcel, creating a parking lot on the parcel where Wacholder and her guests regularly park theirvehicles. In 2006, Wacholder installed an underground sprinkler system on her property whichintrudes onto the parcel. She also continued landscaping and tree-trimming [*2]projects. When plaintiffs complained to town officials, the Townobtained an affidavit wherein Wacholder disavowed any ownership interest in the parcel,acknowledging that it was owned by the Town.
Not satisfied with the Town's response, plaintiffs commenced this action against Wacholder,the Town, Town Board and several town officials, seeking declaratory relief, to cease theallegedly illegal gift of town property to Wacholder and requiring her to remove allimprovements. Defendants moved to dismiss the complaint or, alternatively, for summaryjudgment (see CPLR 3211 [a] [3], [7]; [c]). Plaintiffs cross-moved for summaryjudgment. Supreme Court granted defendants' motions to dismiss the complaint due to lack ofstanding and failure to state a cause of action. The court also denied plaintiffs' cross motion anddeclared that the Town has not bestowed a gift on Wacholder or violated any laws, nor hasWacholder taken public property. Plaintiffs appeal.
Plaintiffs lack common-law standing to challenge Wacholder's actions as a misappropriationof public land. Standing is a threshold issue requiring "an actual legal stake in the outcome" ofthe action, namely "an injury in fact worthy and capable of judicial resolution" (Matter of La Barbera v Town ofWoodstock, 29 AD3d 1054, 1055 [2006], lv dismissed 7 NY3d 844 [2006];see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 [1991]).Plaintiffs alleged that Wacholder misappropriated public land or unlawfully took public propertyfor her personal use. If true, this is a wrong against the Town, not plaintiffs. Their status as townresidents, taxpayers and neighbors of the parcel at issue does not, by itself, grant them standingto prosecute an action to raise a matter of public interest or vindicate the Town's rights (cf.Matter of La Barbera v Town of Woodstock, 29 AD3d at 1055-1056). The alteration of theview from their property also does not constitute an injury in fact, as plaintiffs would have thesame view had the Town improved the parcel as a park. The Town's commissioner of publicworks averred that Wacholder's improvements to the parcel were consistent with what the Townwould have done were it to take action to create a park. As such, plaintiffs did not suffer aninjury in fact through defendants' actions (see id.).
Plaintiffs may have sufficiently alleged a cause of action under the gift or loan clause of theNY Constitution (see NY Const, art VIII, § 1; cf. 1982 Ops St Comp No.82-62), but defendants were entitled to summary judgment dismissing that claim. Plaintiffsalleged that the Town essentially loaned its property to Wacholder or gave her an unrestrictedright to use the property as a private parking lot, with no consideration paid by Wacholder, to theexclusion of all other citizens. While these allegations are sufficient to survive a motion todismiss, the record evidence does not support the allegations. The Town did not affirmativelygive or lend anything to plaintiffs; it remained passive, merely failing to react or complain whenWacholder encroached on unused town property in a minor way (compare 1982 Ops StComp No. 82-62). The Town did take action by requiring Wacholder to remove her shed when itwas placed on the parcel, and obtained an affidavit from Wacholder disclaiming any ownershipinterest in the parcel and acknowledging the Town's ownership. While Wacholder and her guestssometimes park on the part of the parcel that was former tennis courts, other citizens couldapparently park on the portion of the parcel abutting the public roadway. The record does notindicate that parking on any part of public property violates any parking ordinances. Under thecircumstances, the Town did not violate the NY Constitution's gift or loan clause. Dismissal ofplaintiffs' constitutional cause of action is appropriate based upon the lack of record support.[*3]
While the complaint does not specifically cite GeneralMunicipal Law § 51, a generous reading of the allegations could include a potential causeof action under that statute. Taxpayers may proceed against a municipality or public officersunder that statute "only when the acts complained of are fraudulent, or a waste of public propertyin the sense that they represent a use of public property or funds for entirely illegal purposes"(Kaskel v Impellitteri, 306 NY 73, 79 [1953], cert denied 347 US 934 [1954];see Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016 [1983]; Matter of Palmateer v Greene CountyIndus. Dev. Agency, 38 AD3d 1087, 1089 [2007]). Plaintiffs do not point to any fraudand no public funds were expended. Wacholder's improvements to the parcel were not for anentirely illegal purpose and did not waste public property; the Town had left the property unusedand unimproved since obtaining possession of it, so neither parking on it nor improving itsappearance constituted a waste. Accordingly, although plaintiffs may have standing to pursue acause of action under General Municipal Law § 51, they failed to state a viable cause ofaction.
Because no property was conveyed or leased, and Wacholder affirmed that she has noownership interest in the parcel, plaintiffs failed to state a cause of action alleging a violation ofTown Law § 64 (2). We decline defendants' request to impose sanctions against plaintiffs(see 22 NYCRR 130-1.1 [a]).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.