| Matter of Petersen v Incorporated Vil. of Saltaire |
| 2010 NY Slip Op 07767 [77 AD3d 954] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Victoria Petersen et al.,Respondents, v Incorporated Village of Saltaire et al.,Appellants. |
—[*1] Barry A. Kamen, PLLC, Stony Brook, N.Y., for respondents.
In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to, ineffect, compel the Board of Trustees of the Incorporated Village of Saltaire to conduct publicmeetings and public hearings within the geographical boundaries of the Incorporated Village ofSaltaire, the Incorporated Village of Saltaire and the Board of Trustees of the IncorporatedVillage of Saltaire appeal, as limited by their brief, from so much of a judgment of the SupremeCourt, Suffolk County (Cohalan, J.), dated September 3, 2009, as, in effect, granted that branchof the petition which was to, in effect, compel the Board of Trustees of the Incorporated Villageof Saltaire to conduct public meetings and public hearings within the geographical boundaries ofthe Incorporated Village of Saltaire.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, andthat branch of the petition which was to, in effect, compel the Board of Trustees of theIncorporated Village of Saltaire to conduct public meetings and public hearings within thegeographical boundaries of the Village of Saltaire is denied, and that portion of the proceeding isdismissed.
The Incorporated Village of Saltaire is a small seasonal community located on Fire Island offthe coast of Long Island. Since the Village is inaccessible by car, the residents depend on ferryservice, which is extremely limited during the winter and often cancelled or delayed because ofadverse weather conditions. On February 4, 2006, the Board of Trustees of the Village(hereinafter the Board) amended chapter 34 of the Code of the Incorporated Village of Saltaire,inter alia, to permit them to conduct official meetings outside the Village under certaincircumstances.
On February 3, 2009, the Board, which consists of the Mayor of the Village and four trustees,conducted a public meeting and a public hearing in a conference room located within an officebuilding in midtown Manhattan. The meeting was simultaneously broadcast by means of atwo-way video conference hook-up to the main room on the first floor of the Village Hall. Thepetitioners, who own homes in the Village, commenced this proceeding pursuant to CPLR article78 in the nature of mandamus, inter alia, to compel the Board to conduct all public meetings andpublic hearings within the geographical [*2]boundaries of theVillage.
The remedy of mandamus is used to compel the performance of a statutory duty that isministerial in nature and does not involve the exercise of judgment or discretion (seeKlostermann v Cuomo, 61 NY2d 525, 539 [1984]). A ministerial act amenable to mandamushas been defined as "a specific act which the law requires a public officer to do in a specifiedway on conceded facts without regard to his [or her] own judgment" (Matter of Posner vLevitt, 37 AD2d 331, 332 [1971]). As a general rule, mandamus to compel is available onlywhen the petitioner's right to performance is "so clear as to admit of no doubt or controversy"(Matter of Coastal Oil N.Y. v Newton, 231 AD2d 55, 57 [1997]).
In the case at bar, the petitioners failed to establish that they have a clear legal right tocompel the Board to conduct all public meetings and public hearings within the geographicalboundaries of the Village. In 1972, the New York State Legislature (hereinafter the Legislature)repealed the former Village Law and enacted the current Village Law, which allows villagesthroughout the State more freedom to adopt local laws to meet their individual needs (seeL 1972, ch 892, § 57). Among other changes, the current Village Law omitted section87 of the former Village Law, which required the board of trustees to hold meetings "at suchtimes and places in the village as it shall, by resolution, provide."
The Latin maxim "expressio unius est exclusio alterius," which means the expression of onething implies the exclusion of others, is a "standard canon of [statutory] construction"(Morales v County of Nassau, 94 NY2d 218, 224 [1999]). Accordingly "where a lawexpressly describes a particular act, thing or person to which it shall apply, an irrefutableinference must be drawn that what is omitted or not included was intended to be omitted andexcluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240; see Morales vCounty of Nassau, 94 NY2d 218 [1999]; Matter of Town of Eastchester v New York State Bd. of Real Prop.Servs., 23 AD3d 484, 485 [2005]). Moreover, since the prior statute referred to twoprovisions and, upon reenactment, the new statute only includes one of those provisions, theinference is that the Legislature intended to omit the absent provision (see Statutes§ 240). Specifically, the former Village Law included both section 87 (which requiredtrustees to conduct public meetings in the village) and section 88 (which permitted trustees toarrest an absent board member and take him or her before the board), but the revised Village Lawonly included section 88, which was transferred verbatim to Village Law § 4-412 (2).
The Supreme Court's reliance on the latter statute (i.e., Village Law § 4-412 [2]) as oneof the reasons for restraining the Board from holding meetings outside the Village wasmisplaced. A court's role in interpreting a statute is to ascertain the legislative intent from thewords and language that are used, and a court should not extend a statute beyond its expressterms or the reasonable implications of its language. Therefore, a court should construe a statuteaccording to its "natural and most obvious sense, without resorting to an artificial or forcedconstruction" (Statutes § 94). Here the natural and most obvious interpretation of thecurrent Village Law is to permit meetings outside the geographical limits of a village wherecircumstances warrant, irrespective of the provisions of Village Law § 4-412 (2), whichgive the Board the right to "direct[ ] any peace officer . . . or police officer residingwithin the village to arrest such absent member and take him [or her] before the board."
Additionally, in 2000, the Legislature specifically added "videoconferencing" to severalprovisions of the Open Meetings Law (Public Officers Law § 100 et seq.; seeL 2000, ch 289, §§ 2-4). For example, Public Officers Law § 102 (1)currently defines the word "meeting" to mean "the official convening of a public body for thepurpose of conducting public business, including the use of videoconferencing for attendance andparticipation by the members of the public body" (see also Public Officers Law §103 [c]; § 104 [4]). At the same time, General Construction Law § 41 was amendedto define a quorum in terms of a majority of a board "gathered together in the presence of eachother or through the use of videoconferencing" (L 2000, ch 289, § 5).
Accordingly, inasmuch as there is no provision in the Village Law or any other statute whichmandates that official Village meetings must take place within the Village borders, and since therelevant statutes permit the use of videoconferencing (see Matter of Town of Eastchester v New York State Bd. of Real Prop.Servs., 23 AD3d 484 [2005]; Matter of City of White Plains v New York State Bd. of Real Prop.Servs., 18 AD3d 549 [2005]), it was error for the Supreme Court to grant that branch ofthe petition which [*3]was to, in effect, compel the Board toconduct public meetings and public hearings within the geographical boundaries of the Village.Covello, J.P., Santucci, Balkin and Austin, JJ., concur.