| Matter of Iskalo 5000 Main LLC v Town of Amherst Indus. Dev.Agency |
| 2017 NY Slip Op 00868 [147 AD3d 1414] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Iskalo 5000 Main LLC et al., Respondents, vTown of Amherst Industrial Development Agency, Appellant, and County of Erie,Intervenor-Respondent-Appellant. (Appeal No. 2.) |
Hurwitz & Fine, P.C., Buffalo (Andrea Schillaci of counsel), forrespondent-appellant.
Michael A. Siragusa, County Attorney, Buffalo (Jeremy C. Toth of counsel), forintervenor-respondent-appellant.
Hopkins, Sorgi & Romanowski PLLC, Williamsville (Sean W. Hopkins of counsel), forpetitioners-respondents.
Appeals from a judgment (denominated order) of the Supreme Court, Erie County (John L.Michalski, A.J.), entered July 29, 2016 in a proceeding pursuant to CPLR article 78. Thejudgment reversed the determination of respondent denying the application of petitioners, grantedthe application of petitioners and denied the request of respondent for attorney's fees.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby dismissing the petition and reinstating the determination, and as modified the judgment isaffirmed without costs.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul andreverse the determination of respondent, Town of Amherst Industrial Development Agency(AIDA), denying petitioners' application for financial assistance in the form of various taxexemptions in connection with a renovation project of the former Lord Amherst Hotel and anon-site restaurant. In appeal No. 1, AIDA and intervenor-respondent, County of Erie (County),appeal from a judgment entered June 30, 2016, by which Supreme Court reversed AIDA'sdetermination denying petitioners' application, granted the application, and denied AIDA'srequest for attorney's fees. In appeal No. 2, AIDA appeals from a subsequent judgment enteredJuly 29, 2016, by which the court reiterated the terms of its judgment entered June 30, 2016, butadded a written decision. We note at the outset that appeal No. 1 must be dismissed inasmuch asthe earlier judgment was superseded by the later judgment (see Legarreta v Neal, 108 AD3d 1067, 1068 [2013]; seegenerally Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051 [1990]). Further, althoughthe County appealed from only the earlier judgment, we exercise our discretion to treat its noticeof appeal as valid and deem its appeal to be from the superseding judgment (see generallyCPLR 5520 [c]).
We agree with AIDA and the County (collectively, respondents) that the court erred inreversing AIDA's determination denying petitioners' application for financial assistance, and wemodify the judgment in appeal No. 2 accordingly. Pursuant to a 2013 amendment to GeneralMunicipal Law § 862, industrial development agencies such as AIDA areprohibited from providing financial assistance "in respect of any project where facilities orproperty that are primarily used in making retail sales to customers who personally visit suchfacilities constitute more than one-third of the total project cost" (§ 862 [2] [a]). Inaddition to other exceptions not relevant to this appeal, however, the prohibition does not applyto "tourism destination projects" (id.). The statute defines a "tourism destination" as "alocation or facility which is likely to attract a significant number of visitors from outside theeconomic development region . . . in which the project is located" (id.).
"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intentof the Legislature . . . , and where the statutory language is clear and unambiguous,the court should construe it so as to give effect to the plain meaning of the words used"(Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208[1976]; see Matter of Synergy, LLC vKibler, 124 AD3d 1261, 1262 [2015], lv denied 25 NY3d 967 [2015]). Insection 862 (2) (a), the Legislature chose to use the word attract, which, in the context ofthis case, means "to cause to approach or adhere" or "to draw to or toward oneself" (Webster'sThird New International Dictionary 141 [2002]). We thus conclude that the Legislature intendedthere to be a causal link between a project's location or facilities and visitors coming from outsidethe economic development region. Here, however, the materials submitted by petitioners toAIDA in connection with their application demonstrate, at most, that the project location orfacilities would be used by or cater to visitors from outside the economicdevelopment region. Those visitors may come to the economic development region for anynumber of reasons independent of petitioners' project and simply choose to use the project'sfacilities rather than lodge or dine at any of the other available options. Petitioners made noshowing that the project location or facilities would likely cause visitors to come fromoutside the economic development region, as required by the plain language of section 862 (2)(a). Inasmuch as petitioners failed to show that the project fell within the "tourism destination"exception to the general prohibition on providing financial assistance in connection with retailprojects (§ 862 [2] [a]), AIDA's determination must be sustained because it issupported by a rational basis in the record (see Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; Matter of Civil Serv. Empls. Assn., Local1000, AFSCME, AFL-CIO v New York State Unified Ct. Sys., 138 AD3d 1444, 1445[2016]). Moreover, we further conclude that AIDA's determination was not affected by an errorof law inasmuch as its interpretation of section 862 is not "irrational or unreasonable" (Matter of Koch v Sheehan, 95 AD3d82, 89 [2012], affd 21 NY3d 697 [2013]).
Contrary to petitioners' contention, we conclude that AIDA's previous determinations did notrender its instant determination arbitrary and capricious. Although "[a] decision of anadministrative agency which neither adheres to its own prior precedent nor indicates its reasonsfor reaching a different result on essentially the same facts is arbitrary and capricious" (Matterof Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86,93 [2001] [internal quotation marks omitted]), that rule is not applicable here. The denial ofpetitioners' instant application is not inconsistent with AIDA's determinations on petitioners'2011 and 2012 applications or on applications submitted by other applicants because thoseapplications did not involve "essentially the same facts" (id. [internal quotation marksomitted]).
Petitioners contend that AIDA's determination was rendered arbitrary and capricious by anAIDA Board member's refusal to recuse herself based on an alleged conflict of interest. To theextent that such contention is properly before us, we reject it as without merit. At most,petitioners established that the Board member may have made " 'expressions of personalopinion' . . . on matters of public concern[,]" which are insufficient to constitute abasis for finding a conflict of interest (Matter of Pittsford Canalside Props., LLC v Village of Pittsford, 137AD3d 1566, 1568 [2016], lv dismissed 27 NY3d 1080 [2016]).
We reject respondents' contention that the court erred in denying AIDA's request forattorney's fees. It is well established that a court should not infer a party's intention to waive thebenefit of the general rule that parties are responsible for their own attorney's fees "unless theintention to do so is unmistakably clear from the language of the promise" (Hooper Assoc. vAGS Computers, 74 NY2d 487, 492 [1989]). The indemnification provision in AIDA'sapplication form, upon which respondents rely, contains only general language that the "applicantshall be and is responsible for all expenses incurred by [AIDA] in connection with thisapplication." We conclude that such broad language, which does not refer to litigation orattorney's fees, does not make it "unmistakably clear" that the parties intended that petitionersmust indemnify AIDA for attorney's fees arising from the instant litigation (id.; see Parkway Pediatric & AdolescentMedicine LLC v Vitullo, 72 AD3d 1513, 1513 [2010]). Present—Smith, J.P.,Lindley, DeJoseph, NeMoyer and Troutman, JJ.