Appeal No. APL-2013-00128 To be argued by:
BETHANY A. DAVIS NOLL
15 minutes requested
Supreme Court, Nassau County
State of New York
Court of Appeals
DANIEL CAPRUSO, et al.,
Plaintiffs-Respondents,
-against-
VILLAGE OF KINGS POINT, et al.,
Defendants-Appellants.
Index No. 5006/09 .
STATE OF NEW YORK,
Plaintiff-Respondent,
-against-
VILLAGE OF KINGS POINT,
Defendant-Appellant.
Index No. 17908/09 .
BRIEF FOR STATE RESPONDENTS
BARBARA D. UNDERWOOD
Solicitor General
RICHARD DEARING
Deputy Solicitor General
BETHANY A. DAVIS NOLL
Assistant Solicitor General
of Counsel
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for State Respondents
120 Broadway
New York, New York 10271
(212) 416-6184
(212) 416-8962 (facsimile)
Dated: November 4, 2013
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................. iii
PRELIMINARY STATEMENT ........................................................ 1
QUESTIONS PRESENTED ............................................................. 3
STATEMENT OF THE CASE .......................................................... 4
A. The Public Trust Doctrine .............................................. 4
B. Background ..................................................................... 9
1. Kings Point Park and the Western Corner ............ 9
2. The Village’s Proposal to Eliminate
Essentially All Public Park Use of the
Western Corner ..................................................... 10
3. The Village’s Failure to Obtain Legislative
Approval for Any Nonpark Use ............................ 12
C. The Proceedings Below ................................................. 14
ARGUMENT .................................................................................. 17
POINT I - THE STATE’S CLAIM TO ENJOIN THE
VILLAGE’S DPW PROJECT IS NOT
BARRED BY THE STATUTE OF
LIMITATIONS ......................................................... 17
A. The State Sued To Enjoin the DPW Project
Less Than a Year After the Village Adopted
the Proposal and Before Ground Was
Broken. ................................................................ 17
B. The Village’s Contentions About Past
Nonpark Uses Are Irrelevant Because It Is
Undisputed that the DPW Project Will
Encroach Upon Present Public Park Use of
the Western Corner. ........................................... 19
ii
TABLE OF CONTENTS (cont’d)
Page
POINT II - THE CLAIM TO ENJOIN THE VILLAGE’S
EXISTING NONPARK USE OF PART OF
THE WESTERN CORNER IS NOT TIME-
BARRED ................................................................... 26
A. The Village’s Past Violations Do Not
Render Its Existing Nonpark Uses Immune
From the Public Trust Doctrine Today. ............. 27
B. The Claim To Enjoin the Existing Nonpark
Uses Is Also Timely Under the Continuing-
Wrong Doctrine. .................................................. 29
C. The Village’s Novel Analogy To Adverse
Possession Is Baseless. ....................................... 35
D. The Village’s Decades-Old Documents Do
Not Establish the Nonpark Use That the
Village Now Claims In Any Event. .................... 39
POINT III - THIS VILLAGE’S LACHES ARGUMENT IS
FORFEITED AND MERITLESS ............................ 41
A. Laches Does Not Apply to the State, as the
Village Conceded Below. ..................................... 41
B. In Any Event, the Village Identifies No
Legal Error in the Lower Courts’ Factual
Finding That the Elements of Laches Are
Not Satisfied. ....................................................... 44
CONCLUSION ................................................................................ 48
iii
TABLE OF AUTHORITIES
Cases Page(s)
1050 Tenants Corp. v. Lapidus,
289 A.D.2d 145 (1st Dep’t 2001) ................................................. 30
509 Sixth Ave. Corp. v. N.Y. City Transit. Auth.,
15 N.Y.2d 48 (1964) .................................................................... 30
Alfred L. Snapp & Son v. Puerto Rico,
458 U.S. 592 (1982) ..................................................................... 42
Bates v. Holbrook,
171 N.Y. 460 (1902) ........................................................... 5, 22-23
Bloomingdales, Inc. v. N.Y. City Transit Auth.,
13 N.Y.3d 61 (2009) .............................................................. 30, 31
Brand v. Prince,
35 N.Y.2d 634 (1974) .................................................................. 37
Brooklyn Park Comm’rs v. Armstrong,
45 N.Y. 234 (1871) ............................................................ 4, 33, 36
Burbank v. Fay,
65 N.Y. 57 (1875) ................................................................... 35-36
Capruso v. Vill. of Kings Point,
102 A.D.3d 902 (2d Dep’t 2013) .................................................. 16
Capruso v. Vill. of Kings Point,
21 N.Y.3d 856 (2013) .................................................................. 17
Capruso v. Vill. of Kings Point,
78 A.D.3d 877 (2d Dep’t 2010) .................................. 15, 16, 29, 45
Covington v. Walker,
3 N.Y.3d 287 (2004) .................................................................... 30
iv
TABLE OF AUTHORITIES (cont’d)
Cases Page(s)
Friends of Van Cortlandt Park v. City of N.Y.,
95 N.Y.2d 623 (2001) ........................................................... passim
Galway v. Metro. Elevated Ry.,
128 N.Y. 132 (1891) ..................................................................... 31
Inc. Vill. of Lloyd Harbor v. Town of Huntington,
4 N.Y.2d 182 (1958) ....................................................................... 4
Johnson v. Town of Brookhaven,
230 A.D.2d 774 (2d Dep’t 1996) ............................................ 28, 29
Lucchesi v. Perfetto,
72 A.D.3d 909 (2d Dep’t 2010) .................................................... 30
Matter of Ackerman v. Steisel,
66 N.Y.2d 833 (1985), aff’g 104 A.D.2d 940 (2d Dep’t 1984) ... 27-28
Matter of Barabash,
31 N.Y.2d 76 (1972) ..................................................................... 46
Matter of Burke v. Sugarman,
35 N.Y.2d 39 (1974) ............................................................... 30, 44
Matter of Cortlandt Nursing Home v. Axelrod,
66 N.Y.2d 169 (1985) ............................................................. 41, 42
Matter of Daleview Nursing Home v. Axelrod,
62 N.Y.2d 30 (1984) ..................................................................... 43
Matter of Lake George Steamboat Co. v. Blais,
30 N.Y.2d 48 (1972) ....................................................................... 5
Matter of LaPine,
18 A.D.3d 552 (2d Dep’t 2005) .................................................... 41
Matter of Shapiro v. Town of Ramapo,
98 A.D.3d 675 (2d Dep’t 2012) .................................................... 32
v
TABLE OF AUTHORITIES (cont’d)
Cases Page(s)
Neighbors & Friends of Viretta Park v. Miller,
87 Wash. App. 361 (1997) ..................................................... 33, 34
People v. Grasso,
11 N.Y.3d 64 (2008) .................................................................... 43
People v. Hawkins,
11 N.Y.3d 484 (2008) .................................................................. 45
Rapf v. Suffolk County,
755 F.2d 282 (2d Cir. 1985) ........................................................ 31
Riverview Partners, L.P. v. City of Peekskill,
273 A.D.2d 455 (2d Dep’t 2000) ................................................. 4-5
Rodrigues v. Catskill Revitalization Corp.,
302 A.D.2d 762 (3d Dep’t 2003) ............................................ 33, 36
Schulz v. State,
81 N.Y.2d 336 (1993) .................................................................. 45
State v. CSRI Ltd. P’ship,
289 A.D.2d 394 (2d Dep’t 2001) .................................................. 30
Telaro v. Telaro,
25 N.Y.2d 433 (1969) .................................................................. 42
Tobin v. Hennessy,
220 A.D. 695 (1st Dep’t 1927) ..................................................... 29
Vill. of Croton-on-Hudson v. County of Westchester,
30 N.Y.2d 959 (2d Dep’t 1972) ................................................ 4, 20
Williams v. Gallatin,
229 N.Y. 248 (1920) .................................................................. 4, 6
Constitutional Provisions
N.Y. Const, art. VI, § 3(a) ................................................................ 45
vi
TABLE OF AUTHORITIES (cont’d)
Statutes Page(s)
Ch. 616, 2003 N.Y. Laws 3280 .......................................................... 7
Ch. 618, 2003 N.Y. Laws 3282 .......................................................... 7
Ch. 624, 2003 N.Y. Laws 3287 .......................................................... 7
Ch. 492, 2004 N.Y. Laws 3509 .......................................................... 7
Ch. 505, 2008 N.Y. Laws 3978 .......................................................... 7
Ch. 262, 2012 McKinney N.Y. Laws 955 .......................................... 6
Ch. 315 2012 McKinney N.Y. Laws 1008 .................................... 7, 8
Miscellaneous Authorities
Karger, Arthur, Powers of the New York Court of Appeals
(2005) ........................................................................................... 45
Baker, Karl P. & Dwight H. Merriam, Indelible Public
Interest in Property: The Public Trust and the Public
Forum, 32 B.C. Envtl. Aff. L. Rev. 275 (2005) ........................... 33
Letter from Dep’t of State (July 8, 2008), reprinted in Bill
Jacket for ch. 505 (2008) ............................................................... 8
Letter from Josselyn M. Shore, Chairman, Bd. of Comm’rs of
Great Neck Park Dist. (April 20, 1967), reprinted in Bill
Jacket for ch. 563 (1967) ............................................................. 47
N.Y. State Office of Parks, Recreation & Historic Pres.,
Handbook on the Alienation and Conversion of Municipal
Parkland 24-32 (2012), available at http://nysparks.
com/publications/documents/AlienationHandbook.pdf ........... 6, 8
Sponsor’s Memo, reprinted in Bill Jacket for ch. 315 (2012) ........... 7
PRELIMINARY STATEMENT
To protect and preserve parklands in this State, New York
law has held for more than a century that such lands are
impressed with a trust for the benefit of the public. Under this
“public trust” doctrine, a local government may not use or alienate
parkland for any nonpark purpose, without first obtaining direct
and specific approval from the State Legislature.
The Village of Kings Point appeals from final judgments
granting permanent injunctions against its use of land within
Kings Point Park for nonpark purposes. On this appeal, the
Village concedes that the enjoined uses do not relate to park
purposes, and further concedes that it never obtained approval of
the uses from the Legislature. And the Village does not challenge
any aspect of the injunctions entered. Its sole contention is that
these suits were barred by the statute of limitations.
The Court should affirm the Appellate Division’s ruling that
the suits were not time-barred. The central claim seeks to enjoin a
2008 proposal by the Village to eliminate all park use of a 5.4-acre
area at the western end of the Park. The area, known as the
2
Western Corner, is heavily wooded, hilly, and regularly used by
the public as parkland. Without the Legislature’s approval, the
Village Board proposed to enclose, deforest, regrade, pave, and
build on the entire Western Corner, for its own exclusive use as a
Department of Public Works (DPW) facility. The claim to enjoin
this radical encroachment on the Park was not time-barred; it was
brought only months after the proposal’s adoption and before
ground was broken.
A further claim seeks to enjoin the Village’s ongoing use of
the northern edge of the Western Corner for salt storage. The
Village argues this claim was time-barred because minutes of
Village Board meetings show that some nonpark use has been
ongoing for more than six years, which it claims is the applicable
statute of limitations. But the Village’s ongoing evasion of the
requirement to obtain legislative approval is a continuing wrong
that has not grown immune from challenge merely because it has
persisted for some time. Any contrary result would directly
undermine the protective purposes of the public trust doctrine.
3
QUESTIONS PRESENTED
1. Whether the statute of limitations bars the State’s
claim under the public trust doctrine to enjoin the Village’s
proposal to eliminate all park use of the Western Corner of Kings
Point Park by locating a new DPW facility there, without the
Legislature’s approval, when the State sued only months after the
proposal’s adoption and before ground was broken?
2. Whether the statute of limitations bars the claim to
enjoin the Village’s continuing violation of the public trust
doctrine through its ongoing use of the northern edge of the
Western Corner for a salt shed and garage, without the
Legislature’s approval?
3. Whether laches bars the State’s action, where laches
does not apply to the State, as the Village conceded below, and in
any event the fact finder reasonably found that the Village failed
to satisfy the elements of laches?
The Appellate Division, Second Department, answered no to
all three questions.
4
STATEMENT OF THE CASE
A. The Public Trust Doctrine
For well more than a century, this Court has recognized the
public trust doctrine to protect and preserve the State’s parklands.
See Friends of Van Cortlandt Park v. City of N.Y., 95 N.Y.2d 623,
629-30 & n.3 (2001) (discussing history of doctrine); see also
Williams v. Gallatin, 229 N.Y. 248, 253-54 (1920); Brooklyn Park
Comm’rs v. Armstrong, 45 N.Y. 234, 243 (1871). The doctrine
reflects that parks are “essential to the health and welfare of the
community.” Inc. Vill. of Lloyd Harbor v. Town of Huntington,
4 N.Y.2d 182, 191 (1958). Because localities may face financial or
other temptations to sell parkland for development or use it for
various nonpark purposes, the doctrine requires them to obtain
specific approval from the State Legislature before they may do so.
New York law provides that property may become parkland
either through express dedication for park use or through implied
acts, such as public use of the property as a park. See, e.g., Vill. of
Croton-on-Hudson v. County of Westchester, 30 N.Y.2d 959, aff’g
38 A.D.2d 979 (2d Dep’t 1972); Riverview Partners, L.P. v. City of
5
Peekskill, 273 A.D.2d 455, 456 (2d Dep’t 2000) (citing Cook v.
Harris, 61 N.Y. 448 (1875)). Upon becoming parkland, the property
is “impressed with a public trust” for the benefit of the people of
the State. Friends of Van Cortland Park, 95 N.Y.2d at 630, 631;
see also Matter of Lake George Steamboat Co. v. Blais, 30 N.Y.2d
48, 51-52 (1972).
In order to use or alienate such land for nonpark purposes
for any extended period, a municipality must obtain “direct and
specific approval of the State Legislature, plainly conferred.”
Friends of Van Cortlandt Park, 95 N.Y.2d at 632 (quotation marks
omitted). To satisfy the public trust doctrine, the Legislature’s
approval must be “clear and certain,” Matter of Lake George
Steamboat, 30 N.Y.2d at 52, and must directly authorize the specific
project in question, Bates v. Holbrook, 171 N.Y. 460, 467 (1902).
Because the public trust doctrine serves important purposes
to protect the health and welfare of the public in the State at large,
its requirement of legislative approval is absolute. Legislative
approval is required whenever “there is a substantial intrusion on
6
parkland for non-park purposes.”1 Friends of Van Cortland Park,
95 N.Y.2d at 630. “[N]o objects, however worthy . . . which have no
connection with park purposes, should be permitted to encroach
upon [parkland] without legislative authority plainly conferred.”
Williams, 229 N.Y. at 253.
Under this clear authority, municipalities have ample notice
and guidance about the public trust requirement. Indeed, the New
York State Office of Parks, Recreation and Historic Preservation
has issued a handbook outlining the steps a municipality may take
to seek such approval.2 And examples of laws granting the required
specific legislative approval are plentiful in the New York statutes.
See, e.g., Ch. 262, 2012 McKinney N.Y. Laws 955 (providing for
discontinuation of parkland in Empire Fulton Ferry state park);
1 The Court has declined to decide whether purely “de
minimis” nonpark uses may be excepted from the rule. Friends of
Van Cortland Park, 95 N.Y.2d at 631.
2 See N.Y. State Office of Parks, Recreation & Historic Pres.,
Handbook on the Alienation and Conversion of Municipal
Parkland 24-32 (2012), available at http://nysparks.
com/publications/documents/AlienationHandbook.pdf. (A portion
of the 2005 Handbook appears in the record at pages 494-528.)
7
Ch. 624, 2003 N.Y. Laws 3287 (same, with respect to different
park); Ch. 618, 2003 N.Y. Laws 3282 (same); Ch. 616, 2003 N.Y.
Laws 3280 (same); Friends of Van Cortlandt Park, 95 N.Y.2d at
632 (collecting other statutory examples); R. 64-65 (statute
authorizing the Village of Kings Point to lease Kings Point Park to
a park district for “public park purposes”).
The statute books also contain numerous examples of
legislation granting belated requests from municipalities that had
already been intruding on parklands for many years. For example,
last year, the city of Jamestown received belated permission to
alienate parkland for a composting site after promising to replace
it with equal or better parklands that were more readily accessible
to the public. Ch. 315, § 2, 2012 McKinney N.Y. Laws 1008, 1008;
Sponsor’s Memo, reprinted in Bill Jacket for ch. 315 (2012); see
also Ch. 505, 2008 N.Y. Laws 3978 (authorizing conversion of
parkland where existing parking and other nonpark structures
were already located); Ch. 492, 2004 N.Y. Laws 3509 (authorizing
replacement of existing water district wells inside park).
8
In reviewing requests under the public trust doctrine, the
Legislature ensures that municipalities comply with important
obligations before any parkland is used for nonpark purposes or
sold. Depending on the land at issue, the municipality generally
must replace the parkland with equal or better parkland as well
as comply with applicable local and federal land-use laws. See
Handbook, supra, at 27; R. 514 (2005 Handbook); Ch. 315, § 7,
2012 McKinney N.Y. Laws at 1010; Letter from Dep’t of State
(July 8, 2008), reprinted in Bill Jacket for ch. 505 (2008), at 15-16.
Municipalities must also comply with the State Environmental
Quality Review Act before they submit a request under the public
trust doctrine to the Legislature. See Handbook, supra, app. 14.
The review process thus allows the Legislature to safeguard the
public’s strong interest in preserving open parkland.
9
B. Background
1. Kings Point Park and
the Western Corner
Kings Point Park is protected by the public trust doctrine
because it is a park that has been in use by the public for ninety
years. The Park is a quiet, forested, and hilly 173-acre property
near the northern tip of the Great Neck peninsula in Long Island.
(R. 283-284.) It is a park of “rustic beauty” made up of “more than
five miles of breathtaking hiking trails.” (R. 284 (quotation marks
omitted).) The Village acquired the 173 acres in the 1920s, when
the area was known as “the Great Swamp,” and expressly
dedicated the property as public parkland. (R. 78-79, 155, 309,
640, 711, 715.)
The Western Corner is a thickly wooded forest, the majority
of which is “mature woodland” that has not been disturbed. (R.
802 ¶ 12.) Three marked trails and several unmarked trails cross
it. (R. 463-464, 465.) The woods are filled with a number of
exceptionally beautiful and notable trees (known as specimen
trees), with diameters up to sixty-two inches, some of which are
10
more than one-hundred-years-old. (R. 36, 801.) Pictures of some of
these trees can be found in the record at pages 442 to 445.
The public enters the Western Corner directly through the
woods on either side of the corner. (See R. 36 ¶ 18; 37 ¶ 20; 46
¶ 48; 52 ¶ 5; 57-61.) The woodland continues uninterrupted from
the Western Corner into the rest of the park. (R. 801 ¶ 11.) The
public enjoys the Western Corner for exercise, photography, family
outings, and fresh air. (R. 36, 46-48, 52-53, 57-61.) Midshipmen
from the U.S. Merchant Marine Academy, which is across the
street from the Western Corner, also enter there and use the trails
in the park for walks, running, or cross-country skiing. (R. 36, 69.)
2. The Village’s Proposal to Eliminate
Essentially All Public Park Use of the
Western Corner
On November 20, 2008, the Village’s Board of Trustees
adopted a proposal to fence in, regrade, and deforest the Western
Corner to build and operate a new DPW facility there. (R. 181.)
The Village planned to sell its current DPW site outside the park
for private development. (R. 45, 300.)
11
The Village admits that its proposed DPW facility would
have no connection to any park purpose. Br. for the Vill. of Kings
Pt. (Village Br.) at 15-16. The Village proposed to erect a twelve-
thousand-square-foot building and relocate its main DPW offices,
trucks, equipment, and employees, including a diesel-truck garage,
a road-sign shop, administrative offices, and crew quarters, to the
Western Corner. (R. 38-39, 181-182, 631). The Village also planned
to put up a six-foot-high chain-link fence around the facility.
(R. 182, 443-444, 462-465.)
The proposed fence and new facilities would destroy the park
uses of the Western Corner—in fact it would no longer be a park.
The proposal would require clearing the area, cutting down
enormous old trees, and paving and leveling the land, and it would
eliminate the portions of at least two marked hiking trails that
cross the Western Corner. (R. 39-40, 443, 462-465.) The proposal
would also restrict existing points of public access to the Park.
12
3. The Village’s Failure to Obtain Legislative
Approval for Any Nonpark Use
The Village has not obtained authorization from the
Legislature to use any portion of the Park for nonpark purposes.
Indeed, the only legislative approval that the Village received
relating to Kings Point Park affirmed that the entire park is
dedicated parkland.
Without obtaining legislative authorization, the Village had,
at different times over the years, used a fraction of the Western
Corner for various nonpark uses, such as a pistol range, fueling
station, and sand pit, all of which have now been discontinued. (R.
262-263.) At present, the Village has a paved area at the northern
edge of the Western Corner with a small garage and a “Quonset
hut,” functioning as a salt shed, which measures about 1700
square feet. (R. 37, 69, 289, 630.)
For some time, the Village leased all or part of the Park to
the Great Neck Park District for operation and maintenance, also
without legislative approval. In the 1940s, it reserved the Western
Corner from the lease. (R. 377-380.) The Village claims that
minutes from a Village Board of Trustees meeting around the time
13
show that the reservation was for nonpark purposes. But the
minutes state only that the Village would need to reserve a strip
of land in the “southwest corner” for a now-discontinued “pistol
range” and storage of highway materials. (R. 263, 374.) Village Br.
at 5. Only a single Park District lease from the 1930s (before the
Village ever excluded the Western Corner from the lease)
mentions any potential nonpark purpose. And that lease contains
only a vague reference to an unspecified “dumping area . . . for
dumping ashes” and other waste material. (R. 368.) All of the
Village’s leases with the Park District consistently describe the
Western Corner as part of Kings Point Park. (R. 110, 130-144,
377, 383, 391-400, 403-414.)
In 1966, after a number of years in which the Village had
leased land in the Park to the Park District, the State Comptroller
informed the Village, after an audit, that it was required to obtain
legislative authorization for the lease. (R. 149-150.) In 1967, the
Village obtained legislative authorization to lease all or part of the
parklands to the Park District, solely for “public park purposes.”
(R. 64, 160-170.)
14
At that time, the Village did not ask for permission to use
any part of the park for nonpark purposes and the Legislature did
not authorize the Village to use or lease any portion of the Park
for any nonpark purpose. In fact, the Village’s legislative request
stated that the entire park, including the Western Corner, was
public parkland that it leased to the Park District for
management. (R. 155-162.) And though the existing lease ratified
by the legislation excluded the Western Corner from the property
leased for management by the Park District, both the legislation
and lease referred to the Western Corner as part of Kings Point
Park (see R. 64-66, 383), as did numerous maps and surveys from
before and after that time (see R. 42-43, 80-83, 92-108).
C. The Proceedings Below
In 2009, less than a year after the Village Board of Trustees
approved the construction of DPW facilities, and before ground
was broken, the State and a group of private landowners
separately brought suit to preliminarily and permanently enjoin
the DPW project as an unlawful use of parkland in violation of the
public trust doctrine. (R. 274-305, 466-475, 478-480.) The Village
15
moved to dismiss the complaints as barred by the statute of
limitations and by laches. (See R. 253, 531.)
Supreme Court, Nassau County (Feinman, J.), denied the
motion to dismiss and entered a preliminary injunction. (R. 5-11,
15-17.) In rejecting the Village’s statute of limitations and laches
arguments, the court explained that the Village had failed to seek
legislative permission to use the Western Corner for construction
of its large new DPW project and that the Village’s prior use “did
not pertain to the entire Western Corner.” (R. 10; see R. 17.)
On interlocutory appeal, the Appellate Division, Second
Department affirmed the preliminary injunction. Capruso v. Vill.
of Kings Point, 78 A.D.3d 877, 879 (2d Dep’t 2010) (slip op.
reproduced at R. 1114-1116). The Second Department found that
the challenges to the Village’s proposed DPW project were timely.
Id. at 878-79. In addition, the claims regarding the Village’s prior
ongoing nonpark uses of park property were timely, because “[a]
municipality’s current and ongoing use of dedicated parkland for
nonpark purposes without the approval of the State Legislature in
16
violation of the public trust doctrine is a continuing wrong that
the municipality has the ability to control and abate.” Id. at 878.
After remand, Supreme Court entered a permanent
injunction, holding that the Western Corner is “dedicated
municipal parkland” and could not be “used for non-park purposes
absent specific and explicit authorization from the New York State
Legislature.” (R. 609.) The order (1) permanently enjoined the
Village from removing trees from and otherwise clearing the
Western Corner and erecting a DPW facility there; (2) permanently
enjoined the Village from building a fence or otherwise denying or
obstructing existing access to the Western Corner; and
(3) required the Village to remove from the Western Corner all
materials, buildings, equipment, and physical alterations, unless
and until the Village either obtained legislative approval or could
show that such structures “have legitimately been converted to
proper park use.” (R. 609-610.) The Second Department again
affirmed. Capruso v. Vill. of Kings Point, 102 A.D.3d 902, 904 (2d
Dep’t 2013) (slip op. reproduced at R. 1112-1113). This Court
17
granted leave to appeal. Capruso v. Vill. of Kings Point, 21 N.Y.3d
856 (2013) (reproduced at R. 1111.)
ARGUMENT
POINT I
THE STATE’S CLAIM TO ENJOIN THE
VILLAGE’S DPW PROJECT IS NOT BARRED BY
THE STATUTE OF LIMITATIONS
A. The State Sued To Enjoin the DPW Project
Less Than a Year After the Village Adopted
the Proposal and Before Ground Was Broken.
The Village holds title to Kings Point Park in trust for the
public use as a park and may not use property within the park for
nonpark purposes without “direct and specific approval of the
State Legislature, plainly conferred.” Friends of Van Cortlandt
Park, 95 N.Y.2d at 632 (quotation marks omitted). It is
undisputed that the Village has not complied with this
requirement and that the DPW project is not for park purposes.
See Village Br. at 15-16. Indeed, the Village does not challenge
the merits of the permanent injunctions entered here in any way,
thus conceding the merits. Instead, the Village solely argues that
18
the State’s claim was barred by the statute of limitations. This
contention is baseless.
Though the Village scarcely mentions the DPW project in its
brief (see Br. at 15-16), the core of these suits addresses the
Village’s 2008 proposal to deforest, regrade, and fence-in the
Western Corner in order to build a new DPW facility there. This
project would virtually eliminate all public use of the Western
Corner as parkland. After deforesting, leveling, and paving the
area, the Village would place a new twelve-thousand-square foot
building, trucks, equipment, offices and garages there, all behind
a six-foot-high fence, destroying several marked and unmarked
trails and restricting public access to the park in that area. (R. 39-
40, 443-444, 462-465.)
The suit to enjoin the Village’s plan to eliminate essentially
all public park use of the Western Corner and devote that area to
use as a DPW facility was brought within months of the Village’s
adoption of the plan, and before ground was even broken on it.
The Village Board approved the project on November 20, 2008 (R.
181-182), and a group of private plaintiffs and the State
19
separately brought actions to enjoin the new project in March and
September 2009, respectively. The Village itself (Br. at 9) argues—
incorrectly, see infra, Point II—that a six-year statute of
limitations applies to a public trust claim. Thus, there can be no
serious argument that the claim is barred by the statute of
limitations.
B. The Village’s Contentions About Past
Nonpark Uses Are Irrelevant Because It Is
Undisputed that the DPW Project Will
Encroach Upon Present Public Park Use of
the Western Corner.
The Village’s only argument as to the claim to enjoin the
DPW proposal is that the “non-park use of the dedicated park land
had been ongoing since at least 1946” and that its November 2008
proposal was simply a “change in the nature and scope” of the
“ongoing non-park use.” Village Br. at 16. We show in Point II that
the State may sue to challenge a municipality’s ongoing and
unauthorized use of parkland for nonpark purposes at any time,
for as long as that unauthorized use continues. But that issue
need not be reached to reject the Village’s statute of limitations
argument as to the claim to enjoin the DPW project. Regardless of
20
the correctness of the Village’s assertions about past nonpark
uses, the DPW project plainly constitutes a substantial new and
additional intrusion onto present park uses. The proposal
therefore cannot reasonably be seen as a continuation of any past
nonpark use for the purpose of a statute of limitations defense.
The Village’s contentions about past nonpark uses are
irrelevant because there is (and can be) no dispute that the public
has continually used the Western Corner as a park, and that the
DPW proposal will essentially eliminate all public use of the area
as parkland. The majority of the Western Corner is filled with old
forest that continues seamlessly into the rest of the park. (R. 801-
802.) The public regularly uses the trails in the Western Corner to
experience nature. (R. 46-48, 52-53, 57-61.) The record clearly
establishes that the area in question is parkland today, regardless
of any of the Village’s assertions concerning past “reservations” of
the property for nonpark uses. See Vill. of Croton-on-Hudson, 30
N.Y.2d at 959 (affirming that property may become parkland by
implication, through public use).
21
The Village’s effort to paint the 2008 DPW proposal as a
mere “change” in existing nonpark uses, and to suggest that this
characterization somehow means that the suit to enjoin the
proposal is barred, cannot withstand scrutiny. Even if the Village
had obtained express legislative approval for its existing nonpark
uses of a portion of the Western Corner—and the Village
admittedly has not done so—the plan to relocate the DPW facility
and use the entire Western Corner would require fresh legislative
authorization specific to that plan.
There is no comparison between the Village’s DPW project
and the 1700-foot salt shed that is presently located on the
northern edge of the Western Corner, directly adjacent to a public
roadway. (R. 37, 69, 289, 630.) The Village itself points out (Br. at
5) that its estimated construction costs for the DPW project will
total $4 million, confirming the substantial nature of the project.
This Court has made clear that specific legislative approval
is required for any “substantial intrusion on parkland for non-
park purposes.” Friends of Van Cortlandt Park, 95 N.Y.2d at 630.
Even in cases where a temporary intrusion is contemplated, the
22
Legislature’s authorization is needed when “some future uses of
the land will be inhibited” by the intrusion. Id. at 631. The only
possible exception might be to excuse “de minimis” nonpark uses,
and the Court has not yet determined whether even that narrow
exception would be consistent with the strong protective purposes
of the public trust doctrine. Id.
The DPW project is by no means a “de minimis” intrusion
onto parkland. The plans to clear the forest in the entire Western
Corner and fence in a massive new facility would effect a
“substantial intrusion” into present park uses of Kings Point Park,
and this remains true regardless of any indications that the
Village may cite as to its past or existing nonpark uses on the
northern edge of the Western Corner. See id. at 630.
The Village’s argument also runs afoul of this Court’s
precedents holding that, to satisfy the public trust doctrine,
legislative authorization must specifically address the particular
project in question. For example, in Bates, the Court rejected the
argument that statutory permission to “grant such temporary
privileges as would facilitate the construction of the railroad”
23
permitted defendants to interfere with the use of parkland to
build a subway. 171 N.Y. at 466-67. Given the strictness of this
rule, even if existing nonpark uses without legislative
authorization were somehow immune from challenge now (and
they are not), the DPW proposal would nonetheless require
specific and direct legislative approval. It is thus unquestionably a
new project for the purpose of any statute of limitations question.
The Village seems to argue that plaintiffs should have
challenged its 2008 DPW proposal within six years of the Village
Board’s adoption of certain meeting minutes and lease language in
the 1930s and 1940s. Village Br. at 16. We show below that there
is no legal merit to the Village’s effort to evade the public trust
doctrine based on a sentence in minutes of a 1946 board meeting
and one clause in a 1938 lease with the Park District. But in any
event, those documents do not show what the Village claims they
show; the documents show, at most, that the Western Corner was
not being leased to the Park District for management. (See R. 368,
374, 383.) But reserving the land from the lease to the Park
District does not change its status as parkland.
24
Moreover, the Village’s statements about the reasons for the
reservations are at best ambiguous statements of intention or
suggestions that nonpark uses were contemplated. The 1938 lease
“reserv[ing] the right to use the dumping area . . . for dumping
ashes, clean refuse and waste material from the Village” with the
Park District fails to even give the location of the proposed
“dumping area.” (R. 368.) The 1946 minutes stating that the
Village would seek to renegotiate its lease with the Park District
in order to “reserve a strip of land” at the southwestern corner for
a “pistol range and storage of highway materials and supplies” do
not state that the pistol range or storage area have been or would
be approved, precisely where they would be, or whether they
would be for park purposes or not. (R. 374.) Neither document
suggested that virtually all public park uses in the Western
Corner would be eliminated, as they would be if the new DPW
plan went forward.
All the leases to the Park District, as well as all other official
documents and maps in the record, have always included the
entire Western Corner as part of the park. See supra, at 14. Even
25
if this were not so, the Village cannot overcome the plain fact that
the public is presently using the Western Corner for a range of
park purposes, and that the DPW project would be a “substantial
intrusion” upon—indeed, would destroy—those park uses. See
Friends of Van Cortlandt Park, 95 N.Y.2d at 630.
Although the Village suggests that the 1967 session law
authorizing its lease with the Park District supports its
contentions here, in fact the session law strongly refutes them.
The Village argues here that nonpark uses were ongoing in 1967
(Br. at 5; R. 262), but the Village said nothing about them to the
Legislature; instead it represented to the Legislature that the
entire 173-acre park (which includes the Western Corner) was
being managed by the Park District as a park. (R. 151-167.) And
the 1967 session law did not permit or authorize any nonpark uses
of any area in the park. It solely permitted the Village to lease all
or part of the park expressly “for public park purposes.” (R. 64-66.)
In sum, there can be no reasonable dispute that the 2008
DPW proposal, if carried out, would eliminate significant public
park use of the Western Corner. The State sued only months after
26
the proposal was adopted, and before ground was broken. The
claim is not barred by the statute of limitations.
POINT II
THE CLAIM TO ENJOIN THE VILLAGE’S
EXISTING NONPARK USE OF PART OF THE
WESTERN CORNER IS NOT TIME-BARRED
The dispute about the DPW project also called the State’s
attention to the Village’s existing unauthorized use of the
northern edge of the Western Corner for nonpark purposes, such
as salt storage, which the State also seeks to enjoin. (R. 782, 793-
794.) The Village again does not dispute that these uses have not
been authorized by the Legislature and thus violate the public
trust doctrine, and it again does not challenge the injunction on
the merits. (See R. 10, 262). See also Village Br. at 5. The Village
contends only that this claim is untimely because it has been
violating the public trust doctrine, “openly and notoriously” (Br. at
3), for years. This argument fails on the law and on the facts.
27
A. The Village’s Past Violations Do Not Render
Its Existing Nonpark Uses Immune From the
Public Trust Doctrine Today.
Under the public trust doctrine, the Village cannot use
property in Kings Point Park for nonpark purposes without the
“direct and specific approval of the State Legislature, plainly
conferred.” Friends of Van Cortlandt Park, 95 N.Y.2d at 632
(quotation marks omitted). The Village’s long-standing evasion of
this requirement does not now render it inapplicable.
The public trust doctrine requires a municipality to apply for
legislative authorization to continue to use parkland for nonpark
purposes, regardless of whether the municipality has already
commenced the nonpark use without the required approval. See
supra, at 4-8. New York courts have thus consistently enjoined
localities’ unilateral actions encroaching on public parkland,
regardless of the duration of the encroachment. For example, in
Matter of Ackerman v. Steisel, this Court affirmed an injunction
requiring removal of two adjacent public works facilities from
dedicated parkland, where the facilities had been present for
twenty-five and fourteen years, and there had been no legislative
28
authorization of the nonpark uses. 66 N.Y.2d 833 (1985), aff’g 104
A.D.2d 940, 941-42 (2d Dep’t 1984).
The Village attempts to distinguish Matter of Ackerman by
claiming that the case involved no “precise act that could have
triggered a litigation.” Village Br. at 13-14. But the construction
of the public works facilities in that case certainly could have
triggered litigation. And in any event, if a precise act were
sufficient to trigger the statute of limitations for an ongoing
violation of the public trust doctrine, and it is not, the meeting
minutes and lease agreement that the Village points to here are
hardly “precise act[s].” The documents cited by the Village at
best show a vague intent to use an unspecified portion of the
park for potential nonpark purposes—there is nothing precise
about them. (See R. 368, 374.) See supra, at 24.
The Village fails entirely to address other New York public
trust cases that enjoin long-ongoing uses. In Johnson v. Town of
Brookhaven, the Appellate Division ordered removal of privately
owned cottages that had been built and maintained on parkland
for more than sixty years. 230 A.D.2d 774 (2d Dep’t 1996); see
29
R. on Appeal at 89, Johnson, 230 A.D.2d 774 (No. 95-06618). And
in Tobin v. Hennessy, the Appellate Division affirmed an
injunction against licenses that allowed private individuals to
erect and maintain continuously “for years at a time” bungalows
on dedicated parkland without legislative authority. 220 A.D. 695,
697 (1st Dep’t 1927). The claim here that seeks to require the
Village to discontinue its nonpark use of portions of the Western
Corner, unless it obtains legislative approval, easily fits within
these precedents.
B. The Claim To Enjoin the Existing Nonpark
Uses Is Also Timely Under the Continuing-
Wrong Doctrine.
Even if the public trust doctrine itself did not defeat the
Village’s statute of limitations defense as to the claim to enjoin its
ongoing unauthorized use of parkland for nonpark purposes, the
defense would fail under the continuing wrong doctrine, as the
Appellate Division held. 78 A.D. 3d at 878 (R. 1115.)
Under settled precedent, a plaintiff may sue for continuing
wrongs in areas such as trespass, nuisance, or other ongoing
violations, without reference to any statute of limitations because
30
the continuing nature of the violation gives rise to successive
causes of action. See, e.g., Bloomingdales, Inc. v. N.Y. City Transit
Auth., 13 N.Y.3d 61, 66 (2009) (below-ground concrete conduit that
interfered with owner’s access to its drainpipe and city sewer was
a continuing wrong); Covington v. Walker, 3 N.Y.3d 287, 292 (2004)
(each day of ongoing confinement a continuing wrong); 509 Sixth
Ave. Corp. v. N.Y. City Transit. Auth., 15 N.Y.2d 48, 52 (1964)
(subway encroachment trespassing on property a continuing wrong).3
A continuing trespass via an unauthorized structure, for
example, gives rise to successive causes of action because
“although the nature of the structure may be permanent, the
nature of the trespass is continuous.” 509 Sixth Ave. Corp., 15
N.Y.2d at 52. The statute of limitations does not bar a suit to stop
3 See also Matter of Burke v. Sugarman, 35 N.Y.2d 39, 45
(1974) (ongoing failure to comply with constitutional appointment
requirements a continuing wrong); Lucchesi v. Perfetto, 72 A.D.3d
909, 912 (2d Dep’t 2010) (continued presence of debris in area a
continuous nuisance and trespass); 1050 Tenants Corp. v.
Lapidus, 289 A.D.2d 145, 147 (1st Dep’t 2001) (ongoing nuisance a
continuous and recurring wrong); State v. CSRI Ltd. P’ship, 289
A.D.2d 394, 395-96 (2d Dep’t 2001) (storage of debris and waste
without a permit a continuing wrong).
31
the wrong because the wrong “may be discontinued at the option
of the wrong-doer,” meaning that the defendant can control and
abate the violation. Galway v. Metro. Elevated Ry., 128 N.Y. 132,
146 (1891); see also Rapf v. Suffolk County, 755 F.2d 282, 290-91
(2d Cir. 1985) (applying New York law).
The very same principles apply here. The Village has located
a 1700-foot salt-shed and garage, together occupying about the
space of a medium-sized family home, on parkland. (See R. 755.)
Because these structures are admittedly not park-related, and
because legislative authorization for them has not been obtained,
the structures constitute a continuing intrusion on public trust land,
in much the same way that unauthorized structures on another’s
property constitute a continuing trespass. See Bloomingdales, Inc.,
13 N.Y.3d at 66; Galway, 128 N.Y. at 143. And it is undisputed
that the Village maintains control over these uses and thus has
the ability to abate the ongoing violation either by removing the
unauthorized structures or by obtaining legislative authorization
for them. Because the Village has done neither, its violation of the
law remains ongoing.
32
The Village cites two cases (Br. at 11-13), but neither is on
point. Indeed, neither discusses the continuing wrong doctrine at
all. And both cases involve a conveyance or right-of-way granted to
a private third party, which presents different concerns as to
repose than does the unilateral violation at issue here.
The first case, Matter of Shapiro v. Town of Ramapo, involved
a town’s sale of parkland to a third-party developer. 98 A.D.3d
675, 677 (2d Dep’t 2012). Many years after the sale, plaintiffs
challenged rezoning decisions and permits issued to develop the
property, as well as the prior sale itself as a violation of the public
trust doctrine. The Second Department held that the challenge to
the sale was time-barred. Id. The Second Department did not
mention the continuing-wrong doctrine, and, although decided
after the first Capruso appeal, the court did not purport to
overrule its prior holding in this case that the Village’s ongoing
unauthorized use of parkland was a continuing wrong.
This Court need not answer here whether Shapiro is
correctly decided, and need not address how the statute of
limitations applies to a purported sale of parkland to a third party
33
that violates the public trust doctrine. It is certainly arguable
(infra, at 36) that the land in Shapiro remained encumbered with
the public trust despite its sale. See Brooklyn Park Commrs., 45
N.Y. at 243; Rodrigues v. Catskill Revitalization Corp., 302 A.D.2d
762, 764 (3d Dep’t 2003). But that question is not presented here:
this case deals not with a discrete conveyance of property to a
third party, but rather with a local government’s own continuing
unauthorized use of parkland. The rationale of the continuing-
wrong doctrine squarely applies.
The second case, Neighbors & Friends of Viretta Park v.
Miller, 87 Wash. App. 361 (1997), likewise does not help the
Village. That decision from an out-of-state intermediate court
sheds no light on New York’s robust public trust doctrine.4 This is
particularly true because the discussion of the statute of
limitations in Viretta Park did not pertain to a claim brought
4 See Karl P. Baker & Dwight H. Merriam, Indelible Public
Interest in Property: The Public Trust and the Public Forum, 32
B.C. Envtl. Aff. L. Rev. 275, 287-89 (2005) (stressing the strength
of New York’s public trust doctrine).
34
under the public trust doctrine.5 The claim there, brought solely
by private plaintiffs, alleged that city resolutions authorizing
automobile use of a right-of-way over parkland violated the intent
of the private grantor of the property. The court held that the
private plaintiffs’ claims were time-barred because the resolutions
were decades old, citing “a strong public interest in providing for
and enforcing finality of government decisions.” Id. at 373.
The same reasoning does not apply to the State’s claim in
this case. The very purpose of New York’s public trust doctrine is
to prevent local governments from taking unilateral actions
regarding parkland without authorization from the State
Legislature. A local government therefore has no cognizable
interest in finality as to unilateral decisions that are made in
5 A second claim in Viretta Park did implicate a version of
the public trust doctrine, and the court found an aspect of that
claim barred by laches (not the statute of limitations), among
other reasons. 87 Wash. App. at 378. But the plaintiffs in Viretta
Park were solely private parties, whereas here, the State is a
plaintiff. The State is not subject to laches when acting in the
interest of the public. And the Village’s laches arguments here fail
for the additional reasons that they are forfeited, and that the
elements of laches have not been not satisfied. See infra, Point III.
35
violation of the public trust doctrine’s requirement to obtain the
approval of the State Legislature.
C. The Village’s Novel Analogy To
Adverse Possession Is Baseless.
The Village (Br. at 4) describes its past and existing
unauthorized use of parts of the Western Corner for the salt shed
and garage as “open and notorious.” This appears to be a reference
to the doctrine of adverse possession, though the Village does not
invoke that doctrine explicitly. The doctrine of adverse possession
does not directly apply because the Village itself already holds
title to the land. In essence, the Village seeks to draw an analogy
to the law of adverse of possession to argue that its continued
unlawful acts operated to free the parkland from the public trust.
But the Village’s analogy to adverse possession principles
fails. The law is clear that adverse possession does not apply to
land held by the State for the benefit of the public. In Burbank v.
Fay, this Court rejected private landowners’ claims that they had
acquired an easement over waters of the Erie Canal because
adverse possession does not allow a party to “appropriate to
36
private uses a portion of that which should be held sacredly in
trust for the public.” 65 N.Y. 57, 72 (1875). The same principles
apply to the Village’s attempt to use adverse possession doctrine
to defeat the public trust here.
Adverse possession cannot substitute for the express
legislative authorization that the public trust doctrine requires.
For example, in Rodrigues, the Third Department held that a
private landowner could not invoke adverse possession to claim
that he had acquired a strip of land running along a former
railbed that had been dedicated public parkland. 302 A.D.2d at
764. The court’s ruling followed directly from this Court’s decision
in Brooklyn Park Commissioners, which held that a private buyer
should be released from a promise to buy a parcel of parkland
from the city that was encumbered with the public trust because
the city did not have the power to convey title free of that public
trust. 45 N.Y. at 243. The same is true here: any attempt by the
Village to dedicate parkland for nonpark uses is legally ineffective
without legislative authorization, and adverse possession principles
37
do not allow the Village to accomplish indirectly what it was
powerless to achieve directly.
Nor is there any good reason to apply adverse possession
principles here. The doctrine of adverse possession does not reflect
any general legal principle that a wrongdoer who has violated the
law for a long time should have a right to continue doing so. The
law recognizes no such principle. Rather, the doctrine of adverse
possession is designed to promote the public interest in ensuring
that real property is freely marketable. The doctrine clears clouds
on title that could result if absent landowners could return and
claim a right to property after many years had elapsed, when
another had been occupying the property openly and under claim
of right during that time, and the landowner had taken no action
to stop it. See, e.g., Brand v. Prince, 35 N.Y.2d 634, 636 (1974).
These purposes would not be served by excusing the Village’s
ongoing violation of the public trust doctrine here. A key point of
the public trust doctrine is to restrict the sale of parkland, so there
is no public interest in ensuring that such lands are marketable.
38
Moreover, the doctrine of adverse possession rests on the
premise that an owner of property should reasonably be expected
to watch over the property and take steps to oust another who is
unlawfully occupying the property under a claim of right. The
same expectation cannot be applied to the State Legislature as to
all parklands owned by localities across the State. The Legislature
has no ability to investigate all of the State’s parklands—
including clause-by-clause analysis of the minutes of local board
meetings, as the Village evidently contemplates—to discover
unauthorized conversions of parkland to nonpark use. Nor does
the Legislature bear the burden to do so. Rather, the locality,
which is the landowner, bears the responsibility to present the
matter to the Legislature in the first instance. When a locality
fails to do this, it has no right to repose regarding an ongoing
unauthorized use of park property, no matter how long its
violation has persisted.
The import of the public trust doctrine is clear: a local
government that wishes to use parkland for nonpark purposes
must present its proposal to the Legislature and receive the
39
Legislature’s specific authorization. See supra, at 4-8. A local
government cannot evade this rule, adopted and enforced in the
interest of the public, simply by declining to present a request to
the Legislature and hoping that its nonpark use of the property
will go undetected by the State, and thus unaddressed, for years.
D. The Village’s Decades-Old Documents Do Not
Establish the Nonpark Use That the Village
Now Claims In Any Event.
Even if there were any basis to hold that a local act taken
without authorization from the State Legislature could be
sufficient to trigger a statute of limitations on the State’s claim to
enjoin violations of the public trust doctrine (and there is no
basis), the 1946 minutes of a Village Board meeting and 1938
lease document cited by the Village are too vague and ill-defined
to create any time bar to the State’s claim here. See supra, at 24.
The cited documents stated only that the Village would not lease a
portion of the park to the Park District because it needed to
“reserve” a portion of the park for itself for certain purposes. (See
R. 368, 374.) The documents did not clearly identify and delineate
40
any area within the park that would be used for nonpark
purposes.
In any event, the subsequent leases with the Park District
explicitly stated that the acreage that was excluded from the lease
comprises part of the “premises known as the Kings Point Village
Park.” (R. 110, 383.) And, as detailed above (see supra, at 9-10), it
is undisputed that the great majority of the area in the Western
Corner continued to be dedicated to and used for park purposes by
the public, notwithstanding the documents suggesting that the
Village needed to “reserve” certain property for other uses.
41
POINT III
THIS VILLAGE’S LACHES ARGUMENT
IS FORFEITED AND MERITLESS
A. Laches Does Not Apply to the State,
as the Village Conceded Below.
It is settled that the doctrine of laches “may not be
interposed as a defense against the State,” where, as here, the
State is acting in a governmental capacity to protect a public
interest. Matter of LaPine, 18 A.D.3d 552, 554 (2d Dep’t 2005); see
also Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169,
178 n.2 (1985). In both appeals in the Appellate Division, the
Village conceded that laches does not apply against the State.6 It
has thus abandoned the laches defense as to the State. Though
this Court will in narrow circumstances review an issue waived
below, even this exception does not apply to an issue that was
6 See Village Reply Br. at 2 n.3, 78 A.D.3d 877 (“Defendants
recognize that the State’s claims, which seek only a declaratory
judgment and permanent injunction . . . are not subject to a laches
defense.”); Village Br. at 10 n.6, 102 A.D.3d 902 (“the Village
Defendants recognized [that the State’s action] is not subject to a
laches defense”).
42
affirmatively conceded below, as the laches defense was here. See
Telaro v. Telaro, 25 N.Y.2d 433, 439 (1969).
Even if the issue were not forfeited, it is meritless. The
Village now argues, for the first time, that laches should apply
against the State here, because the State is proceeding in its
parens patriae status and stands in the shoes of individual
plaintiffs and that laches should apply to the State when the
defendant is also a public entity. Village Br. at 18. But the Village
cites no New York authority to support either contention, and
neither has any merit.
First, no case endorses the extraordinary proposition that
the usual rule that laches does not apply to the State is lifted
when the State is proceeding in a parens patriae capacity. Nor
does that proposition make any sense. This Court has held that
laches does not apply against the State where the State is acting
in a governmental capacity to protect a public interest. Matter of
Cortlandt Nursing Home, 66 N.Y.2d at 178 n.2. Many parens
patriae actions are brought to protect the public interest. See
Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 601 (1982);
43
People v. Grasso, 11 N.Y.3d 64, 69 n.4 (2008). Claims under the
public trust doctrine, in particular, are a paradigmatic example of
actions brought in the public interest. The doctrine protects a
right of the public at large (see supra, at 4-8), and there can be no
serious dispute that the State is acting here in its governmental
capacity to protect a public interest. Thus, laches does not apply to
the State’s action.
Second, the Village’s argument that laches should apply
against the State because the Village is also a public entity has no
merit, and the Village cites only out-of-state cases from outside
the public trust context to support it. Laches does not apply
against the State, acting in the public interest, because it is “‘very
difficult for the public to protect itself’” where an officer, acting in
her public duty, inadvertently or intentionally fails to act in time.
Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 34
(1984) (quoting Bd. of Supervisors v. Ellis, 59 N.Y. 620, 625
(1875)).
Nothing about the Village’s statute as a governmental entity
changes this analysis. Even if there were an argument for
44
recognizing laches in certain disputes between the State and
localities, it would not apply to suits under the public trust
doctrine. That doctrine clearly establishes the State as the
ultimate guardian of the public interest as to parkland, and places
the burden on localities to obtain specific approval from the State
Legislature for any nonpark use of parkland. Applying laches
against the State in a public trust case would improperly penalize
the public if a state employee failed to act diligently upon learning
that a locality had evaded its responsibilities.
B. In Any Event, the Village Identifies No Legal
Error in the Lower Courts’ Factual Finding
That the Elements of Laches Are Not
Satisfied.
Even if the laches argument were not both forfeited and
inapplicable to the State, it would fail on the merits. First, the
doctrine does not apply to cases of continuing wrong. Matter of
Burke, 35 N.Y.2d 39, 45. Laches “has no application” to a claim
regarding a continuing failure to comply the law, because the
continuing violation makes the claim ever-fresh. Id. at 45. Second,
the Village cannot satisfy the elements of the defense in any
45
event. Supreme Court found as a matter of fact that the Village
had failed to meet those elements (R. 10, 17), and the Appellate
Division affirmed that finding, 78 A.D.3d at 879 (R. 1116). This
Court, as a court of law, lacks jurisdiction to review that factual
finding. See N.Y. Const, art. VI, § 3(a); People v. Hawkins, 11
N.Y.3d 484, 491 (2008); Arthur Karger, Powers of the New York
Court of Appeals § 1:3, at 9 (2005) (collecting cases).
The lower courts had ample support for the finding that the
Village has not met the elements of laches. To establish a laches
defense, the defendant must prove that the plaintiff unreasonably
delayed in asserting a right, and that the delay caused prejudice
to the defendant. Schulz v. State, 81 N.Y.2d 336, 348 (1993)
(quotation marks omitted).
The Village has not made either showing here. As
demonstrated above, the State acted promptly in bringing this
action within months of the 2008 DPW proposal. See supra, at 17-
19. The Village’s sole argument as to detrimental reliance is that
it spent $500,000 on architectural and other fees before March
2009, when the private plaintiffs brought their action (R. 264). See
46
Village Br. at 5, 20. But the Village knew it had not obtained
legislative approval for the project, and it had no reasonable basis
to expect that no challenge to the plan would be filed. If it
incurred expenses in reliance on such an expectation, that reliance
was not justifiable. Nor has the Village addressed whether its
plans could be repurposed for a different site, given that ground
was never broken. See Matter of Barabash, 31 N.Y.2d 76, 82
(1972) (no laches where defendant failed to show “any change of
position prejudicial to him due to appellants’ alleged delay in
instituting suit”).
Moreover, to establish laches, the Village must demonstrate
that the State had knowledge of its unauthorized nonpark uses.
Id. at 82. The Village has pointed to no evidence that the State
had knowledge of its ongoing nonpark uses. The Village (Br. at 20)
cites only the Legislature’s 1967 session law authorizing the lease
to the Great Neck Park District, but that law cuts strongly against
the Village.
The law gave the Village permission to lease all or part of
the park to the Park District, solely and expressly “for public park
47
purposes.” (R. 64.) In fact, in its request for the legislation, the
Village never mentioned either its reservation of property from
the lease to the Park District or any nonpark uses of any reserved
property that it now claims were ongoing at that time. Instead,
the Village described the park to include the entire “173 acres of
land which now constitutes the Kings Point Park” and states that
it had leased the entire 173 acres to the Park District. (R. 155-
156.) The Village went on to represent that the lease with the
Park District ensures that “the land be preserved in its natural
and scenic state” and that the lease restricts use of the land “for
public park purposes and no other.” (R. 156.) The Park District
also represented to the Legislature that it managed the entire
park. Letter from Josselyn M. Shore, Chairman, Bd. of Comm’rs of
Great Neck Park Dist. (April 20, 1967), reprinted in Bill Jacket for
ch. 563 (1967), at 15. The Village then asked only for authority to
lease the land and that the existing lease be ratified. (R. 157.)
The actual reservation in the 1958 lease itself, which was
ratified by the session law, makes no mention of the purpose for
that reservation. (See R. 383-390.) And the lease and law itself
48
both define the park to include the Western Corner (R. 64, 383.)
Particularly given the extent to which the Village previously
obscured the existence of any nonpark uses, its attempt to invoke
the equitable doctrine of laches now is without foundation.
CONCLUSION
For the foregoing reasons, the Court should affirm the
decision of the Appellate Division.
Dated: New York, NY
November 4, 2013
BARBARA D. UNDERWOOD
Solicitor General
RICHARD DEARING
Deputy Solicitor General
BETHANY A. DAVIS NOLL
Assistant Solicitor General
of Counsel
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for State Respondent
By: ._/s/ Bethany A. Davis Noll .
BETHANY A. DAVIS NOLL
Assistant Solicitor General
120 Broadway
New York, NY 10271
(212) 416-6184
Reproduced on Recycled Paper
