APL-2013-00128
Nassau County Clerk’s Index Nos. 5006/09 and 17908/09
Appellate Division, Second Department Docket No. 2011-06799
Court of Appeals
STATE OF NEW YORK
Action 1 – Index No. 5006/09
DANIEL CAPRUSO, ALAN BERKOWER and
ELIZABETH ALLEN,
Plaintiffs-Respondents,
against
VILLAGE OF KINGS POINT, MICHAEL C. KALNICK, in his
Official Capacity as Mayor of the Village of Kings Point,
and BOARD OF TRUSTEES OF THE VILLAGE OF KINGS POINT,
Defendants-Appellants.
Action 2 – Index No. 17908/09
THE STATE OF NEW YORK,
Plaintiff-Respondent,
against
VILLAGE OF KINGS POINT,
Defendant-Appellant.
>> >>
To Be Argued By:
John M. Brickman
Time Requested: 30 Minutes
BRIEF FOR DEFENDANTS-APPELLANTS
IN ACTION NO. 1 AND DEFENDANT-APPELLANT
IN ACTION NO. 2
ACKERMAN, LEVINE, CULLEN,
BRICKMAN & LIMMER, LLP
Attorneys for Defendants-Appellants
in Action No. 1 and Defendant-Appellant
in Action No. 2
1010 Northern Boulevard, Suite 400
Great Neck, New York 11021
516-829-6900
Of Counsel:
John M. Brickman
Stephen G. Limmer
Todd H. Hesekiel
Benjamin S. Kaplan
Appellate Counsel:
Sol Wachtler
Stuart M. Cohen
Date Completed: August 5, 2013
TABLE OF CONTENTS
Table of Authorities i
Preliminary Statement 1
Question Presented 2
Jurisdiction 2
Summary of Argument 3
Facts 4
A. Acquisition, use and management of the Kings Point Park 4
B. Procedural history of these actions and rulings of the courts below 5
Argument 8
I. THESE ACTIONS WERE BARRED BY THE
STATUTE OF LIMITATIONS AND LACHES;
THE COURTS BELOW ERRED IN APPLYING
THE CONTINUING WRONG DOCTRINE. 8
A. Statutes of limitation 8
1. Past and ongoing non-park use; continuing wrong doctrine 9
2. Proposed future non-park use 15
B. Laches 16
1. This Court may review this issue 16
2. Merits 19
Conclusion 21
TABLE OF AUTHORITIES
Judicial Decisions:
Court of Appeals:
Matter of Ackerman v Steisel, 66 NY2d 833 (1985), affg for reasons
stated in mem at 104 AD2d 940 (2d Dept 1984) 9, 10, 13, 14
Amsterdam Sav. Bank v City View Mgt. Corp., 45 NY2d 854 (1978) 16
Matter of Barabash, 31 NY2d 76 (1972), rearg den 31 NY2d 963 (1972) 19
Bloomfield Bldg. Wreckers v City of Troy, 50 AD2d 673
(3d Dept 1975), affd 41 NY2d 1102 (1977) 15
Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61 (2009) 10, 11
Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169 (1985),
rearg den 66 NY2d 1035 (1985), cert den 476 US 1115 (1986) 17
Covington v Walker, 3 NY3d 287 (2004), rearg den 4 NY3d 740 (2004),
cert den 545 US 1131 (2005) 8
Matter of Dreikausen v Zoning Bd. of Appeals,
98 NY2d 165 (2002) 19
509 Sixth Ave. Corp. New York City Tr. Auth., 15 NY2d 48 (1964) 11
Fleming v Giuliani, 3 NY3d 544 (2004) 16
Friends of Van Cortlandt Park v City of New York, 95 NY2d 623 (2001) 3 (fn)
Galyn v Schwartz, 56 NY2d 969 (1982) 19
People v Grasso, 11 NY3d 64 (2008) 18
Jensen v General Elec. Co., 82 NY2d 77 (1993) 11, 15
Saratoga Co. Chamber of Commerce v Pataki, 100 NY2d 801
(2003) cert den 540 US 1017 (2003) 19
Matter of Schulz v State of New York, 81 NY2d 336 (1993) 19, 20
Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212 (1963),
remittitur amd 12 NY2d 1110 (1963), cert den 374 US 808 (1963) 8
Matter of Shapiro v Town of Ramapo, 98 AD3d 675 (2d Dept 2012),
lv dsmd 20 NY3d 994 (2013) 9, 11, 12
Solnick v Whalen, 49 NY2d 224 (1980) 12
Sorrentino v Mierzwa, 25 NY2d 59 (1969) 19
Sporn v MCA Records, Inc., 58 NY2d 482 (1983) 11
Telaro v Telaro, 25 NY2d 433 (1969), rearg and stay den
26 NY2d 751 (1970) 17
Other courts:
Matter of Ackerman v Steisel, 66 NY2d 833 (1985), affg for reasons
stated in mem at 104 AD2d 940 (2d Dept 1984) 9, 10, 13, 14
Bloomfield Bldg. Wreckers v City of Troy, 50 AD2d 673
(3d Dept 1975), affd 41 NY2d 1102 (1977) 15
Curtis Case v City of Port Jervis, 150 AD2d 421 (2d Dept 1989) 15
Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd.,
86 AD3d 83 (2d Dept 2011) 12
DeFazio v WPPSS, 296 Or 550 (1984) 18
State ex rel. DHS v Cochise County, 166 Ariz 75 (1990) 18
Matter of Duchmann v Town of Hamburg, 90 AD3d 1642 (4th Dept 2011) 15
Greco v Incorporated Vill. of Freeport, 223 AD2d 674 (2d Dept 1996) 14
Matter of Jones v Amicone, 27 AD3d 465 (2d Dept 2006) 7, 12, 15, 16
ii
Knobel v Shaw, 90 AD3d 493 (1st Dept 2011) 14
Matter of Letourneau v Town of Berne, 56 AD3d 880 (3d Dept 2008) 15
Maricopa County v Cities & Towns of Avondale,
12 Ariz App 109 (1st Div1970) 18
Mattera v Mattera, 125 AD2d 555 (2d Dept 1986) 14
Neighbors & Friends of Viretta Park v Miller, 87 Wn App 361 (Ct App,
Div One 1997), review den 135 Wn 2d 1009 (1998) 13
Matter of Shapiro v Town of Ramapo, 98 AD3d 675 (2d Dept 2012),
lv dsmd 20 NY3d 994 (2013) 9, 11, 12
Skrodelis v Norbergs, 272 AD2d 316 (2d Dept 2000) 19
Solow v Liebman, 202 AD2d 493 (2d Dept 1994) 15
Summit-Waller Citizens Ass'n v Pierce Cy., 77 Wn App 384 (Ct App,
Div One 1995), review den 127 Wn 2d 1018 (1995) 13
United States v Hoar, 2 Mason 311 (1821) 18
Statutes:
CPLR 213(1) 9, 12, 19
CPLR 5501(a)(1) 3
Other authorities:
Treatises:
2A Carmody-Wait § 13:4, at 94 (2d ed 2001) 19
Siegel, N.Y. Prac § 36, at 44 (3d ed 1999) 19
iii
STATE OF NEW YORK
COURT OF APPEALS
-------------------------------------------------------------x
DANIEL CAPRUSO, et al.,
Plaintiffs-Respondents,
v Nassau Co.
Index No.
VILLAGE OF KINGS POINT, et al., 5006/09
Defendants-Appellants.
(Action No. 1)
--------------------------------------------------------------x
STATE OF NEW YORK,
Plaintiff-Respondent,
v Nassau Co.
Index No.
VILLAGE OF KINGS POINT, 17908/09
Defendant-Appellant
(Action No. 2).
--------------------------------------------------------------x
OPENING BRIEF OF DEFENDANTS-APPELLANTS
PRELIMINARY STATEMENT
In actions for declaratory and injunctive relief to redress and prevent the
Village's existing (for decades) and proposed use of certain allegedly dedicated
park land ("the DPW site") for non-park purposes without the approval of the State
Legislature, claimed in violation of the public trust doctrine, defendants Village of
Kings Point, et al. ("the Village") appeal, by leave of this Court (R 1111),1 from a
decision and order of the Supreme Court, Appellate Division, Second Department, dated
January 30, 2013 (102 AD3d 902; R 1112-1113) (the "final order"), which modified an
order and interlocutory judgment of Supreme Court, Nassau County (R 608-611)
granting plaintiffs' motion for summary judgment and dismissing defendants' affirmative
defenses and, as modified, affirmed.2
The appeal brings up for review a decision and order of the Appellate Division
dated November 16, 2010 (78 AD3d 877; R 1114-1116) (the "prior non-final order")
that, inter alia, affirmed two orders of Supreme Court, Nassau County, respectively
denying defendant Village's motion to dismiss the complaint in each of the two actions
on statute of limitations grounds and for laches (R 5-11 and 15-17).
QUESTION PRESENTED
Whether these actions are barred by the statute of limitations or laches and
whether, in holding they were not barred by the statute of limitations, the courts below
erroneously applied the continuing wrong doctrine?
JURISDICTION
The Court has jurisdiction over this appeal, having granted defendants' timely
1 Numbers preceded by the letter R refer to pages in the record on appeal.
2 The modification consisted of deleting the provision of the order and interlocutory
judgment that directed defendants in the Capruso action to pay plaintiffs' reasonable
attorneys' fees and other expenses in an amount to be determined.
2
motion for leave to appeal from the final order.
The Court has jurisdiction to review the questions raised. The issues presented
were raised in defendants' motions to dismiss, the determinations of which present pure
questions of law.
The prior non-final order has not been appealed to or previously reviewed by this
Court, and it necessarily affects the Appellate Division order appealed from; thus, it may
be reviewed on this appeal pursuant to CPLR 5501(a)(1).
SUMMARY OF ARGUMENT
The order of the Appellate Division appealed from and prior non-final order
brought up for review should be reversed, with costs, and defendants' motions to dismiss
the complaints granted. Properly viewed, these actions belatedly challenge Village
Board actions taken in 1938 and 1946 that, approving leases involving the site at issue,
reserved to the Village the right to use the DPW site for non-park purposes, allegedly in
violation of the public trust doctrine.3 Moreover, the Village openly and notoriously has
used the DPW site for non-park purposes since, at the latest, 1946. These actions,
commenced in 2009, are patently untimely for not having been commenced within six
years after the breach. The continuing wrong doctrine, which this Court has applied to
private and ad hoc government actors, should not be extended to actions challenging the
3 That doctrine holds that dedicated park land is impressed with a public trust, requiring
approval of the State Legislature before it may be alienated or used for non-park
purposes (see, Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630
[2001]).
3
public acts of a legislative body, especially when such public acts are of public record,
the non-park use has been open and notorious and, for more than sixty years, the
governing body has spent significant sums in pursuit of the non-park use.
FACTS
A. Acquisition, use and management of the Kings Point Park
In 1927, recognizing a need to preserve open space, the Village Board passed a
resolution authorizing the acquisition of several parcels of land for park purposes. A
resolution later that year authorized the purchase of one of the parcels, comprising about
five and one-half acres, that is now the DPW site (R 34; 257-258). The DPW site was
transferred to the Village by deed that year. The Village subsequently acquired
additional parcels; by 1930, it had acquired all of what is now Kings Point Park and the
DPW site, which together comprise approximately 173 acres (R 33; 259).
In 1936, the Village resolved to lease the land to the Great Neck Park District to
manage and maintain as a park (R 259). A 1938 renewal of that lease reserved to the
Village the right to use a "dumping area" that is the present DPW site (R 260). The
record does not reveal clearly whether the DPW site was used for non-park purposes
before that time, though it suggests that it was.
In 1946, the Village adopted an official map that erroneously depicted the DPW
site as within the park (R 260). Later that year, however, the Village and Park District
executed an addendum to the 1938 lease correcting that error and excluding the DPW
4
site from the lands leased by the Village to the Park District (R 261).
It is uncontroverted that, since 1946, the DPW site has been excluded from the
land leased to the Park District and has been used continuously, openly and notoriously
for non-park purposes (R 261-264).
In 1967, at the request of the Village, the State Legislature enacted a law
authorizing the leasing of all or part of the lands known as Kings Point park, and
expressly validated, ratified and confirmed the 1958 lease, which expressly excluded the
DPW site (R 158-159; 165).
In November 2008, the Village announced a proposed reconfiguration of the DPW
site. As of May 2009, the Village spent over $500,000 preparing for construction,
projected to cost $4 million, on the DPW site (R 264; 268).
B. Procedural history of these actions and rulings of the courts below
In March 2009, plaintiffs in Action No. 1, none of whom lived in the Village and
all of whom had lived at their present addresses, near the park, since the 1990s, sued the
Village of Kings Point, the Village Mayor, the Village Board of Trustees and the Great
Neck Park District for declaratory and injunctive relief, alleging the Village's current and
proposed use of certain dedicated park land for non-park purposes without the approval
of the Legislature violates the public trust doctrine (summons and verified complaint, R
274-305) . Plaintiffs moved for a preliminary injunction to prevent the Village, during
the pendency of the action, from moving forward with its plans for the proposed use of
5
the park land (R 20-22). The Village defendants cross-moved to dismiss the complaint as
time-barred and for laches (R 253-254). In an order dated July 29, 2009 (R 5-11),
Supreme Court, inter alia, granted plaintiffs' motion, conditioned on their posting an
undertaking, and denied defendants' cross motion.4
In September 2009, after plaintiffs refused to post the undertaking, the State, as
parens patriae on behalf of its citizens and residents, commenced Action No. 2 against
the Village seeking similar declaratory and injunctive relief based on the public trust
doctrine, but only with respect to the Village's proposed use of the alleged park land
(summons and verified complaint, R 466-477). The State moved for a preliminary
injunction to prevent the Village from moving forward with its plans for the proposed
use of the alleged park land during the pendency of the action (R 478-480). In an order
dated November 18, 2009 (R 15-17), Supreme Court, inter alia, granted the State's
motion and denied the Village's cross motion to dismiss the action.
On the Village defendants' appeals from both orders, the Appellate Division, in its
prior non-final decision and order (78 AD3d 877; R 1114-1116), dismissed as academic
the appeal from so much of the order in Action No. 1 as granted the preliminary
injunction, and otherwise affirmed both orders insofar as appealed from and reviewed.
In pertinent part, the Appellate Division held:
4 After Supreme Court issued its order, Julian Kane, an original plaintiff, dropped out of
the case. Earlier, the action had been discontinued as against the defendant Great
Neck Park District (R 250-251; 421-424).
6
Contrary to the appellants' contention, the statute of
limitations did not bar the subject actions. A municipality's
current and ongoing use of dedicated parkland for nonpark
purposes without the approval of the State Legislature in
violation of the public trust doctrine is a continuing wrong
that the municipality has the ability to control and abate.
Thus, here, although the Village purportedly has been using
the alleged parkland for nonpark purposes without the
approval of the State Legislature since, at the latest, around
July 1946, insofar as the plaintiffs' second cause of action
seeks declaratory and injunctive relief predicated on
allegations of the Village's current and ongoing use of the
alleged parkland for certain nonpark purposes without the
approval of the State Legislature in violation of the public
trust doctrine, the plaintiffs' second cause of action is not
time-barred [citations omitted]. Moreover, insofar as the
plaintiffs' first cause of action and the State's first and second
causes of action seek declaratory and injunctive relief based
on the public trust doctrine to prevent the Village's proposed
use of the alleged parkland for certain nonpark purposes
without State Legislative approval pursuant to a plan first
publicly announced by the Village in November 2008, those
causes of action also are not time-barred (see Matter of
Jones v Amicone, 27 AD3d 465, 470 [2006]).
Plaintiffs in both actions moved for summary judgment on all their claims, and
to dismiss defendants' affirmative defenses (R 612-616;780-783). Relying on the
earlier Appellate Division ruling, Supreme Court rejected all of the affirmative
defenses, found the DPW site to be dedicated park land, granted plaintiffs summary
judgment, and ordered a hearing to determine the attorneys' fees and other expenses
of plaintiffs in Action No. 1 (R 608-611). On the Village's appeal, in the order
appealed to this Court, the Second Department modified by striking the award of fees
7
and expenses and as so modified affirmed, rejecting the contentions that the
injunctive relief awarded exceeded what plaintiffs requested in the complaint and
otherwise was overly broad (102 AD3d 902, R 1112-1113).
ARGUMENT
I.
THESE ACTIONS WERE BARRED
BY THE STATUTE OF
LIMITATIONS AND LACHES;
THE COURTS BELOW ERRED IN
APPLYING THE CONTINUING
WRONG DOCTRINE.
A. Statutes of limitation
Statutes of limitation are statutes of repose. In enacting them, the Legislature has
recognized that, applied properly, they may preclude meritorious actions, but it has
recognized as well the need for a defendant to be free of claims that would be unjust to
require it to defend (see, generally, Schwartz v Heyden Newport Chem. Corp., 12 NY2d
212 [1963], remittitur amd 12 NY2d 1110 [1963], cert den 374 US 808 [1963]).
Statutes of limitation are necessary because evidence of what may or may not have
occurred long ago may no longer be available to a party, such as the Village here, that is
required to defend against an action. This Court noted in Covington v Walker (3 NY3d
287, 293 [2004], rearg den 4 NY3d 740 [2004], cert den 545 US 1131 [2005]):
"Statutes of Limitation were designed to promote justice by preventing surprises through
8
the revival of claims that have been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared" (internal quotations and citation
omitted).
An action for equitable relief from a violation of the public trust doctrine must be
brought within six years after the cause of action accrued (CPLR 213[1]; Matter of
Shapiro v Town of Ramapo, 98 AD3d 675 [2d Dept 2012], lv dsmd 20 NY3d 994
[2013]). The non-park use addressed in the complaints began at the latest in 1946.
These actions, commenced in 2009, are untimely.
1. Past and ongoing non-park use; continuing wrong doctrine
So much of the complaint in Action No. 1 as addresses past and ongoing non-park
use5 is untimely.
The continuing wrong doctrine does not excuse the tardy commencement of this
action. Although Matter of Ackerman v Steisel (66 NY2d 833 [1985], affg for reasons
stated in mem at 104 AD2d 940 [2d Dept 1984]) might be read to suggest that it should,
that case was only an affirmance on the opinion below that this Court has not cited for
that proposition in the three decades since it was decided. The opinion below did not
discuss the continuing wrong doctrine, and review of the record and briefs filed in this
Court reveals that no statute of limitations defense was raised in that case or discussed in
the briefs. Rather, Ackerman presented a renewal of an earlier proceeding that had been
5 The complaint in Action No. 2 addresses only the proposed future non-park use.
9
dismissed with leave to renew upon a showing of changed circumstances, including the
passage of time (104 AD2d at 940-941). In Ackerman, the non-park use by the City’s
Department of Public Works was always claimed to be temporary, acknowledged as
such by the department, which agreed that the property would eventually be used as park
land as soon as the department found another site for its use or the Parks Department
developed a plan for its use. This Court considered merely whether the “temporary” use
of park land for non-park purposes was permissible and, under the facts of that case, if
the use was in fact temporary. In short, Ackerman was not a statute of limitations or
continuing wrong doctrine case. In any event, we respectfully submit that Ackerman is
distinguishable; if the Court disagrees, we further respectfully submit that it should be
reexamined.
While this Court has recognized that certain wrongs, such as trespass, are
ongoing, and give rise to a new cause of action each day they continue (at least until an
easement by prescription is created or until title is transferred by operation of law) (see,
e.g., Bloomingdales, Inc. v New York City Tr. Auth. (13 NY3d 61 [2009]), this Court has
not articulated why the continuing wrong doctrine should apply in public trust doctrine
cases such as this. There are good reasons why it should not.
Unlike most trespass and nuisance cases, which are by nature private, public trust
doctrine cases involve uses of dedicated park land by or at the sufferance of government
entities, whose official acts are public. Trespass is a private act, and may not be
10
discovered until long after the initial physical invasion of property rights.
Bloomingdales illustrates this point. There, a contractor severed a working underground
drain pipe belonging to the plaintiff, covered it with a conduit, and later, in the course of
its work, covered the area. The plaintiff was unaware of what had happened until it
experienced flooding in its premises and had the area excavated (see, also, 509 Sixth
Ave. Corp. New York City Tr. Auth., 15 NY 2d 48 [1964] [part of subway tunnel
encroaching upon plaintiff's property discovered during excavation]). Outside of this
context, the Court has been hesitant to recognize continuing wrongs (see, e.g., Jensen v
General Elec. Co., 82 NY2d 77 [1993]; Sporn v MCA Records, Inc., 58 NY 2d 482
[1983]).
Here, the non-park use was no secret. At least twice -- in 1938 and 1946 -- the
Village passed resolutions during public sessions at public meetings, as recorded in the
minutes of those meetings on file with the Village Clerk and available to the public for
inspection, and entered into leases that continued to reserve the DPW site for non-park
use and excluded it from the area leased to the Park District to use for park purposes. In
essence, plaintiffs here challenge these decades-old, public, legislative acts by which
non-park use was authorized, not the Village's consequential non-park use of park land
itself.
In Matter of Shapiro v Town of Ramapo (98 AD3d 675, 677, supra) the Second
Department recently recognized the distinction between a violation of the public trust
11
doctrine and its consequences. There, the respondent town was alleged to have
conveyed park land to a developer in 2001, in violation of the public trust doctrine. In
2010, the town enacted a local law changing the zoning of the developer's site. In May
2010, the petitioners, who live across the street from the site, commenced a CPLR
article 78 proceeding to to review the Town Board's determinations leading up to the
enactment of the local law. In their first cause of action, the petitioners alleged that the
site was dedicated park land that had been alienated for non-park purposes without the
approval of the Legislature, in violation of the public trust doctrine. Upholding the
dismissal of the first cause of action as untimely, the court held:
As the petitioners correctly contend, a declaratory judgment
action is the proper vehicle for resolving the first cause of
action, founded upon the public trust doctrine, and the cause of
action is governed by the six-year limitations period set forth
in CPLR 213 (1) (see Matter of Jones v Amicone, 27 AD3d
465, 469-470 [2006]; see generally Solnick v Whalen, 49
NY2d 224, 229 [1980]; Matter of Dandomar Co., LLC v Town
of Pleasant Val. Town Bd., 86 AD3d 83, 90-91 [2011]).
However, since the petitioners commenced this proceeding in
May 2010, more than six years after July 2001, when the Town
Board of the Town of Clarkstown authorized the sale of the
alleged parkland to [the developer], those branches of the
separate motions which were to dismiss the first cause of
action as time-barred were properly granted.
This Court should follow Shapiro and hold that a party may not for years -- or, as
here, decades -- ignore a public act of alienation alleged to violate the public trust
doctrine and start the clock running anew when, in consequence of that alienation, it
learns of actions to be taken to which it objects.
12
At least one other state court has determined that a claimed violation of the public
trust doctrine is, in reality, a challenge to the decision of the governmental body that
allegedly enabled the violation, and that the statute of limitations runs from the date of
that decision. In Neighbors & Friends of Viretta Park v Miller (87 Wn App 361 [Ct
App, Div One 1997], review den 135 Wn 2d 1009 [1998]), the court noted:
In bringing this declaratory judgment action seeking a
determination that automobile use of the public right of way
through Viretta Park is unlawful and that the City had no
authority to allow the right of way to be used for vehicular
access to private property lying adjacent to the Park,
Neighbors and Friends are attempting to overturn two 80-year-
old resolutions of the Parks Board. Declaratory judgment
actions challenging land use decisions "must be filed within a
reasonable time as measured by an analogous statute of
limitations." Summit-Waller Citizens Ass'n v. Pierce Cy., 77
Wn. App. 384, 397, 895 P.2d 405, review denied, 127 Wn.2d
1018 (1995). No analogous statute of limitation allows 80
years to pass before an action must be brought
(87 Wn App 361, 372-373). Similarly, this Court should not allow plaintiffs to plumb
the misty depths of time to challenge a decision the Village made three-quarters of a
century ago, likely before the individual plaintiffs were born.
To the extent that Matter of Ackerman may sub silentio have applied the
continuing wrong doctrine, it is distinguishable as not having involved a public, de jure,
act. There, the non-park use appears to have been by a City agency, the Department of
Transportation, with the acquiescence or approval of the Commissioner of the Parks
Department. In such a case, where the non-park use is not publicly sanctioned by the
13
appropriate legislative body, the continuing wrong doctrine arguably could apply, since
such uses may start out undetectably small and immaterial, be accretive and thus not be
readily apparent until they exceed a certain threshold size or intensity. Put squarely, in
Ackerman there was no precise act that could have triggered a litigation to complain of
the use. The type of legislative decision here, by contrast, is open and accessible to the
public -- the Village Board's resolutions approving the leases were public enactments,
with discussion at a public meeting, and were memorialized in minutes. The minutes of
such meetings, and the leases themselves, were and continue to be readily accessible,
public documents.
Decisions of the courts of this State in analogous contexts support recognizing the
complaints here as attacking the Village's original decision to use the DPW site for non-
park purposes in violation of the public trust doctrine. In constructive trust cases, for
example, the six-year period starts when the trust is created, and the duty of the trustee,
in a sense, breached, as the alleged decades-old "breach" by the Village in using the park
land held in trust for non-park purposes (see, e. g., Knobel v Shaw, 90 AD3d 493 [1st
Dept 2011] and Mattera v Mattera, 125 AD2d 555 [2d Dept 1986]).
There is useful analogy in the distinction drawn in Greco v Incorporated Vill. of
Freeport (223 AD 2d 674, 675 [2d Dept 1996]), followed by each other Appellate
Division department that has considered the question, between the issuance of a building
permit and actions taken in consequence:
14
Also unavailing is the plaintiffs' attempt to circumvent the
service requirements by alleging that the claims asserted in the
complaint against the Village arise from the wrongful issuance
of building permits to the neighboring landowners and that the
wrongful issuance of building permits constitutes a
"continuing wrong". A cause of action involving the wrongful
issuance of a building permit accrues when the permit is issued
(see, Solow v Liebman, 202 AD2d 493; Curtis Case v City of
Port Jervis, 150 AD2d 421) and does not constitute a
continuing wrong (see, Solow v Liebman, 202 AD2d 493,
supra; Bloomfield Bldg. Wreckers v City of Troy, 50 AD2d 673,
affd 41 N.Y.2d 1102). The remaining claim that the
neighboring landowners' erection of stop signs, construction of
additional boat slips, and valet parking constitute continuing
wrongs is not persuasive as a distinction must be drawn
"between the originating wrongful act and the continuing,
perhaps perpetual, adverse consequences of the wrongful act"
(Jensen v General Elec. Co., 82 N.Y.2d 77, 89 [supra]).
(Accord, Matter of Letourneau v Town of Berne, 56 AD3d 880, 881 [3d Dept 2008];
Matter of Duchmann v Town of Hamburg, 90 AD3d 1642 [4th Dept 2011]).
Here, of course, the Village's non-park use of the DPW site is a consequence of its
1938 and 1946 leases, and it is the public adoption of those leases and legislative
enactment by the Village Board to use the DPW site for non-park purposes in violation
of the public trust doctrine that is the gravamen of the time-barred complaints.
2. Proposed future non-park use
Under the circumstances here, so much of the complaints as address future non-
park use also are untimely. The Appellate Division below relied on its own decision in
Matter of Jones v Amicone (27 AD3d 465 [2d Dept 2006]) in holding that a cause of
15
action with respect to future non-park use in violation of the public trust doctrine occurs
when the municipality commits itself to a course of action. That court's application of
Jones to this case was in error, as a correct application of Jones would have required
commencement of this action within six years after the Village Board's 1938 action.
Jones involved a new project to be built on dedicated park land. In addition to
bringing a SEQRA challenge, the petitioners there asserted that alienation of the park
land would violate the public trust doctrine. Before the plans for the project were
announced, no one had any knowledge of the proposed non-park use. Here, by contrast,
the Village's non-park use of the dedicated park land had been ongoing since at least
1946, and what the Village announced in November 2008 was nothing more than a
change in the nature and scope of an ongoing non-park use of the same park land.
B. Laches
1. This Court may review this issue
If the Court holds these cases not barred by the statute of limitations, it should
hold them barred by laches. While this Court has stated that the lower courts' decision
whether to apply laches is discretionary, and will not be disturbed absent an abuse of
discretion as a matter of law (see, e.g., Fleming v Giuliani, 3 NY3d 544, 552 [2004]), it
has not hesitated, in an appropriate case such as this, to find such an abuse (e.g.,
Amsterdam Sav. Bank v City View Mgt. Corp., 45 NY2d 854, 856 [1978]).
16
In its brief on the second appeal to the Appellate Division resulting in the final
order appealed to this Court, the Village noted that it had abandoned its laches defense in
part (Br, p 10, n 6). This statement should not preclude this Court's review of the issue.
At the Supreme Court, defendants asserted laches as grounds for dismissing both actions
(R 257; 531). Having lost on that issue on their first appeal to the Appellate Division,
which became law of the case in the Appellate Division and in the lower courts, they
could not have sought a redetermination of the issue on the second appeal.
In Telaro v Telaro (25 NY2d 433, 438 [1969], rearg and stay den 26 NY2d 751
[1970]), this Court noted that "it is well established that questions raised in the trial court
or in the record, even if not argued in the intermediate appellate court, are nevertheless
available in the Court of Appeals." Under Telaro -- if it even applies, because the issue
here was raised on the first appeal -- the failure to raise laches on the second appeal to
the Appellate Division does not preclude review of the issue by this Court.
Although this Court has noted that "the equitable doctrine of laches may not be
interposed as a defense against the State when acting in a governmental capacity to
enforce a public right or protect a public interest" (Matter of Cortlandt Nursing Home v
Axelrod, 66 NY2d 169, 177, n 2 [1985], rearg den 66 NY2d 1035 [1985], cert den 476
US 1115 [1986]), in this case the State was not acting in a governmental capacity. Here,
the State commenced Action No. 2 "as parens patriae on behalf of its citizens and
residents" (R 469). This Court has defined parens patriae status as "a quasi sovereign
17
interest" (People v Grasso, 11 NY3d 64, 69 n 4 [2008]). Under such interest, the State
should be subject to the same defenses that defendants enjoy against the individual
plaintiffs -- especially where, as here, the defendants comprise another public entity and
the State became involved only after the individual plaintiffs refused to post an
undertaking required to secure a preliminary injunction but otherwise have been able to
litigate this action through and including two appeals to the Appellate Division and the
present appeal to this Court.
If the Court determines that the State's parens patriae status in Action No. 2 does
not render it subject to laches, the fact that both parties are government bodies should.
The law immunizing the State from the defense of laches has ancient common law roots,
noted by Justice Story in United States v Hoar (2 Mason 311, 313 [1821]). More
recently, the Arizona Court of Appeals ruled, in a dispute between a county and certain
municipalities over the distribution of taxes, that "neither laches nor its generic parent,
estoppel, can be asserted to gain rights against the public or to defeat a public interest."
But, the court continued: "the reason for the rule denying the defense disappears when
the contest is solely between two public bodies" (Maricopa County v Cities & Towns of
Avondale, 12 Ariz App 109, 113 [1st Div 1970]; see, also, DeFazio v WPPSS, 296 Or
550, 597 [Peterson, C. J., concurring][collecting cases][1984]; State ex rel. DHS v
Cochise County, 166 Ariz 75, 82 [1990]).
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2. Merits
This Court has described the equitable doctrine of laches as follows:
Laches and limitations are not the same. Limitations involve
the fixed statutory periods within which actions must be
brought, while laches signifies a delay independent of statute
(see Siegel, N.Y. Prac § 36, at 44 [3d ed 1999]; 2A Carmody-
Wait § 13:4, at 94 [2d ed 2001]). We have defined laches as an
equitable bar, based on a lengthy neglect or omission to assert
a right and the resulting prejudice to an adverse party (see
Matter of Barabash, 31 N.Y.2d 76, 81 [1972]; see also
Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165, 173 n 4
[2002]). The mere lapse of time, without a showing of
prejudice, will not sustain a defense of laches (see Galyn v.
Schwartz, 56 N.Y.2d 969, 972 [1982]; Sorrentino v. Mierzwa,
25 N.Y.2d 59 [1969]; Skrodelis v. Norbergs, 272 A.D.2d 316
[2d Dept 2000]). The defense has been applied in equitable
actions and declaratory judgment actions (both of which are
governed by the six-year catch-all provision of CPLR 213 [1])
where the defendant shows prejudicial delay even though the
limitations period was met.
(Saratoga Co. Chamber of Commerce v Pataki, 100 NY2d 801, 816 [2003] cert den 540
US 1017 [2003].) When dealing with matters involving the public fisc, this Court has
noted that "[b]ecause the effect of delay on the adverse party may be crucial, delays of
even under a year have been held sufficient to establish laches" (Matter of Schulz v State
of New York, 81 NY2d 336, 348 [1993]).
Here, in addition to her constructive knowledge of the Village's decision no later
than 1946 to make non-park use of the DPW site, plaintiff Allen admits she knew that
the Village might be planning a change in the nature or scope of that non-park use as
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early as 2003 (R 662); plaintiff Berkower admits he had such notice in 2004 (R 655);
and plaintiff Capruso admits he had such notice in 2005 (R 644). If plaintiffs' concern
was the change in the nature or scope of the non-park use of the DPW site, and their goal
was to procure an injunction prohibiting the change, they needed to know no more in
order to commence their action.6 And, acting through its legislature, the State, in
approving the lease of the park (with the DPW site reserved for the Village's use) to the
Park District in 1967, had knowledge since then that the DPW site was being used for
non-park purposes, yet it did not commence Action No. 2 until decades later.
In Schulz, supra, the Court in assessing prejudice recognized the potentially
unsettling effect of allowing a challenge to public expenditures already planned and
made; there, hundreds of millions in bonds issued by the state were at stake; this case
involves some $500,000 in expenses accrued by a tiny village in preparation for
improvements to the site that are projected to cost $4 million. As in Schulz, it would be
manifestly bad public policy to allow the use to be enjoined and the taxpayers of the
Village required to forfeit the benefit of such a significant public expense when the most
recent legislative determination by the Village to use the land on which the project is
proposed to be built for non-park purposes was made in 1946, and no action to challenge
the use was commenced until 2009. Denial of defendants' motions to dismiss these
6 The project was formally announced at a Village Board meeting on November 20,
2008, at which plaintiff Capruso spoke; Action No. 1 was not commenced until some
four months later.
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actions on the ground of laches constituted an abuse of discretion by the lower courts as
a matter of law.
Dated: August 5, 2013
CONCLUSION
THE ORDER OF THE APPELLATE
DIVISION APPEALED FROM
AND PRIOR NON-FINAL ORDER
BROUGHT UP FOR REVIEW
SHOULD BE REVERSED, WITH
COSTS, AND DEFENDANTS'
MOTIONS TO DISMISS THE
COMPLAINTS GRANTED.
Respectfully submitted,
ACKERMAN, LEVINE, CULLEN,
BRICKMAN & LIMMER, LLP
1010 Northern Boulevard, Suite 400
Great Neck, New York 11 021
Tel. 516-829-6900
Attorn s for Defendants-Appellants
in Acti No.1 and for Defendant-
Appella in Ac· No. 2
By:
STEPHEN G. LIMMER
TODD H. HESEKIEL
BENJAMINS.KAPLAN
Of Counsel
SOL WACHTLER
STUART M. COHEN
Appellate Counsel
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