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
REPLY 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: December 9, 2013
TABLE OF CONTENTS
Table of Authorities i
Counter Statement of the Case 1
Argument 3
I. THE SECOND CAUSE OF ACTION CHALLENGING
THE VILLAGE'S PAST AND ONGOING NON-PARK
USE IS UNTIMELY (REPLYING TO POINT II OF
EACH OF THE BRIEFS OF RESPONDENTS). 3
II. THE CAUSES OF ACTION ADDRESSING
THE "PROPOSED FUTURE NON-PARK USE" ARE
TIME BARRED BECAUSE THEY SEEK TO
PREVENT THE CONTINUATION OF NON-PARK
USE OF PARKLAND BEGUN MORE THAN SIX
YEARS PRIOR TO COMMENCEMENT OF
THESE ACTIONS; PROPERLY AND PRACTICALLY
VIEWED, THE "PROPOSED FUTURE NON-PARK
USE" IS NOTHING MORE THAN A CHANGE IN
THE NATURE AND SCOPE OF AN ONGOING
NON-PARK USE (REPLYING TO POINT I OF
EACH OF THE BRIEFS OF RESPONDENTS). 8
III. FOR THE REASONS STATED IN THE VILLAGE'S
OPENING BRIEF, THIS COURT PROPERLY MAY
REVIEW THE LACHES DEFENSE AND SHOULD,
UPON SUCH REVIEW, DEEM THE DEFENSE
MERITORIOUS (REPLYING TO POINT III OF EACH
OF THE BRIEFS OF RESPONDENTS). 10
Conclusion 11
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) 6, 7
Covington v Walker, 3 NY3d 287 (2004), rearg den 4 NY3d 740 (2004),
cert den 545 US 1131 (2005) 4
Jensen v General Elec. Co., 82 NY2d 77 (1993) 7
Matter of Shapiro v Town of Ramapo, 98 AD3d 675 (2d Dept 2012),
lv dsmd 20 NY3d 994 (2013) 5
Victorson v Bock Laundry Mach. Co., 37 NY2d 395 (1975) 7
Other courts:
Matter of Ackerman v Steisel, 66 NY2d 833 (1985), affg for reasons stated in
mem at 104 AD2d 940 (2d Dept 1984) 6, 7
Matter of Jones v Amicone, 27 AD3d 465 (2d Dept 2006) 9
M.S.N.S. Holding Corp. v City of New York, 253 AD2d 793 (2d Dept 1998) 5
Matter of Shapiro v Town of Ramapo, 98 AD3d 675 (2d Dept 2012),
lv dsmd 20 NY3d 994 (2013) 5
i
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
REPLY BRIEF OF DEFENDANTS-APPELLANTS
COUNTER STATEMENT OF THE CASE
A quote attributed to the late Senator Daniel Patrick Moynihan states that
"everyone is entitled to his own opinion, but not his own facts." That is especially
so where, as here, on a motion to dismiss, the facts pleaded must be taken as true,
for the purposes of deciding the motion, though, of course, there have been no
actual judicial findings. The plaintiffs1 urge this Court to disregard what they
cannot refute -- that the non-park use of Kings Point Park began many decades
before they commenced these actions, pursuant to public acts of the Village's
governing body, recognized by the State Legislature in 1966 when it approved a
lease of part of the park to the Great Neck Park District, and that the past, ongoing
and contemplated future uses all occupy less than five and one-half acres of a 173-
acre park.
It is respectfully submitted that these facts must inform the Court's
determination of the legal issue presented: whether causes of action seeking
redress for violation of the public trust doctrine accrue with the public act initiating
the ongoing non-park use, or whether the continuation of such non-park use, or
each variation in such non-park use, no matter how minor, re-sets the limitations
clock. Plaintiffs urge the latter, but examination of the law and application of
common sense reveal the futility of their urging, because to agree with that
contention is to render the statute of limitations meaningless.
Plaintiffs devote much of their briefs to disputing irrelevant facts and to
drawing distinctions that make no difference. The essential elements of this case,
revealed in the pleadings, are undisputed: All of the 173-acre Kings Point Park is
1 This brief employs the general term "plaintiffs" to refer to both the individual
plaintiffs in action no. 1 and to the State in action no. 2.
2
dedicated park land, which can only be sold or used for non-park purposes with the
express permission of the State Legislature. The Village never obtained legislative
permission though, in 1966, the Legislature did approve a lease conveying the
parcel, less a small portion the Village reserved and already had been using for
non-park purposes, to the Great Neck Park District.2 Having used a part of the
five and one-half acre DPW site for non-park purposes pursuant to public acts of
its legislative body and without protest for five or more decades before
commencement of these actions, more recently the Village determined to commit a
substantial amount of taxpayer money to improve the aesthetics and practicality of
the non-park use in that small section of the park.
ARGUMENT
POINT I
THE SECOND CAUSE OF ACTION CHALLENGING
THE VILLAGE'S PAST AND ONGOING NON-PARK
USE IS UNTIMELY (REPLYING TO POINT II OF
EACH OF THE BRIEFS OF RESPONDENTS).
Asserting that their action is timely not under the continuing wrong doctrine,
but under the public trust doctrine, plaintiffs in action no. 1 -- without citation to
2 The Village's opening brief refers to this very much smaller area as "the DPW
site." The plaintiffs refer to it as the "Western Corner."
3
authority -- conflate substantive and procedural legal principles. The public trust
doctrine is a substantive law doctrine, prescribing certain rights and responsibilities
as between various parties with respect to the use of park land. In this respect, it is
similar to any other common law or statutory scheme to protect persons or property
that provides a right of action for its violation. The doctrine has nothing to do with
the statute of limitations, when a cause of action accrues, or when a claim must be
interposed to be timely.
The continuing wrong doctrine, a doctrine related to the procedural subject
of timeliness of actions, relates to whether an action alleging the violation of any
substantive law can be brought after the passage of a certain period of time from a
triggering event. In each case, the determination whether the statute of limitations
applies is the product of a weighing of the importance of the rights involved, the
difficulty in defending against stale claims, and the fairness of requiring a defense
to an action after the passage of years or even decades (Covington v Walker, 3
NY3d 287, 293 [2004], rearg den 4 NY3d 740 [2004], cert den 545 US 1131
[2005]).
Plaintiffs would disregard that legislative balancing in public trust doctrine
cases and hold that a suit directed at any violation of the doctrine may be brought
at any time, no matter how long ago the authorized non-park use may have begun.
4
They do not address the fact that statutes of limitation and other timeliness rules
by definition always preclude actions that otherwise would afford relief to the
prevailing party, and would therefore vindicate a public policy determination that
such relief should be made available in such circumstance. An exception to the
requirement that an action must be timely interposed -- even if the action seeks to
vindicate public policy concerns -- should not be made here.
Plaintiffs' distinction between park land transfer cases and park land use
cases, to avoid the application of Matter of Shapiro v Town of Ramapo, 98 AD3d
675 [2d Dept 2012], lv dsmd 20 NY3d 994 [2013]), finds no support in precedent
and makes no sense. In their own brief, at page 8, the individual plaintiffs concede
that transfer and use of dedicated park land in violation of the public trust doctrine
are both prohibited alienations. The distinction urged appears to incorporate the
doctrine of mootness into the procedural rules governing timeliness of actions,
because it is based on the assumption that park land alienated by sale cannot be the
subject of an order to restore it to park use, while land used for non-park purposes
by a municipality can. However, this argument ignores the possibilities that an
alienation by sale or other transfer can be judicially undone (cf. M.S.N.S. Holding
Corp. v City of New York, 253 AD2d 793 [2d Dept 1998]), or that a subsequent
owner -- even a private one -- can be enjoined from using dedicated park land for
5
non-park purposes, rendering the plaintiffs' proposed distinction one clearly
without a difference.3
This Court should reject the suggestion of the individual plaintiffs (brief at p
39) and the State (brief at pp 30-31) that the continuous wrong doctrine,
recognized in public nuisance cases, also be recognized in cases alleging public
trust violations. The suggestion -- made without citation to any authority -- would
expand a narrow exception to the general requirement of timely interposition of
claims and would require public bodies to expend substantial amounts of taxpayer
monies defending ancient claims, such as the one at issue here.
Plaintiffs' discussions of the Court's memorandum decision in Matter of
Ackerman v Steisel (66 NY2d 833 [1985], affg for reasons stated in mem at 104
AD2d 940 [2d Dept 1984]), similarly miss the mark. In that case, there was no
statute of limitations defense asserted, nor was the statute of limitations involved,
and therefore the continuing wrong doctrine was never implicated or discussed.
The individual plaintiffs' attempt to analogize the facts here to what the Village
3 The statement at page 33 of the individual plaintiffs' brief that no court has held
a public trust doctrine claim of unauthorized use of dedicated park land subject
to a statute of limitations assumes the viability of their proposed distinction
between alienation and use. Moreover, none of the cases cited in footnote 12 at
that page mentions the assertion or rejection of a statute of limitations defense.
Similarly, the cases cited in the last paragraph on page 28, continuing to page 29,
of the State's brief to support the same contention do not discuss any statute of
limitations defense.
6
infers may have happened in Ackerman also fails -- there, a small, accretive non-
park use may have grown incrementally and undetectably; here, however, the non-
park use was preceded by a public legislative act of the Village.4
The purpose of the continuing wrong doctrine is to prevent a person with a
cause of action from being time-barred from prosecuting a cause of action before
she ever had one (Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 403
[1975]). Here, where the non-park use has been ongoing since, at the latest, 1946,
it can hardly be said that the individual plaintiffs did not have a cause of action
until decades later.
That the past and current non-park use was and is in the Village's control
does not make the continuous wrong doctrine applicable, as plaintiffs contend, nor
does it excuse them from timely interposing their actions. That the public trust
doctrine may reflect a strong public policy does not mean that actions in
furtherance of that policy are exempt from the rules of civil practice, including
those requiring timely interposition.
Here, the Village asks this Court to recognize again what it did some twenty
years ago, in Jensen v General Elec. Co., 82 NY2d 77, 89 (1993): the "distinctions
4 The State’s suggestion (brief at p 38) that the local board minutes cannot be
relied upon here is a red herring, because the non-park use was apparent from
the actual activity carried out on the DPW site, not simply from the filed
minutes and publicly-available lease.
7
between the originating wrongful act and the continuing, perhaps perpetual,
adverse consequences of the wrongful act." Measured from the originating
wrongful act, these actions are untimely.
POINT II
THE CAUSES OF ACTION ADDRESSING THE
"PROPOSED FUTURE NON-PARK USE" ARE TIME
BARRED BECAUSE THEY SEEK TO PREVENT THE
CONTINUATION OF NON-PARK USE OF
PARKLAND BEGUN MORE THAN SIX YEARS
PRIOR TO COMMENCEMENT OF THESE ACTIONS;
PROPERLY AND PRACTICALLY VIEWED, THE
"PROPOSED FUTURE NON-PARK USE" IS
NOTHING MORE THAN A CHANGE IN THE
NATURE AND SCOPE OF AN ONGOING NON-PARK
USE (REPLYING TO POINT I OF EACH OF THE
BRIEFS OF RESPONDENTS).
Plaintiffs in action no. 1 do not address the Village's central argument on this
appeal -- that their challenge is, in essence, to the public 1938 and 1946 legislative
acts of the Village that authorized and directed the non-park use, not to the
Village's subsequent acts in carrying out those determinations. The State plaintiffs
point to the ambiguity of the legislative acts the Village cites, while they both
dismiss the open and notorious non-park use in accordance with those acts.
Instead, they treat as a separate wrong every discrete non-park use or change in an
existing non-park use. This ignores that if there was any legally cognizable breach,
8
it would have been the public legislative act that allowed the first non-park use. If
the Court accepts that premise, it should conclude that what followed would be
merely changes in the nature and scope of the non-park use, not a new act that
resets the running of the statute of limitations clock.
Perhaps concerned that the Court will reject their theory that any minor
change in a non-park use will mark the accrual of a new cause of action,5 the
individual plaintiffs, in urging the timeliness of that part of their action that seeks
to enjoin the future non-park use in the western corner, attempt to paint the
proposed project as a drastic change from the existing non-park use -- so drastic,
presumably, that it is causally disconnected from the prior non-park use. However,
the degree of change depends upon the point from which the departure is
measured. Confining their analysis to changes within a five and a half acre section
of a park comprising 173 acres, or just over three per cent of the entire park, the
plaintiffs turn a mole hill into a mountain by looking through the wrong end of the
telescope.
The individual plaintiffs' argument that Matter of Jones v Amicone (27 AD3d
465 [2d Dept 2006]) supports their position is flawed. There, the action based on a
violation of the public trust doctrine was deemed timely, but only because it was
5 At pages 6 and 22 of its brief, the State acknowledges that this Court has not yet
decided whether there is a de minimis exception to the public trust doctrine.
9
brought within the limitations period following announcement of the project, the
first inkling anyone could have had regarding a contemplated, not yet existing,
non-park use. Here, by contrast, the non-park use had been ongoing for decades,
and the Village's announcement addressed a small change in modernization and
aesthetics, not a completely new non-park use.
Similarly unavailing is the assertion in both plaintiffs' briefs that the
Village's references to the "open and notorious" nature of the non-park use since, at
the latest, 1946, suggest the Court apply adverse possession to this case. The
Village has not argued adverse possession, and does not here; rather, the reference
is to rebut the assertion that the individual plaintiffs could not have known of the
proposed future non-park use until it was announced by the Village. If the
proposed new non-park use is properly viewed as a continuation of the prior non-
park use, the individual plaintiffs should be charged with knowledge of it since
1946, at the latest.
POINT III
FOR THE REASONS STATED IN THE VILLAGE'S
OPENING BRIEF, THIS COURT PROPERLY MAY
REVIEW THE LACHES DEFENSE AND SHOULD,
UPON SUCH REVIEW, DEEM THE DEFENSE
MERITORIOUS (REPLYING TO POINT III OF EACH
OF THE BRIEFS OF RESPONDENTS).
10
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.
Dated: December 9, 2013
Respectfully submitted,
ACKERMAN, LEVINE, CULLEN,
BRICKMAN & LIMMER, LLP
1010 Northern Boulevard, Suite 400
Great Neck, New York 11021
Tel. 516-829-6900
Attorneys for Defendants-Appellants
in 4 ion No.1 and for Defendant-
Appe Iant in Action No.2
~
BY/JOHN M. BRICKMAN
STEPHEN G. LIMMER
TODD H. HESEKIEL
BENJAMIN S. KAPLAN
Of Counsel
SOL WACHTLER
STUART M. COHEN
Appellate Counsel
11