TO BE SUBMITTED
Court of Appeals
State of New York
DANIEL CAPRUSO, et al.,
Plaintiffs-Respondents,
v
VILLAGE OF KINGS POINTS, et al.,
Defendants-Appellants.
BRIEF OF THE NEW YORK STATE CONFERENCE OF MAYORS AND MUNICIPAL
OFFICIALS AS AMICUS CURIAE
NEW YORK STATE CONFERENCE OF
MAYORS AND MUNICIPAL OFFICIALS
119 Washington Avenue
Albany, New York 12210
Telephone: (518) 463-1185
Wade Beltramo, General Counsel
APL-2013-00128
Nassau County Clerk’s Index Nos. 5006/09 and 17908/09
Appellate Division, Second Department Docket No. 2011-06799
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TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................ 3
TABLE OF AUTHORITIES .......................................................................................................... 5
PRELIMINARY STATEMENT .................................................................................................... 7
INTEREST OF THE AMICUS CURIAE ...................................................................................... 7
STATEMENT OF FACTS ............................................................................................................. 8
ARGUMENT.................................................................................................................................. 9
POINT I .......................................................................................................................................... 9
LOCAL GOVERNMENTS SHOULD BE ALLOWED TO ASSERT THE
DEFENSE OF LACHES IN CLAIMS FOR ALIENATION OF PARKLAND TO
PREVENT THE WASTE OF MUNICIPAL RESOURCES AND TAXPAYER
DOLLARS AND TO MINIMIZE THE DISRUPTION OF MUNICIPAL
OPERATIONS.....................................................................................................................9
POINT II ....................................................................................................................................... 13
LOCAL GOVERNMENTS SHOULD BE ALLOWED TO ASSERT LACHES
AS A DEFENSE TO CHALLENAGES OF IMPERMISSIBLE PARKLAND
ALIENATION IN ORDER TO PREVENT PROBLEMS OF PROVING THE
CLAIMS BEING ADJUDICATED ..................................................................................13
CONCLUSION............................................................................................................................. 15
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TABLE OF AUTHORITIES
Cases
Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2001)............................................................. 13
Barresi v. Cnty. of Suffolk, 72 A.D.3d 1076 (2010) ....................................................................... 9
Chatham Green, Inc. v. Bloomberg, 1 Misc. 3d 434 (N.Y. Sup. Ct. 2003).................................. 13
Dwyer by Dwyer v. Mazzola, 171 A.D.2d 726 (N.Y. App. Div. 1991) .......................................... 9
Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) ............................... 13
Grayson v. Town of Huntington, 160 A.D.2d 835 (1990) ............................................................ 13
Jones v. Amicone, 27 A.D.3d 465 (2006) ..................................................................................... 13
Meyer v. Frank, 550 F.2d 726 (2d Cir. 1977)............................................................................... 14
New York State Assemblyman v. City of New York, 85 A.D.3d 429 (2011) ................................. 13
Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310 (1956) ........................................................ 11
Other Authorities
Handbook on the Alienation and Conversion of Municipal Parkland in New York, Jeffrey
Meyers, Revised March 2012, available online at
http://nysparks.com/publications/documents/AlienationHandbook.pdf.................................. 11
Treatises
75 N.Y. Jur. 2d Limitations and Laches § 2 ................................................................................. 14
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PRELIMINARY STATEMENT
The New York State Conference of Mayors and Municipal Officials respectfully submits
this memorandum of law amicus curiae in support of Defendant-Appellant, Village of Kings
Points, which seeks a ruling from the Court of Appeals reversing the Appellate Division, Second
Department’s decision.
INTEREST OF THE AMICUS CURIAE
The Conference of Mayors is a not-for-profit voluntary membership association whose
members include 58 of New York’s 62 cities and 523 of the State’s 549 villages, thereby
representing the overwhelming majority of such municipalities.
This case involves a matter of statewide concern to all cities and villages. The findings
of the Appellate Division are contrary to sound public policy and will, if upheld, subject local
governments to potentially crippling financial obligations and litigation costs.
Clearly, the protection and preservation of New York’s parklands is of extreme
importance to the State and its cities, villages, towns, and counties. New York’s local
governments are major holders of parkland in the State and spend millions of dollars every year
to acquire, improve, and maintain parkland that they hold in trust for the use and enjoyment of
not only for their own residents but for all of New York’s citizens.
However, the fact that parkland is inalienable presents local government officials with a
unique set of challenges, requiring them to be ever vigilant that they do not dedicate parkland
either expressly or implicitly unless they are certain that parkland use is what they intend to use
the property for. This brief argues that public policy demands that local government officials
should be able to assert the defense of laches when their use of property for non-parkland
purposes is being challenged as an impermissible alienation of parkland.
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STATEMENT OF FACTS
The Conference of Mayors adopts the statement of facts presented by the Village of
Kings Point.
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ARGUMENT
POINT I
LOCAL GOVERNMENTS SHOULD BE ALLOWED TO
ASSERT THE DEFENSE OF LACHES IN CLAIMS FOR
ALIENATION OF PARKLAND TO PREVENT THE WASTE
OF MUNICIPAL RESOURCES AND TAXPAYER
DOLLARS AND TO MINIMIZE THE DISRUPTION OF
MUNICIPAL OPERATIONS
NYCOM’s argument must begin by noting that it is not arguing or conceding that the
land at issue in this action is now or ever has been parkland. To the contrary, the history of the
land’s use and treatment by the Village of Kings Point casts serious doubt on whether the land
was ever accepted by the Village or officially dedicated by the Village as parkland. However,
for the purpose of addressing the issue of whether laches should be an available defense to the
Village, NYCOM is assuming arguendo that the land in question was parkland when acquired by
the Village.
The Appellate Division, Second Department has repeatedly acknowledge the merit of
estopping litigation under the theory of laches, noting that a petitioner “must make his or her
demand within a reasonable time after the right to make it occurs, or after the petitioner knows or
should know of the facts which give him or her a clear right to relief, or else, the petitioner's
claim can be barred by the doctrine of laches.” Barresi v. Cnty. of Suffolk, 72 A.D.3d 1076
(2010).
The Second Department succinctly articulated the standard for invoking laches in Dwyer
by Dwyer v. Mazzola:
Generally, neglect to assert promptly a claim for relief, if such
neglect causes prejudice to the adverse party, operates as a bar to
the remedy (see, 75 NYJur2d, Limitations and Laches, § 330) and
as a basis for invoking the doctrine of laches (see, Matter of Taylor
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v. Vassar Coll., 138 A.D.2d 70, 530 N.Y.S.2d 289). The four basic
elements of laches are,
(1) conduct by an offending party giving rise to the
situation complained of,
(2) delay by the complainant asserting his or her claim for
relief despite the opportunity to do so,
(3) lack of knowledge or notice on the part of the offending
party that the complainant would assert his or her claim
for relief, and
(4) injury or prejudice to the offending party in the event
that relief is accorded the complainant (75 NYJur2d,
Limitations and Laches, § 333).
All four elements are necessary for the proper invocation of the
doctrine, including “[t]he essential element * * * delay prejudicial
to the opposing party” (Burns v. Egan, 117 A.D.2d 38, 41, 501
N.Y.S.2d 742; see also, 75 NYJur2d, Limitations and Laches, §
337).
171 A.D.2d 726, 727 (N.Y. App. Div. 1991).
In the case at hand, the Village of Kings Point satisfies this four-part test. Assuming arguendo
that the land in question is parkland, the Village is currently occupying the property for non-park
purposes and plans to continue such non-park use (the first part), the petitioners are only now,
decades after the land has been openly and continuously used for non-park purposes, asserting
that the non-park use is an impermissible parkland alienation (the second part), Village officials,
both current and previous office holders, were clearly aware of State Law prohibiting alienation
of parkland and used the land for non-park purposes, spending municipal tax dollars improving
the land with non-park infrastructure (the third part), and the petitioners’ delay in bringing this
action are prejudicing the Village and its taxpayers (a) by necessitating the Village relocate the
non-park uses and infrastructure that it has invested in the land (presumably the Village will also
be required to restore the land to its parkland condition) and (b) by making it difficult for the
Village to defend the action because the real estate transaction that is the subject of the instant
action occurred so long ago that it is difficult, if not impossible, for the Courts to obtain a clear
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understanding of whether the land in question was accepted by the Village for dedication as
parkland (the fourth part).
As the Court of Appeals noted in Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310,
318 (1956), the delay in bringing an action must be unreasonable and the delay must prejudice
the defendant:
Essentially, the defense of laches consists of an unreasonable delay
by a plaintiff to the prejudice of the defendant (Marcus v. Village
of Mamaroneck, 283 N. Y. 325, 332). But mere delay, however
long, without the necessary elements to create an equitable
estoppel, does not preclude the granting of equitable relief
(Galway v. Metropolitan El. Ry. Co., 128 N. Y. 132, 153-154).
Clearly, petitioners in the present case unreasonably delayed in bringing the present
action. There is no indication that the petitioners ever questioned the decades of non-park use by
the Village. To the contrary, had the Village continued its current non-park use in its current
state and intensity of use, it is highly unlikely that the petitioners would have challenged the non-
park use. Moreover, had the Village upgraded the existing buildings on the land without
substantially altering the footprint or size of the structures, it is doubtful that petitioners or
anyone else would have challenged the use as an alienation of parkland.
And therein lies the challenge for local officials. The Village invested scarce taxpayer
dollars in the current non-park use over the course of several decades, and it invested thousands
of additional dollars in developing plans to update the non-park use. In addition, the Village had
structured its operations to use the land for a non-park use. This is particularly problematic
given that parkland can be created by implication. As Jeffrey A. Meyers, attorney for the New
York State Office of Parks, Recreation and Historic Preservation has noted in the Handbook on
the Alienation and Conversion of Municipal Parkland in New York, “[I]n order for the principles
of alienation to apply to municipal land, it need not have been formally dedicated, or even
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developed with amenities such as lawns, playing fields, or picnic tables.” p. 11, available online
at http://nysparks.com/publications/documents/AlienationHandbook.pdf.
In fact, petitioners in this case have argued just that, that the public’s use of the area the
Village of Kings Point has been using for non-park purposes makes it parkland. Thus,
municipalities across New York could own land that they did not formally accept as parkland
and for which there is no intention on the part of the municipality to use as parkland, but that
nevertheless could be parkland. Moreover, once land becomes parkland, regardless of the
process, it is inalienable. Consequently, for local governments officials to be certain that all of
their property is not parkland, they will have to conduct an historical analysis to determine
whether there was express or implied dedication of any of the land they own as parkland. Such
an undertaking is impractical.
This is not to argue that the expenditure of substantial amounts of taxpayer moneys
should be a defense to parkland alienations. To the contrary, intentional alienations of parkland
involving substantial expenditures of taxpayer funds that are challenged in a timely manner
should not find any protection under laches. But, the defense of laches is a reasonable
accommodation to municipalities and their taxpayers because it places the onus of establishing
the defense of laches on the shoulders of the local government officials. However, if laches is
not an available defense for parkland alienation, New York’s 62 cities, 549 villages, 932 towns,
and 57 counties outside of New York City could face the potential of having to demolish
thousands and potentially millions of dollars in municipal infrastructure and spending additional
thousands, if not millions of taxpayer dollars to relocate those municipal facilities and
operations, while at the same time disrupting vital local government operations.
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POINT II
LOCAL GOVERNMENTS SHOULD BE ALLOWED TO
ASSERT LACHES AS A DEFENSE TO CHALLENAGES OF
IMPERMISSIBLE PARKLAND ALIENATION IN ORDER
TO PREVENT PROBLEMS OF PROVING THE CLAIMS
BEING ADJUDICATED
New York’s cities, villages, towns, and counties provide a multitude of municipal
services to their constituents, everything from building and maintaining streets and sidewalks to
operating water and sewer systems to providing police and fire protection. To provide those
services, municipalities must acquire and use real property, frequently located within the tight
confines of the city or village. Such projects frequently give rise to opposition from the
community, particularly property owners located nearby. This “Not In My Back Yard”
opposition frequently results in litigation, such as the type of litigation at issue in this case. In
fact, it is a common legal tactic of opponents to municipal projects to assert claims of
impermissible parkland alienation. See Friends of Van Cortlandt Park v. City of New York, 95
N.Y.2d 623 (2001), New York State Assemblyman v. City of New York, 85 A.D.3d 429 (2011),
Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2001), Grayson v. Town of Huntington, 160
A.D.2d 835 (1990), Chatham Green, Inc. v. Bloomberg, 1 Misc. 3d 434 (N.Y. Sup. Ct. 2003),
Jones v. Amicone, 27 A.D.3d 465 (2006).
Imposing time bars on initiation legal actions, whether it be via a statute of limitations or
laches, serves valid public policy that also exist in parkland alienation proceedings. As noted in
the New York Jurisprudence,
The purpose of statutes of limitation is to force a plaintiff to bring
a claim within a reasonable time, set out by the legislature, so that
the defendant will have timely notice of the claim. Statutes of
limitation are designed to promote justice by preventing surprises
through revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have
disappeared; other considerations include promoting repose by
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giving security and stability to human affairs, judicial economy,
discouraging courts from reaching dubious results, recognition of
self-reformation by the defendants, and perceived unfairness to the
defendants of having to defend claims long past.
75 N.Y. Jur. 2d Limitations and Laches § 2, citing Blanco v. Am. Tel. & Tel. Co., 90 N.Y.2d 757
(1997). The Second Circuit Court of Appeals elaborated on this rationale for time-barring
actions in Meyer v. Frank, “The policy of repose behind the statute of limitations protects
defendants ‘by preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’
Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1944).”
550 F.2d 726, 730 (2d Cir. 1977).
In a State with hundreds of local governments that trace their creation, operations, and
land ownership to the 18th and 19th Centuries, being able to provide evidence as to the use of
piece of real property 200, 100, or even 50 years ago will tax even the most efficient litigators.
Clearly, issues of lost evidence, faded memories, or disappeared or deceased witnesses can come
in to play with parkland alienation cases. This action is just an example of the types of
deficiencies in evidence that result from allowing cases to be litigated years after the action
giving rise to the claim occurs. Consequently, laches should be an allowable defense in
proceedings alleging impermissible parkland alienation to prevent costly, unfair, and potentially
fruitless and confusing litigation.
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CONCLUSION
Municipal parkland is an invaluable resource, and its alienation should never be taken
lightly. But laches should be an available defense for local governments to assert in proceedings
challenging municipal land use on the grounds of parkland alienation. Because the claim of
impermissible parkland alienation was not raised in a timely manner and because the Village of
Kings Point and its residents, businesses, and taxpayers will be unfairly prejudiced by the delay
in the commencement of this proceeding, it should be dismissed against the Village of Kings
Point on the basis of laches.
Dated: Albany, New York
March 13, 2014
Respectfully Submitted,
Wade Beltramo
General Counsel to the New York State
Conference of Mayors and Municipal
Officials
119 Washington Avenue
Albany, New York 12210
Telephone: (518) 463-1185
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