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Supreme Court of the State of New York, Ulster CountyNov 30, 2004
2004 N.Y. Slip Op. 51921 (N.Y. Misc. 2004)


Decided on November 30, 2004.

John J. Kenney, Esq., Alex L. Wang, Esq., Gonzalo S. Zeballos, Esq., New York, New York 10017.

Arthur M. Kahn, Esq., New York 12498.

Madeline Sheila Galvin, Esq., Galvin Morgan, New York 12054.

William P. Ginsberg, Esq., 55 West End Avenue, New York, New York 10022.

Robert DiNardo, Esq., Nicole M. Reina, Esq., Jacobowitz and Gubits, LLP Walden, New York 12586.

Steven Barshov, Esq., Suzanne Joyce, Esq., Sive, Paget Riesel, P.C., New York 10022.

Respondent, Town of Woodstock, on April 27, 1979, purchased 75.80 acres of land commonly referred to as the "Comeau" property, for the Christian Science Trustees for Gifts and Endowments for the First Church of Christ Scientist, Boston, Massachusetts. The Referendum conducted in 1979 authorizing the issuance of Bonds to pay for the purchase of the property stated that the land was purchased ". . . for general municipal purposes. . .". On September 26, 2003, the Town Board of Woodstock voted to convey to the Woodstock Conservancy, a non-for-profit conservation organization, a conservation easement over approximately 70% of the Comeau property in perpetuity. The decision of the Town Board was submitted to the voters of the Town of Woodstock for approval in the form of a permissive referendum as required by Town Law, and according to the Ulster County Board of Elections, was approved by the voters on November 4, 2003.

Petitioners-Plaintiffs, as residents and taxpayers of the Town of Woodstock, commenced this proceeding on or about October 16, 2003, one month after the action of the Town Board authorizing the granting of an easement and nineteen (19) days prior to the schedule vote on the Referendum. At the request of all the parties, Supreme Court Justice Vincent Bradley, on October 22, 2003, signed and Amended Order to Show Cause replacing the one originally obtained by the Petitioner-Plaintiffs commencing this proceeding. This Amended Order eliminated the restraint on holding the Referendum and allowed it to proceed, on the understanding that no easement would be delivered by the Town until this litigation had been resolved.

The pleadings set forth six (6) separate causes of action. The First Cause of action asserts that the Town does not have title to the Comeau property and therefore cannot grant the proposed easement. According to Petitioners-Plaintiffs' research, a right of reverter burdens the land and the attempted conveyance of the property by the Churches to the Town in 1979 resulted in the reversion of the land to the heirs of Martin Comeau. Petitioners-Plaintiffs seek a determination of the present legal status of the title to the Comeau property, and more specifically, what interest the Town presently has in the property, if any.

The Second Cause of Action alleges that the description of the property and the boundaries and location of the easement on the property as described at the time of the Board Resolution and as presented to the public in the formal referendum were different and late with the consequence that the public not in a position cast and informed vote for or against the proposal. The pleadings seek a determination of the validity of the procedural process relative to the timeliness of the final description of the area and location of the easement, determination of the legal ability of the Town to convey the easement in light of the use specification set forth in the bonding resolution adopted at the time of the acquisition of the property, and "whether or not the matter to be presented to the voters on referendum, absent timely availability of the identifying information concerning the property description and survey of the area prior to vote is proper".

The Third Cause of Action alleges that the easement proposed to be granted would be an illegal gift by the Town to a private entity without fair consideration in violation of the Constitution of the State of New York. Further, Petitioners-Plaintiffs claim that such a grant in perpetuity would be an illegal binding of future Town Boards. The relief requested is an Order prohibiting the granting of the proposed easement without payment of fair market value.

The Fourth Cause of Action alleges that the Town will receive no benefit from the conveyance and therefore the intended grant represents an illegal gift by the Town to a private entity. The relief requested is an Order compelling the Town to provide a full and complete accounting of any and all costs, fees and indebtedness incurred with respect to the Comeau property.

The Fifth Cause of Action alleges that the Plaintiffs have been held out by Town Officials to public criticism, derision and ridicule. The relief requested is money damages.

The Sixth Cause of Action alleges that Plaintiffs have been forced to expend their own money in order to obtain information concerning the ownership of the Comeau property and the propriety of the proposed grant as a result of Town Officials refusing to respond to their inquiries for information. The relief requested is money damages in reimbursement of their out-of-pocket expenses.

The purpose of the easement as set forth in Paragraph 0.03 of the proposed deed states: 0.03Purpose

"This Deed is intended to convey a Conservation Easement of the Property by Grantor to Grantee, exclusively for the purpose of preserving its open space character in perpetuity for its environmental, scenic, recreational, and natural values, by preventing the use of development of the Property for any purpose in any manner contrary to the provisions hereof, in furtherance of federal, New York State and local conservation policies."

Respondents-Defendants have moved to dismiss the Petition-Complaint pursuant to CPLR 3211.


As to the relief requested in the First Cause of Action, the Court questions the standing of the Petitioner-Plaintiffs to assert a claim as regards the issue of title to the "Comeau" property. The Town holds in its hands recorded deeds which on their face transfer title to the Town and are presumptively valid. No person in the chain of title or with a potential interest in the property by reversion or otherwise has asserted any claim contesting the Town's title. Petitioners-Plaintiffs are strangers to the title and this Court knows of no basis on which Petitioners, as residents and taxpayers, have standing to challenge the Town's position as to the status of its title to this property.

Even if the Court were to grant standing to Petitioners-Plaintiffs, the Affidavit of Lee Rhinehart, a professional land searcher and title insurance agent, satisfies the Court there are no questions of fact as to the ownership of the property. The Court hereby dismisses the First Cause of Action.

The Second Cause of Action concerning the validity of the referendum process requires further development of the facts before the Court can determine whether or not there was failure to timely and accurately describe the nature of the proposal, and if so, was it of such proportions as to invalidate the results of the vote on the Referendum. Therefore, the Court denies the motion to dismiss the Second Cause of Action.

Sections 49-00303 and 49-0305 of the New York State Environmental Conservation law expressly allows local municipalities to grant conservation easements to not-for-profit conservation organizations in perpetuity.

The Appellate Division, Fourth Department, in the case of Western New York Land Conservancy v. Town of Amherst 4 AD3rd 889 (4th Dep't — 2004), addressed the principal issues raised by petitioners herein concerning lack of consideration, unlawful gift in violation of the New York Constitution, and illegality due to perpetual duration. In each case, the Appellate Court dismissed the arguments of the Town of Amherst. The Town was trying to un-do, rescind the decision of a prior Town Board to enter into an agreement to grant a conservation easement on terms similar to the one presently before this court. The Appellate Division affirmed the Order of the lower Court holding that transactions of this nature are valid and enforceable.

This Court finds no basis on which to distinguish the case presently before it from the one decided by the Appellate Division, Fourth Department and for the same reasons, rejects the arguments of Petitioners as to the claims asserted in Causes of Action "Third" and "Fourth". Petitioners' Third and Fourth causes of action/requests for relief are therefore dismissed.

Petitioners-Plaintiffs' Fifth Cause of Action is a claim for money damages for harm caused to the claimants by the alleged public "ridicule", "criticism", and "derision" expressed by Town Officials against the claimants.

Plaintiffs-Petitioners have not offered to the Court in their reply papers any facts or arguments which would flesh out or define the nature of the Fifth Cause of Action. Without more substantiation, the Court is unable to find the same as actionable. The bare assertions laid out in the Petition-Complaint do not to the Court, without further substantiation, state valid, recognized causes of action under New York Law.

Since the claims are for money damages against persons in their capacities as public officials and a municipality, the Court also finds that Notices of Claim are a prerequisite to the commencement of these actions. There is no dispute that notices were never filed.

Examining the Fifth Cause of Action as a potential claim for defamation, again the Court finds that Petition-Complaint does not set forth sufficient allegations to satisfy the minimum requirements of a defamation action. In order to succeed on a defamation claim, plaintiffs must establish that there was "a false statement, published without privilege or authorization to a third party . . . and it must cause either special harm or constitute defamation per se." [see Dillon v City of New York, et al., 261 AD2d 34, 38 (1st Dep't — 1999)]

Plaintiffs have failed to state with particularity the alleged defamatory statements allegedly made by defendants as required for an action in defamation to be sufficiently pleaded, [see Dobies v. Brefka, 273 AD2d 776, 778 (3rd Dep't — 2000)]. Plaintiffs have likewise failed to allege that the statements made were untrue, again another necessary element in pleading a defamation action. Finally, there is an absolute privilege for public officers in an action for alleged libel and slander where the utterance is made upon an occasion which, really or apparently, furnishes a legal excuse for making it. [see Duffy v Kipers, 26 AD2d 127, (4th Dep't — 1996)] For the foregoing reasons, the Fifth Cause of Action is dismissed.

The Sixth Cause of Action is also without precedent as far as this Court is aware. Should the Petitioners-Plaintiffs be successful in this litigation, they would be entitled to statutory costs.

The Court knows of no other basis for awarding monetary damages of the nature requested. Accordingly, the Sixth Cause of Action is dismissed.

Accordingly, the Court dismisses the First, Third, Fourth, Fifth and Sixth Causes of Action and directs that the parties proceed with discovery so that a hearing can be held to determine the validity of the allegation made in the Second Cause of Action that the Referendum process was flawed and illegal, and that the result therefore should be over turned.

All papers, including this decision and order, are being returned to Arthur M. Kahn, Esq., attorney for the Town of Woodstock. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved form the applicable provisions of that section relating to filing, entry and notice of entry.

This constitutes both the decision and order of the Court.