Capruso v Village of Kings Point

[*1] Capruso v Village of Kings Point 2009 NY Slip Op 52829(U) Decided on July 29, 2009 Supreme Court, Nassau County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2009
Supreme Court, Nassau County

Daniel Capruso, Alan Berkower, Elizabeth Allen, and Julian Kane, Plaintiffs,

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.



5006/09



Albert K. Butzel Law Offices - Attorneys for Plaintiff

Super Law Group, LLC - Attorneys for Plaintiff

Ackerman, Levine, Cullen, Brickman & Limmer, LLP - Attorneys for Defendant

Thomas Feinman, J.

MOTION AND CROSS-MOTION

The plaintiffs move, by way of Notice of Motion, for a preliminary injunction pursuant to [*2]Article 63 of the New York Civil Practice Law and Rules, (CPLR), enjoining the defendant, the Village of Kings Point, (hereinafter referred to as the "Village"), and any other persons working on behalf of the Village and other Village defendants herein, from (a) proceeding with the Department of Public Works, ("DPW"), facility project, (b) granting any approvals or authorizations for the project, ( c ) soliciting any bids for or entering into any contracts for the construction of the DPW facility, (d) engaging in any physical destruction, site preparation and/or construction, including but not limited to the removal of trees and earth moving, clearing, grading, altering or any other activities in the Western Corner of Kings Point Park that in any way relate to the future DPW project, or (e)

denying or obstructing existing access to the Western Corner of the Park, unless and until specific and direct approval is obtained from the State Legislature. The plaintiffs submit a Memorandum of Law in support of their motion for a preliminary injunction.

The parties, by way of fully executed stipulation dated April 23, 2009, agreed that up and until June 1, 2009, "the Village shall not engage in any site preparation or construction, including but not limited to the cutting or removal of trees, excavation, earth moving, clearing, grading or any other natural resources, in the 5.455-acre area that is the subject of this lawsuit that would be contrary to a final determination that the site was limited to park purposes". The parties further agreed that the defendants will not assert that the defendant, Great Neck Park District, is a necessary party, and the plaintiffs have discontinued the instant action as and against said defendant, and that the instant caption be amended accordingly.

The defendants cross-move for an order pursuant to CPLR §3211 dismissing plaintiffs' complaint, and submit opposition to the plaintiffs' motion. The defendants submit a Memorandum of Law in support of their cross-motion and in opposition to the motion for a preliminary injunction. The plaintiffs submit an affirmation in further support of plaintiffs' motion for a preliminary injunction and in opposition to the defendants' cross-motion. The plaintiffs submit a reply Memorandum of Law in further support of plaintiffs' motion for a preliminary injunction and in opposition to defendants' cross-motion to dismiss. The defendants submit a reply affidavit and reply Memorandum of Law in further support of cross-motion to dismiss.

RELIEF REQUESTED

The plaintiffs initiated this action for a declaratory judgment and injunctive relief. Plaintiffs claim that this action arises under the New York State Common Law Public Trust Doctrine which provides that once land has been acquired or dedicated for use as a public park, it cannot be used for any other purpose, in whole or part, temporarily or permanently, even for another public purpose, without the specific and explicit approval of the State Legislature. The plaintiffs' first cause of action seeks a judicial declaration that the construction and operation of the proposed DPW facility constitutes an unlawful alienation of public parkland in the Western Corner of Kings Park Point, in violation of the Public Trust Doctrine, and may not proceed in the absence of authorization from the State Legislature. The plaintiffs' second cause of action seeks a similar declaration with respect to the Village's existing DPW activities in the Western Corner. [*3]

Plaintiff, Daniel Capruso, resident at or near the park, states that the primary purpose of this lawsuit is to prevent the Village from destroying natural woodland areas in the Western Corner and converting that land into DPW headquarters and diesel truck garage facility. Additionally, plaintiffs seek to have the salt shed, debris dump and other existing DPW uses removed from the park as he has recently discovered that these activities are also illegally located on parkland.

The plaintiffs, by way of the instant motion, seek a preliminary injunction. The defendants, by way of cross-motion, seek dismissal of plaintiffs' action.

BACKGROUND

Kings Point Park, (hereinafter referred to as the "park"), is a public park owned in fee by the Village. Upon the record herein, King Point Park, is a 173.386-acre public park, which includes densely forested land containing freshwater wetlands, trails for hiking, cross-country skiing, picnic areas, playgrounds, baseball diamonds, soccer fields, basketball courts and other amenities. The park has been described in a 1972 Park District publication as "enchanting with more than five miles of breathtaking hiking trails. Kings Point Park is unrivaled anywhere in the metropolitan area ... retains most of its original setting that first captivated the early English settlers who came here from Connecticut". As per photocopies of newspaper articles dated 1927, Village voters unanimously passed a ballot proposition for a Two Hundred Seventy-Five Thousand and 00/100 Dollars, ($275,000.00), bond issue to acquire what was then known as the "Great Swamp" for use as a public park.

The plaintiffs annex a survey of the park dated 1932, and claim that the metes and bounds description of such survey was used to define the park in the 1967 State Session Law Ch. 563 §3, and also in the 2004 lease agreement between the Village and Great Neck Park District, (hereinafter referred to as the "Park District"). The plaintiffs submit that the metes and bounds description includes the Western Corner of the park that is at issue in this matter. The plaintiffs contend that the Western Corner, 5.455 acres, is within the original Park boundaries, as evidenced by the 1932 survey, the Village's 1996 memorandum in support of the 1967 Session Law, and under Village Law §7-724, the Village's official map which conclusively establishes that the Western Corner is parkland. Plaintiffs also refer to nine other maps of the Park, and the Village that depict the Western Corner as part of the park. The plaintiffs described the Western Corner as forested uplands that contain massive trees more than 100 years old, with both on unmarked trails used recreationally for decades by community members and US Merchant Marine Academy's midshipman for running, hiking, cross-country skiing, and ingress and egress from the rest of the park.

The plaintiffs refer to the 1967 Session Law to demonstrate that the Village had previously alienated the park requiring approval from State Legislation. The plaintiffs attach copies of leases [*4]from the Village to the Park District dated 1948, 1994 and 2005, whereby such leases essentially provide that the park was leased to the Park District. The leases provide language to the effect that the Park District must maintain it as a park, operate it as a public park, open for the use and enjoyment to residents, and must preserve it in its natural state as a park. As per correspondence dated March 18, 1966 from New York State Comptroller Arthur Levitt to the Village's Mayor, the lease to the Park District, absent legislative authority, could be considered illegal. Thereafter, the Village drafted a proposed bill for the State Legislature, and a memorandum in support of the bill, which would authorize the Village to lease the park for park purposes and ratify a 1958 lease. The bill passed the State Legislature and was signed into law by the Governor on April 24, 1967 as Chapter 563 of the 1967 Laws of New York. Section 1 of the 1967 Session Law authorizes the Village to lease the park for park purposes. More importantly, plaintiffs submit, Section 3 of the 1967 Session Law identifies the park and sets forth verbatim the metes and bounds description of the park according to the June 1932 survey, which includes the subject Western Corner.

The plaintiffs provide that the Village intends to develop, fence off, and use a large portion of the Western Corner for a proposed $3.6 million dollar DPW facility to house a diesel truck garage, a sign shop, administrative offices and crew quarters not intended to serve the park, and not for "park purposes". Plaintiffs submit that the DPW facility is intended to support the maintenance of Village roads and other infrastructure outside the park. Therefore, as the Village has not obtained explicit authorization from the State Legislature, the Village's proposed DPW facility constitutes an illegal alienation of parkland in violation of the Public Trust Doctrine.

The plaintiffs point out that Village Hall has been relocated in 2001, and as so, the Village now has an empty building site adjoining the current DPW building, whereby the DPW could expand onto that land, doubling the space available. Plaintiffs contend that the proposed DPW project on the Western Corner would eliminate existing marked and unmarked hiking and cross-country skiing trails mapped on Park District maps, would entail extensive deforestation, earth-moving and paving of woodlands, and the destruction of undeveloped and unspoiled natural areas of the park transforming it into a paved, developed municipal infrastructure facility.

Plaintiffs provide that while the 2004 lease from the Village to the Park District excludes the 5.455-acre Western Corner, as the Village has a right to do, such exclusion does not alter the status of the Western Corner as a "parkland" under the Public Trust Doctrine. The Western Corner remains "parkland" and therefore, the Village must obtain authorization from the State Legislature to develop it, or more specifically, to go forward with the DPW facility project. However, as per the minutes of the Board of Trustee's November 20, 2008 meeting, the Trustees voted to adopt Resolution No. 2008-184 approving, conditionally, the proposed "design" of the DPW facility authorizing the commencement of the "Construction Document Phase". The plaintiffs provide that after inquiring with Village Officials in February and then March of 2009, plaintiffs learned that the project was still in the design stage and the construction project had not yet gone out to bid. [*5]

Village Mayor, Michael C. Kalnick, avers, in opposition to the motion, and in support of the defendants' cross-motion to dismiss, that plaintiffs' case is based on the mistaken belief that the parcel of land upon which the Village intends to construct a DPW facility , which the defendants refer to as the DPW site, (plaintiffs refer to as the Western Corner), is "parkland". Contrary to plaintiffs' assertions, the Mayor states that the DPW site has not been used by the Village for park purposes as far back as 1946 and "most probably longer". Therefore, the Mayor contends, the plaintiffs are time-barred from bringing the instant action as the DPW site was not used for park purposes for over fifty-six years. The Mayor depicts how, essentially, from 1946 through the 1990's, the Village used portions of the DPW site for non-park purposes, such uses including use as a pistol range, dumping material including tree stumps, grass clippings, and leaves, and storing highway materials and supplies.

The defendants submit that the plaintiffs are barred from maintaining the instant action by the applicable six year statute of limitations, and the doctrine of laches, as the municipality has essentially transformed the parkland for non park purposes for more than twenty years.

DISCUSSION

It is well established that the Public Trust Doctrine requires State Legislative approval before a municipal parkland can be used for non-park purposes. "[D]edicated park areas in New York are impressed with a public trust for the benefit of the people of the State. Their use for other than park purposes, either for a period of years or permanent, requires the direct or specific approval of the State Legislature, plainly conferred.'" (Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623). A municipal's use of parkland by and for a non-park purpose constitutes an alienation requiring State Legislative approval. (Williams v. Gallatin, 229 NY 248). Approximately eighty years later, the Court of Appeals stated "Williams makes clear that legislative approval is required when there is a substantial intrusion on parkland for non-park purposes, regardless of whether there has been an outright conveyance of title and regardless of whether the parkland is ultimately restored". (Friends of Van Cortlandt Park, supra). "[O]ur courts have time and again reaffirmed approval before it can be alienated or used for an extended period for non-park purposes." (Miller v. City of New York, 15 NY2d 34; Village of Lloyd Harbor v. Town of Huntington, 4 NY2d 182). Parkland "alienation" occurs when a municipality wishes to sell, lease or discontinue municipal parkland, requiring authorization from the New York State Legislature. (United States v. City of New York, 96 F. Supp.2d 195).

In order to obtain a preliminary injunction, the party seeking the relief must demonstrate a likelihood of success on the merits, that irreparable harm or injury will occur if the relief is not granted and that the balancing of the equities favor the party seeking the preliminary injunction. (W.T. Grant Co. v. Srogi, 52 NY2d 496; see also, Town of East Hampton v. Buffa, 157 AD2d 714). [*6]A prima facie showing of a reasonable probability of success is sufficient to obtain a preliminary injunction. (Weissman v. Kubasek, 112 AD2d 1086). The existence of issues of fact for trial does not preclude the Court from issuing a preliminary injunction in the appropriate circumstance. (Ma v. Lien, 198 AD2d 186).

Satisfaction of the success-on-the-merits prong does not require a showing of "conclusive proof" but only "a likelihood of ... ultimate success on the merits". (Sachellaridou v. Pasent Realty Corp., 104 AD2d 764). A reduced degree of proof is sufficient when denial of injunctive relief would allow the defendant to proceed in a manner that would render the final judgment ineffectual. (Schlosser v. United Presbyterian Home, Inc., 56 AD2d 615).

"[A] parcel may become a park either [1] through express provision, such as restrictions in a deed or legislative enactment, or [2] by implied acts, such as a continued use of the parcel as a park or by certain acts of a respondent." (Lazore v. Board of Trustees pf Village of Massena, 191 AD2d 764). The dedication of parkland may be formal, through an official act, or may be implied. "In the absence of formal dedication of land for public use, an implied dedication may exist when a municipality's acts and declarations manifest a present, fixed and unequivocal intent to dedicate ... Once established, the dedication is irrevocable." (Riverview Partner, LP v. City of Peekskill, 273 AD2d 455). While a deed in the county contained no restriction on the land for park use, and where there did not appear to be any formal dedication of the land for park use, the Court found that the long-term continued use of the land for park purposes constitutes a dedication and acceptance by implication. (Village of Croton-on-Hudson v. Westchester County, 38 AD2d 979).

Here, the plaintiffs have demonstrated a likelihood of success on the merits. The record herein contains substantial support that the Western Corner is dedicated municipal parkland impressed with a public trust requiring that the Village obtain authorization from the New York State Legislature to go forward with the DPW facility project, an apparent alienated use of the Western Corner. It is axiomatic that municipal public works facilities do not serve park purposes and therefore require State Legislative approval because "they have no connection with park purposes". (Williams v. Gallatin, supra). While the defendants contend that the Village has, in essence, engaged in other alienated use of the Western Corner for decades, such use did not pertain to the entire Western Corner, there was no apparent authorization by the State Legislature, and the plaintiffs herein were not necessarily aware of such uses that apparently occurred prior to plaintiffs being residents of the Village. The majority of the 5.44 acre parcel contains a growth forest containing 100 year old trees and trails. Apparently, the plaintiffs herein, residents since approximately 1999, were not aware of the presence of the salt shed and debris dump and other claimed alienated uses of the parcel described by the defendants that have apparently continued for several years.

As to the second prong of the three-prong test for obtaining a preliminary injunction, the plaintiffs have demonstrated irreparable harm or injury if the relief is not granted. Should the Village not be enjoined from the site preparation and construction in the Western Corner, the DPW project [*7]will alter the park inflicting irreparable harm upon the plaintiffs, and the community that engages in the recreational activities thereto, including the loss of forest that cannot be remedied by money damage, and the risk of deforest action. The threatened alienation or altercation of parkland in and of itself is recognized as irreparable injury warranting the grant of temporary injunctive relief. (State of New York v. City of New York, 275 AD2d 740; Smith v. State, 153 AD2d 737; Bass Building Corp. v. Village of Pomona, 142 AD2d 657).

The plaintiffs have also demonstrated the final prong of the test, that the balancing of the equities favors the parties seeking the preliminary injunction. When "the irreparable injury to be sustained by the plaintiff is more burdensome to it then the harm caused to the defendant through imposition of the injunction", the balance of the equities tips in plaintiff's favor. (McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 AD2d 165). The delay in construction cannot override the fundamental principle of the Public Trust Doctrine, to wit, legislative approval before converting the use of parkland to a non-park purpose. Her, the use of a preliminary injunction would "[preserve] the status quo while legal issues are determined in a deliberate and judicious manner". (State of New York v. City of New York, 275 AD2d 740).

The posting of an undertaking is a prerequisite to the imposition of a preliminary injunction. (Family Affair Haircutters, Inc. v. Deotling, 110 AD2d 745). "The purpose of an undertaking is [to] afford reasonable protection to defendants from an erroneous grant of a preliminary injunction." (Schenectady Chemicals, Inc. v. Flacke, 113 AD2d 168, quoting Price v. Erie Board of Elections, 72 AD2d 969. The defendants submit the affidavit of Jack Kulka, manager of Kulka, LLC, retained by the Village to act as construction manager for the project. Mr. Kulka, avers that an injunction will cost 10% - 15% of the total estimated cost of the project (approximately $3.6 - 4 million), therefore, approximately $424,000.00 to $624,000.00 per year in potential damages, plus interest. As the defendants project that the instant litigation could continue for three years, the defendants request that the plaintiffs post an undertaking in the amount of $2.5 million. However, the defendants do not attach any documentation supporting such projected cost.

CONCLUSION

The plaintiffs have made a prima facie showing of entitlement to a preliminary injunction, and therefore plaintiffs' motion is granted and the defendants' cross-motion to dismiss plaintiffs' complaint is denied.

Accordingly, it is hereby

ORDERED that the Village defendants and all of their agents and assigns, and any other persons working on their behalf or in concert with them, are enjoined from (i) proceeding with the DPW facility project, (ii) granting any approvals or authorizations for the project, (iii) soliciting any bids for or entering into any contracts for the construction of the DPW facility, (iv) engaging in any physical destruction, site preparation and/or construction, including but not limited to the removal of trees and earthmoving, clearing, grading, altering or any other activities in the Western Corner of [*8]Kings Point Park that in any way relate to the DPW facility project, or (v) denying or obstructing existing access to the Western Corner of the Park, and it is further hereby

ORDERED that the plaintiffs shall post an undertaking in the amount of Four Hundred Thousand and 00/100 Dollars, ($400,000.00), within ten (10) days of service of this order, and that plaintiffs shall forward proof of such undertaking to the defendants and this Court within five (5) days of posting the undertaking, and it is hereby further

ORDERED that should the plaintiffs not post an undertaking as per the directives of this order, the instant preliminary injunction shall lapse, and it is hereby further

ORDERED that the parties are hereby directed to appear for a Preliminary Conference which shall be held at the Preliminary Conference part located at the Nassau County Supreme Court on the 19th day of August, 2009, at 9:30 A.M. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the defendants.

E N T E R :

________________________________

J.S.C.

Dated: July 29, 2009