Matter of Cablevision Sys. Long Is. Corp. v Village of Massapequa Park
Annotate this CaseDecided on January 23, 2006
Supreme Court, Nassau County
In the Matter of the Application of Cablevision Systems Long Island Corporation, Petitioner,
against
Village of Massapequa Park, Board of Trustees of Massapequa Park and Verizon New York, Inc., Respondent.
16555/05
Anthony L. Parga, J.
Upon the foregoing papers, it is ordered that in this hybrid Article 78 proceeding/declaratory judgement action the petitioner/plaintiff's Cablevision Systems Long Island Corporation ("Cablevision") petition/complaint are dismissed and request for expedited discovery is denied.
The motion by respondent/defendant Verizon New York, Inc. ("Verizon") for judgment dismissing the petition/complaint pursuant to CPLR 7804 and 3211 (1) and (7) is granted.
The cross-motion of respondent/defendant Village of Massapequa Park and Board of Trustees of Massapequa Park (hereinafter collectively referred to as "the Board") pursuant to CPLR 7804 and 3216 for judgment dismissing the petition/complaint is granted.
At the conclusion of the second of two public hearings, the Board passed the September 26, 2005 Resolution ("the Resolution") pursuant to which a nonexclusive franchise to own, construct, operate and maintain a cable system within the Village of Massapequa Park ("the Village") was granted to Verizon. Cablevision seeks judgment voiding that Resolution on the grounds that in the time period leading up to the Resolution, the Board violated the Open Meetings Law (NY Public Officers Law §100 et seq.) and Village Code §30-1 (the Village ordinance equivalent to the Open Meetings Law), and deprived Cablevision of due process. In furtherance of its pursuit of a judgment voiding the Resolution, Cablevision seeks emergency discovery, while the Board and Verizon seek [*2]dismissal of this proceeding/action at this time.
At the outset the Court notes that the Village has had a cable television franchise agreement with Cablevision for many years. The Resolution at issue granted Verizon a nonexclusive franchise to offer competitive cable service in the Village. Apparently the Village is the first municipality in the State of New York to award Verizon a franchise agreement enabling it to compete with Cablevision.
According to the petition/complaint, if a municipality votes to approve a cable franchise application, the applicant then applies for a certificate of confirmation from the Public Service Commission, and the franchise becomes effective upon issuance of the certificate of confirmation (Petition/complaint, par. 19). Although Cablevision's prayer for relief in the petition/complaint requests, inter alia, injunctive relief enjoining any efforts to seek confirmation by the Public Service Commission, Verizon has submitted a copy of the Order and Certificate of Confirmation by the Public Service Commission, issued and effective December 15, 2005, pursuant to which the Public Service Commission approved the franchise awarded to Verizon. Furthermore, to the extent Cablevision complains that the Verizon franchise violates the "level playing field"rule (see Petition/complaint, par. 24), this rule is enforced by the Public Service Commission, which in fact expressly addressed and rejected Cablevision's challenge before it on the basis of this rule (Order and Certification of Confirmation, par. 12).
Although on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) the narrow question is whether the complaint states a cognizable cause of action, the allegations in the complaint cannot be conclusory (Stoianoff v Gahona, 248 AD2d 525, app. dsmd 92 NY2d 844, cert. den. sub. nom. Stoianoff v New York Times, 525 US 953; Hart v Scott, 8 AD3d 532). The provisions of the Open Meetings Law are to be liberally construed in accordance with the statutory purpose that the citizens of this state be fully aware of the performance of public officials (Matter of Gordon v Village of Monticello, Inc., 87 NY2d 124, 127). Nevertheless, allegations of private meetings held in violation of the Open Meetings Law, that are not supported by specific facts, are merely conclusory and speculative in nature and fail to state a cause of action for violation of the Open Meetings Law (Residents For a More Beautiful Port Washington v Town of North Hempstead, 153 AD2d 727, app. den. 75 NY2d 703). In addition, enforcement sanctions under the Open Meetings Law require a showing and therefore an allegation of "good cause" to declare any action taken in violation of the Open Meetings Law void (see Public Officers Law §107(1) and Matter of New York [*3]University v Whalen, 46 NY2d 734).
Here, Cablevision's allegations of violations of the Open Meetings Law are threefold. First, Cablevision alleges private meetings by the trustees, wherein a quorum was present, between the public hearings on September 12 and September 26, 2005,(Petition/complaint par. 31)Second, Cablevision alleges private meetings of the trustees, where a quorum was present, "on previous occasions"(Petition/complaint, par. 41). Third, Cablevision alleges that during the second public hearing the Mayor and the Trustees took a recess during which a private "caucus" took place. Cablevision alleges that during the "caucus" the trustees engaged in deliberations on the critical question of whether Verizon responded to Cablevision's questions (Petition/complaint pars. 37-40).
The allegations of private meetings between September 12 and 26, 2005, and on unspecified previous occasions are wholly conclusory and speculative in nature. Consequently, these allegations fail to state a cause of action for violation of the Open Meetings Law (Residents For a More Beautiful Port Washington v Town of North Hempstead, supra). In contrast, the "caucus" incident, which took place in the course of the second public hearing, does not suffer from the same lack of specificity. Assuming the truth of Cablevision's allegations with respect to the "caucus," the question presented is whether the requisite "good cause" for overturning the Board's Resolution is alleged or can be gleaned from within the four corners of the petition/complaint.
The petition/complaint contains no express allegation of "good cause." The alleged improper "caucus" was of limited duration, and admittedly preceded by two public hearings during which Cablevision had and used the opportunity to give input into Verizon's application. In addition the "caucus" was followed by a public vote. In similar cases, "good cause" under the Open Meetings Law has not been found [see generally Matter of Center Square Assn. v City of Albany Bd. of Zoning Appeals, 19 AD3d 968 (unnoticed informal meeting did not warrant relief where determination was adopted at publicized public meeting); Matter of Griswald v Village of Penn Yan, 244 AD2d 950 (Request to void Board resolution, adopted at a regular and public session after improper discussion at executive session, denied); Matter of MCI Telecommunications Corp v Public Service Commission of the State of New York, 231 AD2d 284(discussions outside of public meetings did not warrant nullification of PSC determination where there was extensive public input at every stage of proceeding); Town of Moriah v Cole-Layer-Trumble Co., 200 AD2d 879 (vote in executive session did not warrant relief where subsequent resolution passed at regular meeting)] . Under these [*4]circumstances the Court is compelled to find that Cablevision has failed to allege sufficient factual allegations in its pleading to support the"good cause" necessary to warrant enforcement sanctions pursuant to the Open Meetings Law [Matter of Concerned Citizens to Review the Jefferson Valley Mall v Town Board of the Town of Yorktown, 83 AD2d 612, app dsmd 54 NY2d 957, app den. 55 NY2d 604 (dismissal of petition alleging Open Meetings Law violations granted in absence of facts alleging good cause)]. Consequently the first and second causes of action are dismissed in their entirety for failure to state a cause of action.
The third cause of action in the petition/complaint purports to allege a claim that the Board deprived Cablevision of its right to due process. The petition/complaint fails to state a cause of action for substantive due process because Cablevision does not, and cannot, allege a cognizeable property interest in Verizon' s application for a cable system franchise (Bower Assoc. v Town of Pleasant Valley, 2 NY3d 617, 627; Ward v City of New York, 15 AD3d 392), nor can it show that the Board's action was wholly without legal justification (Bower). Procedural due process is not triggered in the absence of a cognizable property interest not present here (Cadman Plaza North Inc. v New York City Dept. of Housing Preservation and Development, 290 AD2d 344), and even if it were, the basic requisites of procedural due process, namely, notice and the opportunity to be heard (In re Velella v The New York City Local Conditional Release Commission, 13 AD3d 201, lv app den 4 NY3d 702) were met. Cablevision was given, and used, notice and an opportunity to be heard with respect to Verizon's application (see generally Ward;). To the extent that Cablevision discusses in passing alleged violations of the Freedom of Information Law (Petition/complaint par. 27-30) or Public Service Law (Petition/complaint par. 35), those conclusory allegations do not state claims and are not properly before this Court.
Based on the foregoing, Verizon's motion for judgment dismissing the petition/complaint for failure to state a cause of action is granted. This Court declares that in connection with the application by Verizon for a nonexclusive cable franchise in the Village of Massapequa Park Cablevision has failed to state a cause of action for violation of the Open Meetings Law and/or Village Code §30-1, and any deprivation of due process.
In the interest of completeness, the Court will further consider the Board's motion for summary judgment. As the Board has answered the petition/complaint, and Cablevision is on notice that the Board seeks summary dispositive relief, the Court may properly entertain the Board's motion.
On a motion for summary judgment the proponent must make a prima facie [*5]showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). Once the movant makes its prima facie showing, the burden shifts to the opponent, who must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez; Zuckerman). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient (Zuckerman).
Here, the Board's motion expands the record to include the voluminous documentation submitted, including affidavits of the mayor and trustees, and the complete record of the public hearings. This documentation establishes a prima facie case that Cablevision has no actionable claim for violation of the Open Meetings Law, Village Code §30-1, or due process.
In opposition, Cablevision has failed to establish an issue of fact warranting a trial. Although Cablevision argues that the "caucus" lasted for 30 rather than 15 minutes, and the parties vigorously dispute what happened during the "caucus" in the private room, the Court has assumed the truth of Cablevision's version of events for the purposes of this motion only. Assuming arguendo, that the Board improperly conducted deliberations during the brief private "caucus," no evidence of any "good cause" to void the Resolution has been presented (Matter of Center Square Assn v City of Albany Board of Appeals; Matter of Griswald v Village of Penn Yan; Matter of MCI Telecommunications Corp. v Public Service Commission of the State of New York; Town of Moriah v Cole-Layer-Trumble Co.).
In addition the Court has assumed arguendo, the truth of Attorney Bee's claims he was mislead by the Village Attorney as to the agenda of the "work sessions" that preceded the two public hearings. Nevertheless Cablevision's input at the public hearings more than suffices to establish Cablevision's opportunity to be heard on Verizon's application to the Board.
Cablevision's argument, that notice of agendas for work sessions must be publicized, is not supported by case law. For the record, an advisory opinion by the Committee on Open Government indicates that the notice of public meetings required by the Open Meetings Law does not include notice of agendas for the meetings [Comm. on Open Govt Advisory Op. No. 2852 (March 11, 1998)]
Cablevision argues that summary judgment is premature, as discovery is necessary. Cablevision in its motion seeks depositions of the Mayor, the Village Administrator, and each of the Trustees. In addition Cablevision seeks production [*6]of "all documents, including electronic documents, relating to the cable franchise awarded to Verizon on September 26, 2005" (Tracey emergency affirmation and Exhibit A thereto).
Discovery is inconsistent with the summary nature of a special proceeding and is therefore only granted where there is a demonstrated need for such relief (see generally Matter of Town of Pleasant Valley v New York State Bd. of Real Property Services, 253 AD2d 8). Discovery in opposition to a summary judgment motion in a plenary action will be denied unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence (Lambert v Bracco, 18 AD3d 619). Here no demonstrated need or evidentiary basis has been shown for the overbroad discovery sought. Cablevision's mere hope that evidence sufficient to defeat the motion might be uncovered during the discovery process is insufficient to defeat the motion for summary judgment (Rinzler v Jafco Associates, 21 AD3d 360; Gomez v Sammy's Transport, Inc., 19 AD3d 544).
Overall, the record as a whole fails to establish any basis to declare the Resolution void. Competition is the hallmark of our economy, and the Board's action merely served to bring competition to the residents of Massapequa Park in the cable services available.
Based on the forgoing, the defendant Board's cross-motion for summary judgment dismissing the petition/complaint as a matter of law is granted. The Court declares that in connection with the application by Verizon for a nonexclusive cable franchise in the Village of Massapequa Park, Cablevision has no cause of action for violation of the Open Meetings Law and/or Village Code §30-1, and any deprivation of due process.
Finally, plaintiff Cablevision's emergency application for discovery is denied as moot, and this proceeding/action is dismissed.
Dated: January 23, 2006.
_________________________
Anthony L. Parga, J. S. C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
