Matter of Protect the Adirondacks! Inc. v Adirondack Park Agency

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[*1] Matter of Protect the Adirondacks! Inc. v Adirondack Park Agency 2013 NY Slip Op 50393(U) Decided on March 19, 2013 Supreme Court, Albany County Platkin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2013
Supreme Court, Albany County

In the Matter of Protect the Adirondacks! Inc., SIERRA CLUB, PHYLLIS THOMPSON, ROBERT HARRISON and LESLIE HARRISON, Petitioners for a Judgment Pursuant to CPLR Article 78




Caffry & Flower

Attorneys for Petitioners

(John W. Caffrey and Claudia K. Braymer, of counsel)

100 Bay Street

Glens Falls, New York 12801

Eric T. Schneiderman, Attorney General

Attorney for State Respondents

(Lisa Burianek and Susan L. Taylor, of counsel)

The Capitol

Albany, New York 12224

Whiteman, Osterman & Hanna, LLP

Attorneys for Non-State Respondents

(Robert L. Sweeney, of counsel)

One Commerce Plaza

Albany, New York 12260

FitzGerald Morris Baker Firth P.C.

Co-Counsel to Non-State Respondents

(Thomas A. Ulasewicz, of counsel)

16 Pearl Street

Glens Falls, New York 12801

Richard M. Platkin, J.

In this proceeding brought pursuant to CPLR article 78, petitioners move for the following relief: (a) an order pursuant to CPLR 408 granting disclosure with regard to the 28th cause of action alleging improper ex parte communications; (b) an order directing respondent Adirondack Park Agency ("APA") to prepare and file a transcript of the deliberations of its members regarding the project that is the subject of this proceeding; and (c) an order requiring the APA to produce the memorandum dated January 10, 2012 from agency counsel John Banta to the members for in camera inspection to test a claim of privilege. Respondents Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC, Oval Wood Dish Liquidating Trust and Nancy Hull Godshall, as Trustee of Oval Wood Dish Liquidating Trust (collectively "Non-State Respondents") oppose the motion and cross-move pursuant to CPLR 407 for an order severing the 28th cause of action in the event the Court grants petitioners leave for disclosure with respect thereto. Respondents New York State Department of Environmental Conservation ("DEC") and the APA (collectively "State Respondents") oppose petitioners' motion.


Petitioners commenced this proceeding seeking to annul the APA's approval of the Adirondack Club & Resort ("ACR") project in Tupper Lake, New York ("the Project"). On January 20, 2012, after nineteen days of public adjudicatory hearings and seven days of regular public meetings and deliberation, the APA approved Project Findings and Order No. 2005-100 (the "Order") and 14 separate permits. The Order was issued on January 31, 2012.

The 153-page amended petition ("Petition") alleges 29 causes of action, claiming substantive and procedural violations of the APA Act, the Freshwater Wetlands Act, APA regulations and the State Administrative Procedure Act ("SAPA"). The principal focus of this [*2]motion is the 28th cause of action, which alleges that the APA's approval of the Project should be annulled due to improper ex parte communications with and by the APA, in violation of SAPA § 307 (2) and 9 NYCRR § 587.4.

Pursuant to a Stipulation and Order of May 16, 2012 (Melkonian, J,), the parties to this proceeding stipulated and agreed that upon the filing of the record, answers and replies, the entire proceeding would be transferred to the Appellate Division, Third Department for determination. Pursuant to this Stipulation and Order, the undersigned signed an order on July 20, 2012 effecting said transfer. Petitioners then moved in the Appellate Division for disclosure pursuant to CPLR 408. By Decision & Order on Motion dated November 29, 2012, the Third Department remitted the proceeding to this Court and denied the motion for disclosure and further relief without prejudice to a motion being made in this Court. The instant motion and cross-motion followed.


A.Leave for Disclosure Under CPLR 408

In its 28th cause of action (Petition ¶¶ 604-629), petitioners allege that there were multiple improper ex parte contacts between representatives of the Project sponsors and the voting members of the APA and/or APA staff. Petitioners allege that they first became aware of these alleged improper ex parte contacts as a result of a radio interview with Paul Maroun, the Mayor of Tupper Lake, who is alleged to be a prominent supporter of the Project. Both the State and Non-State Respondents filed answers denying any such improper communications and submitted affidavits in support of said denials. Thereafter, petitioners obtained certain documents from the APA pursuant to the Freedom of Information Law ("FOIL") that allegedly "prove[] that such ex parte contacts had indeed taken place" (Affidavit of John W. Caffry ¶¶ 25-26, sworn to on December 7, 2012 ["Caffrey Aff."]). Additionally, documents later produced pursuant to FOIL allegedly demonstrate prohibited ex parte communications between APA and Executive branch officials.

On the basis of the foregoing, petitioners request that they be granted leave to conduct disclosure on the 28th cause of action. Such disclosure would include: (a) depositions and/or interrogatories of any persons or entities who may have been involved in the alleged ex parte communications or who may have knowledge of the same; (b) depositions of the voting members of the APA so as to determine whether they were exposed to ex parte communications, either directly or indirectly via APA staff; (c) document discovery from all persons and entities falling within the aforementioned two categories relative to the alleged ex parte communications; and (d) depositions of any other persons or entities identified as a result of the foregoing discovery who possess relevant information concerning the alleged ex parte communications (id. ¶ 37).

As a form of special proceeding, leave of court is required for disclosure in a matter brought pursuant to CPLR article 78 (CPLR 7804 [a], 408). "Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief" (Matter of Town of Pleasant Val. v New York State Bd. of Real Prop. Servs., 253 AD2d 8, 15 [3d Dept 1999]; see Siegel, NY Prac § 547, at 943 [4th ed] [CPLR article 78 is intended to provide summary adjudication with "ease, speed, and economy"]; People v Condor Pontiac, Cadillac, Buick and GMC Trucks, Inc., 2003 NY Slip Op 51082[U] [Sup Ct, Greene County 2003] [Stein, J.] [*3][movant bears "heavy burden" of demonstrating need for disclosure]).

In exercising its broad discretion to grant or deny a request for disclosure, the Court must determine whether the movant has established that the information it seeks is material and necessary (Matter of General Electric Co. v Macejka, 117 AD2d 896, 897 [3d Dept 1986]; Matter of City of Glen Cove Indus. Dev. Agency v Doxey, 79 AD3d 1038, 1038-1039 [2d Dept 2010]). Moreover, even where the movant has established the materiality and necessity of the requested disclosure, the Court "must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality" (Town of Pleasant Val., 253 AD2d at 16).

As an initial matter, the Court observes that petitioners' motion papers are replete with assertions that the documents and other information already in their possession fully establish their claim of improper ex parte communications. Petitioners maintain that the administrative record — the starting point in the review of any administration determination — "shows that the APA Executive Staff was involved in prohibited ex parte communications with the Project Sponsors" (Caffry Aff. ¶ 24). "Petitioners also obtained documents from APA [under FOIL], which proved that such ex parte contacts had indeed taken place" (id. ¶ 25). Additional FOIL disclosures by the APA have "produced even more evidence of improper ex parte communications" (id. ¶¶ 30-31). Thus, according to petitioners, the evidence in their possession already provides "irrefutable proof" (id. ¶ 32) that "substantial illegal ex parte communications were occurring between the APA and other persons" (id. ¶ 34; see also id. ¶¶ 35-36).

In an effort to uncover even "more evidence" of improper contacts (id. ¶ 35), petitioners apparently propose to take dozens of party and non-party depositions, including those of all of the voting members of the APA, the APA's legal counsel and staff, the Project sponsors and their legal counsel, members of the Governor's staff, State legislators and staff, and local government officials and staff. Further, with respect to the APA members, petitioners seek to inquire into the communications received from agency staff and the manner in which particular communications influenced their decision-making process. Additionally, petitioners seek document production to augment the 22,670-page administrative record and the more than 1,000 pages of documents produced by the APA pursuant to FOIL.

The Court is not persuaded that petitioners' interest in pursuing additional evidence of alleged improper ex parte communications outweighs the burdens attendant to the wide ranging disclosure they seek. As petitioners already claim to possess irrefutable proof of their 28th cause of action, there is limited necessity associated with their sweeping effort to obtain "even more" evidence. Further, in addition to its potentially cumulative nature, the requested disclosure is not "carefully tailored so as to clarify the disputed facts" (Matter of Lonray, Inc. v Newhouse, 229 AD2d 440, 440-441[2d Dept 1996]). Rather than seeking to "sharpen[] the issues" surrounding the communications they believe to constitute improper ex parte communications, petitioners propose to undertake a wide ranging, unfocused and intrusive inquiry (Town of Pleasant Val., 253 AD2d at 16, quoting Allen, 21 NY2d at 406; see Matter of City of Glen Cove Indus. Dev. Agency, 2009 NY Slip Op 31568(U), aff'd in relevant part, 79 AD3d 1038 [2d Dept 2010]).[FN1] In [*4]addition to the substantial delays and significant costs associated with such an effort, the overly broad disclosure sought by petitioners would have the effect of diverting APA members and agency staff from their important stewardship duties.

"Ultimately, the test is one of usefulness and reason" (Town of Pleasant Val., 253 AD2d at 16, quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Given the limited utility associated with allowing wide-ranging disclosure in a special proceeding in which petitioners already claim to have irrefutable proof in hand to establish the 28th cause of action (the sole claim for which disclosure is sought), the un-tailored and excessively broad nature of petitioners' disclosure request, and the substantial delay, expense and other burdens attendant to the requested disclosure, considerations of reason and good sense compel the denial of this branch of the motion.


The second branch of petitioners' motion seeks an order directing the APA to prepare and file a transcript of the deliberations of its members regarding the Project. Petitioners argue that CPLR 7804 (e) requires the APA to file with its answer "a certified transcript of the record of the proceedings under consideration . . . ."

As petitioners are challenging a determination rendered following an adjudicatory hearing, the contents of the "record of proceedings" is dictated by SAPA § 302 (1) and 9 NYCRR § 580.14 (g) (2). Collectively, these provisions require the instant record to include the following elements: the application of the Project sponsor; all notices, pleadings, motions and intermediate rulings; any affidavit of publication of the notice of hearing; the evidence presented at the hearing; a transcript of the testimony taken at the hearing; a statement of matters officially noticed; questions and offers of proof, objections thereto, and rulings thereon; any letters, statements, petitions or comments submitted at the hearing; any admissions, agreements or stipulations; proposed findings and exceptions; the hearing officer's report to the APA; and the APA's final determination and order. The APA's 22,270-page return includes all of these required elements, as well as a complete written transcript of the 19-day adjudicatory hearing.

Petitioners have failed to demonstrate that CPLR 7804 (1), SAPA § 302 (1), 9 NYCRR § 580.14 (g) (2) or any other provision of law requires the APA to prepare written transcripts of the seven days of deliberations by the APA voting members at open public meetings. The cases cited by petitioners are inapposite, as they concern an agency's failure to provide a transcript of evidentiary proceedings, rather than deliberative public meetings. Further, it is noted that the APA has included with its answer an electronic recording of video webcasts of the APA's open meetings, and petitioners have failed to demonstrate that a written transcript is necessary for judicial review of the Petition. Accordingly, the branch of the motion seeking to compel the APA to prepare a transcript of its deliberations is denied.

C.In Camera Inspection

The final branch of petitioners' motion seeks in camera inspection of a memorandum from the APA's counsel, John Banta, to the members of the APA dated January 10, 2012 ("Memorandum") in order to test the agency's claim of privilege.

Upon in camera inspection, the Court determines that the Memorandum itself is protected by the attorney-client privilege as it is predominately of a legal character, was made for the purpose of rendering legal advice and was intended to be confidential (see Spectrum Sys. Intl. [*5]Corp. v Chemical Bank, 78 NY2d 371, 379 [1991]). However, Attachment 1 to the Memorandum is a six-page document summarizing the financial impact and economic benefits associated with the Project. It appears that Attachment 1 was compiled from non-privileged information and is not of a predominately legal character. Accordingly, the Court concludes that Attachment 1 is not protected by the attorney-client privilege, and it should be made part of the record of the administrative proceeding.


Accordingly,[FN2] it is

ORDERED that the State Respondents shall make Attachment 1 to the Memorandum part of the administrative record of this proceeding; and it is further

ORDERED that petitioners' motion is granted to that limited extent and denied in all other respects; and finally it is

ORDERED that the Non-State Respondents' cross-motion for severance is denied as academic.

This Decision & Order and the materials provided by APA for in camera inspection are being transmitted to the State Respondents' counsel. All other papers are being transmitted to the Albany County Clerk for filing. The signing of this Decision & Order shall not constitute entry or filing underCPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

Dated: Albany, New York

March 19, 2013


A.J.S.C. [*6]

Papers Considered:

Affidavit of Paul Van Cott, Esq,. sworn to October 4, 2012;

Affidavit of John S. Banta, Esq., sworn to October 4, 2012;

Affidavit of Leilani Ulrich, sworn to October 5, 2012;

Notice of Motion, dated December 7, 2012;

Affidavit of John W. Caffry, sworn to December 7, 2012, with attached exhibits A-M;

Petitioner's Memorandum of Law, dated December 7, 2012;

Notice of Cross-Motion, dated January 16, 2013;

Affidavit of Robert L. Sweeney, Esq., sworn to January 16, 2013;

Private Party Respondents' Memorandum of Law, dated January 16, 2013;

Affidavit of Thomas A. Ulasewicz, Esq., sworn to January 16, 2013, with attached exhibit A;

Second Affidavit of Thomas A. Ulasewicz, Esq., sworn to January 16, 2013, with attached exhibits A-B;

Respondents APA and NYSDEC's Memorandum of Law, dated January 18, 2013;

Affidavit of Susan L. Taylor, Esq., sworn to January 18, 2013;

Petitioner's Reply Memorandum of Law, dated January 24, 2013;

Reply Affidavit of John W. Caffry, Esq., sworn to January 24, 2013, with attached exhibits A-F.


Footnote 1: In this connection, the Court notes that its role is not to "prune" disclosure requests to reasonable bounds (Latture v Smith, 304 AD2d 534, 536 [2d Dept 2003]).

Footnote 2: The Court has considered the parties' remaining arguments and contentions, but finds them unavailing or unnecessary to consider. In particular, the Court does not believe it appropriate to decide the merits of the 28th cause of action in the context of a disclosure request.