Matter of Town of Verona (Oneida County) v Cuomo

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[*1] Matter of Town of Verona (Oneida County) v Cuomo 2014 NY Slip Op 51332(U) Decided on June 27, 2014 Supreme Court, Albany County Ceresia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2014
Supreme Court, Albany County

In The Matter of the Application of Town of Verona (Oneida County), the TOWN OF VERNON (Oneida County), MICHAEL McDONOUGH, DANIEL DEAL, JAMES ANDERSON and MELVIN PHILLIPS, Petitioners-, Plaintiffs,


Hon. Andrew Cuomo, as Governor of the State of New York, MADISON COUNTY, JOHN M. BECKER, as Chair- man of the Board of Supervisors of Madison County, ONEIDA COUNTY, ANTHONY J. PICENTE, JR., as Oneida County Executive, the NEW YORK STATE GAMING COMMISSION, SHELDON SILVER, as Speaker of the New York State Assem- bly, DEAN SKELOS, as Co-Majority Leader of the New York State Senate, and JEFFREY KLEIN, as Co-Majority Leader of the New York State Senate, , Respondents-, Defendants.


Appearances:O'Connell & Aronowitz

Attorney For Petitioners-Plaintiffs

54 State Street

Albany, NY 12207-2501

(Cornelius D. Murray, Esq., of Counsel)

Eric T. Schneiderman

Attorney General

State of New York

Attorney For Respondents-Defendants

Andrew Cuomo, New York State Gaming

Commission, Sheldon Silver, Dean Skelosand Jeffrey Klein

The Capitol

Albany, New York 12224

(James B. McGowan,

Assistant Attorney General

of Counsel)

Nixon, Peabody LLP

Attorneys For Respondents-Defendants

Madison County, John M. Becker, Oneida

County, and Anthony J. Picente, Jr.

P.O. Box 31051

Clinton Square, Suite 1300

Rochester, NY 14603-1051

(David H. Tennant, Esq., of Counsel)
George B. Ceresia Jr., J.


George B. Ceresia, Jr., Justice

Up until January 1, 2014 the New York State Constitution prohibited casino gambling within the state (see former NY Const art I, § 9). In 2012 and 2013, successive sessions of the New York State Legislature approved, by concurrent resolution, a proposed amendment to the New York State Constitution to authorize casino gambling. The 2013 bills, entitled "Upstate New York Gaming Economic Development Act of 2013" ("UNYGEDA"), were signed into law by the Governor as Chapters 174 and 175 of the Laws of 2013. Thereafter, a ballot proposition to amend Article I § 9 of the Constitution was approved in the November 5, 2013 general election. Prior to that date, on August 19, 2013, petitioners-plaintiffs (hereinafter "plaintiffs"), commenced the above-captioned hybrid action/proceeding to challenge various actions taken by the respondents which, they claim, violated their constitutional rights. They request both injunctive and declaratory relief.


The Oneida Indian Nation ("Oneida Nation") has operated Turning Stone Casino in Oneida County in central New York since 1993. Operation of the casino had been authorized by then-Governor Mario Cuomo in 1993 pursuant to a Tribal-State Compact [*2]which, however, had never been ratified by the State Legislature. On May 16, 2013 Governor Andrew Cuomo entered into a Tribal Compact with the Oneida Nation (hereinafter the "Settlement Agreement"), which purported to resolve a number of longstanding disputes between the Oneida Nation on the one side, and state and local governments on the other. Of particular relevance here, the Settlement Agreement contained a covenant that the Oneida Nation would support a public referendum to authorize casino gambling in the State, and would not fund a media campaign to oppose it (see Settlement Agreement § VI [C] [7]). According to the plaintiffs, the Governor's purpose in including this particular provision in the Settlement Agreement was to preempt and neutralize any opposition the Oneida Nation might otherwise mount in an effort to defeat the public referendum (in order to preserve its existing monopoly over casino gambling in central New York). It is alleged that, in exchange for the Oneidas' support of the constitutional amendment the Oneida Nation received the following:

A guarantee of geographic exclusivity within a 10-county region in Central New York, which would prohibit competition from other casino operators (the "exclusivity agreement");

An agreement that the State would withdraw a Federal court challenge to a decision of the U. S. Secretary of the Interior to place 13,000 acres of land located in Madison and Oneida Counties in trust, thereby removing the land from state and local land use regulation and taxation;[FN1]

An agreement that the State would not challenge the Oneida Nation if it [*3]sought to place an additional 12,000 acres in trust (8,000 acres of which had not been identified);

An agreement that such land would be exempt from state and local property, sales, use and occupancy taxes, and state and local zoning authority;

An agreement that Oneida County and Madison County would withdraw tax foreclosure proceedings commenced against land owned by the Oneidas, which was in tax-delinquent status;

An agreement that the State Legislature would ratify the 1993 Compact with the Oneida Nation;

An agreement that the State Legislature would incorporate the terms of the Settlement Agreement into state legislation; and that portions of Oneida and Madison Counties, originally part of the Oneida's 300,000 acre historic reservation, as recognized by the 1794 Treaty of Canandaigua, would be considered a reservation regardless of who now owned fee title to the property.

The Towns of Vernon and Verona (hereinafter "Towns"), allege that the Settlement Agreement will have devastating consequences to them, including loss of a significant portion of their real property tax base, loss of tax revenue (including sales tax), and loss of their power to control and regulate use of the land.

In September 2013the respondents/defendants (hereinafter "defendants") served and filed a notice of removal of the instant action to United States District Court Of the Northern District of New York, and made a motion to dismiss. United States District Court Judge Lawrence E. Kahn, in a decision dated October 30, 3013, determined there was no federal standing, and remanded the matter back to state court. The defendants have served an answer to the petition/complaint, together with a motion for summary judgment. They raise a number of affirmative defenses.

Standing of Individual Plaintiffs and Capacity of the Towns

The Law of the Case Doctrine

The defendants, relying upon the decision of U.S. District Court Judge Lawrence E. Kahn, maintain that the plaintiffs are precluded from further litigating the issue of standing under principles of res judicata and/or collateral estoppel. The plaintiffs disagree, maintaining that Judge Kahn only determined that the plaintiffs did not have standing under the rules applicable in federal court. Judge Kahn relied upon Hollingsworth v Perry (133 S. Ct. 2652, 2661, 186 L. Ed. 2d 768 [2013]), in which the United States Supreme Court re-stated the federal three-part test for standing:

" that [the litigant] has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. [] In other words [] a personal and tangible harm" (id.).

Judge Kahn determined that the plaintiffs had not established that they had suffered a concrete and particularized injury with respect to infringement of their federal right to freedom of speech (more accurately, their right to listen to such speech), their right to equal protection under the law, their right to vote and/or their allegations of voter fraud. Specifically, Judge Kahn found that the plaintiffs had failed to allege facts to demonstrate: (1) third-party standing to assert a violation of the rights of the Oneida Nation; (2) the existence of a willing speaker in connection with violation of their First Amendment right to hear protected speech; and (3) their broad allegations with regard to vote buying, the rigging of the constitutional ballot referendum, or claims of vote dilution. He concluded that the facts as alleged in the complaint did not demonstrate that the plaintiffs suffered any injury greater than that sustained by the public at large. He found that federal court did not have jurisdiction of the matter, and remanded the action back to State Supreme Court (see Town of Verona v Cuomo, U.S. Dist. Ct., N.D. NY, Docket No. 1:13-CV1100 [LEK/DEP], Slip Op., October 30, 2013).

In the Court's view, Judge Kahn's findings with respect to violation of plaintiff's federal rights, including factual determinations incidental thereto, are indeed binding upon the parties, not however under the doctrines of res judicata or collateral estoppel, but rather under the doctrine of law of the case. "Under the law of the case doctrine, parties or their privies are preclude[d from] relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue'" (Briggs v Chapman, 53 AD3d 900 [3rd Dept., 2008], at 901, quoting Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177, 1179 [2007], and citing Webster v Ragona, 51 AD3d 1128, 1131-1132 [2008] and Beneke v Town of Santa Clara, 45 AD3d 1164, 1165 [2007], lv denied 10 NY3d 706 [2008]). This principle, in the Court's view, applies here, to preclude the parties from relitigating the matters determined by Judge Kahn, including the plaintiffs' lack of standing to seek review of a violation of their federal constitutional rights.

[*4]Application of State Law

Although unnecessary to do so, Judge Kahn made clear in his Memorandum-Decision-Order that he did not make any determination with regard to standing under principles of state law (see Town of Verona v Cuomo, U.S. Dist. Ct., N.D. NY, Docket No. 1:13-CV1100 [LEK/DEP], Slip Op., supra, footnote 7, p 14). The general test for standing in New York State requires that a litigant demonstrate that she or he has suffered injury in fact, that is, "actual harm" which is not just conjectural (see New York State Association of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004], citing Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773 [1991]; Matter of Colella v Board of Assessors, 95 NY2d 401, 409-410[2000]). The injury must be more than that suffered by the community or public at large (see Matter of Saratoga Lake Protection and Improvement District v Dept. of Public Works of the City of Saratoga Springs, 46 AD3d 979, 981 [3rd Dept., 2007], lv denied 10 NY3d 706 [2008]; Matter of Davis v New York State Department of Education, 96 AD3d 1261, 1262 [3d Dept., 2012]). Secondly, the injury must fall within the zone of interests to be promoted or protected by the statutory or constitutional provision upon which the litigant relies (see New York State Association of Nurse Anesthetists v Novello, supra). "The zone of interests test, tying the in-fact injury asserted to the governmental act challenged, circumscribes the universe of persons who may challenge administrative action." (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, supra, at 773).

The Court is unable to discern any significant difference between the "concrete and particularized injury" applicable to demonstrate federal standing and the "actual harm" or "injury in fact" required for standing in New York. In other words, even where the Court undertakes its own analysis with regard to the plaintiff's State constitutional claims (specifically, NY Const art I § 8 [Freedom of Speech], art I § 11 [Equal Protection]; and art I § 1 [Right to Vote]) the Court finds that the plaintiffs have failed to allege sufficient facts to demonstrate injury in fact. This includes allegations with regard to the alleged purchase of the silence of the Oneida Nation, "extortion", vote buying, election "rigging" and/or the dilution of votes (see Saratoga County Chamber of Commerce Inc. v Pataki, 275 AD2d 145, 156 [2000]: "[v]oter standing arises when the right to vote is eliminated or votes are diluted"). The allegations here are speculative, non-factual and conclusory, and most importantly, fail to allege harm any greater than that suffered by the public at large.

This however, does not conclude the Court's review. Two other forms of standing must also be considered. First, the individual plaintiffs maintain that they have standing as citizen-taxpayers. As stated in Saratoga County Chamber of Commerce v Pataki (100 NY2d 801 [2003]) citizen-taxpayers do not need to demonstrate an injury-in-fact to acquire standing under State Finance Law § 123-b. The Saratoga County Chamber of Commerce case involved a constitutional challenge to a 1993 Tribal-State Compact, [*5]predicated on violation of the separation of powers doctrine [FN2] (see id.). Notably, "[w]hile standing under State Finance Law § 123-b does not depend on a showing of aggrievement, the citizen taxpayer's claim must have a sufficient nexus to fiscal activities of the [s]tate'" (see Matter of Feminists Choosing Life of New York, Inc. v Empire State Stem Cell Board, 87AD3d 47, 50 [3d Dept., 2011]; see also Godfrey v Spano, 13 NY3d 358, 373 [2009]). In this instance, the alleged infringement of the plaintiffs' individual rights (to hear speech, equal protection, and right of franchise) do not implicate, directly or indirectly, any fiscal action or expenditure on the part of the State. As such, the Court finds that the plaintiffs have failed to demonstrate citizen-taxpayer standing with regard to their first cause of action which seeks vindication of their individual rights and freedoms in connection with the alleged "silencing" of the Oneida Nation under § VI (C) (7) of the Settlement Agreement.This being said, the Court finds, in view of their generalized challenge to state fiscal spending, that they have citizen-taxpayer standing to maintain their second and third causes of action to challenge the defendants' authority to enter into and approve the provisions of the Settlement Agreement (see Saratoga County Chamber of Commerce v Pataki, supra).

In addition, there exists a doctrine, referred to as common law tax-payer standing, which was devised "to challenge governmental action if the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action'" (Transactive Corp. v New York State Dep't of Soc. Servs., 92 NY2d 579, 589 [1998], quoting Boryszewski v Brydges (37 NY2d 361, at 364). Common law taxpayer standing is limited to review of purely legislative action (see Transactive Corp. v New York State Dep't of Soc. Servs., at 589), involving important governmental issues (see Matter of Vector Foiltec, LLC v State University Construction Fund, 84 AD3d 1576, 1578 [3d Dept., 2011]). The Court finds that the plaintiffs have demonstrated common law tax-payer standing, with respect to their second and third causes of action, to challenge the actions of the State Legislature in enacting the 2013 casino gambling legislation.

The Town Plaintiffs' Capacity To Sue

The defendants raise a separate, but related issue, with regard to the Town's capacity to maintain in the instant action/proceeding. " Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing. As a general matter, capacity concerns a litigant's power to appear and bring its grievance before the court'" (Graziano v County of Albany, 3 NY3d 475, 478-479 [2004], quoting Silver v Pataki, 96 NY2d 532, 537 [2001]). "As purely creatures of the State, municipal entities [*6]generally cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants' (County of Nassau v State, 100 AD3d 1052, 1054-55 [2012]) quoting City of New York v State of New York, 86 NY2d 286, 290 [1995], other citations omitted). There are four exceptions to the foregoing rule: "(1) an express statutory authorization to bring such a suit; (2) where the State legislation adversely affects a municipality's proprietary interest in a specific fund of moneys; (3) where the State statute impinges upon Home Rule' powers of a municipality constitutionally guaranteed under Article IX of the State Constitution; and (4) where the municipal challengers assert that if they are obliged to comply with the State statute they will by that very compliance be forced to violate a constitutional proscription'" (City of New York v State, supra, at 291-292, citations omitted).

The Town plaintiffs fail to allege specific facts supportive of any of the foregoing exceptions.[FN3] In this respect their generalized arguments with regard to loss of their ability to impose and collect taxes, and/or regulate and control land use are insufficient. The Court accordingly finds that the Towns do not have capacity to sue.


The defendants maintain that most, if not all of the issues are now moot by reason that the public referendum on the constitutional amendment was held. It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (see Hearst Corp. v Clyne, 50 NY2d 707, at 713 [1980], citations omitted; see also Matter of City of New York v New York State Public Employment Relations Board, 54 AD3d 480, 481-482 [3rd Dept., 2008]). "This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary" (Hearst Corp. V Clyne, supra, at 713-714; see also Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540 US 1017; Matter of NRG Energy, Inc. v Crotty, 18 AD3d 916, 918-919 [3rd Dept., 2005]).

The Court finds that all issues with regard to alleged unfairness in the public referendum, including the alleged silencing of the Oneida Nation, election "rigging", vote buying, and violations of plaintiffs' rights to freedom of speech and equal protection are moot by reason that the public referendum has been held. Although not argued, the Court is further mindful that are is an exception to the mootness doctrine where three factors are [*7]established: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and(3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (Matter of Hearst Corp. v Clyne, supra, at 714-715). Under the particular circumstances present here, the Court finds that the plaintiffs have failed to support any claim with regard to application of the exception to the mootness doctrine.[FN4]

The Court concludes that plaintiff's first cause of action, as it relates to rights to hear protected speech, franchise and equal protection, are barred under the mootness doctrine (see e.g. Danielewicz v Aurigema, 58 NY2d 881 [1983], Held: a challenge to a certificate of nomination was deemed moot by reason that the election had been held).

Defendants' Immunity Under The Speech and Debate Clause

The defendants argue that they are immune from suit under the Speech and Debate Clause of the New York State Constitution (see NY Const art III, § 11).[FN5] This Clause has been held to apply to all legislative activity, and to protect members of the State Legislature, and to protect members of the executive branch as well (see Maron v Silver, 58 AD3d 102 [3d Dept. 2008] at 121). This includes inquiry into their motives (id. at 122). As noted in Maron, "nothing in the NY Constitution forbids the political branches from engaging in politics when carrying out their political functions" (id., at 122). In this respect, the Court finds that, in the absence of a showing of a clear violation of a specific provision of the New York State Constitution, the state defendants (Governor Cuomo, Speaker Silver, Co-Majority Leaders Skelos and Klein) are immune from suit with regard to their actions in passage of Chapters 174 and 175 of the Laws of 2013.

Summary Judgment

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible [*8]form to demonstrate the absence of any material issues of fact (see Vega v Restani Construction Corp., 18 NY3d 499 [2012]; Ferluckaj v Goldman Sachs & Co., 12 NY3d 316 [2009]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008] Zuckerman v City of NY, 49 NY2d 557, 562 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Smalls v AJI Industries, Inc.,supra, citing Alvarez v Prospect Hosp., supra). Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to submit evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of NY, supra; Alvarez v Prospect Hosp., supra). The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and determine whether there is any triable issue of fact outstanding (see Simpson v Simpson, 222 AD2d 984, 986 [3rd Dept., 1995]; Boyce v Vazquez, 249 AD2d 724, 726 [3rd Dept., 1998]).

In this instance, the defendants bear the initial burden on the motion. However, as noted below, they are aided by a strong presumption that legislative enactments are constitutional.

Plaintiff's First Cause of Action

Through application of the mootness doctrine (supra), the plaintiffs' lack of standing, and the law of the case doctrine (supra), the Court finds that the defendants' motion for summary judgment must be granted dismissing the plaintiffs' first cause of action. Notwithstanding the foregoing, the Court will briefly review the merits of plaintiffs' claims.

Because the plaintiffs have not alleged facts demonstrating the existence of a willing speaker to which their right to hear to protected speech would attach, the Court finds that the complaint fails to state a cause of action (see Price v Saugerties Cent. Sch. Dist., 305 Fed Appx 715, 716 [2d Cir., 2009]).

Incidental to the foregoing, with respect to rights of the Oneida Nation, it is well settled that constitutional rights (including the right to free speech) may be contractually waived (see Democratic National Committee v Republic National Committee (673 F3d 192, 205 [3d Cir., 2012]). This clearly appears to be the case here with respect to the negotiation of the Settlement Agreement with the Oneida Nation. Thus, even if the Oneida Nation, as a body, could be claimed to possess a federal or state right to free speech, the Court would find that such right was expressly waived. Of great significance, while the Oneida Nation, by and through its "officers" and "instrumentalities", promised to support the public referendum with respect to the constitutional amendment, there is [*9]nothing to suggest that individual members of the Oneida Nation were likewise bound; and therefore no evidence that they were not free to express their personal views with regard to the proposal. In this respect, it is noted that the Settlement Agreement does not impose any sanction upon individual members of the Oneida Nation, if they were to voice their opposition to the referendum. Thus, the Court finds that the complaint fails to allege facts supportive of an infringement upon individual members of the Oneida Nation with respect to their right to free speech (which might otherwise give rise to a concomitant right of the plaintiffs to hear such speech).

The Court is mindful of plaintiffs' argument that the "overbreadth doctrine" applies to § VI (C) (7) of the Settlement Agreement. Under this doctrine a statute which is overly broad, that is, one which targets constitutionally unprotected speech, but as drafted, includes protected speech, may be challenged "on behalf of others whose constitutionally-protected expression is potentially chilled' by the provision's very existence" (see e.g., People v Barton, 8 NY3d 70, 75-76 [2006], quoting Broadrick v Oklahoma, 413 US 601, 610-613 [1973]). "The test for determining overbreadth is whether the law on its face prohibits a real and substantial amount of constitutionally protected conduct" (id., at 75). As noted above, the Court finds that the plaintiffs have failed to allege facts to support an infringement of their right to hear free speech.[FN6]

With respect to plaintiff's equal protection claims, the plaintiffs' assertions with regard to the purchase and sale of votes (an alleged violation of Election Law §§ 17-142, "giving consideration for franchise" and 17-144, "receiving consideration for franchise") are non-factual, speculative and conclusory. Plaintiffs' complaint does not contain factual averments sufficient to support a criminal prosecution under either statute. The plaintiffs otherwise maintain that their "right to vote in a fair and honest election" "on an equal footing" has been violated; that the election was "rigged"; and that the plaintiffs' voting power has been diluted, all through the provisions of the Settlement Agreement which are extremely favorable to the Oneida Nation. The Court has reviewed the voter fraud and improper voter influence cases cited by the plaintiffs. Shakman v Democratic Organization of Cook County (356 F Supp 1241 (N.D. Ill., 1972) held that office holders had the right to hire only members of their own political party so long as coerced political activity (financial contributions and campaigning) was not a condition of employment. There simply is no evidence of similar such conduct here. This Court will not expand that holding to the events at issue here. Bush v Gore (537 U.S. 98 [2000]) involved the recount of ballots in the State of Florida in connection with the 2000 presidential election, where it was found that there was an unequal post-election evaluation of votes. Hadley v Junior College Dist. (397 US 50) dealt with voter apportionment within school districts and found that the statutory voter apportionment scheme in the State of Missouri resulted [*10]in a systematic discrimination against voters in more populous school districts in favor of voters is less populous districts. Reynolds v Sims (377 US 533 1964]) involved issues regarding mal-apportionment of State Legislative districts in the State of Alabama. These cases have no direct application to the case at bar. In the Court's view, the plaintiffs have not alleged facts supportive of their equal protection claims (see Rudder v Pataki, 93 NY2d 273, 281 [1999]).

The plaintiffs also rely upon the "unconstitutional conditions" doctrine whereby "the government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient's constitutionally protected rights, even if the government has no obligation to offer the benefit in the first instance" (Agency for Int'l Dev. v Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2327 [2013], quotation omitted; see also Koontz v St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 [2013]). Agency for Int'l Dev. involved Congress's appropriation of billions of dollars to fund efforts by non-governmental organizations to combat HIV/AIDS worldwide. The Act imposed two related conditions: (1) no funds could be used to promote or advocate the legalization or practice of prostitution; and (2) no funds could be used by an organization that does not explicitly oppose prostitution. In connection with the latter condition, funding recipients were required to agree in their award documents that they oppose prostitution. The United States Supreme Court (Justice Roberts writing for the majority) held that the condition violated the First Amendment by reason that it required funding recipients to "pledge allegiance" to the government's policy of eradicating prostitution (id., at 2332). Koontz was essentially a land-use issue where a Florida agency (the St. Johns River Water Management District), which possessed permitting authority for development of certain real property, imposed onerous conditions upon a real estate developer as a condition of approval. The conditions included the deeding of the greater portion of the developer's property into a conservation easement or the expenditure (by the developer) of money (commonly referred to as a "monetary extraction"). The Court commented that "[e]xtortionate demands for property in the land-use permitting context run afoul of the Takings Clause []" (id., at 2596). The Court (majority decision of Justice Alito) held agency actions unlawful because they failed to follow the requirements of Nollan v California Coastal Comm'n (483 US 825, 107 S Ct 3141, 97 L Ed 2d 677) and Dolan v City of Tigard (512 US 374, 114 S Ct 2309, 129 L Ed 2d 304). The latter cases held that the government may not condition the approval of a land-use permit on the owner's relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government's demand and the effects of the proposed land use.While the Court understands the argument being advanced, it is of the view that the plaintiffs have not alleged facts sufficient to demonstrate that the doctrine has application to the instant matter and/or that it inures to their benefit. Section VI (C) (7) of the Settlement Agreement is part of a comprehensive, multi-faceted agreement negotiated among the Oneida Nation, State of New York and Counties of Oneida and Madison to [*11]address numerous and (in some instances) decades-old issues. Valuable consideration has been pledged by all parties. The only party allegedly "silenced", the Oneida Nation, is not a party to the present action/proceeding, and has not been shown to be aggrieved in any way. The Court finds that plaintiffs allegations do not support a cause of action predicated upon violation of their right to equal protection or franchise.

Lastly, in view of NY Const. Art III, § 1 [FN7] plaintiff's claims with regard to the lack of authority of the State Legislature to adopt L 2013, ch 174, 175 are factually unsupported.

Overarching all of the foregoing is the principle that "all legislative enactments enjoy an exceedingly strong presumption of constitutionality" (McLean v City of Kingston, 57 AD3d 1269, 1270-1271[3rd Dept., 2008], internal quotes omitted; see also Maresca v Cuomo (64 NY2d 242, 250 [1984]; Cohen v State of New York, 94 NY2d 1, 7-8 [1999]; Matter of Travis S. (Anonymous), 96 NY2d 818, 820 [2001]; Schulz v State Legislature, 5 AD3d 885, 888-889 [3d Dept., 2004]; Hunter v Warren County Board of Supervisors, 21 AD3d 622, 624 [3rd Dept., 2005]), a burden which must be satisfied beyond a reasonable doubt (see Maresca v Cuomo, supra; Hunter v Warren County Board of Supervisors, supra; Matter of Travis S. (Anonymous), supra). Aided by this presumption, the Court finds that the defendants satisfied their burden of proof on the motion, that plaintiff's allegations are non-factual and conclusory, and that the plaintiffs failed to demonstrate the existence of a triable issue of fact.

For all of the foregoing reasons, were it necessary to reach the merits, the Court would find that defendants' motion for summary judgment with respect to plaintiffs' first cause of action must be granted.

Plaintiff's Second Cause of Action

The plaintiff's second cause of action alleges that "the illegal actions of Respondents-Defendants resulted in the loss of the sovereign power of the Petitioners-Plaintiffs Towns of Vernon and Verona to govern within their boundaries, including the right to regulate land use, to levy taxes, and to otherwise govern their citizens." The New York State Constitution confers upon the State Legislature the power to create and organize local governments" (see NY Const. Art IX § 2 [a]). As stated in New York v Lawrence (250 NY 429 [1929]):

"In the absence of express restrictions placed by the Constitution upon the exercise of its legislative powers, the Legislature may create or destroy, enlarge or restrict, combine [*12]or divide, municipal corporations. Modifications of their boundaries may be made, or their names may be changed, or one may be merged in another, or it may be subdivided and the moities of their territories may be annexed to others." (id., at 437, quotations and citations omitted; see also La Guardia v Smith, 288 NY2d 1, 1942)

In this respect, the Towns are not sovereign entities, any more than the City of New York (see e.g. La Guardia v Smith, supra, at 7). Their powers are derived from the State. Nor have the plaintiffs cited any specific constitutional or statutory provision which has been violated, particularly with regard to Home Rule provisions of the State Constitution. In addition, the actions of the state defendants in connection with the passage of Chapters 174 and 175 of the Laws of 2013 are immune from suite under the Speech and Debate Clause (supra).

Lastly, the plaintiffs cite State Law § 10 for the proposition that the Governor's responsibility is to defend, not cede state sovereignty. Said section, entitled "Defense of state sovereignty and jurisdiction", recites as follows:

"The governor shall, at the expense of the state, employ counsel and provide for the defense of any action or proceeding, instituted against the state, or against any person deriving title therefrom, to recover any lands within the state, under pretence of any claim inconsistent with its sovereignty and jurisdiction."

As pointed out by the defendants, nothing within State Law § 10 prohibits the Governor from settling litigation challenging the state's sovereignty, as is the case with all litigation involving the state.

The Court finds that plaintiffs' allegations fail to state a cause of action and that, accordingly, the defendants' motion for summary judgment must be granted.

Plaintiff's Third Cause of Action.

The plaintiffs maintain that the State Legislature acted prematurely and without authority in adopting legislation regulating the gaming industry (see L 2013, ch 174, 175) in advance of the November 5, 2013 public referendum. In the Court's view, inasmuch as relevant portions of the Legislation were expressly made contingent upon passage of the referendum, casino gambling was not enacted in violation of New York Constitution Article I, § 9. Notably, passage of such legislation in 2013 would not deprive the Legislature of the ability to revise or amend the provisions of Article 13 of the New York Racing, Pari-Mutuel Wagering and Breeding Law in the future. For these reasons, the [*13]Court finds that plaintiffs' allegations fail to state a cause of action.

The Court concludes that the defendants' motion for summary judgment must be granted.

Relief Pursuant to CPLR Article 78

The Court observes that the Court's role in reviewing an administrative determination is not to substitute its judgment for that of the agency, but simply to ensure that it is not made in violation of lawful procedure or affected by an error of law, and was not arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; In the Matter of Terrace Court, LLC v. New York State Division of Housing and Community Renewal, 18 NY3d 446, 454 [2012]; Matter of Warder v Board of Regents, 53 NY2d 186, 194; Matter of Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363; Akpan v Koch, 75 NY2d 561, 570; Matter of Prestige Towing & Recovery, Inc. v State of New York, 74 AD3d 1606 [3rd Dept., 2010]). "'An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts'" (In the Matter of Murphy v New York State Division of Housing and Community Renewal, 21 NY3d 649, [2013], quoting Peckham v Calogero, 12 NY3d 424 [2009] at 431, which cited Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

With respect to review of the administrative actions of state and local officials, the plaintiffs had the initial burden of proof (see Matter of Trustco Bank National Association v Strong, 261 AD2d 25, 28-29 [3d Dept., 1999]; Matter of People of the State of New York v Telehublink Corporation, 301 AD2d 1006, 1007 [3d Dept., 2003]; Matter of People of the State of New York v Applied Card Systems, Inc., 27 AD3d 104, 106 [3rd Dept., 2005]). Thus, as framed in the petition/complaint, the plaintiffs had the burden of demonstrating that the administrative actions of the defendants violated the provisions of the federal or state constitution, or state law, and/or that the defendants exceeded their authority in entering into and approving the March 16, 2013 Settlement Agreement. For all of the foregoing reasons, the Court finds that plaintiffs did not satisfy their burden of proof. Nor did they overcome the strong presumption of constitutionality of the 2013 legislation (L 2013, c. 174, 175).

The Court finds that the plaintiffs failed in their burden to demonstrate that the administrative determinations of the defendants in entering into the Settlement Agreement were made in violation of lawful procedure, were affected by an error of law, and/or were irrational, arbitrary and capricious, or constituted an abuse of discretion.[FN8]

Plaintiffs' Motion To Amend The Complaint

As noted, the exclusivity provision of the Settlement Agreement (see Section IV thereof) granted the Oneida Nation the sole right to operate a casino within a ten county area, which included (as relevant here) Cayuga County. Soon thereafter the Cayuga Indian Nation ("Cayuga Nation") made a motion to intervene in a federal court action then pending in United States District Court for the Northern District of New York. The Cayuga Nation claimed that it possessed a right to establish a gambling casino in Cayuga County under the Federal Indian Gaming Regulation Act ("IGRA, 25 USC § 2701, et seq.), which would be violated by the exclusivity provision of the Settlement Agreement. As a consequence of the foregoing, all parties to the Settlement Agreement subsequently agreed that they would waive that portion thereof which purported to prohibit gambling in Cayuga County. The plaintiffs maintain that this fact gives rise to a fatal defect which renders the Settlement Agreement null and void. Section II I of the Settlement Agreement defines a Material Breach as a violation by the parties of (as relevant here) Section IV (the exclusivity provision). Section VIII I of the Settlement Agreement recites:

"Non-Severability. If any material term, provision, representation, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable or is otherwise finally determined to beyond [sic] the authority of any signatory hereto, then this Agreement shall be null and void in its entirety, with each party being returned to the position it held before the effective date."

The plaintiffs argue that the parties were not free to simply waive a portion of the exclusivity provision once the Settlement Agreement had been approved by the Legislature. They maintain that an exclusivity provision in a gaming compact which prejudices another tribe's right to gamble on its own tribal land is unenforceable and preempted by § 2701 of the Indian Gaming Regulation Act ("IGRA", see 25 USC § 2701).[FN9] They maintain that amendment of the Settlement Agreement requires approval of [*14]the Secretary of the Interior under 25 USC § 2710 (d) (8)[FN10] . They contend that the waiver has not been approved by the Oneida County Legislature. As a consequence of all of the foregoing, they request leave to amend their complaint to add a fourth cause of action which seeks a declaration that the Settlement Agreement and Racing, Pari-Mutuel Wagering and Breeding Law § 1311 (2) (c) are null and void by reason of a material breach of the Settlement Agreement.

Under CPLR 3025 (b) leave to amend a pleading should be freely given (see, Edenwald Contracting Co. v, City of New York, 60 NY2d 957 [1983]; Murray v. City of New York, 43 NY2d 400; Ward v. City of Schenectady, 204 AD2d 779 [3d Dept., 1994]). This, however, does not mean that motions to amend are to be granted simply for the asking. There must be some demonstration of merit to the proposed amendment (see, Dodge v. Victory Markets, 199 AD2d 917, 919-920 [3rd Dept., 1993]; see also, Mathiesen v. Mead, 168 AD2d 736 [3rd Dept., 1990]). A motion to amend will be denied where the cause of action or defense is plainly lacking in merit (see Matter of Prendergast v Kingston City School District, 242 AD2d 773, 774-775 [3rd Dept.,1997]).

In view of the Court's disposition with respect to the petition/complaint (supra), there is, at this junction, no pleading to amend. In addition, the plaintiffs (who are non-parties to the Settlement Agreement) have not demonstrated any injury in fact arising out of the alleged material breach, and thus have not demonstrated standing. Nor have they demonstrated either citizen taxpayer standing or even common law taxpayer standing (as discussed above).

The Settlement Agreement includes provisions for mediation of disputes (see § VII [B]), and arbitration (see § VII [C]). It further provides that disputes involving a material breach must be resolved exclusively in United States District Court for the Northern [*15]District of New York (see § VII [D]); and language providing for amendment of its terms (see § VIII [H]). At this juncture, the only document before the Court with respect to this issue is the letter of Michael R. Smith, Esq. attorney for the Oneida Nation, in which he indicates that the Oneida Nation will waive, and will not enforce exclusivity as it relates to gambling rights of the Cayuga Nation in Cayuga County. The issue with regard to a material breach of the Settlement Agreement is not ripe for review and ultimately would need to be resolved in federal court, which has exclusive jurisdiction.

The Court has reviewed and considered plaintiffs' remaining arguments and contentions and finds them to be without merit. The Court concludes that the motion to amend the complaint to add a fourth cause of action must be denied.

Lastly, the Court is mindful that where a Court resolves the merits of an action for a declaratory judgment against the plaintiff, the proper course is not to dismiss the complaint, but rather to issue a declaration in favor of the prevailing party (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954; Lanza v Wagner, 11 NY2d 317, 334; Matter of Gabrielli v Town of New Paltz, 93 AD3d 923, 925 [3d Dept., 2012]; Matter of Spilka v Town of Inlet, 8 AD3d 812, 813 [3d Dept., 2004]). The Court will proceed to do so.

One further comment must be made. As noted in footnote 1, the State of New York had commenced action in United States District Court for the Northern District of New York (State of New York v Sally Jewell, 6:08-CV-0644 [LEK/DEP]) which sought to challenge the determination of the Secretary of the Interior to take 13,000 acres of land into trust for the benefit of the Oneida Nation pursuant to the provisions of 25 USC § 465. On September 24, 2012 United States District Court Judge Lawrence E. Kahn remanded the matter back to the Department of the Interior for consideration of whether the Secretary had authority to place the lands in trust [FN11] (see State of New York v Salazar, US Dist. Ct., Kahn, J., 2012 WL 4364452). More recently, on March 4, 2014, Judge Kahn concluded the action in its entirety through issuance of a Memorandum-Decision-Order (State of New York v Jewell, US Dist. Ct., March 4, 2014). As relevant here, Judge Kahn (1) denied a motion by the Cayuga Nation to intervene in the action as moot (for the reason, discussed above, that the parties' to the Settlement Agreement had agreed to waive exclusivity with respect to gambling by the Cayuga Nation in Cayuga County); and (2) approved the Settlement Agreement; (3) incorporated the terms of the Settlement Agreement in the order; and (4) retained jurisdiction of the Settlement for purposes of enforcement. In a letter dated June 18, 2014 plaintiff's counsel advised this Court that on May 30, 2014 the Department of the Interior had announced its intention to take the disputed land into trust as of June 30, 2014.

Accordingly, it is

ORDERED and ADJUDGED, that the portion of the petition/complaint seeking relief pursuant to CPLR Article 78 be and hereby is dismissed; and it is

ORDERED, that defendants' motion for summary judgment is granted; and it is further

ORDERED and ADJUDGED, that plaintiff's request for injunctive and declaratory relief is denied and dismissed; and it is

ORDERED, that the plaintiffs' cross-motion to amend their petition/complaint is denied; and it is further

ORDERED, ADJUDGED and DECLARED, that the defendants did not act in excess of their constitutional authority in entering into and/or ratifying the May 16, 2013 Agreement with the Oneida Indian Nation; and it is

ORDERED, ADJUDGED and DECLARED, that the Governor and the Legislature did not exceed their authority in passing and signing into law legislation ratifying the May 16, 2013 Agreement and in passing and signing into law legislation authorizing and regulating casino gaming in 2013 though passage of Chapters 174 and 175 of the laws of 2013; and it is

ORDERED, ADJUDGED and DECLARED, that Chapters 174 and 175 of the laws of 2013 do not, and the actions of the defendants did not violate the plaintiffs' state or federal rights to free speech or equal protection under the law, and do not violate New York Constitution Article I § 8 (Freedom of Speech), New York Constitution Article I § 11 (Equal Protection), New York Constitution Article I § 1 (Right to Vote) or New York Constitution Article I, § 9 (Gambling); or New York Constitution Article XIX (Amendment of Constitution).

This shall constitute the decision, order and judgment of the Court. The original decision/order/judgment is returned to the attorney for the defendants. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decision/order/judgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.


Dated:June 27, 2014____________________________________

Troy, New YorkGeorge B. Ceresia, Jr.

Supreme Court Justice

Papers Considered:

1.Order To Show Cause dated September 6, 2013, Petition/Complaint, [*16]Supporting Papers and Exhibits

2.Affidavit of Cornelius D. Murray, Esq., sworn to August 9, 2013 and Exhibits

3.Affidavit of Myron J. Thurston, sworn to August 7, 2013

4.Affidavit of Melvin Phillips, sworn to August 13, 2013

5.Affidavit of Michael McDonough, sworn to August 7, 2013

6.Affidavit of Daniel Deal, sworn to August 7, 2013

7.Affidavit of Owen Waller, sworn to August 13, 2013

8.Notice of Removal To United States District Court of the Northern District of New York and Exhibits

9.Order of Remand dated October 30, 2013 of Lawrence E. Kahn, U.S. District Judge

10.Defendants' Verified Answer dated December 10, 2013

11.Defendants' Notice of Motion dated December 10, 2013

12.Affirmation of James B. McGowan, Assistant Attorney General, dated December 10, 2013

13.Plaintiff's Notice of Cross-Motion dated December 31, 2013

14.Affirmation of Cornelius D. Murray, Esq., dated December 31, 2013 and Exhibit

15.Proposed Amended Petition-Complaint

16.Reply Affirmation of James B. McGowan, Assistant Attorney General, dated January 21, 2014 and Exhibits

17.Letter dated March 11, 2014 of David H. Tennant, Esq.

18.Letter dated March 13, 2014 of Cornelius D. Murray, Esq.

19.Letter dated June 18, 2014 of Cornelius D. Murray, Esq.


Footnote 1:On March 29, 2005 the United States Supreme Court issued a decision in City of Sherrill v Oneida Indian Nation (544 US 197) which determined that the land owned by the Oneida Nation, including that on which the Turning Stone Casino was situated, was not sovereign Indian land, and therefore was subject to state sovereign jurisdiction. The Oneida Nation thereafter submitted an application to the United States Department of the Interior pursuant to 25 USC § 465, to have such land placed in trust and held by the Secretary of the Interior for the benefit of the Oneida Nation. In May 2008 the Secretary of the Interior approved the application to the extent of allowing approximately 13,000 acres to be placed into trust. On June 6, 2008 the State of New York, as plaintiff, commenced action in United States District Court for the Northern District of New York to challenge the determination of the Secretary of the Interior. The action was initially captioned "State of New York et al. v Kenneth Salazar et al." but later amended to "State of New York et al. v Sally Jewell, et al." (Docket No. 6:08-CV-0644 [LEK/DEP]).

Footnote 2:The Compact was with the St. Regis Mohawk Tribe.

Footnote 3:Most importantly, they make no mention of violation of a specific constitutional or statutory Home Rule power.

Footnote 4:The plaintiffs maintain that their complaint, which challenges portions of the Settlement Agreement and as well as Chapters 174 and 175 of the Laws of 2013, has not been rendered moot, by reason that they are not challenging the constitutional amendment. Nonetheless, their allegations with respect to violations of rights to hear protected speech, of equal protection under the law, and rights of franchise all directly pertain to the public referendum, without which they would have no factual context.

Footnote 5:Said section recites: "[f]or any speech or debate in either house of the legislature, the members shall not be questioned in any other place" (NY Const art III, § 11).

Footnote 6:For this reason, the Court does not reach the issue of whether any such infringement was "narrowly tailored" (id., 77-78).

Footnote 7:"The legislative power of this state shall be vested in the senate and assembly." (NY Const. Art III, § 1)

Footnote 8:The Court observes that no specific form of CPLR Article 78 relief was included in the "wherefore" clause of the petition/complaint.

Footnote 9:Said Section, under the heading "Findings" recites: " The Congress finds that — [] (5) Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity." (see 25 USC § 2701).

Footnote 10:Said section recites: "(A) The Secretary is authorized to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe. (B) The Secretary may disapprove a compact described in subparagraph (A) only if such compact violates — (i) any provision of this Act,. (ii) any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or. (iii) the trust obligations of the United States to Indians. (C) If the Secretary does not approve or disapprove a compact described in subparagraph (A) before the date that is 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of this Act.. (D) The Secretary shall publish in the Federal Register notice of any Tribal-State compact that is approved, or considered to have been approved, under this paragraph." (25 USC § 2710 [d] [8]).

Footnote 11:As discussed by the United States Supreme Court in Carcieri v Salazar (555 US 379, 382 [2009])