Festa v. Town of Oyster Bay

210 A.D.3d 678

177 N.Y.S.3d 665

In the Matter of Meredith FESTA, etc., appellant,

v.TOWN OF OYSTER BAY, et al., respondents.

2020–05991, 2020–06255

Index No. 606199/20

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 29, 2022

November 2, 2022

Richard Bruce Rosenthal, Huntington Station, NY (Kate M. Cifarelli of counsel), for appellant.

Frank M. Scalera, Town Attorney, Oyster Bay, NY (Matthew M. Rozea and Donna Swanson of counsel), for respondents.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town of Oyster Bay to humanely destroy a certain dog, the petitioner appeals from (1) an order and judgment (one paper) of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated August 3, 2020, and (2) an order of the same court, also dated August 3, 2020. The order and judgment granted that branch of the respondents’ motion which was pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, denied the petition, and dismissed the proceeding. The order denied the petitioner's motion for a preliminary injunction.

ORDERED that the order and judgment is affirmed; and it is further,

ORDERED that the appeal from the order is dismissed as academic in light of our determination on the appeal from the order and judgment; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

On June 20, 2020, the Town of Oyster Bay and Town of Oyster Bay Animal Shelter (hereinafter together the respondents) determined, pursuant to Agriculture and Markets Law § 374(2) and the Town's animal control and adoption policy, to humanely destroy an abandoned dog of which it had custody. The following day, a nonparty individual with no claimed relationship to the dog purported to create a trust for the care of the dog pursuant to EPTL 7–8.1, into which she deposited the sum of $100, and named the petitioner, Meredith Festa, as trustee.

The petitioner commenced the instant proceeding pursuant to CPLR article 78, inter alia, to review the respondents’ determination to humanely destroy the dog. The respondents moved, among other things, pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition for lack of standing. By order and judgment dated August 3, 2020, the Supreme Court granted that branch of the motion, denied the petition, and dismissed the proceeding. In a separate order, also dated August 3, 2020, the court denied the petitioner's motion for a preliminary injunction. The petitioner appeals.

"Under the common law, ... a ‘court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected’ " ( Society of Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034, quoting Schieffelin v. Komfort, 212 N.Y. 520, 530, 106 N.E. 675 ; see Matter of Mental Hygiene Legal Serv. v. Daniels, 33 N.Y.3d 44, 50, 98 N.Y.S.3d 504, 122 N.E.3d 21 ). "Thus, if the issue of standing is raised, a party challenging governmental action must meet the threshold burden of establishing that it has suffered an ‘injury in fact’ and that the injury it asserts ‘fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted’ " ( Matter of Mental Hygiene Legal Serv. v. Daniels, 33 N.Y.3d at 50, 98 N.Y.S.3d 504, 122 N.E.3d 21, quoting New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 ). "The injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention" ( Matter of Mental Hygiene Legal Serv. v. Daniels, 33 N.Y.3d at 50, 98 N.Y.S.3d 504, 122 N.E.3d 21 [citation and internal quotation marks...