McCrory v. Vill. of Mamaroneck Bd. of Trs.

181 A.D.3d 67

120 N.Y.S.3d 89

In the Matter of Suzanne MCCRORY, et al., Appellants,

v.VILLAGE OF MAMARONECK BOARD OF TRUSTEES, Respondent.

2017–12066

Index No. 1772/17

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

Argued - March 28, 2019

February 5, 2020

Suzanne McCrory and Stuart Tiekert, Mamaroneck, NY, appellants pro se.

Spolzino Smith Buss & Jacobs LLP, White Plains, N.Y. (Robert A. Spolzino and Edward A. Smith III of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JJ.

OPINION & ORDER

RIVERA, J.P.

The Open Meetings Law (Public Officers Law art 7) was passed in 1976 in the aftermath of Nixon's Watergate. Its relevance and significance is as crucial today as it was in 1976. This legislation fosters two main objectives: access and transparency. The statute's purpose is clearly set forth, as follows:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it" ( Public Officers Law § 100 ).

The instant appeal presents the question of who has standing to challenge an alleged violation of the Open Meetings Law. In furtherance of and consistent with the provisions of the Open Meetings Law, we conclude that the petitioners/plaintiffs, as members of the public who were allegedly excluded from certain municipal meetings, have standing to bring the instant proceeding/action.

I. Factual Background

In 2017, the petitioners/plaintiffs (hereinafter the appellants), who are members of the public and residents of the Village of Mamaroneck, commenced the instant hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief against the Village of Mamaroneck Board of Trustees (hereinafter the Village Board).^* The appellants alleged, inter alia, that the Village Board violated the Open Meetings Law at certain meetings, including one held on March 30, 2017, by failing to provide proper notice of the meeting, improperly entering into a closed "executive session," and failing to accurately record the minutes of the meeting. The gravamen of the appellants' petition/complaint is that the Village Board improperly excluded them from portions of certain meetings that should have been open to the public.

The Village Board moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the petition/complaint for lack of standing. The Supreme Court granted that branch of the Village Board's motion and dismissed the proceeding/action. The court determined that standing to commence a proceeding/action alleging a violation of the Open Meetings Law required a petitioner/plaintiff to demonstrate "some personal damage or injury" to his or her civil, personal, or property rights as a direct or indirect consequence of the challenged action. The court concluded that being a member of the general public, a taxpayer, or resident of the municipality, in and of itself, is insufficient to confer standing to raise an alleged Open Meetings Law violation. Specifically, the court found that, since the appellants failed to allege that either of them had suffered some personal damage or injury to their civil, personal, or property rights as a direct or indirect consequence of the actions undertaken by the Village Board, they lacked standing to commence the instant proceeding/action. This appeal ensued.

II. Legal Analysis

The Open Meetings Law was intended, as its very name suggests, to open the decision-making process of elected officials to the public while simultaneously striking a balance in protecting the ability of government to carry out its functions and responsibilities (see Matter of Gordon v. Village of Monticello, 87 N.Y.2d 124, 126, 637 N.Y.S.2d 961, 661 N.E.2d 691 ). In enacting the Open Meetings Law, the Legislature sought to ensure that "public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" ( Public Officers Law § 100 ; see Matter of Perez v. City Univ. of N.Y., 5 N.Y.3d 522, 528, 806 N.Y.S.2d 460, 840 N.E.2d 572 ; Matter of New York Univ. v. Whalen, 46 N.Y.2d 734, 735, 413 N.Y.S.2d 637, 386 N.E.2d 245 ; Chestnut Ridge Assoc., LLC v. 30 Sephar Lane, Inc., 169 A.D.3d 995, 998, 94 N.Y.S.3d 596 ; Matter of Krauss v. Suffolk County Bd. of Elections, 153 A.D.3d 1211, 1212–1213, 61 N.Y.S.3d 569 ; Matter of Csorny v. Shoreham–Wading Riv. Cent. School Dist., 305 A.D.2d 83, 88, 759 N.Y.S.2d 513 ). The provisions of the Open Meetings Law are to be given broad and liberal construction so as to achieve the purpose for which it was enacted (see Matter of Gordon v. Village of Monticello, 87 N.Y.2d at 127, 637 N.Y.S.2d 961, 661 N.E.2d 691 ; New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d 285, 291, 948 N.Y.S.2d 787 ; Matter of Goetschius v. Board of Educ. of Greenburgh Eleven Union Free School Dist., 281 A.D.2d 416, 721 N.Y.S.2d 386 ; Matter of Holden v. Board of Trustees of Cornell Univ., 80 A.D.2d 378, 381, 440 N.Y.S.2d 58 ).

The statute provides generally that "[e]very meeting of a public body shall be open to the general public," except for executive sessions that may be called for specified reasons ( Public Officers Law § 103[a] ; see Public Officers Law § 105 ). Moreover, public notice of the time and place of a meeting scheduled shall be given, minutes shall be taken at all open meetings of a public body, and the minutes shall be made available to the public (see Public Officers Law §§ 104, 106 ). As particularly relevant to the instant appeal, the Open Meetings Law provides: "Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the [CPLR], or an action for declaratory judgment and injunctive relief" ( Public Officers Law § 107[1] ).

Therefore, the issue to be decided is whether the appellants herein are aggrieved persons with standing to enforce the provisions of the Open Meetings Law.

Generally, 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" ( 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 ( Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ) 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 44, 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 at 211, 214, 778 N.Y.S.2d 123, 810 N.E.2d 405 ).

Across a wide spectrum of cases, courts have had occasion to consider the issue of "aggrievement" and, in particular, who is "aggrieved" in order to determine and confer standing. For example, in a proceeding to review an assessment of real property under article 7 of the Real Property Tax Law, a person is aggrieved when an assessment has " ‘a direct adverse affect on the challenger's pecuniary interests’ " ( Matter of Steel Los III/Goya Foods Inc. v. Board of Assessors of County of Nassau, 10 N.Y.3d 445, 452–453, 859 N.Y.S.2d 576, 889 N.E.2d 453, quoting Matter of Waldbaum, Inc. v. Finance Adm'r of City of N.Y., 74 N.Y.2d 128, 132, 544 N.Y.S.2d 561, 542 N.E.2d 1078 ).

In the context of appellate jurisdiction, an appellant may only seek review upon a showing that he or she is "aggrieved" by a judgment or order ( CPLR 5511 ; see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544–545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ). In that circumstance, this Court has set forth a two-pronged definition of the concept of aggrievement:

"[f]irst, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" ( Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 [emphasis omitted] ).

Case law on the issue of who has standing to commence a proceeding/action to enforce the provisions of the Open Meetings Law is sparse. In Matter of Sanna v. Lindenhurst Bd. of Educ. , 85 A.D.2d 157, 158, 447 N.Y.S.2d 733, the petitioner sought to employ, among others, the provisions in the Open Meetings Law to vitiate the Lindenhurst Board of Education's determination to dismiss her as a probationary teacher, which was made in an executive session following what was described as an "open meeting." Upon considering the purpose of the open meeting and open votes statutes, in that case, this Court held:

"petitioner's standing derived from her membership in that class aggrieved by the board's unintentional lapse in its decision-making process (i.e., the citizenry ), and not from her status as the subject of those deliberations whose

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