Appellate Division sustains a Supreme Court's dismissal a matter involving New York States Open Meeting Law as untimely

Plaintiffs in this action sought a judgment in a New York State Supreme Court declaring that a New York State Incorporated Village, its Mayor and other Village Officials[Village] and other non-Village defendants violated New York State's Open Meetings Law*. The Supreme Court held Plaintiffs' action was "time barred' and granted separate motions submitted by [1] the Village's and [2] the defendant New Cingular Wireless PCS, LLC, [New Cingular]  seeking summary judgment dismissing the Plaintiffs' complaint insofar as asserted against each of them. Supreme Court then denied the Plaintiff's cross-motion for leave to amend their complaint. Plaintiffs appealed. The Appellate Division sustained the Supreme Court's decision and ordered Plaintiffs' pay  costs to the Village and to New Cingular.

Plaintiffs, residents of the Village, challenge the Village's adoption of Village Resolution 20-27 authorizing the Village's mayor to negotiate a lease with the defendant New Cingular to permit the installation of a wireless facility on Village-owned land. Ultimately the lease was adopted by the Village's Board and three resolutions were adopted at public meeting. The meeting minutes were later approved and published. 

Plaintiffs brought an Article 78 action contending that the Board held secret evening meetings, during which competing proposals were discussed and that the lease was effectively approved during these meetings prior to the public vote. Defendants maintain that the cause of action based on alleged violations of the Open Meetings Law was time-barred. 

Although Defendants acknowledged that representatives of the Village and New Cingular met privately, the Defendants argued that this was not in violation of the Open Meetings Law as no quorum of the Board was present at such meetings and the Board took no official action during any nonpublic meeting. Supreme Court granted the Defendants' separate motions, concluding, among other things, that the cause of action alleging violations of the Open Meetings Law was time-barred and denied the Plaintiffs' cross-motion. The Plaintiffs appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower Court's decision, explaining that:

1. "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";

2. A "[m]eeting" is defined as 'the official convening of a public body for the purpose of conducting public business', citing Public Officers Law §102[1]"; 

3. A "'Public body' means any entity, for which a quorum is required to conduct public business";

4. An "[e]xecutive session is 'that portion of a meeting not open to the general public"; 

5. 'The statute does not apply only to formal or regular meetings, but to any gathering or meeting of a quorum of a public body for the purpose of transacting public business"; and 

6. "An aggrieved person has standing to commence a proceeding pursuant to CPLR article 78 or an action for declaratory judgment and injunctive relief".

Addressing the issue of the timeliness of Plaintiff's Article 78, the Appellate Division observed although typically a proceeding against a body or officer pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding. The Open Meetings Law, however, provides "[t]he statute of limitations in an article seventy-eight proceeding with respect to an action taken at executive session shall commence to run from the date the minutes of such executive session have been made available to the public" and the defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations "bears the initial burden of proving, prima facie, that the time in which to commence an action has expired". 

If the defendant meets this burden, the burden then shifts to the plaintiff to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations or whether the statute of limitations has been tolled.

In the words of the Appellate Division, "... the defendants established, prima facie, that the cause of action alleging violations of the Open Meetings Law was untimely".  As an initial matter, although Plaintiffs brought their legal challenge as an action seeking declaratory and injunctive relief, the substance of the action is a challenge to the actions of a municipal body, alleging failure to comply with the procedural requirements of the Open Meetings Law. As Plaintiff's "legal challenge could have been brought pursuant to CPLR article 78, the four-month statute of limitations applies".

The Appellate Division said that "Defendants met their initial burden and demonstrated that the action was not commenced within the four-month limitations period under CPLR 217(1) and demonstrated that the municipal determination at issue became final and binding no later than December 2020 and that no meetings attended by a quorum of the Board occurred prior to this date. Therefore, this action was not timely commenced".

As Plaintiffs failed to raise a triable issue of fact and failed to provide evidence sufficient to raise a triable issue of fact or to support their contention that the alleged secret meetings constitute executive sessions and, as a result, the four-month limitations period has not yet begun to run ...  relying "on hearsay allegations suggesting that such unauthorized meetings took place", Plaintiffs rely on "mere conjecture that any such meeting was attended by a quorum of the Board" and "failed to identify any specific executive session at which any official actions were taken or during which the lease was actually approved".

As Plaintiffs failed to establish that minutes of such executive session were created but not made available to the public, the Appellate Division held that Supreme Court properly determined that the cause of action alleging violations of the Open Meetings Law is time-barred under CPLR 217(1)".

* See New York State Public Officers Law Article 7.

Click HERE to access the Appellate Division's decision posted on the Internet.

Seeking court approval to proceed with the proposed litigation as a class action

In this action seeking to recover damages for alleged violations of Administrative Code of the City of New York §8-107, Plaintiffs appeal a Supreme Court order that denied the  Plaintiffs' motion for class certification filed pursuant to CPLR Article 9. The Appellate Division affirmed the Supreme Court' denial of Plaintiffs' motion. 

The Plaintiffs, New York City Police Captains of Asian descent, had not receive "discretionary promotions to the rank of Deputy Inspector" during the period September 27, 2018 through the present date. Plaintiffs alleged that the New York City Police Department [NYPD] denied them and the members of the putative class discretionary promotions beyond the rank of Captain due to their race in violation of the New York City Human Rights Law. 

The Appellate Division explained that the proponent of a motion for class certification bears the burden of meeting the requirements of §901 of CPLR Article 9, which set out the five prerequisites for obtaining class certification: 

1. Numerosity; 

2. Commonality; 

3. Typicality; 

4. Adequacy of representation; and 

5. Superiority.

Although the Appellate Division opined that these requirements "are to be liberally construed in keeping with the goals of CPLR Article 9", its decision, citing Yonkers Contr. Co. v Romano Enters. of N.Y., 304 AD2d 657, noted that "A class action certification must be founded upon an evidentiary basis", and observed that "Whether the facts presented on a motion for class certification satisfy the statutory criteria is within the sound discretion of the trial court"*. 

Further, the Appellate Division's decision notes that it "is vested with the same discretionary power and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court" and, citing Pludeman v Northern Leasing Sys., Inc., 74 AD3d 420, opined that "Conclusory assertions are insufficient to satisfy the statutory criteria."

In the words of the Appellate Division "... even assuming, arguendo, that Plaintiffs demonstrated that "there are questions of law or fact common to the class which predominate over any questions affecting only individual members", Plaintiffs' conclusory assertions that the class action "seeks widespread, systematic reform" were insufficient to establish that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy". 

The Appellate Division then observed  that "the Supreme Court providently exercised its discretion in denying the [Plaintiffs'] motion pursuant to CPLR article 9 for class certification".

* Also sometimes referred to as the nisi prius court.

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected Internet blog posts for the week ending June 12, 2026

2026 AI Risk and Readiness Report Most organizations are making decisions about AI security without a full picture of how it’s being used across their environment. Based on new data from over 1,200 cybersecurity professionals, this report highlights where those visibility gaps commonly exist and what they mean for managing data and risk. DOWNLOAD

Making Sense of AI in Public Services AI is reshaping public service delivery, but not every AI tool is built for the same purpose. This guide helps public sector leaders evaluate generative AI, chatbots, and agentic AI to identify the right fit for citizen-facing services. DOWNLOAD

Delivering Early Wins With 39 gubernatorial elections set for fall 2026, navigating change is a crucial skill for state CIOs. This paper explores how CIOs can deliver fast and visible wins that align with policy priorities of incoming administrations. It offers advice for using existing technology platforms and partners to show quick progress while building a foundation for longer-term modernization. DOWNLOAD

Deferred Maintenance and Its Impact on Communities This eBook examines the problem of deferred maintenance for America's infrastructure, considers ways to identify deferred maintenance issues early and explores options for addressing them quickly.  DOWNLOAD

Earning Constituent Trust as Payments Evolve A practical guide for local governments to build trust in digital payments by improving security, accessibility, and user experience. DOWNLOAD

Redefining Government Efficiency State and local efficiency initiatives are going beyond cost control. While savings clearly matter, a growing number of these efforts also seek to connect spending to outcomes, increase institutional capacity, and improve the responsiveness and usability of resident services. This report examines how the concept of government efficiency is evolving and offers examples of what these trends look like in practice. DOWNLOAD

From AI Data Centers to AI Factories: Building the Foundation for AI Growth As AI adoption grows across government, many agencies are discovering that existing IT infrastructure was not designed to support the power, capacity, and performance demands of AI workloads. This paper explores best practices for building infrastructure that can support AI at scale. DOWNLOAD

Making Sense of AI in Public Services A practical guide for public sector leaders choosing between generative AI tools, chatbots, and agentic AI. DOWNLOAD

Integrating AI, Security and Advanced Network Tech in Government This guide explores how next-generation networking, AI-powered operations and modern security frameworks work together to create a more resilient, scalable foundation for government. DOWNLOAD

Cable Is Expanding Choice Across Broadband and Mobile Cable providers now compete across broadband and mobile, giving households more ways to combine services and reduce monthly bills. Learn more

Audits of the New York State Municipal and School entities listed below released by the New York State Comptroller

On June 9, 2026, New York State Comptroller Thomas P. DiNapoli posted audits of the local government and school entities listed below on the Internet.

Click on the text highlighted in COLOR to access the audit.

Glen Cove City School District – Information Technology (Nassau County)  District officials did not adequately manage network user accounts. As of May 2025, 296 of the district’s 1,104 enabled nonstudent network user accounts were not needed and should have been disabled. Six unneeded network user accounts also had administrative permissions. Unneeded user accounts are additional entry points into the network and, if compromised by an attacker, could be used to inappropriately access the network, make unauthorized changes to records or deny legitimate access to the network and records.

Levittown Union Free School District – Information Technology (Nassau County) District officials did not adequately manage nonstudent network accounts and permissions. As a result, the district had an increased risk of unauthorized access to its network and systems, which could lead to the loss of data and network resources.

Middlesex Hose Company, Inc. – Fundraising (Yates County) Company officials did not ensure that fundraising collections were properly recorded, reported and safeguarded. As a result, the executive committee did not have reliable information to oversee fundraising activities, and the company had an increased risk that fundraising collections could be lost or stolen without detection.

Wrights Corners Fire Company, Inc. – Treasurer’s Records and Reports (Niagara County) The treasurer did not maintain complete financial records or record transactions in a timely manner. The treasurer also did not record financial activity with sufficient detail, including the source of deposits and purpose of disbursements, or prepare and submit accurate financial reports, bank reconciliations and budget status reports to the executive board monthly. More than $1.1 million in checks were recorded in the accounting records, on average, 59 days after receipt.

Eldred Central School District – Building Access (Orange County/Sullivan County) District officials did not properly manage and monitor building access accounts and devices. Specifically, the district had active but unneeded accounts with assigned access badges in the system. As a result, there was an increased risk of unauthorized access to school buildings, potentially compromising the security and safety of students, teachers, staff and visitors.

Village of Wappingers Falls – Audit Follow-Up (Dutchess County) The purpose of the review was to assess the village’s progress in implementing recommendations from the prior audit, Village of Wappingers Falls – Board Oversight, released in December 2023. That audit determined village officials did not provide adequate oversight of financial operations and capital projects. Auditors found that the board did not make progress implementing recommendations related to oversight of financial operations and banking transactions or monitoring capital projects. Of the report’s 13 recommendations, village officials implemented one recommendation, partially implemented one recommendation and did not implement 11 recommendations.

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New York State court judges fall within the broad definition of public servant

A Grand Jury in a New York State County issued a report pursuant to New York State's  Criminal Procedures Law [CPL] §190.85(1)(a) recommending the removal of a City Court Judge [CCJ] from the bench for misconduct or non-feasance in public office. 

The County Court accepted the Grand Jury's report and ordered it sealed pending the determination of the CCJ's appeal of the County Court's decision to the Appellate Division pursuant to CPL §190.90, in which the CCJ contended that the New York Commission on Judicial Conduct (CJC) has exclusive jurisdiction to review and make determinations regarding the conduct of members of the judiciary. 

The Appellate Division rejected the CCJ's jurisdication argument, explaining that the statutory framework provided by the CPL permits a grand jury to issue a report to the county court concerning "misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action". Citing CPL §190.85 [1] [a], the Appellate Division noted that New York State Court Judges fall within the broad definition of a" public servant". 

The Appellate Division also rejected the CCJ's contention that the report should remain sealed after the Appellate Division's determination is handed down.   

The Appellate Division opined that "the provisions of the Judiciary Law related to the confidentiality of CJC proceedings apply only to matters before the CJC" and not to matters such as those in the instant appeal from a decision by a County Court where the report and the order must be sealed by the lower court pending the determination of the CCJ's appeal by the Appellate Division.

The Appellate Division, in light of its affirmance of the County Court order accepting the Grand Jury's report, concluded that the order and the report in issue must be made public.

Click HERE to access the decision of the Appellate Division posted on the Internet.