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.