SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

640 

CA 13-01718 

PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ. 

 

IN THE MATTER OF DENNIS H. KINDRED, CHRISTINE C. 

DELIBERT, ELIZABETH M. ALISANKUS, JANET R. CONNOR, 

J. GRANT ESLER, MICHAEL J. CAREY AND KARIN STROH,

PETITIONERS-PLAINTIFFS-APPELLANTS, 

 

V MEMORANDUM AND ORDER

MONROE COUNTY AND MONROE COUNTY FAIR AND 

RECREATION ASSOCIATION, INC., 

RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

BANSBACH ZOGHLIN P.C., ROCHESTER (MINDY L. ZOGHLIN OF COUNSEL), FOR

PETITIONERS-PLAINTIFFS-APPELLANTS.

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (MALLORIE C. RULISON OF

COUNSEL), FOR RESPONDENT-DEFENDANT-RESPONDENT MONROE COUNTY.

HARTER SECREST & EMERY LLP, ROCHESTER (MEGAN K. DORRITIE OF COUNSEL),

FOR RESPONDENT-DEFENDANT-RESPONDENT MONROE COUNTY FAIR AND RECREATION

ASSOCIATION, INC. 

 

Appeal from a judgment (denominated judgment/order) of the

Supreme Court, Monroe County (Thomas A. Stander, J.), entered July 10,

2013 in a CPLR article 78 proceeding and declaratory judgment action. 

The judgment dismissed the petition/complaint.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioners-plaintiffs (petitioners) commenced this

hybrid CPLR article 78 proceeding and declaratory judgment action

seeking, inter alia, to annul the determination of respondentdefendant Monroe County to permit respondent-defendant Monroe County

Fair and Recreation Association, Inc. to operate a four-day

agricultural festival in a County-owned park and to vacate the

County’s negative declaration issued with respect thereto under the

State Environmental Quality Review Act ([SEQRA] ECL art 8). 

Petitioners moved for a temporary restraining order and preliminary

injunction enjoining the festival from taking place during the

pendency of the litigation. Respondents-defendants (respondents)

filed objections in point of law seeking dismissal of the

petition/complaint on the ground, inter alia, that petitioners lacked

standing. Supreme Court determined that petitioners lacked standing

and dismissed the petition/complaint. We affirm.
-2- 640 

CA 13-01718 

Where, as here, the proceeding does not involve a “zoning-related

issue . . . , there is no presumption of standing to raise a SEQRA

challenge” based solely on a party’s proximity (Matter of Save Our

Main St. Bldgs. v Greene County Legislature, 293 AD2d 907, 908, lv

denied 98 NY2d 609; see Matter of Sierra Club v Village of Painted

Post, 115 AD3d 1310, 1311; Matter of Rent Stabilization Assn. of

N.Y.C., Inc. v Miller, 15 AD3d 194, 194-195, lv denied 4 NY3d 709). 

In such a situation, parties seeking to establish standing must

establish that the injury of which they complain “falls within the

‘zone of interests,’ or concerns, sought to be promoted or protected”

(Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773),

and that they “would suffer direct harm, injury that is in some way

different from that of the public at large” (id. at 774; see Matter of

Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433). 

Contrary to petitioners’ contention, we conclude that the court

properly determined that the environmental effects relied on by each

petitioner to establish his or her standing are no different in either

kind or degree from that suffered by the general public (see Matter of

Powers v De Groodt, 43 AD3d 509, 513; Matter of Many v Village of

Sharon Springs Bd. of Trustees, 218 AD2d 845, 845). We further

conclude that the alleged environmentally related injuries are too

speculative and conjectural to demonstrate an actual and specific

injury-in-fact (see Matter of New York Propane Gas Assn. v New York

State Dept. of State, 17 AD3d 915, 916). Thus, the court did not err

in concluding that none of the petitioners has standing (see Sierra

Club, 115 AD3d at 1312-1313; Save Our Main St. Bldgs., 293 AD2d at

908-909).

Entered: July 3, 2014 Frances E. Cafarell

Clerk of the Court