State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 12, 2015 519271 

________________________________

CITIZENS FOR ST. PATRICK'S

et al.,

Appellants,

v MEMORANDUM AND ORDER

CITY OF WATERVLIET CITY COUNCIL 

et al.,

Respondents.

________________________________

Calendar Date: January 7, 2015

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

McMahon, Kublick & Smith, PC, Syracuse (Rosemary Nichols,

Watervliet, of counsel), for appellants.

Goldman Attorneys, PLLC, Albany (Paul J. Goldman of

counsel), for City of Watervliet City Council, respondent.

Whiteman, Osterman & Hanna, LLP, Albany (Robert L. Sweeney

of counsel), for Nigro Companies, Inc. and another, respondents.

__________

Rose, J.

Appeal from an order of the Supreme Court (O'Connor, J.),

entered July 22, 2013 in Albany County, which granted defendants'

motions for summary judgment dismissing the amended complaint.

In 2012, defendant PCP Watervliet, LLC, a subsidiary of

defendant Nigro Companies (hereinafter collectively referred to

as Nigro), purchased a parcel of property in the City of

Watervliet, Albany County from the Roman Catholic Diocese of

Albany County. The parcel contained a church, school and rectory
-2- 519271 

that were no longer in use and, as part of its plan to demolish

the buildings and replace them with a 40,000 square-foot grocery

store and two additional retail commercial buildings, Nigro

petitioned defendant City of Watervliet City Council to rezone

the parcel from residential to commercial. After a series of

public meetings and an environmental review pursuant to the State

Environmental Quality Review Act (see ECL art 8 [hereinafter

SEQRA]), the City issued a negative declaration and amended its

zoning map as requested. The individual plaintiffs, who reside

in the City, and plaintiff Citizens for St. Patrick's, an

unincorporated advocacy group opposed to the demolition of the

church buildings, commenced this action challenging the negative

declaration and rezoning of the property by alleging that the

City failed to comply with SEQRA requirements, engaged in illegal

spot zoning and violated the Open Meetings Law. Supreme Court

denied plaintiffs' motion for a preliminary injunction in March

2013 and thereafter granted motions by the City and Nigro for

summary judgment dismissing the action on the ground that none of

the plaintiffs have standing. Eight of the individual plaintiffs

and Citizens for St. Patrick's (hereinafter collectively referred

to as plaintiffs) appeal.1

The burden is on plaintiffs to establish the threshold

determination of standing (see Matter of Association for a Better

Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23

NY3d 1, 6 [2014]). In our view, plaintiffs Carol Falaro and

Patrick Falaro have presumptively established their standing to

challenge the City's determinations because their residence is

located immediately across the street from Nigro's parcel and,

accordingly, they will suffer direct harm different from the

general public, even without allegations of individual harm (see

Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town

of N. Hempstead, 69 NY2d 406, 413-414 [1987]; Matter of Cade v

Stapf, 91 AD3d 1229, 1230 [2012]; Matter of Center Sq. Assn.,

Inc. v City of Albany Bd. of Zoning Appeals, 9 AD3d 651, 652

1 Twelve of the 20 individual plaintiffs have withdrawn

from the action and are not parties to the appeal. 
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[2004]).2

Nevertheless, plaintiffs' challenges to the SEQRA and

rezoning determinations are moot because they did not seek any

injunctive relief from this Court during the pendency of this

appeal, the church buildings have been demolished and the grocery

store is now fully constructed and operational (see Matter of

Citineighbors Coalition of Historic Carnegie Hill v New York City

Landmarks Preserv. Commn., 2 NY3d 727, 729 [2004]; Matter of

Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d

165, 172-173 [2002]; Matter of Kowalczyk v Town of Amsterdam

Zoning Bd. of Appeals, 95 AD3d 1475, 1477 [2012]; Matter of

Stockdale v Hughes, 189 AD2d 1065, 1068 [1993]).3 Moreover, the

rezoning determination has been superseded by the City's

September 2013 adoption of a new zoning code in which Nigro's use

of the parcel is permitted as a right, and plaintiffs have not

raised any challenge to that code (see Matter of Orsi v Board of

Appeals of Town of Bethlehem, 3 AD3d 698, 701 [2004]; East

2 The remaining individual plaintiffs do not make any

allegations that would support a finding that they have standing,

nor does Citizens for St. Patrick's make any allegation that any

of its individual members have any injury different from the

general public so as to give it organizational standing (see

Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95

AD3d 1420, 1421 [2012], lv denied 19 NY3d 811 [2012]). 

3 In a related proceeding pursuant to CPLR article 78, the

petitioners – who are some of the plaintiffs in this case –

sought to suspend the demolition permits issued by the City to

Nigro. The petitioners therein moved for a preliminary

injunction, which Supreme Court denied. The petitioners then

appealed to this Court and moved for a temporary restraining

order and preliminary injunction pending appeal; the temporary

restraining order was granted after a $10,000 bond was posted,

but we ultimately denied the preliminary injunction (see Matter

of Citizens for St. Patrick's v City of Watervliet Zoning Bd. of

Appeals, 2013 NY Slip Op 71041[U] [2013]). For unexplained

reasons, the petitioners therein apparently failed to perfect

their appeal in that proceeding.
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Clinton Developers v Town of Clinton, 88 AD2d 581, 581 [1982]).

Accordingly, plaintiffs' request that the rezoning determination

be voided based on alleged violations of the Open Meetings Law

(see Public Officers Law §§ 103, 104, 105, 107) is also moot. 

Even assuming that issues of fact exist as to the City's

compliance with the Open Meetings Law, plaintiffs' claim that

they are entitled to costs and counsel fees for the alleged

violations is meritless inasmuch as they may not recover for

"purely technical and non-prejudicial infractions" (Matter of

Gordon v Village of Monticello, 87 NY2d 124, 127-128 [1995]). 

Finally, plaintiffs have not alleged that any of their claims

fall within the exception to the mootness doctrine (see Matter of

Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Schaffer

v Zoning Bd. of Appeals of Town/Vil. of Harrison, 22 AD3d 501,

501 [2005]; Matter of Fallati v Town of Colonie, 222 AD2d 811,

813 [1995]). 

Lahtinen, J.P., Garry and Devine, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without

costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court