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Duquette v. Town of Peru Town Board

Other Lower Courts

January 29, 2008

In the Matter of Robert S. Duquette, Petitioner,
Town of Peru Town Board, Respondent.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Law Office of Carl J. Madonna & Mark V. Cowen, Plattsburgh (Mark V. Cowen of counsel), for Petitioner.

O'Connell & Aronowitz, P.C., Plattsburgh (Donald W. Biggs of counsel), for Respondent Town of Peru Town Board.

Niles, Piller & Bracy, PLLC, Plattsburgh (Evan F. Bracy of counsel), for Respondents Roger Bonner, Cortland Forrence, Peter Glushko and Thomas Powers.


James P. Dawson, J.

The Court is asked to resolve this CPLR article 78 proceeding challenging a decision of the Respondent Town of Peru Town Board, as well as the motion by the Responents Roger Bonner, Cortland Forrence, Peter Glushko and Thomas Powers (hereinafter individual respondents) to dismiss the petition. The facts of the case are relatively straightforward and arise out of political discord in the Town of Peru, Clinton County. The individual respondents were the town councilmen in 2006. The town supervisor, Donald Covel, commenced a defamation action against the individual respondents as the result of certain statements made by them. In particular, the individual respondents made allegedly defamatory statements at an April 24, 2006 town board meeting, as well as subsequent statements made by them as private citizens at an April 28, 2006 news conference and in a May 1, 2006 letter to the Clinton County District Attorney.

At a May 8, 2006 town board meeting, the town board unanimously passed a resolution conferring the benefits of Public Officers Law 18, the statute allowing a municipality to provide a defense for its officials in any legal action arising out of their public duties, upon the officers and employees of the Town of Peru. Covel's defamation action was commenced on February 26, 2007. Thereafter, at an April 16, 2007 town board meeting, the issue of providing the individual respondents a defense pursuant to that resolution was raised. The town attorney indicated at that meeting that he had been requested to review the claims in the defamation action and had concluded that most of the actions "seemed to have occurred when [the individual respondents] were acting in their scope of employment as town officers or employees." As such, the town attorney suggested that the individual respondents were entitled to a defense. The issue of whether the town board, which at that point included three of the four individual respondents, had a conflict of interest was raised, but the town attorney indicated that no other board could vote on the issue. The town board proceeded to pass a resolution conferring a defense upon the individual respondents, with Covel being the lone vote in opposition.

This proceeding was commenced on August 14, 2007. The first cause of action argues that the town board's decision to provide a defense to the individual respondents was illegal, as Covel's defamation action dealt with acts that occurred prior to the May 8, 2006 resolution. The second cause of action alleges that, as a majority of the town board on April 16, 2007 were comprised of the individual respondents, the town board had a conflict of interest and should not have conferred a defense on the individual respondents. The third cause of action alleges that the town board lacked evidence from which it could conclude that the individual respondents' allegedly defamatory statements were made in the course of their public duties. The fourth cause of action asserts that the individual respondents failed to properly request a defense as required by the Public Officers Law.The town board thereafter moved to dismiss the petition for the Petitioner's failure to join necessary parties, namely the individual respondents. By decision and order dated October 29, 2007, the Court ordered that the individual respondents be joined, notwithstanding the expiration of the statute of limitations as against them. [1] As expected, the individual respondents subsequently moved to dismiss the petition against them because, among other reasons, the claims against them were time-barred. No opposition has been provided to that motion.

The town board served an answer opposing the Petitioner's claims on the merits, but also makes two other arguments for dismissal. The first is that the petition should be dismissed if the individual respondents' motion succeeds, as such would mean that necessary parties would be absent in this proceeding. The second is that the April 16, 2007 resolution represents a legislative act for which a CPLR article 78 challenge is improper. The Petitioner submits a reply memorandum of law in which he suggests, among other things, that the proceeding be converted to a declaratory judgment action if he has used the wrong procedural vehicle to challenge the town board's action.

Initially, the individual respondents' motion is granted. The Court previously found that the statute of limitations had run in its October 29, 2007 decision and such is the law of the case. Given that and the lack of opposition, the claims against the individual respondents are dismissed.

The absence of the individual respondents raises a separate issue. The individual respondents are clearly necessary parties and that finding is the law of the case given the Court's October 29, 2007 decision. Given that the claims against them have now been dismissed, does such require dismissal of the petition pursuant to CPLR 3211 (a) (10)? CPLR 1001 (b) directs the Court to order a necessary party joined unless there is a jurisdictional problem. As discussed in the Court's October 29, 2007 decision, there was no jurisdictional problem here and the Court was obligated to direct joinder. As joinder occurred, the Court does not believe that dismissal of the action for nonjoinder is appropriate, as the absence of the individual respondents now is entirely of their own doing. The joinder rules were enacted to address the "important policy interest in guaranteeing that absent parties at risk of prejudice will not be embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard"' ( Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Standards & Apps., 5 N.Y.3d 452, 458 [2005], quoting First Natl. Bank of Amsterdam v Shuler, 153 N.Y. 163, 170 [1897]). In this case, those policies have been satisfied, as the individual respondents were joined and have been given the opportunity to defend their rights and interests. They instead made the perfectly valid decision to raise a statute of limitations defense and leave the action. This is a far cry from the situation contemplated by CPLR 1001, where the necessary parties have never had an opportunity to be heard and could be significantly prejudiced by any judgment. As the individual respondents were joined, the Court can perceive no basis for dismissal based upon CPLR 3211 (a) (10), notwithstanding the subsequent dismissal of the claims against them.

The town board also argues that the April 16, 2007 resolution was a legislative act. "An article 78 proceeding, it is settled, may not be utilized to review legislative action" ( Matter of Lakeland Water Dist. v Onondaga County Water Auth.,24 N.Y.2d 400, 407 [1969]). It is equally settled, however, that "[t]he circumstance that the action sought to be reviewed is that of a legislative body . . . does not stamp that action as legislative' for purposes of determining whether challenges to the constitutionality of its action may be raised by means of an article 78 proceeding" ( Press v County of Monroe,50 N.Y.2d 695, 701-702 [1980]). If a legislative body's action is more properly characterized as an administrative action, it is reviewable in a CPLR article 78 proceeding (see Solnick v Whalen,49 N.Y.2d 224, 231-232 [1980]). An action is an administrative one if it can be "characterized by its individualized application, limited duration, and informal adoption, e.g., resolution by the governing body" ( International Paper Corp. v Sterling Forest Pollution Control Corp.,105 A.D.2d 278, 282 [1984]). The town board's action here may comfortably be characterized as administrative it applies only to the individual respondents, ...

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