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In re Davidson

Supreme Court of New York, Fourth Department

June 7, 2013

IN THE MATTER OF WAYNE DAVIDSON, PETITIONER-APPELLANT,
v.
VILLAGE OF PENN YAN, MAYOR AND VILLAGE BOARD OF TRUSTEES OF VILLAGE OF PENN YAN AND PENN YAN FIRE DEPARTMENT, RESPONDENTS-RESPONDENTS. (APPEAL NO. 1.)

Appeal from a judgment of the Supreme Court, Yates County (Dennis F. Bender, A.J.), entered July 18, 2012 in a proceeding pursuant to CPLR article 78. The judgment, inter alia, dismissed the petition.

WAYNE DAVIDSON, PETITIONER-APPELLANT PRO SE.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (EDWARD P. HOURIHAN, JR., OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced these CPLR article 78 proceedings seeking, inter alia, to annul two resolutions adopted by respondent Village Board of Trustees of Village of Penn Yan (the Board) concerning the establishment of a service awards program for volunteer firefighters pursuant to General Municipal Law article 11-A. Respondents moved to dismiss both petitions on, inter alia, the ground that petitioner lacks standing to challenge the resolutions. Supreme Court granted respondents' motions and dismissed the petitions. Petitioner appeals, and we affirm.

With respect to appeal Nos. 1 and 2, we note that petitioner has failed to demonstrate that he is personally aggrieved by the Board's actions inasmuch as he did not establish that he "sustained special damage, different in kind and degree from the community generally" (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 413). "Although the doctrine of common-law taxpayer standing... would excuse such lack of personal aggrievement, that doctrine requires a petitioner to establish that the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of [the Board's] action" (Matter of Seidel v Prendergast, 87 A.D.3d 545, 546, lv denied 17 N.Y.3d 716 [internal quotation marks omitted]; see Matter of Colella v Board of Assessors of County of Nassau, 95 N.Y.2d 401, 410), and petitioner has not made such a showing. We therefore conclude that the court properly granted the motions to dismiss the respective petitions. In light of our determination, we do not address petitioner's remaining contentions.


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