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In re Jenkins

Supreme Court of New York, Second Department

November 8, 2017

In the Matter of Kenneth W. Jenkins, in his capacity as Chairman and Member of the Westchester County Board of Legislators, and Member of the Westchester County Board of Acquisition and Contract, et al., petitioners/plaintiffs-respondents,
v.
Robert P. Astorino, in his capacity as Westchester County Executive, and Member of the Westchester County Board of Acquisition and Contract, et al., respondents/ defendants-appellants, et al., respondent-defendant.

          Robert F. Meehan, White Plains, NY (James Castro-Blanco, Linda M. Trentacoste, and Justin R. Adin of counsel), for respondents/defendants-appellants.

          Alexander E. Eisemann, New York, NY, for petitioners/plaintiffs-respondents.

          Newman Myers Kreines Gross Harris, P.C., New York, NY (Charles W. Kreines and Ian F. Harris of counsel), for respondent-defendant.

          JOHN M. LEVENTHAL, J.P. ROBERT J. MILLER HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In a hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the Westchester County Executive to comply with Local Law No. 6-2012 of the County of Westchester and action for declaratory relief, the respondents/defendants Robert P. Astorino, in his capacity as Westchester County Executive, and Member of the Westchester County Board of Acquisition and Contract, and Jay T. Pisco, as the purported Commissioner/Acting Commissioner of the Department of Public Works and Transportation and a purported Member of the Westchester County Board of Acquisition and Contract appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Warhit, J.), entered January 16, 2015, as (1), in effect, denied their motion, denominated as one for leave to renew, but which was, in actuality, one for leave to reargue their motion pursuant to CPLR 3211(a) to dismiss the amended petition/complaint, (2), in effect, dismissed the affirmative defense contained in the answer of the respondents/defendants Robert P. Astorino and Jay T. Pisco alleging that Local Law No. 6-2012 of the County of Westchester was not validly enacted, and (3) is in favor of the petitioners/plaintiffs and against those respondents/defendants (a) declaring that Local Law No. 6-2012 of the County of Westchester was validly enacted, and (b) awarding judgment on so much of the amended petition/complaint as sought to compel those respondents/defendants to comply with Local Law No. 6-2012 of the County of Westchester.

         ORDERED that the appeal from so much of the order and judgment as, in effect, denied the motion of the respondents/defendants Robert P. Astorino and Jay T. Pisco, denominated as one for leave to renew, but which was, in actuality, one for leave to reargue their motion pursuant to CPLR 3211(a) to dismiss the amended petition/complaint, is dismissed, as no appeal lies from an order denying leave to reargue; and it is further, ORDERED that the order and judgment is reversed insofar as reviewed, on the law, the affirmative defense contained in the answer of the respondents/defendants Robert P. Astorino and Jay T. Pisco alleging that Local Law No. 6-2012 of the County of Westchester was not validly enacted is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the remaining portions of the amended petition/complaint.

         Three members of the Westchester County Legislature commenced this hybrid proceeding pursuant to CPLR article 78 and action. In an amended petition/complaint (hereinafter the complaint), the petitioners/plaintiffs (hereinafter the plaintiffs) set forth the legislative history of Local Law No. 6-2012 of the County of Westchester (hereinafter the Local Law). The complaint alleged that the Local Law had been enacted in accordance with the applicable procedures set forth in state and local law, and that, "[c]onsequently, " it had become effective. The complaint alleged that the respondents/defendants Robert P. Astorino, in his capacity as Westchester County Executive, and Member of the Westchester County Board of Acquisition and Contract, and Jay T. Pisco, as the purported Commissioner/Acting Commissioner of the Department of Public Works and Transportation and a purported Member of the Westchester County Board of Acquisition and Contract (hereinafter together the defendants) had thereafter improperly refused to comply with the law. The complaint requested a declaration that the Local Law was "valid, " and a judgment compelling the defendants to "comply" with the Local Law.

         The plaintiffs thereafter moved for a preliminary injunction, which was denied by the Supreme Court. The defendants moved to dismiss the complaint pursuant to CPLR 3211(a) on the ground, inter alia, that the Local Law had not been properly enacted. In an order entered November 14, 2012, the Supreme Court denied the motion.

         The defendants served and filed an answer, asserting, as an affirmative defense, that the Local Law had not been validly enacted. In a judgment entered February 25, 2013, the Supreme Court, inter alia, awarded judgment on so much of the complaint as sought to compel the Westchester County Executive to comply with the Local Law.

         The defendants appealed to this Court (see Matter of Jenkins v Astorino, 110 A.D.3d 882). This Court, among other things, reversed the judgment (see id. at 883). This Court stated that "[i]n view of the defendants' challenge to the validity of the procedures by which the local law was enacted, the [Westchester] Board [of Legislators], as the body that enacted the local law, was a necessary party" (id. at 884). Accordingly, this Court joined the Westchester Board of Legislators (hereinafter the Board of Legislators) as a necessary party.

         On remittal, the Board of Legislators, having been joined by this Court, interposed a responsive pleading to the defendants' answer. The Board of Legislators argued that the defendants' challenge to the validity of the Local Law was barred by the statute of limitations.

         The defendants, with the permission of the Supreme Court, filed responsive papers addressing the statute of limitations argument that had been raised by the Board of Legislators. The defendants also moved for leave to "renew" their prior motion pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, that the Local Law had not been properly enacted.

         In the order and judgment appealed from, the Supreme Court determined that the defendants' affirmative defense that the Local Law had not been properly enacted was barred by the statute of limitations. Accordingly, it, among other things, (1), in effect, denied the defendants' motion for leave to "renew" their prior motion to dismiss the complaint, (2), in effect, dismissed the affirmative defense contained in the defendant's answer alleging that the Local Law was not validly enacted, and (3) granted a judgment in favor of the plaintiffs and against the defendants (a) declaring that the Local Law was validly enacted, and (b) awarded judgment on so much of the complaint as sought to compel the defendants to comply with the Local Law The defendants appeal.

         As an initial matter, the defendants' motion, denominated as one for leave to renew, did not offer any new facts in support of their prior motion pursuant to CPLR 3211(a) to dismiss the complaint. Accordingly, the motion, although denominated as one for leave to renew, was, in actuality, one for leave to reargue, the denial of which is not appealable (see CPLR 2221[d][2]; [e][2]; Arch Bay Holdings, LLC-Series 2010C v ...


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