Thursday, March 16, 2017

Lancman v. De Blasio: NYC Mayor Violated City Charter and Administrative Law

This is an interesting case where Bill de Blasio's administration tried to side-step administrative law and the funding structure in the NYC Charter §109 for land use deals involving Flushing Meadows-Corona Park. He succeeded, because his Attorney said he could.
NYC Mayor Bill de Blasio

Mayor Broke Law But Can't Be Charged Because His Lawyer OK'd It, DA Says
Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
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Editor, Inside 3020-a Teacher Trials

Lancman v. De Blasio

  • Supreme Court, New York County, Part 32
  • 155577/2016
  • Justice Arlene Bluth
Cite as: Lancman v. De Blasio, 155577/2016, NYLJ 1202781108093, at *1 (Sup., NY, Decided February 16, 2017)


Rory Lancman, Monica Corbett, Plaintiffs v. Bill De Blasio, City of New York, Alliance for Flushing Meadows-Corona Park Corporation Defendants
Justice Arlene Bluth

Defendants moved to dismiss plaintiffs' complaint arguing the claims were barred by the statute of limitations in this suit arising from the creation of the Alliance for Flushing Meadows-Corona Park—an entity overseeing land use deals entered into by N.Y.C. related to the park. Plaintiffs argued the Alliance's license with the city's Parks and Recreation Department, its by-laws violated Administrative Code §18-137(b), and funding structure violated City Charter §109. Defendants alleged a four month statute of limitations applied, arguing the substance of the action was an Article 78 proceeding, despite relief being sought was declaratory. Plaintiffs alleged the catch-all six year limitations period applied as they could not have brought this suit as an Article 78, noting the statute of limitations renewed each day as defendants continuously violated the law. The court ruled facts of the suit did not support defendants' conclusion the suit could have been brought as an Article 78 as it challenged a governmental body's action or determination, noting there was no determination made by the Alliance as plaintiffs sought a declaration the current by-laws and funding scheme violated the law. Thus, the six year limitations period applied, plaintiffs' claims were timely, and dismissal was denied.Read Summary of Decision
Decided: February 16, 2017



Defendants' motion to dismiss plaintiffs' complaint on the ground that plaintiffs' claims are barred by the statute of limitations is denied.


This action arises out of the creation of the Alliance for Flushing Meadows-Corona Park (the "Alliance"). This entity oversees certain land use deals entered into by the City of New York related to Flushing Meadows-Corona Park, the largest park in Queens County, New York. Plaintiffs maintain that the Alliance's license agreement with the City's Parks and Recreation Department and its by-laws violate NYC Administrative Code §18-137(b), which requires that there be at least one voting board member from each overlapping City Council district and one representative for every two abutting districts. Plaintiffs assert that the park overlaps four City Council districts, including the district represented by plaintiff Lancman (the 24th District), but his district has no representation.
Plaintiffs also insist that the Alliance's funding structure violates New York City Charter


§109 because the payments received from the United States Tennis Association (the "USTA")1 do not go to the City's general fund as required by this charter section. Plaintiffs claim that they first learned of the these issues when plaintiff Lancman received a copy of the Alliance's by-laws on January 6, 2016 and that the instant complaint was filed on July 26, 2016 seeking declaratory and injunctive relief.
Defendants claim that a four-month statute of limitations apply and that this period began on December 15, 2015 at a publicly-noticed Board meeting where the Alliance's by-laws were discussed and the license agreement was approved. Defendants argue, in the alternative, that the statute of limitations began to run on January 6, 2016, when plaintiff Lancman received a copy of the by-laws.
Defendants insist that a four-month statute of limitations applies because the substance of this action is an Article 78 proceeding even though the relief sought is declaratory. Defendants further argue that plaintiffs' claim regarding improper funding is time-barred because plaintiffs should have known about the funding arrangement as early as November 2013, when the Alliance was incorporated.
In opposition, plaintiffs insist that the catch-all six-year statute of limitations under CPLR 213(1) applies because they could not have brought this action as an Article 78. Plaintiffs also insist that the statute of limitations renew each day because the defendants are continuously violating the law. Plaintiffs further assert that the Alliance is a private, non-profit entity and not a body or officer pursuant to Article 78 and, therefore, the four-month limitations period is inapplicable.



"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v. City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).
"[W]hen the proceeding has been commenced in the form of a declaratory judgment action, for which no specific Statute of Limitations is prescribed, 'it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought' in order to resolve which Statute of Limitations is applicable" (New York City Health & Hospitals Corp. v. McBarnette, 84 NY2d 194, 200-01, 616 NYS2d 1 [1994] quoting Solnick v. Whalen, 49 NY2d 224, 229 425 NYS2d 68 [1980]). "Only if there is no other form of proceeding for which a specific limitation period is statutorily provided may the six-year catch all limitations period provided in CPLR 213(1) be invoked" (id. [internal quotations and citation omitted]).
Defendants insist that this action could have been brought as an Article 78 proceeding because it challenges a governmental body's action or determination. However, the facts of the instant lawsuit do not support that conclusion. Defendants are unable to identify a specific determination made by the Alliance that could be raised in an Article 78 proceeding.
Merriam-Webster defines determination as "the resolving of a question by argument or reasoning" (Merriam-Webster Online Dictionary, determination [https://www.merriamwebster. com/dictionary/determination]). Defendants' suggested characterization of a determination — adoption of the by-laws of the Alliance — would stretch this definition beyond all reasonable interpretation. Adopting by-laws does not resolve a question by argument or


reasoning. Adopting by-laws is not a determination. Besides, the plaintiffs are challenging the inherent structure and funding scheme of the Alliance rather than a distinct, discrete finding made by the Alliance.
Defendants' reliance on cases such as Solnick is similarly unavailing. In Solnick, petitioner sought review of "a determination adjusting Medicaid reimbursement rates" (Solnick, 49 NY2d at 226 [emphasis added]). Here, there was no determination made by the Alliance. Instead, plaintiffs seek a declaration that the current by-laws and funding scheme of the Alliance violate the law. That is not in the nature of an Article 78 proceeding and therefore, a six-year statute of limitations applies (see Lacks v. City of New York, 201 AD2d 309, 311 607 NYS2d 32 [1st Dept 1994]).
Plaintiffs further assert that the Alliance maintains its structure and funding scheme that purportedly violates the law. This constitutes a continuing violation for purposes of the statute of limitations. In any event, plaintiffs' claims are timely.2
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss plaintiffs' complaint is denied; and it is further
ORDERED that defendants are directed to file an answer pursuant to the CPLR. The parties are directed to appear for a preliminary conference on April 4, 2017 at 2:30 p.m.
This is the Decision and Order of the Court.
Dated: February 16, 2017
New York, New York
1. Located within the park is the United States Tennis Association's Billie Jean National Tennis Center, the site of the U.S. Open.
2. Because the Court has determined that plaintiffs' claims are timely, it does not reach the question of whether the Alliance constitutes a governmental body or officer for purposes of an Article 78 proceeding.

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