        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1224.2
CA 16-01425
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF ISKALO 5000 MAIN LLC AND
ISKALO 5010 MAIN LLC, PETITIONERS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

TOWN OF AMHERST INDUSTRIAL DEVELOPMENT AGENCY,
RESPONDENT-APPELLANT.
------------------------------------------------
COUNTY OF ERIE, INTERVENOR-RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR
RESPONDENT-APPELLANT.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF
COUNSEL), FOR INTERVENOR-RESPONDENT-APPELLANT.

HOPKINS, SORGI & ROMANOWSKI PLLC, WILLIAMSVILLE (SEAN W. HOPKINS OF
COUNSEL), FOR PETITIONERS-RESPONDENTS.


     Appeals from a judgment (denominated order) of the Supreme Court,
Erie County (John L. Michalski, A.J.), entered July 29, 2016 in a
proceeding pursuant to CPLR article 78. The judgment reversed the
determination of respondent denying the application of petitioners,
granted the application of petitioners and denied the request of
respondent for attorney’s fees.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by dismissing the petition and
reinstating the determination, and as modified the judgment is
affirmed without costs.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking to annul and reverse the determination of
respondent, Town of Amherst Industrial Development Agency (AIDA),
denying petitioners’ application for financial assistance in the form
of various tax exemptions in connection with a renovation project of
the former Lord Amherst Hotel and an on-site restaurant. In appeal
No. 1, AIDA and intervenor-respondent, County of Erie (County), appeal
from a judgment entered June 30, 2016, by which Supreme Court reversed
AIDA’s determination denying petitioners’ application, granted the
application, and denied AIDA’s request for attorney’s fees. In appeal
No. 2, AIDA appeals from a subsequent judgment entered July 29, 2016,
by which the court reiterated the terms of its judgment entered June
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                                                         CA 16-01425

30, 2016, but added a written decision. We note at the outset that
appeal No. 1 must be dismissed inasmuch as the earlier judgment was
superseded by the later judgment (see Legarreta v Neal, 108 AD3d 1067,
1068; see generally Matter of Eric D. [appeal No. 1], 162 AD2d 1051,
1051). Further, although the County appealed from only the earlier
judgment, we exercise our discretion to treat its notice of appeal as
valid and deem its appeal to be from the superseding judgment (see
generally CPLR 5520 [c]).

     We agree with AIDA and the County (collectively, respondents)
that the court erred in reversing AIDA’s determination denying
petitioners’ application for financial assistance, and we modify the
judgment in appeal No. 2 accordingly. Pursuant to a 2013 amendment to
General Municipal Law § 862, industrial development agencies such as
AIDA are prohibited from providing financial assistance “in respect of
any project where facilities or property that are primarily used in
making retail sales to customers who personally visit such facilities
constitute more than one-third of the total project cost” (§ 862 [2]
[a]). In addition to other exceptions not relevant to this appeal,
however, the prohibition does not apply to “tourism destination
projects” (id.). The statute defines a “tourism destination” as “a
location or facility which is likely to attract a significant number
of visitors from outside the economic development region . . . in
which the project is located” (id.).

     “It is fundamental that a court, in interpreting a statute,
should attempt to effectuate the intent of the Legislature . . . , and
where the statutory language is clear and unambiguous, the court
should construe it so as to give effect to the plain meaning of the
words used” (Patrolmen’s Benevolent Assn. of City of N.Y. v City of
New York, 41 NY2d 205, 208; see Matter of Synergy, LLC v Kibler, 124
AD3d 1261, 1262, lv denied 25 NY3d 967). In section 862 (2) (a), the
Legislature chose to use the word attract, which, in the context of
this case, means “to cause to approach or adhere” or “to draw to or
toward oneself” (Webster’s Third New International Dictionary 141
[2002]). We thus conclude that the Legislature intended there to be a
causal link between a project’s location or facilities and visitors
coming from outside the economic development region. Here, however,
the materials submitted by petitioners to AIDA in connection with
their application demonstrate, at most, that the project location or
facilities would be used by or cater to visitors from outside the
economic development region. Those visitors may come to the economic
development region for any number of reasons independent of
petitioners’ project and simply choose to use the project’s facilities
rather than lodge or dine at any of the other available options.
Petitioners made no showing that the project location or facilities
would likely cause visitors to come from outside the economic
development region, as required by the plain language of section 862
(2) (a). Inasmuch as petitioners failed to show that the project fell
within the “tourism destination” exception to the general prohibition
on providing financial assistance in connection with retail projects
(§ 862 [2] [a]), AIDA’s determination must be sustained because it is
supported by a rational basis in the record (see Matter of Peckham v
Calogero, 12 NY3d 424, 431; Matter of Civil Serv. Empls. Assn., Local
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                                                         CA 16-01425

1000, AFSCME, AFL-CIO v New York State Unified Ct. Sys., 138 AD3d
1444, 1445). Moreover, we further conclude that AIDA’s determination
was not affected by an error of law inasmuch as its interpretation of
section 862 is not “irrational or unreasonable” (Matter of Koch v
Sheehan, 95 AD3d 82, 89, affd 21 NY3d 697).

     Contrary to petitioners’ contention, we conclude that AIDA’s
previous determinations did not render its instant determination
arbitrary and capricious. Although “[a] decision of an administrative
agency which neither adheres to its own prior precedent nor indicates
its reasons for reaching a different result on essentially the same
facts is arbitrary and capricious” (Matter of Tall Trees Constr. Corp.
v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93
[internal quotation marks omitted]), that rule is not applicable here.
The denial of petitioners’ instant application is not inconsistent
with AIDA’s determinations on petitioners’ 2011 and 2012 applications
or on applications submitted by other applicants because those
applications did not involve “essentially the same facts” (id.
[internal quotation marks omitted]).

     Petitioners contend that AIDA’s determination was rendered
arbitrary and capricious by an AIDA Board member’s refusal to recuse
herself based on an alleged conflict of interest. To the extent that
such contention is properly before us, we reject it as without merit.
At most, petitioners established that the Board member may have made
“ ‘expressions of personal opinion’ . . . on matters of public
concern[,]” which are insufficient to constitute a basis for finding a
conflict of interest (Matter of Pittsford Canalside Props., LLC v
Village of Pittsford, 137 AD3d 1566, 1568, lv dismissed 27 NY3d 1080).

     We reject respondents’ contention that the court erred in denying
AIDA’s request for attorney’s fees. It is well established that a
court should not infer a party’s intention to waive the benefit of the
general rule that parties are responsible for their own attorney’s
fees “unless the intention to do so is unmistakably clear from the
language of the promise” (Hooper Assoc. v AGS Computers, 74 NY2d 487,
492). The indemnification provision in AIDA’s application form, upon
which respondents rely, contains only general language that the
“applicant shall be and is responsible for all expenses incurred by
[AIDA] in connection with this application.” We conclude that such
broad language, which does not refer to litigation or attorney’s fees,
does not make it “unmistakably clear” that the parties intended that
petitioners must indemnify AIDA for attorney’s fees arising from the
instant litigation (id.; see Parkway Pediatric & Adolescent Medicine
LLC v Vitullo, 72 AD3d 1513, 1513).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
