                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     519346
________________________________

RURAL COMMUNITY COALITION,
   INC., et al.,
                    Respondents-
                    Appellants,
      v

VILLAGE OF BLOOMINGBURG et al.,
                    Defendants,             MEMORANDUM AND ORDER
      and

TOWN OF MAMAKATING et al.,
                    Respondents,
      and

SHALOM LAMM et al.,
                    Appellants-
                    Respondents.
________________________________


Calendar Date:   February 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Whiteman Osterman & Hanna, LLP, Albany (John J. Henry of
counsel), appellants-respondents.

      Montalbano, Condon & Frank, PC, New City (Kurt E. Johnson
of counsel), for respondents-appellants.

      Jacobowitz & Gubits, LLP, Walden (J. Benjamin Gailey of
counsel), for respondents.

                             __________
                              -2-                519346

Lahtinen, J.P.

      Cross appeals from an order of the Supreme Court (Schick,
J.), entered July 31, 2014 in Sullivan County, which partially
denied certain defendants' motion to dismiss the complaint
against them.

      This case involves a challenge to a townhouse project in
the Village of Bloomingburg, Sullivan County. The underlying
facts are set forth in more detail in our recent decision
involving an earlier appeal (118 AD3d 1092 [2014]). Briefly,
defendants Shalom Lamm and Kenneth Nakdimen, individually and
through defendant corporations (hereinafter collectively referred
to as the developer defendants), have been pursuing the project
since 2006. As part of the project, a portion of property in the
Town of Mamakating, Sullivan County was annexed in 2006 by Local
Law No. 3 (2006) of the Village of Bloomingburg (hereinafter the
2006 local law), with both defendant Town of Mamakating and
defendant Village of Bloomingburg supporting such annexation.
After construction started in 2012, some of the current
plaintiffs brought an earlier action, which Supreme Court
(Cahill, J.) dismissed; no appeal was taken. In 2014, this
action was commenced alleging, among other things, that the 2006
local law was void. The Town essentially agreed with plaintiffs'
position and also asserted cross claims. Supreme Court (Schick,
J.) granted plaintiffs a preliminary injunction. This Court
reversed (118 AD3d 1092 [2014], supra). By such time, the
Village – which had elected a new mayor – changed its position in
the pending litigation to opposing the validity of the 2006 local
law. Thereafter, in addressing the developer defendants' current
motion to dismiss, Supreme Court converted that part of the
motion to dismiss to one for summary judgment regarding only
plaintiffs' cause of action challenging the validity of the
annexation, and the court granted summary judgment to plaintiffs
on such issue, declaring that the 2006 local law authorizing the
annexation was void ab inito. As for the rest of plaintiffs'
claims and the Town's cross claims, Supreme Court granted the
developer defendants' motion to dismiss. The developer
defendants and plaintiffs each appeal from different aspects of
Supreme Court's order.
                              -3-                519346

      Plaintiffs' challenge to the 2006 local law was untimely.
Supreme Court found that, because residents of the annexed area
had not voted on the annexation in 2006, the annexation was null
and void, no statute of limitations applied and the property
remained in the jurisdiction of the Town. At the time the
annexation occurred, there was authority authorizing annexations
that had occurred without a formal vote in some limited
situations, such as where the affected residents made clear their
consent (see e.g. Matter of City of Rensselaer v Town Bd. of Town
of N. Greenbush, 169 AD2d 936, 937 [1991]; Matter of City of
Saratoga Springs v Town of Greenfield, 34 AD2d 364, 368 [1970],
lv denied 28 NY2d 482 [1971]). However, in 2008, the Court of
Appeals clarified the law holding that, where there are residents
in the affected area, a formal, secret vote must be taken (see
Matter of City of Utica v Town of Frankfort, 10 NY3d 128, 133-135
[2008]).

      The current action was commenced over seven years after the
annexation and nearly six years after the clarifying decision in
Matter of City of Utica v Town of Frankfort (supra). This is not
a situation of an ongoing border disagreement between
municipalities (see e.g. Town of Saranac v Town of Plattsburgh,
218 AD2d 866, 867 [1995]). In fact, at the time of the
annexation in 2006, such action was supported by the Town and the
Village, and the record contains notarized statements of support
by affected residents. Currently, the Town, the Village and many
of the affected residents urge in unanimity the opposite result,
i.e., that the annexation should now be set aside. Given such
agreement, if this was merely an attempt to delineate boundaries,
it could be easily resolved. However, that would not overturn
the municipal approvals that were granted many years ago to the
developer defendants or stop the ongoing townhouse project, which
are the real objectives of plaintiffs, the Town and the Village.
Simply stated, this action is not about borders, it is about
development approvals given well after the annexation that the
municipalities now regret granting, and which allegedly may have
been obtained as a result of chicanery or worse conduct.

      Nor is this a case of an ongoing or continuous wrong, as in
the recent case of Capruso v Village of Kings Point (23 NY3d 631
[2014]). Here, the failure to conduct a secret ballot of
                              -4-                519346

residents on the annexation gave rise to a single, discrete wrong
(cf. id. at 640), which could have been challenged in a timely
fashion. Nothing in the Court of Appeals' decision in City of
Utica, which was commenced in a timely manner and where the Court
clarified the resident voting requirement while noting the less
exacting procedures that had been used in many earlier
annexations (Matter of City of Utica v Town of Frankfort, 10 NY3d
at 134 n 1), indicated that those earlier annexations were void
or could be challenged at any time, even though some had occurred
decades earlier. For the reasons set forth herein, as well as
those previously stated when this case was before us (118 AD3d at
1095-1096), we conclude that the challenge to the annexation –
commenced over seven years after it was completed – is barred by
the statute of limitations. The developer defendants' motion to
dismiss plaintiffs' cause of action and the Town's cross claims
based upon the purportedly defective annexation should have been
granted.

      We have considered the remaining arguments and, given the
long delays in pursuing this matter as well as the earlier 2012
action that was dismissed, we are unpersuaded that Supreme
Court's dismissal of the remaining causes of action was error
(118 AD3d at 1096-1098).

     Garry, Lynch and Devine, JJ., concur.
                              -5-                  519346

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as (1) denied that part of
the motion of defendants Shalom Lamm, Kenneth Nakdimen and the
defendant corporations seeking dismissal of plaintiffs' cause of
action and any cross claims premised on Local Law No. 3 (2006) of
the Village of Bloomingburg and (2) declared said local law null
and void; said defendants' motion granted to that extent; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
