                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     518627
________________________________

In the Matter of KITTY L.
   BALLARD et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

NEW YORK SAFETY TRACK LLC
   et al.,
                    Appellants.
________________________________


Calendar Date:   January 7, 2015

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

                             __________


      Sahn Ward Coschignano & Baker, PLLC, Uniondale (Jon A. Ward
of counsel), for New York Safety Track, LLC and another,
appellants.

      Young Sommer LLC, Albany (Allyson M. Phillips of counsel),
for Town of Harpersfield Planning Board and others, appellants.

      Law Office of Douglas H. Zamelis, Cooperstown (Douglas H.
Zamelis of counsel), for respondents.

                             __________


Devine, J.

      Appeals (1) from an order of the Supreme Court (Burns, J.),
entered September 17, 2013 in Delaware County, which, in a
combined proceeding pursuant to CPLR article 78 and action for
declaratory judgment, partially denied respondents' motions to
dismiss the petition, and (2) from a judgment of said court,
entered January 17, 2014 in Delaware County, which partially
granted petitioners' application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory judgment,
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to, among other things, annul a 2013 agreement between certain
respondents.

      In 2011, respondent New York Safety Track LLC (hereinafter
Safety Track) made an application for site plan approval to
respondent Town of Harpersfield Planning Board to convert a
former airport property to a motorcycle safety training
facility.1 Minutes from a Planning Board meeting indicate that
it had conditionally approved the proposed site plan application
and the facility was completed thereafter.

      In January 2013, after receiving numerous complaints from
neighboring landowners that the facility was hosting large, high-
speed racing events, respondent Town of Harpersfield Code
Enforcement Officer (hereinafter CEO) advised Safety Track that
its advertised racing and large track events were not authorized
uses pursuant to the site plan that had been approved by the
Planning Board. The CEO's letter explained that the scope of
permissible land use was defined by Safety Track's site plan
application materials, which indicated, among other things, that
the facility "would be used for safety courses and training"
sessions that were limited to no more than 20 participants at any
given time. A few weeks later, the CEO, the Planning Board,
respondent Town of Harpersfield and Safety Track executed an
"Agreement for Operation of New York Safety Track" (hereinafter
the 2013 agreement) and an events calendar for the 2013
facility's season, which purported to outline Safety Track's
approved land uses for May 1, 2013 to December 31, 2013.

      Petitioners, a group of concerned landowners within the
vicinity of the facility, commenced this hybrid CPLR article 78
proceeding and action seeking, among other things, the annulment
of the 2013 agreement and a judicial declaration that Safety
Track must limit its uses to those particularly described in its


    1
        Respondent Town of Harpersfield does not have a zoning
code, but has enacted a Site Plan Review Law (see Local Law No. 1
[2006] of the Town of Harpersfield), which requires landowners to
submit site plans for proposed land uses for approval by the
Planning Board.
                              -3-                518627

2011 site plan application. Thereafter, the Planning Board, CEO,
respondent Town of Harpersfield Town Board and respondent Town of
Harpersfield Town Clerk (hereinafter collectively referred to as
the Town respondents) moved to, among other things, dismiss the
petition/complaint. In a September 2013 order, Supreme Court
partially denied the Town respondents' motion to dismiss, but
granted the motion solely to the extent that it sought the
dismissal of the fourth cause of action, which alleged a
violation of General Municipal Law § 239-m. Thereafter, Safety
Track and respondent Mountain Top Airfield LLC and the Town
respondents served their respective answers. Supreme Court later
issued a judgment determining that petitioners' challenge to the
then-expired 2013 agreement was not moot, annulled it and made
declarations regarding the scope of Safety Track's permissible
land uses. The court also found that the Town had committed
various violations of the Public Officers Law and awarded
petitioners costs and counsel fees. The Town respondents appeal
from both the 2013 order2 and the 2014 judgment, and Safety Track
and Mountain Top appeal from the 2014 judgment.

      The Town respondents argue that Supreme Court erred in
finding that petitioners' causes of action challenging the
propriety of the 2013 agreement had satisfied the exception to
the mootness doctrine, and we agree. "It is well settled that a
court's jurisdiction extends only to live controversies" (Matter
of NRG Energy, Inc. v Crotty, 18 AD3d 916, 918 [2005]), and a
matter becomes moot "unless the rights of the parties will be
directly affected by the determination of the [claim] and the
interest of the parties is an immediate consequence of the


    2
        "No appeal as of right lies from a nonfinal order in a
CPLR article 78 proceeding" (Matter of Pettersen v Town of Fort
Ann, 72 AD3d 1322, 1323 [2010] [citation omitted]; see CPLR 5701
[b] [1]). Furthermore, although "no similar bar exists as to a
nonfinal order issued in the context of a declaratory judgment
action, the right to appeal [such] order terminates upon the
entry of a final judgment" (Matter of 1801 Sixth Ave., LLC v
Empire Zone Designation Bd., 95 AD3d 1493, 1495 [2012] [internal
quotation marks and citation omitted], lv dismissed 20 NY3d 966
[2012]). As such, the appeal from the order must be dismissed.
                              -4-                518627

judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714
[1980]). Where, as here, the passage of time or "a change in
circumstances prevents a court from rendering a decision that
would effectively determine an actual controversy," the claim
must be dismissed (Matter of Kowalczyk v Town of Amsterdam Zoning
Bd. of Appeals, 95 AD3d 1475, 1477 [2012] [internal quotation
marks and citation omitted]). The 2013 agreement, by its own
terms, pertained solely to Safety Track's land uses and events
that occurred during the 2013 track season and expired at the end
of that year, thereby rendering the challenges to the 2013
agreement moot (see e.g. Matter of Horton, 255 AD2d 642, 643
[1998]). Further, we do not agree with Supreme Court's finding
that the exception to the mootness doctrine was satisfied (see
Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 112
AD3d 1024, 1025 [2013]), and therefore reverse the court's
judgment in that regard.

      Next, respondents assert that Supreme Court's summary
determination of the merits of petitioners' fifth cause of action
for a declaratory judgment was erroneous in the absence of a
formal motion following the parties' completion of necessary
discovery. "In a hybrid proceeding and action, separate
procedural rules apply to those causes of action which are
asserted pursuant to CPLR article 78, on the one hand, and those
which seek declaratory relief, on the other hand" (Matter of Lake
St. Granite Quarry, Inc. v Town/Village of Harrison, 106 AD3d
918, 920 [2013]; see Matter of 24 Franklin Ave. R.E. Corp. v
Heaship, 74 AD3d 980, 980 [2010]). In the absence of a
formalized motion requesting the "summary determination of the
causes of action which seek . . . declaratory relief, it is error
for [a court] to summarily dispose of those causes of action"
(Matter of Rosenberg v New York State Off. of Parks, Recreation,
& Historic Preserv., 94 AD3d 1006, 1008 [2012]; see Matter of
Alltow, Inc. v Village of Wappingers Falls, 94 AD3d 879, 882
[2012]).

      It is undisputed that there was no pending motion for
summary disposition of the declaratory judgment action when
Supreme Court rendered its 2014 judgment. Nor did the court
provide notice to the parties that it was considering the summary
disposition of the declaratory judgment action, such that the
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parties would be afforded an opportunity to further develop the
evidentiary record and offer competent proof supportive of their
respective positions (see Matter of G&C Transp., Inc. v McGrane,
72 AD3d 819, 821 [2010]; During v City of New Rochelle, N.Y., 55
AD3d 533, 534 [2008]; see also Wells Fargo Bank Minn., N.A. v
Garrasi, 80 AD3d 1061, 1062-1063 [2011]). Supreme Court
acknowledged that a myriad issues of fact existed in this matter,
thereby rendering summary determination of petitioners' action
for declaratory relief – in the absence of a formal application
for such disposition – improper. Accordingly, we reverse that
part of the court's judgment and remit the matter to Supreme
Court to conduct further proceedings relating to such cause of
action (see Matter of Town of Woodbury v County of Orange, 114
AD3d 951, 954 [2014], lv denied 24 NY3d 903 [2014].

      Finally, we take no issue with Supreme Court's
determination that the Town committed violations of the Open
Meetings Law on several occasions leading up to the execution of
the 2013 agreement with Safety Track and its subsequent award of
reasonable counsel fees and costs to petitioners. Generally,
"[e]very meeting of a public body shall be open to the general
public, except that an executive session of such body may be
called and business transacted thereat in accordance with [Public
Officers Law § 105]" (Public Officers Law § 103 [a]). While a
governing body may enter into an executive session, it may do so
only for certain purposes, including, as is relevant here, the
consideration of an appointment or to engage in private
discussions relating to proposed or pending litigation (see
Public Officers Law § 105 [1] [f]; Matter of Jefferson Val. Mall
[Concerned Citizens to Review] v Town Bd. of Town of Yorktown, 83
AD2d 612, 613 [1981], lv denied 55 NY2d 604 [1981]). However,
the body must "identify the subject matter to be discussed . . .
with some degree of particularity" (Matter of Gordon v Village of
Monticello, 207 AD2d 55, 58 [1994], mod 87 NY2d 124 [1995]).

      During the first of the three allegedly improper executive
sessions, which occurred in January 2013, the Planning Board
failed to announce any reason for going into the half-hour
executive session. While the Town respondents now explain that
the purpose of the session was to discuss the appointment of a
new Planning Board member, such omission was a clear violation of
                              -6-                518627

the Open Meetings Law (see generally Public Officers Law art 7).
Further, transcripts from the subsequent two Planning Board
meetings indicate that executive sessions were undertaken, at the
suggestion of the Planning Board's counsel, to discuss potential
enforcement actions against Safety Track by the CEO and, finally,
the provisions of a draft version of the 2013 agreement. While
the Town respondents assert that any discussion of the 2013
agreement was protected by the attorney-client privilege, the
Planning Board's inclusion of additional persons into the session
necessarily eliminated any reasonable expectation of
confidentiality, effectively waiving any privilege attendant to
such conversations (see Matter of Morgan v New York State Dept.
of Envtl. Conservation, 9 AD3d 586, 588 [2004]). As the Town
failed to demonstrate that it comported with the relevant
statutory provisions when conducting the instant executive
sessions, such sessions were violative of the Public Officers Law
(see Matter of Goodson Todman Enters. v City of Kingston Common
Council, 153 AD2d 103, 106 [1990]).

      Furthermore, despite the Town respondents' insistence that
the Town was not obliged or that it was not feasible to make
available to petitioners the proposed 2013 agreement before it
was put to a vote, we affirm that part of Supreme Court's
judgment as found that the Town's conduct in that regard denied
petitioners "any meaningful participation" in the process leading
to the final adoption of the controversial 2013 agreement, in
clear contravention of Public Officers Law § 103 (e).

      Finally, the Town Clerk's failure to make the minutes from
a March 2013 Planning Board meeting available within "two weeks
from the date" of such meeting was an express violation of Public
Officers Law § 106 (3). In light of these obvious violations of
the Open Meetings Law, Supreme Court reasonably exercised its
discretion in awarding counsel fees and costs to petitioners (see
Matter of Gordon v Monticello, 87 NY2d 124, 128 [1995]; compare
Matter of New York Civ. Liberties Union v City of Saratoga
Springs, 87 AD3d 336, 339 [2011]).

      Any remaining arguments not expressly discussed herein have
been found to be unavailing.
                              -7-                  518627

     Lahtinen, J.P., Garry and Rose, JJ., concur.



      ORDERED that the appeal from the order entered September
17, 2013 is dismissed, without costs.

      ORDERED that the judgment entered January 17, 2014 is
modified, on the law, without costs, by reversing so much thereof
as annulled the 2013 agreement between certain respondents and as
summarily determined that part of the petition/complaint as
sought declaratory relief; matter remitted to the Supreme Court
for further proceedings not inconsistent with this Court's
decisions; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
