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

1624
CA 10-01004
PRESENT: MARTOCHE, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF STATE UNIVERSITY OF NEW YORK,
PETITIONER/PLAINTIFF-APPELLANT-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

TOWN OF AMHERST, SATISH MOHAN, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF
TOWN OF AMHERST, TOWN BOARD OF TOWN OF AMHERST,
ZONING BOARD OF APPEALS OF TOWN OF AMHERST,
GMH COMMUNITIES, LP, COLLEGE PARK INVESTMENTS,
LLC, DAVID LADE, NANCY LADE, WILLIAM S. SCHLEGEL,
JOSE OLIVERA, MICHELE OLIVERA, LESTER C.
BUSDIECKER, MATTHEW MAROTTA, PAMELA MAROTTA,
MARK R. KELLAM, PAUL CUMMINS, PAMELA CUMMINS,
ETTORE INFANTI, MARTIN KEITZ, KIMBERLY MAST,
JEFFREY BROOKS, BARBARA BROOKS, DANIEL P. HULL,
THOMAS KETCHUM, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF TOWN OF AMHERST BUILDING DEPARTMENT,
RESPONDENTS/DEFENDANTS-RESPONDENTS,
AND EUGENE TENNEY,
RESPONDENT/DEFENDANT-RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


HODGSON RUSS LLP, BUFFALO (BENJAMIN M. ZUFFRANIERI, JR., OF COUNSEL),
FOR PETITIONER/PLAINTIFF-APPELLANT-RESPONDENT.

E. THOMAS JONES, TOWN ATTORNEY, WILLIAMSVILLE (ALAN P. MCCRACKEN OF
COUNSEL), FOR RESPONDENTS/DEFENDANTS-RESPONDENTS TOWN OF AMHERST,
SATISH MOHAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERVISOR
OF TOWN OF AMHERST, TOWN BOARD OF TOWN OF AMHERST, ZONING BOARD OF
APPEALS OF TOWN OF AMHERST AND THOMAS KETCHUM, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF TOWN OF AMHERST BUILDING DEPARTMENT.

LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (EUGENE C. TENNEY OF
COUNSEL), FOR RESPONDENT/DEFENDANT-RESPONDENT-APPELLANT.

HOPKINS & SORGI, PLLC, WILLIAMSVILLE (SEAN W. HOPKINS OF COUNSEL), FOR
RESPONDENTS/DEFENDANTS-RESPONDENTS GMH COMMUNITIES, LP, COLLEGE PARK
INVESTMENTS, LLC, DAVID LADE, NANCY LADE, WILLIAM S. SCHLEGEL, JOSE
OLIVERA, MICHELE OLIVERA, LESTER C. BUSDIECKER, MATTHEW MAROTTA,
PAMELA MAROTTA, MARK R. KELLAM, PAUL CUMMINS, PAMELA CUMMINS, ETTORE
INFANTI, MARTIN KEITZ, KIMBERLY MAST, JEFFREY BROOKS, BARBARA BROOKS
AND DANIEL P. HULL.
                                 -2-                          1624
                                                         CA 10-01004

     Appeal and cross appeal from a judgment (denominated order and
judgment) of the Supreme Court, Erie County (Gerald J. Whalen, J.),
entered January 12, 2010 in a CPLR article 78 proceeding and a
declaratory judgment action. The judgment granted the motions of
respondents/defendants to dismiss the petition/complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner/plaintiff (petitioner) contends in each
appeal that Supreme Court erred in granting the motions of
respondents/defendants (respondents) to dismiss the hybrid CPLR
article 78 proceeding/declaratory judgment action concerning rezoning.
According to respondents, petitioner lacked the capacity and authority
to sue inasmuch as petitioner’s Board of Trustees had neither
authorized the commencement of these lawsuits nor ratified them after
they were commenced. We reject petitioner’s contention. “Capacity to
sue is a threshold question involving the authority of a litigant to
present a grievance for judicial review. The issue of capacity often
arises when a governmental entity seeks to bring suit” (Matter of Town
of Riverbed v New York State Bd. of Real Prop. Serve., 5 NY3d 36, 41;
see Matter of Grazing v County of Albany, 3 NY3d 475, 478-479).
“ ‘Being artificial creatures of statute, such entities have neither
an inherent nor a common-law right to sue. Rather, their right to
sue, if it exists at all, must be derived from the relevant enabling
legislation or some other concrete statutory predicate’ ” (Town of
Riverbed, 5 NY3d at 41-42, quoting Community Bd. 7 of Borough of
Manhattan v Schaefer, 84 NY2d 148, 155-156). Pursuant to Education
Law §§ 352 and 353 and petitioner’s bylaws, all of petitioner’s
corporate powers are to be exercised by the Board of Trustees. As a
result, a lawsuit brought in petitioner’s name must be authorized by
the Board of Trustees or another entity or individual designated by
the Board of Trustees and given the express authority to authorize the
lawsuit. After petitioner has been authorized by the Board of
Trustees to commence litigation, it must then notify the Attorney
General so that he or she may participate or join (see Executive Law §
63 [1]). The record contains no evidence that the Board of Trustees
either approved or ratified these lawsuits or delegated its authority
to do so to another entity or individual. Contrary to petitioner’s
further contention, there is nothing about the procedure for the Board
of Trustee’s authorization of lawsuits that would serve to undermine
the Attorney General’s duties and authority under the Executive Law
(see generally § 63).

     Finally, we reject the contention of respondent/defendant Eugene
Tenney in each cross appeal that the court erred in denying his
request for attorney’s fees.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
