                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 12, 2015                     519271
________________________________

CITIZENS FOR ST. PATRICK'S
   et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

CITY OF WATERVLIET CITY COUNCIL
   et al.,
                    Respondents.
________________________________


Calendar Date:    January 7, 2015

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

                              __________


      McMahon, Kublick & Smith, PC, Syracuse (Rosemary Nichols,
Watervliet, of counsel), for appellants.

      Goldman Attorneys, PLLC, Albany (Paul J. Goldman of
counsel), for City of Watervliet City Council, respondent.

      Whiteman, Osterman & Hanna, LLP, Albany (Robert L. Sweeney
of counsel), for Nigro Companies, Inc. and another, respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (O'Connor, J.),
entered July 22, 2013 in Albany County, which granted defendants'
motions for summary judgment dismissing the amended complaint.

      In 2012, defendant PCP Watervliet, LLC, a subsidiary of
defendant Nigro Companies (hereinafter collectively referred to
as Nigro), purchased a parcel of property in the City of
Watervliet, Albany County from the Roman Catholic Diocese of
Albany County. The parcel contained a church, school and rectory
                               -2-                519271

that were no longer in use and, as part of its plan to demolish
the buildings and replace them with a 40,000 square-foot grocery
store and two additional retail commercial buildings, Nigro
petitioned defendant City of Watervliet City Council to rezone
the parcel from residential to commercial. After a series of
public meetings and an environmental review pursuant to the State
Environmental Quality Review Act (see ECL art 8 [hereinafter
SEQRA]), the City issued a negative declaration and amended its
zoning map as requested. The individual plaintiffs, who reside
in the City, and plaintiff Citizens for St. Patrick's, an
unincorporated advocacy group opposed to the demolition of the
church buildings, commenced this action challenging the negative
declaration and rezoning of the property by alleging that the
City failed to comply with SEQRA requirements, engaged in illegal
spot zoning and violated the Open Meetings Law. Supreme Court
denied plaintiffs' motion for a preliminary injunction in March
2013 and thereafter granted motions by the City and Nigro for
summary judgment dismissing the action on the ground that none of
the plaintiffs have standing. Eight of the individual plaintiffs
and Citizens for St. Patrick's (hereinafter collectively referred
to as plaintiffs) appeal.1

      The burden is on plaintiffs to establish the threshold
determination of standing (see Matter of Association for a Better
Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23
NY3d 1, 6 [2014]). In our view, plaintiffs Carol Falaro and
Patrick Falaro have presumptively established their standing to
challenge the City's determinations because their residence is
located immediately across the street from Nigro's parcel and,
accordingly, they will suffer direct harm different from the
general public, even without allegations of individual harm (see
Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town
of N. Hempstead, 69 NY2d 406, 413-414 [1987]; Matter of Cade v
Stapf, 91 AD3d 1229, 1230 [2012]; Matter of Center Sq. Assn.,
Inc. v City of Albany Bd. of Zoning Appeals, 9 AD3d 651, 652




     1
        Twelve of the 20 individual plaintiffs have withdrawn
from the action and are not parties to the appeal.
                              -3-                519271

[2004]).2

      Nevertheless, plaintiffs' challenges to the SEQRA and
rezoning determinations are moot because they did not seek any
injunctive relief from this Court during the pendency of this
appeal, the church buildings have been demolished and the grocery
store is now fully constructed and operational (see Matter of
Citineighbors Coalition of Historic Carnegie Hill v New York City
Landmarks Preserv. Commn., 2 NY3d 727, 729 [2004]; Matter of
Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d
165, 172-173 [2002]; Matter of Kowalczyk v Town of Amsterdam
Zoning Bd. of Appeals, 95 AD3d 1475, 1477 [2012]; Matter of
Stockdale v Hughes, 189 AD2d 1065, 1068 [1993]).3 Moreover, the
rezoning determination has been superseded by the City's
September 2013 adoption of a new zoning code in which Nigro's use
of the parcel is permitted as a right, and plaintiffs have not
raised any challenge to that code (see Matter of Orsi v Board of
Appeals of Town of Bethlehem, 3 AD3d 698, 701 [2004]; East


     2
        The remaining individual plaintiffs do not make any
allegations that would support a finding that they have standing,
nor does Citizens for St. Patrick's make any allegation that any
of its individual members have any injury different from the
general public so as to give it organizational standing (see
Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95
AD3d 1420, 1421 [2012], lv denied 19 NY3d 811 [2012]).
     3
        In a related proceeding pursuant to CPLR article 78, the
petitioners – who are some of the plaintiffs in this case –
sought to suspend the demolition permits issued by the City to
Nigro. The petitioners therein moved for a preliminary
injunction, which Supreme Court denied. The petitioners then
appealed to this Court and moved for a temporary restraining
order and preliminary injunction pending appeal; the temporary
restraining order was granted after a $10,000 bond was posted,
but we ultimately denied the preliminary injunction (see Matter
of Citizens for St. Patrick's v City of Watervliet Zoning Bd. of
Appeals, 2013 NY Slip Op 71041[U] [2013]). For unexplained
reasons, the petitioners therein apparently failed to perfect
their appeal in that proceeding.
                              -4-                  519271

Clinton Developers v Town of Clinton, 88 AD2d 581, 581 [1982]).
Accordingly, plaintiffs' request that the rezoning determination
be voided based on alleged violations of the Open Meetings Law
(see Public Officers Law §§ 103, 104, 105, 107) is also moot.
Even assuming that issues of fact exist as to the City's
compliance with the Open Meetings Law, plaintiffs' claim that
they are entitled to costs and counsel fees for the alleged
violations is meritless inasmuch as they may not recover for
"purely technical and non-prejudicial infractions" (Matter of
Gordon v Village of Monticello, 87 NY2d 124, 127-128 [1995]).
Finally, plaintiffs have not alleged that any of their claims
fall within the exception to the mootness doctrine (see Matter of
Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Schaffer
v Zoning Bd. of Appeals of Town/Vil. of Harrison, 22 AD3d 501,
501 [2005]; Matter of Fallati v Town of Colonie, 222 AD2d 811,
813 [1995]).

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



      ORDERED that the appeal is dismissed, as moot, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
