John E. Nathan, Plaintiff, v. TOWN OF POUND RIDGE TOWN BOARD SMMB INC NEW YORK OFFICE OF CANNABIS MANAGEMENT 131 (2025)

Upon consideration of the papers filed in the New York State Courts Electronic Filing System (NYSCEF) Doc Nos. 41-61, relative to the motion by SMMB, Inc. (SMMB) to dismiss the amended complaint (CPLR 3211 [a] [1] [7]), and to award reasonable attorney's fees and costs as a "successful party" (Public Officers Law § 107 [2]) (motion #2); and the motion by defendants Town of Pound Ridge and Town of Pound Ridge Town Board (together the Town) to dismiss plaintiff's claims against the Town (CPLR 3211), and an award of attorney's fees (Public Officers Law § 107 [2]) (motion #3), the Court determines as follows:

Background and Arguments

Plaintiff is a resident of the Town, who claims to be aggrieved by the Town's actions and failure to follow the Public Officers Law. In the amended complaint (NYSCEF Doc No. 26), plaintiff asserts that the nature of the action is for a declaratory judgment, an injunction, and related relief for violations of the Open Meetings Law (OML; Public Officers Law art 7, §§ 100, 102 [1], 103 [a], 104, 106 [1], 107 [1] and [2], 109).

In the amended complaint (NYSCEF Doc No. 26), plaintiff alleges that between March 31, 2021 and December 31, 2021, the Town could decide whether it wanted cannabis dispensaries (Marijuana Regulation and Taxation Act § 131); that during the local opt-out window "members of the Town Board secretly took action in private by (a) collecting information from area officials, organizations, consultants, and lawyers on whether to local opt-out, (b) deliberating and collaborating among themselves by telephone, mail, email and/or in person on whether to local opt-out, (c) collectively deciding not to local opt-out, and (d) failing to prepare any minutes of its decision"; that no public hearing was held and the residents were not given notice of the Board's activities or decision; and that at a December 9, 2023 public hearing, 40 of the 42 speakers opposed a cannabis dispensary in Pound Ridge.

Plaintiff seeks a declaratory judgment that the Town's action violated the OML and that its decision is void; a permanent injunction prohibiting the Town from violating the OML with secret activities and decisions; that the Town be required to comply with the OML; that the Town Board members participate in training conducted by the NYS Committee on Open Government (COG), and attorney's fees.

On September 30, 2024, SMMB intervened based on its license to operate a cannabis dispensary in Pound Ridge. On February 20, 2024, SMMB filed an action against the Town, the Town Board, and the Town's Building Inspector (SMMB, Inc. [d/b/a Purple Plains] v Town of Pound Ridge, Index No. 57421/2024 [Sup Ct, Westchester County]) (NYSCFE Doc No. 10). The action, which deals with SMMB's right to open a dispensary in Pound Ridge, is still pending.

On April 17, 2024, SMMB opened its Purple Plains cannabis dispensary in Pound Ridge based on the April 3, 2024, Cannabis Adult Use Retail Dispensary (CAURD) license issued by the Office of Cannabis Management, through the Cannabis Control Board, without plaintiff's or other Pound Ridge residents' knowledge or participation in the license proceedings. In June 2024, the COG declined plaintiff's request to consider the record on the Town Board's 2021 decision not to opt-out, the governing law, or its own prior Advisory Opinions, and also declined plaintiff's request to issue an Advisory Opinion based on the record, the law and its prior Advisory Opinions. Following the Committee's failure to grant plaintiff's request, plaintiff commenced this action.

Plaintiff alleges that SMMB's applications for a provisional, then a permanent CAURD license were not complete and accurate because SMMB failed to meet one or more of the five requirements. Plaintiff contends that because SMMB did not qualify for the license, the Court should declare that SMMB's licenses are null and void and award plaintiff attorney's fees incurred due to SMMB's intervention.

SMMB — Motion # 2

In the memorandum of law in support of SMMB's motion to dismiss plaintiff's amended complaint (NYSCEF Doc No. 44), SMMB's attorney adds:

On April 3, 2024, SMMB received its CAURD license for its store location at 32 Westchester Avenue, Pound Ridge, New York. (Am. Compl., ¶¶ 45, 91). On April 17, 2024, SMMB opened its store to the public and began retail operations. (Id., ¶ 92). By letter dated that same day, SMMB advised the Town Attorney that it had opened for business, and that the retail sale of cannabis products from its store was a permitted use pursuant to the Town Code. (NYSCEF Doc. No. 12). SMMB's letter reiterated that the Town Code did not distinguish between the retail sale of cannabis products and the retail sale of alcoholic beverages, which had been the store's immediate prior use. (Id., p. 1). By letter dated April 19, 2024, SMMB likewise explained its position to the Town Supervisor and Town Board. (NYSCEF Doc. No. 13). Since April 17, 2024, SMMB has continuously sold cannabis products from the store pursuant to its CAURD license. (Am. Compl., ¶ 92).

SMMB's attorney summarizes the relief sought in the amended complaint:

The Amended Complaint asserts seven (7) causes of action. In the first four causes of action, the Amended Complaint alleges that the Town Board violated the Open Meetings Law by having "secret" deliberations on whether to opt-out of the MTRA, at which a "decision" was purportedly made not to opt-out. (Am. Compl., ¶¶ 64-65, 129, 137). The First Cause of Action demands declaratory relief, while the Second, Third and Fourth Causes of Action seek various forms of injunctive relief. Plaintiff's Fifth Cause of Action demands an award of costs and reasonable attorney's fees, pursuant to Public Officers Law § 107(2), for the Town's alleged violation of the Open Meetings Law. Plaintiff's Sixth Cause of Action seeks a declaration that SMMB's CAURD license is "null and void" because SMMB's application contained information that was not "complete and accurate" as required by 9 NYCRR § 116.3(a)(1). (Id., ¶ 150). Finally, Plaintiff's Seventh Cause of Action seeks an award of costs and reasonable attorney's fees incurred with SMMB's "intervention . . . and pursuit of its claims in this litigation." (Id., ¶ 152).

SMMB's attorney argues that plaintiff's claims are barred by the four month statute of limitations; that plaintiff lacks standing to challenge SMMB's license; that plaintiff's allegations are vague and conclusory; that the amended complaint does not plead a redressable OML violation; that there is no basis for an award of attorney's fees to plaintiff; and that SMMB should be awarded attorney's fees under the Public Officers Law § 107 (2).

In opposition (NYSCEF Doc No. 59), plaintiff argues that defendants are using a "blame the victim" tactic; that the action was timely because a CPLR art 78 proceeding was not possible since plaintiff never received notice from the Town of its decision; that starting in October 2023, the Town spent seven months trying to correct its decision, so there was no final decision ripe for review until May 23, 2024, when the Town-sponsored State legislation to reopen Pound Ridge's opt-out period did not proceed in Albany; that plaintiff had four months to file suit, until September 23, 2024, and the action was filed on August 26, 2024; that the Cannabis Law of 2021 does not preempt the OML of 1976; that the Town had no discretion to violate the OML, which is to prevent the Town from taking secret action; that "SMMB's unsupported interpretation of the Town's documents should be assessed and resolved only after discovery and at trial, not on a motion to dismiss"; that the informal view of a COG member is "unreasonable since the member only considered a portion of the record Plaintiff had compiled and refused to consider the COG's prior relevant opinions"; that SMMB put the validity of its license in issue on September 30, 2024, when it filed a motion to intervene, which was within two months of plaintiff amending the complaint with the sixth cause of action against SMMB; that SMMB has been refusing to produce documents; that the Cannabis Law expressly recognizes plaintiff's right to raise and contest SMMB's license; that the complaint is not vague or conclusory, but precise; and that plaintiff, not SMMB, is entitled to attorney's fees, pursuant to Public Officers Law § 107 (2).

In reply (NYSCEF Doc No. 61), SMMB's attorney argues that "the [Marijuana Regulation & Taxation Act] MRTA [Cannabis Law] authorized municipalities to legalize cannabis uses in their respective communities simply by taking no action and allowing the 9-month statutory opt-out window to close on December 31, 2021, thus, "the statute of limitations began to run on January 1, 2022, when the Town Board's failure to enact a local law opting-out of the MRTA became final and binding upon Plaintiff"; that January 1, 2022, marks when any underlying OML violation committed by the Town Board could have impacted Plaintiff, and when he knew or should have known that he was aggrieved" (CPLR 217); that plaintiff "challenges a legislative determination — the Town Board's decision not to opt-out of the MRTA by the December 31, 2021 deadline"; that "the Town Board's failure to opt-out of the MRTA became final and binding upon Plaintiff on January 1, 2022," when plaintiff and Pound Ridge residents knew or should have known the MRTA had become operative; that in the amended complaint, plaintiff first became aware of the Town Board's decision not to opt-out in October 2023, when he received the Town records; that actual notice of the Town's decision is not required because the Town's decision not to opt-out of the MRTA was not an administrative decision but legislative in nature, which did not entitle plaintiff to actual notice; that the Town's lobbying efforts did not restart the statute of limitations, which could only be revived by state legislation; that the latest the statute of limitations could have begun to run is December 10, 2023, when plaintiff wrote to the Cannabis Control Board asserting the Town violated the OML, as plaintiff was aware of all the facts needed to commence an action, and the time to do so would have expired on April 10, 2024; and that the advisory opinion of COG, that the Town did not violate the OML, should be given deference.

With respect to SMMB's license, SMMB's attorney asserts that the Cannabis Law § 133 (7) only authorizes the Cannabis Control Board to institute proceedings to deal with a cannabis dispensary license, which can be done on its own initiative, or on the complaint of any person, and does not give plaintiff a private right of action; that the provisional CAURD license was issued on May 23, 2023, and the permanent license on April 3, 2024, but the action was not commenced until August 26, 2024, beyond the four month statute of limitations; that the OML does not authorize a court to issue an injunction directing a legislative body to take any particular action, such as convening a public meeting, nor does it allow a court to override a state law, such as the MRTA; and that SMMB is entitled to attorney's fees.

The Town — Motion # 3

In the affirmation in support (NYSCEF Doc No. 46), the Town's attorney notes that the "June 12, 2024 email from the New York State Committee on Open Government to Plaintiff reject[ed] Plaintiffs assertion that the Town Board's conduct violated the Open Meetings Law . . . annexed as Exhibit 'J'."

In an affirmation in support (NYSCEF Doc No. 51), the Town Supervisor Kevin Hansan (Hansan) affirms that in April of 2021, the Town Board announced the passage of the Cannabis legislation to the public at a properly noticed Pound Ridge Town Board meeting, where he announced to the public that the legislation included a limited opt out provision. Thus, on April 6, 2021, "every Town resident knew, or had the ability to learn from the Town Board minutes posted on its website, that the cannabis opt out deadline was December 31, 2021."

Hansan continues that no opt-out resolution was passed and SMMB obtained a license; that no member of the Town Board or public requested a public hearing; that the Town Board did not engage in any secret Cannabis opt-out decision in violation of the OML; that applications were discussed and concerns expressed two years after the opt-out period expired; that the Town made efforts to address the residents' concerns through proposed legislation, which failed in December 2023, and was abandoned; and that other actions taken by the Town were not successful. The Town concludes that there is no evidence and in fact there was no secret activity.

In the memorandum of law in support (NYSCEF Doc No 52), the Town's attorney argues that the action is barred by the four month statute of limitations because although styled as a declaratory judgment action, it is an untimely CPLR art 78 proceeding; that none of the remedies sought by plaintiff including the first cause of action to void Town action, the second to issue a permanent injunction, the third to compel the Town Board to reconsider an alleged "secret" decision not to opt-out of the Cannabis Law, and the fourth to compel the Town Board to attend mandatory compliance OML training, are not available in a declaratory judgment action; that plaintiff's claims are preempted by the Cannabis Law; that the relief plaintiff seeks is moot; that plaintiff lacks standing to seek relief against the Town on the issue of opting out; that plaintiff does not state a claim upon which relief can be granted; that there was no violation of the Public Officers Law or the OML; that there is no sufficient good cause for an injunction, training, or fees; and that the Town should be awarded attorney's fees.

In a memorandum of law in opposition (NYSCEF Doc No. 54), plaintiff argues that the Town blames the residents, acknowledging that on April 6, 2021, it was announced that December 31, 2021 was the opt-out deadline; that this declaratory judgment action is authorized by the OML; that the action is timely; that the OML claims are not preempted by the Cannabis Law; that the OML claims are not moot; that plaintiff has standing, pursuant to OML § 107 (1); that the Town does not have the discretion to ignore the OML, which the evidence proves was violated; that plaintiff is entitled to an injunction, to have training directed, and attorney's fees; and that the Town is not entitled to attorney's fees.

In a counter statement of facts, plaintiff notes the following as evidence:

The FOIL documents reveal that the Town Board's decision not to opt-out was reached after the Town Board received information from area officials, organizations, consultants and lawyers on the pros and cons of opt-out, as well the necessity to act before the December 31, 2021 deadline . . . .

The FOIL documents also include extensive email discussions among area Mayors and Supervisors on whether to opt-out. The Pound Ridge Supervisor is included on all these emails, none of which was shared with his residents.

Plaintiff asserts that he commenced this declaratory judgment action under the OML to remedy the Town's unlawful actions, and to prevent similar conduct in the future. Plaintiff's action is expressly authorized by OML § 107 (1). Plaintiff notes that COG has concluded that the OML prohibits secret, collective decisions, and that a formal vote is not required to run afoul of the OML. Plaintiff contends that the Supervisor's October 29, 2021 email to neighboring Mayors and Supervisors proves that there was a "collective decision" because the Supervisor stated "We" did not opt-out; that a COG member merely gave her informal "view" that there was no OML violation because there was no formal vote, which was based on only on a fragment of the record and without the benefit of the COG's own prior Advisory Opinions; and that the COG member invited plaintiff to submit the full record and the governing law to this Court.

In reply (NYSCEF Doc No. 60), the Town's attorney argues that the allegation that the Town Board acted in secret is not the type of allegation that must be accepted as true because it is a bare legal claim, contradicted by sworn testimony and the record before the Court; that plaintiff recognizes his claims are governed by the four-month statute of limitations; that the subsequent legislative actions taken by the Town do not toll the statute of limitations; that both the OML and Cannabis Law apply; that the allegations regarding communications subsequent to the original notice to residents are irrelevant to the merits or viability of plaintiff's OML claims; and that given the framework of the OML, and the remedies the OML actually does provide, "there is no legal mechanism open to relitigate the question whether the Town can vote to opt-out of the Cannabis Law and have such a vote take effect."

The Town's attorney asserts that even if plaintiff prevailed and the Town ultimately voted to opt-out, that local law would remain subject to other state laws, including the OML and Cannabis Law, and the "local law would still be preempted by the Cannabis Law that states no local law can be enacted after January 1, 2022 banning cannabis sales in a Town"; that any reconsideration of the issue by the Town pursuant to Court order or otherwise is academic as the Cannabis Law is clear, so the issue is not properly the subject of judicial intervention; that the Court cannot compel the performance of a discretionary act, only purely ministerial acts to which a clear legal right exists; that plaintiff has not suffered a personal injury; that applying the "reason to know" standard, the statute of limitations began to run on December 31, 2021; that CPLR 217 has no provision relating to the exhaustion of administrative remedies; that plaintiff cites actions that are not governed by the OML, as none of the statements support the claim that an actual quorum of the Town Board met, discussed, and voted on the issue in October 2021, or that a vote or decision was reached by a quorum by emails, phone, or otherwise to circumvent the OML; and that plaintiff's own submissions show that the "Town Board consistently acts with appropriate notice and transparency."

Motion to Dismiss (CPLR 3211)

In Bailey v City of New York (228 AD3d 713, 714-715 [2d Dept 2024]), the Court stated the standard for review of a motion to dismiss:

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord [the] plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017]). "At the same time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d at 141-142 [citations and internal quotation marks omitted]; see Browne v Lyft, Inc., 219 AD3d 445, 446 [2023]; Everett v Eastchester Police Dept., 127 AD3d 1131, 1132 [2015]).

(See Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 790 [2d Dept 2024]; Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 175 [2021]; Polite v Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021]; Jadidian v Drucker, 171 AD3d 1146, 1147-1148 [2d Dept 2019].)

CPLR 3211 (a) (1) — Documentary Evidence

The Court in Sunset Café, Inc. v Mett's Surf & Sports Corp. (103 AD3d 707, 708-709 [2d Dept 2013]) explained:

Pursuant to CPLR 3211 (a) (1), a defendant may move to dismiss a cause of action on the ground that 'a defense is founded upon documentary evidence' (CPLR 3211 [a] [1]). A motion to dismiss a complaint based upon CPLR 3211 (a) (1) may be granted 'only where the documentary evidence utterly refutes [a] plaintiff's factual allegations, conclusively establishing a defense as a matter of law' (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). 'In order for evidence to qualify as 'documentary,' it must be unambiguous, authentic and undeniable' (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [(2d Dept) 2010]).

The Court in Sands Point Partners Private Client Group v Fidelity Natl. Tit. Ins. Co. (99 AD3d 982, 984 [2d Dept 2012]) added: "Materials that clearly qualify as 'documentary evidence' include 'documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable' ' (Fontanetta v John Doe 1, 73 AD3d [78] at 84-85 2d Dept 2010], quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 22)."

Open Meetings Law (OML) — Public Officers Law art 7

Generally, the OML (Public Officers Law art 7 [§§ 100-111]), outlines the basic requirements for meetings conducted by public bodies. Public Officers Law § 102 (1) states:

" 'Meeting' means the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body."

Public Officers Law § 107 (1) provides:

1. Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, or an action for declaratory judgment and injunctive relief. In any such action or proceeding, if a court determines that a public body failed to comply with this article, the court shall have the power, in its discretion, upon good cause shown, to declare that the public body violated this article and/or declare the action taken in relation to such violation void, in whole or in part, without prejudice to reconsideration in compliance with this article. If the court determines that a public body has violated this article, the court may require the members of the public body to participate in a training session concerning the obligations imposed by this article conducted by the staff of the committee on open government.

An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body.

In Matter of Orange County Publs., Div. of Ottaway Newspapers v Council of City of Newburgh (60 AD2d 409, 416 [2d Dept 1978]), the Court reviewed the OML and noted "that not every assembling of the members of a public body was intended to be included within the definition. [C]asual encounters by members do not fall within the open meetings statutes. But an informal 'conference' or 'agenda session' does, for it permits 'the crystallization of secret decisions to a point just short of ceremonial acceptance' (citation omitted)." The Court concluded that the OML was "obviously designed to assure the public's right to be informed. Accordingly, any private or secret meetings or assemblages . . . , when a quorum of its members is present and when the topics for discussion and eventual decision are such as would otherwise arise at a regular meeting, are a violation of the New York Open Meetings Law."

The four basic requirements of the OML are that all meetings must be noticed; the public must be allowed to attend and observe the meetings in person except that portion of a meeting which is in executive session; the proposed local laws, rules, regulations, resolutions, and policies, and any record which is subject to disclosure under FOIL which is scheduled to be discussed at the meeting must be made available to the public to the extent practicable; and the public body must make minutes of the meeting available within two weeks of the meeting and within one week of the executive session (Public Officers Law §§ 103 [a], 104, 106; see Matter of Gordon v Village of Monticello, 87 NY2d 124, 127 [1995]).

"In the absence of a quorum, the Open Meetings Law does not apply (see, Matter of Tri-Village Publs. v St. Johnsville Bd. of Educ., 110 AD2d 932, 933; Matter of Sciolino v Ryan, 81 AD2d 475, 478). Even where a quorum is present, a meeting does not rise to the level of public business implicating the Open Meetings Law where the participants meet in a casual encounter rather than with the intent to conduct public business (see, Matter of Goodson Todman Enters. v City of Kingston Common Council, 153 AD2d 103, 105; Hill v Planning Bd., 140 AD2d 967, 968)." (Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 AD 15, 29 [4th Dept 1996]; see Matter of MCI Telecom. Corp. v Public Serv. Commn. of State of NY, 231 AD2d 284, 290 [3d Dept 1997].)

Declaratory Judgment v CPLR art 78 Proceeding

With respect to the Court issuing declaratory relief in a motion to dismiss, in DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC (102 AD3d 725, 728 [2d Dept 2013]), the Court explained:

Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy" (CPLR 3001). "[T]he demand for relief in the complaint shall specify the rights and other legal relations on which a declaration is requested" (CPLR 3017 [b]). A motion to dismiss the complaint in an action for a declaratory judgment "presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration" (Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]; see Rockland Light & Power Co. v City of New York, 289 NY 45, 51 [1942]). Thus, "where a cause of action is sufficient to invoke the court's power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied" (Matter of Tilcon NY, Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011] [citations and internal quotation marks omitted]; see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325 [1967]; Rockland Light & Power Co. v City of New York, 289 NY at 51). However, where the court, deeming the material allegations of the complaint to be true, is nonetheless able to determine, as a matter of law, that the defendant is entitled to a declaration in his or her favor, the court may enter a judgment making the appropriate declaration (see Hoffman v City of Syracuse, 2 NY2d 484, 487 [1957]; German Masonic Temple Assn. v City of New York, 279 NY 452, 457 [1939]; Washington County Sewer Dist. No. 2 v White, 177 AD2d 204 [1992]; Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1969]). By contrast, if the material allegations of the complaint, taken as true, implicate "factual issues such that the rights of the parties cannot be determined as a matter of law, a declaration upon a motion to dismiss is not permissible" (Matter of Tilcon NY, Inc. v Town of Poughkeepsie, 87 AD3d at 1151; see Nadel v Costa, 91 AD2d 976 [1983]; Verity v Larkin, 18 AD2d 842 [1963]).

The Court in News 12 Co. v Hempstead Pub. Schs. Bd. of Educ. (52 Misc 3d 479, 482-483 [Sup Ct, Nassau County 2016]), reviewed the difference between an action for a declaratory judgment and a CPLR art 78 proceeding. The Court stated: "A primary difference between CPLR article 78 proceedings and declaratory judgment actions is the presence or absence of a judicially-imposed remedial order. In a declaratory judgment action, the court does not direct a party to do an act or refrain from doing an act. In a declaratory judgment action, the court merely declares the prevailing party's rights with respect to the matter in controversy for the purpose of guiding future conduct, and then, as explained by Professor David Siegel, "let[s] things go at that" (Siegel, NY Prac § 436 at 738 [4th ed]; CPLR 3001). By contrast, in a CPLR article 78 proceeding, the court affirmatively directs a party, if unsuccessful, to perform an act or refrain from doing so (see Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83 [2d Dept 2011])."

Here, notwithstanding plaintiff's insistence that the action is a declaratory judgment action and not a CPLR art 78 proceeding, the relief sought is to affirmatively direct the Town to perform an act or refrain from doing so, rather than declaring plaintiff's rights with respect to the matter in controversy for the purpose of guiding future conduct.

Marihuana Regulation & Taxation Act (MRTA) - Cannabis Law

The MRTA was signed into law on March 31, 2021, legalizing adult-use cannabis in New York State. The legislation created a new Office of Cannabis Management (OCM) governed by a Cannabis Control Board to regulate adult-use, medical, and hemp cannabis. The OCM is to issue licenses and develop regulations outlining how and when business can participate in the industry.

The Court in Matter of Buenos Hill Inc. v Saratoga Springs Planning Bd. (83 Misc 3d 494, 497-498 [Sup Ct, Saratoga County 2024]) explained:

Cities, towns, and villages were provided with the option (if exercised by a specific deadline) to opt out of that portion of the law allowing dispensaries and on-site consumption businesses to be located within their jurisdictions (see Cannabis Law § 131 [1]).

For those municipalities that opted out, the law allows them the opportunity to rescind their opt-out election at any time and to allow such businesses to operate within their jurisdiction (see id.).

Municipalities that did not opt out are now no longer permitted to opt out (id. § 131 [1], [2]). They are now "preempted from adopting any law, rule, ordinance, regulation or prohibition pertaining to the operation or licensure" of such businesses (id. § 131 [2]). Cities, towns, and villages, however, may still "pass local laws and regulations governing the time, place and manner of the operation" of these businesses, provided that "such law or regulation does not make the operation of such [businesses] unreasonably impracticable" (id.).

The Cannabis Law contemplated the law would apply to all municipalities, which did not opt-out by December 31, 2021. No public hearing, vote or formal or informal decision was necessary.

Cannabis Law § 133 (7) provides:

7. The board may on its own initiative, or on complaint of any person, institute proceedings to revoke, cancel or suspend any adult-use cannabis retail dispensary license or adult-use cannabis on-site consumption license and may impose a civil penalty against the licensee after a hearing at which the licensee shall be given an opportunity to be heard. Such hearing shall be held in such manner and upon such notice as may be prescribed in regulation by the board.

Statute of Limitations

CPLR 217 (1) provides:

1. Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent's refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty; or with leave of the court where the petitioner or the person whom he represents, at the time such determination became final and binding upon him or at the time of such refusal, was under a disability specified in section 208, within two years after such time.

The time-period for a CPLR art 78 proceeding runs from the time the challenged action is final and binding on a plaintiff. A determination is final, and the statute of limitations begins to run, when the agency's definitive position on the issue becomes readily ascertainable to the complaining party so that party knew or should have known that he/she/it was aggrieved. In Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194-195 [2007]), the Court explained:

The more difficult question is when the statute of limitations began to run. A petitioner who seeks article 78 review of a determination must commence the proceeding "within four months after the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217 [1]). An administrative determination becomes "final and binding" when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. "First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party" (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 [2005]; see also Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 548 [2006]; Matter of Comptroller of City of NY v Mayor of City of NY, 7 NY3d 256, 262 [2006]; Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316 [2006]).

The finality and exhaustion of remedies requirements are drawn from case law on ripeness for judicial review (see Matter of Essex County v Zagata, 91 NY2d 447, 453-454, 454 n [1998]; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 [1986], cert denied479 US 985 [1986]; see also Williamson County Regional Planning Comm'n v Hamilton Bank of Johnson City, 473 US 172 [1985] [overruled in part]). The two requirements are conceptually distinct. "The focus of the 'exhaustion' requirement . . . is not on the challenged action itself, but on whether administrative procedures are available to review that action and whether those procedures have been exhausted" (Church of St. Paul & St. Andrew, 67 NY2d at 521; see also Williamson County Regional Planning Comm'n, 473 US at 192-193 [overruled in part]). Those who wish to challenge agency determinations under article 78 may not do so until they have exhausted their administrative remedies, but once this point has been reached, they must act quickly--within four months--or their claims will be time-barred.

Similarly in Save the View Now v Brooklyn Bridge Park Corp. (156 AD3d 928, 931-932 [2d Dept 2017]), the Court noted:

An action for a declaratory judgment is generally governed by a six-year statute of limitations (seeCPLR 213 [1]). However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period (see Solnick v Whalen, 49 NY2d 224, 229-230 [1980]; Town of Hempstead v AJM Capital II, LLC, 130 AD3d 607, 608 [2015]). Where an action could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies (seeCPLR 217 [1]; Matter of Banos v Rhea, 25 NY3d 266, 276 [2015]; Lenihan v City of New York, 58 NY2d 679, 682 [1982]; Matter of Sutherland v New York State Dept. of Envtl. Conservation, 122 AD3d 759 [2014]).

A proceeding pursuant to CPLR article 78 may be brought to review a determination of a public body or officer which is "final and binding upon the petitioner" (CPLR 217 [1]; seeCPLR 7801 [1]). There are two requirements for fixing the time when agency action is final and binding upon the petitioner: "First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 [2005]). A determination is final and the statute of limitations begins to run when the agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party (Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957, 962 [2006]; see New York State Assn. of Counties v Axelrod, 78 NY2d 158, 165 [1991]; Matter of School Adm'rs Assn. of NY State v New York State Dept. of Civ. Serv., 124 AD3d 1174, 1176-1177 [2015]), so that the petitioner knew or should have known that it was aggrieved (see Matter of Zimmerman v Planning Bd. of Town of Schodack, 294 AD2d 776, 777 [2002]; McComb v Town of Greenville, 163 AD2d 369 [1990]).

(See Matter of City of New York (Grand Lafayette Props. LLC), 6 NY3d 540, 547-548 [2006]; Matter of Yarbough v Franco, 95 NY2d 342, 346-347 [2002]; Matter of Romeo v Long Is. R.R. Co., 136 AD3d 926, 926-927 [2d Dept 2016].)

In P & N Tiffany Props., Inc. v Village of Tuckahoe (33 AD3d 61, 65-66 [2d Dept 2006]), the Court concluded:

Applying the analysis of Matter of Save the Pine Bush (supra) . . . , the conclusion is inescapable that the plaintiff's claim is governed by the four-month statute of limitations. The underlying challenge here is whether the local law was enacted without the statutorily-required notice. Regardless of the severity of the failure of notice, such a challenge goes not to the "wisdom or merit" of the law, but to the procedure by which it was enacted (see Matter of Save the Pine Bush, 70 NY2d 193, 202 [1987], supra; Matter of Voelckers v Guelli, 58 NY2d 170, 177 [1983], supra). Since such a procedural claim could have been brought pursuant to CPLR article 78 (seeCPLR 7803 [3]; Matter of E & J Sylcox Realty, Inc. v Town of Newburgh Planning Bd., 12 AD3d 445, 446 [2004], supra; Detmer v Acampora, 207 AD2d 477, 477-478 [1994], supra), which is subject to a four-month statute of limitations (seeCPLR 217 [1]), the action is untimely regardless of the form in which it has been brought (see Solnick v Whalen, 49 NY2d 224, 229-230 [1980], supra), and the order of the Supreme Court granting Village's cross motion, in effect, to dismiss the complaint on this basis should be affirmed.

(See Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316 [2006]; Matter of Smith v City Univ. of NY, 92 NY2d 707, 716 [1999].)

Where the challenge brought in a declaratory judgment action is to a quasi-legislative act or decision made by an administrative agency, the proper vehicle for such a review is a CPLR art 78 proceeding and the four-month statute of limitations applies (CPLR 7803 [2]).

Here, with respect to SMMB's motion, the statute of limitations began to run on January 1, 2022, when the Cannabis Law made the opt-out choice final and binding. That is the date when any underlying OML violation committed by the Town could have impacted plaintiff, and when he knew or should have known that he was aggrieved. Alternatively, on December 10, 2023, plaintiff wrote to the Cannabis Control Board and asserted that the Town Board had violated the OML and cites the facts and legal authorities, which resulted in the amended complaint. From December 10, 2023, the four-month statute of limitations would have expired on April 10, 2024. SMMB received its CAURD license on April 3, 2024, and on April 17, 2024, opened its store to the public and began retail sales.

With respect to the Town's motion, after December 31, 2021, no subsequent actions by the Town would or could have changed those circumstances. The Town's position was ascertainable to plaintiff by accessible public records maintained on the Town's website, including the Town Board agendas and meeting minutes. The statute of limitations began to run on, January 1, 2022, and expired in May 2022. This action started August 26, 2024. The exhaustion of administrative remedies relates to plaintiff taking action to achieve a final determination, not the Town's legislative efforts to address the concern of residents. The Public Officers Law § 107 (1) provides that an aggrieved party may enforce the provisions of the OML by bringing a CPLR art 78 proceeding, establishing that OML claims are maintainable pursuant to CPLR art 78 and, therefore, subject to the four-month statute of limitations (CPLR § 217 [1]).

Standing

The Court in Matter of Colella v Board of Assessors of County of Nassau (95 NY2d 401, 409-410 [2000]) stated that the "two-fold test for standing to challenge governmental action--that is, injury in fact, which harm 'falls within the 'zone of interests,' or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted' (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773; see, Rudder v Pataki, 93 NY2d 273, 280; Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587) . . . . [S]uffering 'special damage, different in kind and degree from the community generally' (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406, 413; see, Society of Plastics Indus. v County of Suffolk, supra, 77 NY2d, at 775, n 1)."

"In order to establish standing, the petitioners must show that they would suffer direct injury different from that suffered by the public at large and that the injury asserted falls within the zone of interests or concerns sought to be promoted by the provision at issue (see Matter of Graziano v County of Albany, 3 NY3d 475, 479 [2004])." (Matter of Friedman v Town Clerk of Town of Hempstead, 62 AD3d 699, 700 [2d Dept 2000]; see Diederich v Rockland County Police Chiefs' Assn., 33 AD3d 653, 654 [2d Dept 2006]; Cannabis Impact Prevention Coalition, LLC v. Hochul, 2024 NY Slip Op 24284 [Sup Ct, Albany County 2024].)

In Matter of McCrory v Village of Mamaroneck Bd. of Trustees (181 AD3d 67, 70-71 [2d Dept 2020]), the Court stated:

[T]he Open Meetings Law provides: "Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the [CPLR], or an action for declaratory judgment and injunctive relief" (Public Officers Law § 107 [1]) . . . . Generally, if the issue of standing is raised, a party challenging governmental action must meet the threshold burden of establishing that it has suffered an "injury in fact" and that the injury it asserts "fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). The injury-in-fact requirement necessitates a showing that the party has "an actual legal stake in the matter being adjudicated" and has suffered a cognizable harm (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]) that is not " 'tenuous,' " " 'ephemeral,' " or " 'conjectural,' " but is sufficiently concrete and particularized to warrant judicial intervention (Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 50 [2019], quoting New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d at 211, 214) . . . .

The purpose of the Open Meetings Law and the intent of the legislature in enacting that law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting. The Open Meetings Law plainly confers upon the public the right to attend certain meetings of public bodies (seePublic Officers Law § 100). Consistent therewith, the harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the Open Meetings Law (see Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d at 162; Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 71 AD2d at 781).

Here, with respect to SMMB's motion, plaintiff does not allege injury arising from the Cannabis Control Board's issuance of SMMB's CAURD license. Plaintiff does not allege injury to himself or the general public. Therefore, plaintiff lacks standing to assert the causes of action in the amended complaint.

With respect to the Town's motion, plaintiff does not have standing to seek affirmative relief to revisit the fact that the Town did not opt out. Whether the action is viewed as one for a declaratory judgment or a CPLR art 78 proceeding, plaintiff does not allege that he has suffered an injury in fact or that he suffered some personal deprivation or exclusion. Thus, plaintiff lacks standing to assert the causes of action in the amended complaint.

Attorney's Fees — Public Officers Law § 107 (2)

Public Officers Law § 107 (2) provides:

2. In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party. If a court determines that a vote was taken in material violation of this article, or that substantial deliberations relating thereto occurred in private prior to such vote, the court shall award costs and reasonable attorney's fees to the successful petitioner, unless there was a reasonable basis for a public body to believe that a closed session could properly have been held.

In Matter of Gordon v Village of Monticello (87 NY2d 124, 127-128 [1995]), the Court provided the following balanced guidance:

As we explained in Matter of New York Univ. v Whalen, however, not every violation of the Open Meetings Law automatically triggers its enforcement sanctions (46 NY2d 734, 735; see also, Matter of Goodson Todman Enters. v City of Kingston Common Council, 153 AD2d 103, 106). In contrast to the provisions of Federal and State civil rights laws, awards of attorneys' fees under the Open Meetings Law should not be granted by courts to the prevailing party simply as a matter of course (compare, Matter of Thomasel v Perales, 78 NY2d 561 [42 USC § 1988]; Matter of Northeast Cent. School Dist. v Sobol, 79 NY2d 598, 610 [20 USC § 1415]; see also, Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346 [CPLR 8601]).

Thus, as with awards of injunctive relief (see, Public Officers Law § 107 [1]), purely technical and nonprejudicial infractions (e.g., Town of Moriah v Cole-Layer-Trumble Co., 200 AD2d 879; Monroe-Livingston Sanitary Landfill v Bickford, 107 AD2d 1062) or wholly unintentional violations (e.g., Addesso v Sharpe, 44 NY2d 925; Matter of New York Horse & Carriage Assn. v Council of City of NY, 169 AD2d 547; see also, Public Officers Law § 107 [1]) do not rise to the level of supporting an award of attorneys' fees. Similarly, where the defendant has made a good-faith, reasonable effort to comply with the statute, attorneys' fees may not be warranted (e.g., Matter of Clark v Lyon, 147 AD2d 838; see also, Public Officers Law § 103 [b]).

However, where . . . the court finds that defendants' actions "took place ... in such a manner as to circumvent the Open Meetings Law quorum requirement" (see, Public Officers Law 105 [1]), that defendants later "stretched credulity" in describing their conduct to the court, that there was good cause shown to void the actions taken (Public Officers Law § 107 [1]), and that there had been "obvious prejudice" to plaintiffs as a result of defendants' intentional and deceitful conduct, an award of fees is justified (Matter of Orange County Publs., 120 AD2d 596, 597, supra).

Here, neither party has shown entitlement to attorney's fees. Thus, the Court in its discretion will not award attorney's fees to either party.

Conclusion

Plaintiff refers to "documentary proof" that prior to December 31, 2021, the Town Board collectively decided not to opt-out without ever telling its residents. Plaintiff relies on the Supervisor's October 29, 2021, email to neighboring Mayors and Supervisors, which were not shared with residents, and alleges facts speculating that a decision to opt-out was made by a quorum. However, the facts alleged that there was a secret decision are insufficient to show a cognizable claim of a violation of the OML.

The facts alleged do not support plaintiff's claim that the Town Board violated the OML by conducting a secret meeting to discuss whether to opt-out of the Cannabis Law, particularly since the Town Supervisor was the only member of the Town Board who participated in the email communications, and the other emails and documents establish only that the Town Board was aware of the Town's right to opt-out of the MRTA.

With respect to SMMB, plaintiff's factual allegations and the relief sought are vague and conclusory. As plaintiff has tried, to the extent plaintiff seeks to have SMMB's CAURD license revoked, the complaint must be made to the Cannabis Control Board.

An impediment, which the amended complaint cannot overcome, is that the claims are time-barred by the four-month statute of limitations, as the final determination was made by the Cannabis Law opt-out provision. The Town Board announced to the public at a noticed Pound Ridge Town Board meeting on April 6, 2021, that the Cannabis Law passed and that the legislation included a limited opt out provision. This announcement put plaintiff and every resident on notice. Each resident had the ability to learn from the Town Board minutes posted on its website that the cannabis opt-out deadline was December 31, 2021. There is no requirement that the Town had to continuously advise the residents.

To the extent relief is sought regarding SMMB's license, SMMB received a provisional CAURD license on May 23, 2023, and a permanent license on April 3, 2024. If plaintiff seeks to challenge the actions of the administrative agency that issued the license, this action was commenced on August 26, 2024, beyond the four-month statute of limitations relative the determination made on SMMB's license.

The remaining contentions do not require a different result.

Accordingly, it is,

ORDERED that the motion (# 2) by intervenor-defendant SMMB, Inc. is granted to the extent of dismissing the amended complaint, but the award for attorney's fees is denied; and it is further

ORDERED that the motion (# 3) by defendants Town of Pound Ridge and Town of Pound Ridge Town Board is granted to the extent of dismissing the amended complaint, but the award for attorney's fees is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: June 30, 2025

White Plains, New York

ENTER:

HON. DAVID F. EVERETT, J.S.C.

David F. Everett, J.