tilly foster decision
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To commence the statutory period for appeals as of right
under CPLR 5515|a|, you arc advised to serve a copy of this
order, with notice of entry, upon all parties.
SUPREME C OURT OF THE STATE OF N EW YORK
IAS PART, PUTNAM COUNTY
P re se nt: H on . F ra nc is A . Nicolai
Justice of the Supreme Court
PUTNAM COUNTY• :CLERK
Ml)APR 19 PHt'06
ANN FANIZZI,
Plaintiff,
DECISION and ORDER
INDEX NO. 861/2012
MOTION F/S DATE: 11/19/12
Seq.Nos. 1,2,3
- against -
SOCIETY FOR THE PRESERVATION OF
PUTNAM COUNTY ANTIQUITIES AND
GREENWAYS, INC., PUTNAM COUNTY,
PUTNAM COUNTY EXECUTIVE MARYELLEN
ODELL, WHIPPLE FOUNDATION FOR THE
PRESERVATION OF PUTNAM COUNTY
ANTIQUITIES AND GREENWAYS, INC., and
PUTNAM COUNTY SHERIFF DONALD B.
SMITH,
Defendants.
_X
The following documents, numbered 1to 58. were read on the motions ofDefendants
PutnamCounty, Putnam County Executive O'Dell and PutnamCounty Sheriff Smith (Putnam
County Defendants) and Defendant Society for the Preservation of PutnamCounty Antiquities
andGreemvays, Inc. (Society)to dismiss the Amended VerifiedComplaint, and on the Plaintiffs
Cross-Motion to set a bond under General Municipal Law §51:
Papers:
Not ofMot (Scq No. I) (Putnam County Defendants)/
Affirmation/E.xhs. A-L/Mcmoranduin
Not ofMot (Seq. No. 2)(Prescrve Putnam)/Affirmation/
Exhs. A-C/Memorandum of Law
Not ofCross-Motion (No 3) (Plaintiff)/Affidavil/
Exhs. A-Z/Mcmorandum of Law
Memorandum ofLaw(Putnam) inOpposition
WhippleAffidavit in Further Suppori/Exh. 1/
Reply Memorandum
Reply Memorandum (Putnam)
Reply Memorandum (Plaintiff)
Gordon Letter [Rec'd 11/19/121
Pankcn Letter |dated 11/15/12]
Numbered
1-15
16-21
22-50
51
52-54
55
56
57
58
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This action arises from PlaintiffAnn Fanizzi's involvement in efforts to preserve the
Tilly Foster Farm as a public agricultural center within Putnam County. The Amended Verified
Complaint(Complaint) asserts various claimsagainst the PutnamCountyDefendantsand the
DefendantSociety,and both sets of Defendants nowmove to dismiss the Complaint.
Specifically, the PutnamCounty Defendants move to dismiss,claiming a defense founded upon
documentaryevidence (CPLR §321 l|aJL!J): lackof subject matter jurisdiction andstanding
(CPLR § 32II [a][2], [3]); the causes of action are time-barred (CPLR §321 l[a] [5]); and the
pleading fails to statea causeof action (CPLR § 3211 [al[7")). Defendant Society also moves to
dismiss pursuant to CPLR§§3211 [a](3] and (a][71, claimingthat Plaintifflacks standing andhas
failed to state a cause of action.
To the extent these motions are addressed to the sufficiency of the pleadings, the
allegations of the Complaint areaccorded every favorable inference. While facts alleged in the
complaint shall beaccepted as true,and theComplaint givena liberal construction, '"allegations
consistingof barelegal conclusions aswellas factual claims flatly contradicted bydocumentary
evidence'" will be insufficient to defeat such motion (Salvaiore vKumar, 45 AD3d 560,562-63
|'2d Dept 2007]). A prc-answer motion todismiss based upon CPLR §3211 [a][l] will begranted
where the movant introduces controlling documents that resolve all factual disputes as a matter«
of law (Fontanetta vDoe. 73 AD3cl 78,86 |2d Dept20101) The question for the Court is
whether the Plaintiff has a cause of action, not merelywhether one has been stated (O'Connell
Fox &Conner vR-2000 Corp., 198 AD2d 154 [\A Dept 1993], citing Guggenheimer v
Ginxhurg. 43NY2d 268.275 [I977|).
As background, the Putnam County Agricultural and Farmland Protection Board drafted
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an agricultural and farmland protectionplan for theCounty (the,Plan). The Plan identified the
Tilly Foster Farm as deserving protection, and recommended that the Farm be used as a public
space and education center (Not ofMot. Exh. C). The PutnamCounty Legislature adopted the
Plan after a public hearing,and the Plan was approved by the State Departmentof Agriculture
and Markets on September 24,2004 (id, Exh. D). On June 3,2008, the Putnam County
Legislature adopted Resolutions amending the Plan to permitthen-Putnam County Executive
Robert Bondi to partnerwith George Whipple and the Society for the PreservationofPutnam
County Antiquities andGrcenways, Inc. to preserve Tilly Foster Farm. According to its
certificate of incorporation, the Society is a non-profit organization operated '"exclusively for
educational andcharitable purposes* * * for the puipose of fostering preservation of the historic,
architectural character andnatural environment of PutnamCounty"(Society Not ofMot, Exh. C).
After the County was designated LeadAgency, and all environmental review was
completed, the Legislature passed a Resolution on February 5.2009 approving a Lease
agreement (the Lease) between Putnam County and the Society to maintainand operate Tilly
Foster Farm asa public space and education center (id, Exh. H). The Lease was executed by
Putnam County and the Society on April 16.2009 (id. Exh. I).
According to PlaintiffKanizzi, she has been involved in the Tilly FosterFarm project as
anadvocate and by providing financial support for the Farm, having advanced in excess of
$200,000 as an anonymous donor. According to herComplaint, on May 4. 2008, she agreed to
partner with Mr Whipple and the Society to establish a farm museumatTilly Foster as
envisioned by the Plan (County Not ofMot, Exh. Exh.A, AmendedVerified Complaint. ffl]32-
33). Plaintiffallegesthat she and Whipple agreed to seek breeds of rare andhistoric farm
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animals as well as horses to house at the farm, to house six Randall Lineback cattle on the Farm,
and to fund displays of Putnam County's agricultural history- Plaintiff contends that Whipple
agreed to consult with her "on important decisions regarding the direction of the farm." In
exchange, she alleges.Whipple agreed to provide monthly financial reports to Plaintiff
concerning Tilly Foster Farm (id "J33-36.42)
According to the Complaint, basedupon this arrangement, Plaintiffgave Whipple
$50,000 on June 6,2008. In July 2008, she gaveWhipple another $10,000 to be used forhorses
{id,W l, 44-45). On September 16,2008. she gaveWhipple another$10,000, whichWhipple
promised to use for the Tilly Foster Farm museum (id, ffi| 46-47).
Thereafter, Plaintiff alleges that certain disagreements emerged between Plaintiffand
Whipple as to the operation of the Farm. For example. Plaintiffdisagreed with Whipple's
decision to allow a third parly to maintain a rock-and-roll collection on the first floor of the
homestead, which was not in accordwith the purpose of the farm. Plaintiff claims thatWhipple
also failed to provide her with regular promised accountings, and that when he did provide an
accounting, it inaccuratelyrcllcctcd her donations. According to the Complaint, despite (he
disagreements, Plaintiff continued to donate funds to the Society. In 2009, she donated another
$30,000. and in early 2010 she donated S60.000 to paint the farm. After that, she provided
another $13.000 'Tor certain emergencies and unpaid feed bills" (id, W0.86).
The Complaint alleges that, in December 2010, the Society advised Plaintiff that it
decided to stop funding (he Tilly Foster Farm. Plaintiff gave Whipple another $12,000 for
arrears in feed andwages at that lime (id. ffl| 97.99-102). In 2011, Plaintiff advanced over
$27,000 (id, 1142), but then ceased makingdonations to theSociety for Tilly Foster Farm.
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accountingof the funds provided to orearnedby Tilly Foster andexpenses incurred atTilly
Foster pursuantto the Lease and "defendants' commitment to Ms. Fanizzi."' She further sought
an Orderdirecting the eviction ofa ''squatter" who was allowed to maintain a rock and roll
exhibit in the first floor of in favor ofa historic exhibit on the Bloomer-Benedict life at Tilly
Foster, which was in line with the purpose of the site. Fanizzi also sought anOrder terminating
Sheriff Smith's chairmanship of the "New Whipple Foundation"1 on the ground that his role as
Sheriff and Chair creates a conflict of interest, and attorneys fees and costs for the action.
The Complaint contains the following twelve causes ofaction: (1) "Improper delegation
ofgovernmental authority" by theCounty to theSociety;(2) "Waste ofmunicipal property*' by
County's failure (ooverseeWhippleOrganizations' administration ofTilly Foster; (3)Whipple's
'violation of lease reportingrequirements/' which required the Society to provide financial and
operations reports (4) violation of fiduciary obligations by Whipple to Plaintiff; (5) violation of
settlement agreement betweenWhipple andPlaintiff; (6) Whipple's "violationofcommitment to
report finances to Plaintiff;" (7) Whipple's "violation of farm museumcommitment for
homestead;"(8) Whipple's "violation of farm museum commitment for cottage asbed and
breakfast;" (9)Whipple's "violationof lease reinvestment requirement," which required the
Society to "donate all profits from the farm activities back to the community (10) "Sheriffacting
outside scopeof authority,"(11) ''Shcriirs inherent conflict of interest;" and(12) "Sheriff lailurc
to notify legislature of interest in Lease" (id Exh. A, Complaintpassim).
1 Although theComplaint refers to a New Whipple Foundation and to WhippleOrganizations, there is no documentation establishing the existence ofaWhipple Foundation.For purposes of these motions, any allegations against the Whipple Foundation orWhippleOrganizations are deemed allegations against theSociety.
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The PutnamCounty Defendants and Defendant Society now move to dismiss the
Complaint. Common to both motions are the claims that Plaintiff has no standing to commence
an action, and has failed (o state a claim for which relief may be granted. In essence, the Putnam
County Defendants claim that Plaintiffis trying to holdthem responsible for her "frustrations"
with the Society's stewardship ofTilly Foster. Movants note that Plaintiffis not a party to the
leasenora named beneficiary of the lease,andthus claim she cannot enforce any of the
obligations therein against any Defendants. The Putnam Defendants were not parlies to the
agreements between Plaintiff and the Society, and argueany such agreements cannotbe enforced
against the County.
The first two causes of action lodge complaints solely against the County Defendants. In
the First Cause of Action, Plaintiffalleges that the County Defendants improperly delegated to
the Society the County's responsibility to establish and run the Tilly Foster Farm Museum as a
preserve of Putnam County agricultural history for the benefit of the general public, (id.,^216-
231). Plaintiff claims that the "responsibility includes the authority to construct, operate,
maintain and repair the farm and facilities atTilly Foster, determine the animals andother
agricultural operations, and determine the lessees and vendors. It also delegates control of Tilly
Foster costsand finances" (id.. 1fl|216-218) Plaintiffalleges that, since executing the Lease in
2009, the County"has exercised little or no discretion orcontrol over the operations atTilly
Foster," and "has no authority to delegate thedirection andoperation ofTilly Foster to a private
business, by lease oranyother contract, without anyeffective public oversight or control" (id.
1fl|2l9,223). Plaintiff has clarified inOpposition totheMotions to Dismiss thai, the first cause
of action for improper delegation does not challenge theCounty's authority to enter the Lease
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with the Society. Rather, she "challengesthe County's ongoing failure to controlor oversee Tilly
Fostergovernance and finances, resulting in damage to her and the public" and rendering it
"complicit in the mismanagement"(PI.Memoof Law inOpp,p. 10).
In the SecondCause ofAction forwaste of municipal property. Plaintiffalleges that the
Society allowed important assets on Tilly Foster todeteriorate,or remain in disrepair or
hazardous condition, that it failed to account for its finances, and that these "failures have hidden
the financial irregularities atTillyFoster from Ms. Fanizzi and the County legislature" (id. ffi|
216-241). She furtheralleges that the Society has usedTillyFoster for purposesother than the
creationand maintenance of a farmmuseum, resulting in misuse and wasteofTillyFoster's
resources,diversionof revenue fromTilly Fosterand consequent failure to pay bills and
expenses"' (id. ffl| 225). She alleges on information and belief, that "the County's failure to
oversee the WhippleOrganizations' administration ofTilly Foster, and their diversion ofTilly
Foster resources for other purposes than the creation and maintenance of a farm museum, has
resulted from Whipple's political contributions to and supportof CountyOfficials." (id *J229).
Plaintiff also alleges that "|n]cither the County Executive nor the legislature has evinced any
interest in preventing the violations orwaste of resources atTillyFoster" (id, ffi] 229,230).
The County Defendants challenge Plaintiffs standing to assert the claims of improper
delegationofauthority and municipal waste. Plaintiffcounters that a person has standingwhen
she suffers an injury-in-fact which is within the zoneof interestsof the decision and the law she
is seeking to review (h'ew York Stale Assn ofCommunity Action Agency lid. Members vShaffer.
119 AD2d 871. 874 |3d Dept 1986|). Shecontends that she falls within that ambil "asa result of
her direct, personal stake in the development of the" Tilly Foster farm and preserve, having been
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an early and continuous advocate of the project, and having "substantially funded the
preservation effort" (PI Memo of Law in Response, pp. 16-17). She also claims that she has
"'injurydifferent from the public at large as a result of her preservation efforts on Tilly Foster and
her common use of the facility,"' (id., p. 18). However, Plaintiff is not claiming any financial or
other injury different than that potentially suffered by the public at large. She is not seeking
return of her funds, and is not claiming that her funds werewasted. Plaintiff has not identified
any particular injury that she has sufferedas a result of the allegedmismanagement and waste.
Plaintiff alternatively argues that she has standing as a taxpayer pursuant to GM L §51.
That section provides that a taxpayer having an assessment of $1,000.and who shall be liable to
the County to pay taxes on such assessment, may prosecute an action "to prevent any illegal
official act on the party of any such officers * * * or to prevent waster or any injury to * * * any
properly, funds or estate of such county * * *. The Court of Appeals has explained that '*[a|
taxpayer suit under GML§51 "lies only when the acts complained of are fraudulent, or a waste of
public property in the sense that they represent a use ofpublic properly or funds for entirely
illegalpurposes'" (Godfrey vSpano, 13 NY3d 358. 373 [2009J.quoting Mesivta ofForest Hills
Inst vCityofNew York. 58 NY2d 1014. 101611983]). Plaintiff has not alleged any such
fraudulent conduct or use of public funds for illegal purposes. Thus, having failed tomeet these
pleading requirements.3 Plaintiffs First andSecond Causes ofAction against the Putnam County
2 Rather than '"standing" requirements, these pleading requirements have been identifiedas "conditions precedent" to maintaina taxpayer action underGeneral Municipal Law§51(NYPIRG. Inc. vBoard ofAssessment Review ofCity ofAlbany, !04Misc2d 128, 131 LSupCl
Albany Cty 19791; •"•'<•' «'•«'darkens Truck A- Equip vCity ofYonkers, 174 AD2d 127, 135 |2dDept 19921 [allegation that petitioner pays taxes inmunicipality is "condition precedent" toGML§51 claim).
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Defendants must be d i sm i ssed .
The Fourth through Eighth Causes ofAction allege violations of agreements purportedly
madebetween the Society and Plaintiff. There is noallegation thatany of the County Defendants
were parties to these agreements, nor that they wereobligated to cureany alleged defects in the
Society's performanceof those private agreementswith Plaintiff. Thus, the Fourth through
Eighth Causes ofAction are dismissed to theextent they are asserted against County Defendants.
With respect to the Society, the Fourth Cause of Action alleges that, by accepting her
donations, Whipple andthe Society "incurred a fiduciary obligationto use such monies to
preserve Tilly Foster as an exhibition of Putnam County's agricultural history," and that their
failure to account for the moneys contributed to orearnedby Tilly Fosterviolated their fiduciary
obligationsto Plaintiff(Complaint, ffi|242-248). A fiduciary relationship "may exist where one
party reposes confidence in another and reasonably relies on theother's superior expertise or
knowledge" (Faith Assemblyv Titledge ofNew York Abstract. LLC, 2013NY SlipOp2046at
*27 [2d Dept3/27/13)). The "coreofa fiduciary relationship is "a higher, level of trust than
normally present in the marketplace between ihosc involved in arm's length business
transactions" (id at 27-28). Plaintiffhas failed to plead specific facts, with sufficientdetail as
required byCPLR 3016(b). that would support theexistence of a fiduciary dutyowedto herby
Whippleorthe Society (id. at28-29). Thus, the Fourth Cause of Action is dismissed against
Defendant Society.
In the FifthCause of Action, Plaintiff alleges that in a June 22,2011 settlement
agreement between her and the Society, the Society "committed to wind up its affairs at 'filly
Foster and appoint and employ Ms. Fanizzi as interim executive director during the ensuing
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year'" (Complaint, |250).3 She contends that she relied substantially on those commitments in
donating more than $20,000 to Tilly Foster during the remainderof2011. In her Sixth Causeof
Action. Plaintiffsimilarly alleges that, Whipple promised to report to Ms. Fanizzi regarding Tilly
Foster finances on amonthly basis (id, *]|*|258). In the Seventh Cause ofAction, Plaintiffclaims
that Whipple breached a commitment to exhibit the domestic life exhibit by continuingto allow
the rock and roll exhibit to occupy the homestead's first floor (id. 'fl 259-270).'' In the Eighth
Cause ofAction, Plaintiffsimilarlyclaims that the Society violated thecommitment lo establish
and runa bed and breakfastatTilly Foster, and (hat its removal of the bed and breakfast from the
cottage violated this commitment (id. ffi| 271-273).
Plaintiffclaims thai the Society breachedall of those commitments. However, Plaintiff
has failed to plead any injury she suffered as a resultofany of the purported breaches. For
example, she does not seek returnof the funds donated in relianceon those commitments, nor
docs she seek to benamed interim executive director. In the absenceof any claimed injuryto
Plaintiffas a result of the purported breaches, the Fifth Cause ofAction through Eighth Causes of
Action, as asserted against the Society, aredismissed.
With respect lo the Third and Ninth Causeof Action. Plaintiffalleges that the Society
violated the reporting andreinvestment requirements in the Lease between the Society and the
County. Both sets of Defendants move to dismiss these claims on the ground thai Plaintiff was
neither a party to. nor intendedbeneficiaryof. the Lease. Undeniably. PlaintilTwas not a party to
3 The Society counters that Fanizzi was, in fact, named interim executive director(Society Memo of Law. p. 16, n.6).
"* The Society contends that the rockand roll exhibit had historic value, andthai theSociety had authority to decide the natureof the exhibitions (id. p. 13).
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that lease. The question is whether she has alleged sufficient facts to establish that she was an
intendedbeneficiaryof that lease (Fourth Ocean Putnam Corp v Interstate Wrecking Co., Inc.,
66 NY2d38,43-44 11985]). The parlies agree that the governingstandard indetermining
whether Plainiilfis an intended beneficiary, enunciated in Fourth Ocean Putnam Corp v
Interstate Wrecking (66 NY2d 38,44 [19851. quoting Restaiemcnt (Second) of Contracts
§302[2]), is whether
'performance of the promise will satisfy an obligation of the promisee to pay
money lo the beneficiary" or that "thecircumstances indicate that the promisee
intends to give the beneficiary the benefit of the promised performance." Among
thecircumstances tobe considered is whether manifestation ofthe intention ofthe
promisor andpromisee is 'sufficient, in a contractual setting, tomake reliance bythebeneficiary both reasonable andprobable" (id,comment d). And under
[Restatement] section 313(1) the same rules apply to contracts with a government
or governmental agency except to the extent that application would contravene Ihe
policy of the law authorizing the contract or prescribing remedies for its breach
(emphasis supplied).
Defendants argue that Plaintiffhas pleaded no facts indicating that Fanizzi was an
intended beneficiary of the Lease. As Defendants further allege, the Lease does not mention
Plaintiff in any way. Plainiilfcounters that she qualifies as a third party beneficiary to the Lease
"because the County officials negotiating the Lease and Mr. Whipple wantedand
needed lo keep herasa donor. Given herconcern about the useof herdonatedfunds, there is little doubt that the accountability provisions in the lease, such as
the requirement for quarterly reporting to the legislature and annual accounting,were 'sufficient lo make Ms. Fanizzi's reliance 'both reasonable and probable"'
(Fanizzi Memo of Law in Opp, p 34).
However, the Court finds that Plaintiff has not sufficiently alleged that the Countyor the
Societymanifestedor demonstrated any intention logive her the benefit of the Society's
promises to report and reinvest under the lease. There are no allegations in the Complaint
suggesting themannerinwhicheitherpartyto theLease evidenced such intention. Without such
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alleged evidenceof intent. Plaintiffs claim of reasonablerelianceon the Society's performance
of the lease for her benefit fails.5 Plaintifflitis notalleged any further facts from which a
reasonable inferencemaybe drawn to establish that the lease's reporting and reinvestment
clauseswere intendedto satisfyany obligation to Plaintiff. Thus, theThirdand NinthCauses of
Action must also be dismissed for f ai lu re to s ta te a claim.
The Tenth, Eleventh and Twelfth Causes of Action raise allegations specific to Sheriff
Smith. Plaintiff alleges in theTenthCause ofAction thatSmith is acting outside the scope ofhis
authority as Sheriff, and in violation of StaleLaw and Putnam County Charier §11.03, byserving
as Chair of the Board of the Society. State law requires the sheriff to "perform the duties
prescribedby law as an officer of the court andconservatorof the peace within the county * * *
and such additional and related duties as may be prescribed by law and directed by the * * *
county legislature (County Law §650). The PutnamCountyCharier provides that ihe sheriff
"shall hold no other electedpublic or electedpolitical officeduring his or her term ofoffice and
shall devote his or her full working time to the duties of the office" (Putnam CountyCharter
§11.03 [italics supplied]). The Society is a non-profit organization, and Smith's role as Chair of
the Board is a volunteer position. There is no legal prohibition on Smith holding public officeas
Sheriff and serving as volunteer chair of a non-profitorganization, and thus the Tenth Cause of
Action is dismissed.
In the Eleventh Cause ofAction. Plaintiff alleges that Smith's chairmanship of the
Society creates an inherent conflictof interest with hisdutiesas Sheriff/;? the event that there is
5 UnderPlaintiffs theory, theCounty'smereawareness of financial donations to the
Farm at the lime it entered the lease would be sufficient to entitle all donors to enjoy the status of
intended beneficiary of the lease The Court declines to make that leap here.
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:'[a]ny potential wrongdoingat Tilly Foster * * * [thatj may becomesubject to the sheriffs law
enforcement and investigative authority." A municipal employee has an "interest" where there is
a "director indirect pecuniary or material benefit accruing toa municipal officeror employee as
the resultof a contractwith themunicipality which suchofficeror employeeserves" (GML
§800[3]). No suchpecuniary ormaterial benefit to SheriffSmith is alleged here.
Additionally, a municipal officer or employee is deemed to have an interest in a contract
of uacorporation inwhichsuch officeror employee is anofficer, director or employee" (GML
§800[3][c]). Such an interest is prohibited, however, in the limited circumstances where the
municipal officer has the power to negotiateor approve the contractor payment thereunder, audit
billsor claims under thecontractor appoint anofficer ofemployee whohassuch powers (GML
§801). However, contracts 'with a membership corporation or other voluntary non-profit
corporation or association"which would otherwise by prohibited are expressly permitted (GML
§802[fJ;Stettine vCounty ofSuffolk, 105AD2d 109. 114 f2dDept 19841, aff'dte NY2d354
11985]) Plaintiffhasnot alleged that Smith fallswithin anyof the prohibited categories.
Accordingly, the conflict of interest alleged here against Smith in the Twelfth Cause ofAction is
not actionable (GML§802|fJ). Plaintiff has also not established that she is entitled to assert any
private right of action for. or has been injured bySmith's alleged non-disclosure of that interest
to the Legislature in violation ofGML §803pl and Putnam County Charter §55-6|B]), especially
since, as she admits, notice of Smith appointment as Chair of the Board was announced publicly
through the newspaper {Stettine. 105 AD2d at 117. supra). There is no allegation thatSmith's
interest as memberof the Boardwas ever concealed from the public or legislature (id). Thus,
Plaintiffs Thirteenth Cause ofAction is also dismissed.
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Referringto her prayer for relief, Defendant Society succinctly arguesthai Plaintiff:
requests that this Court (I ) annul a lease that she is not a party to; (2) appoint a
Receiver for a historic farm in which she has no ownership or other legal status;
(3) orderan accounting from Defendants as to that same farm for which heronlylegal connection is that shemadecertain monetary donations; (4) order eviction of
an exhibit on the farm which is not restrictedby the Lease so is lawfully present
and inwhich plaintiffhasno legal interest and(5) determine the internal
governance ofa defendant not-for-profit companyby terminating the tenureof its
current chairman (Memorandum of Law, p 10).
The Court agrees with this summaryof the allegations of theComplaint, andthe Society's
assertion that"none of these demands would redress any injury experienced by Fanizzi, as she
hassufferednocognizable injury and alleges none'' (id). Accordingly, the Defendants' motions
to dismiss aregranted in theirentirely. Plaintiffs cross-motionto fix a bond to proceed with her
suit is thus rendered moot. Given all the foregoing, it is hereby
ORDERED that the Defendants' motions to dismiss the Amended Verified Complaint are
granted in their entirety and this action is dismissed; and it is further
ORDERED that Plaintiffs cross-motion to fi x a bond i s d en ied a s moot.
The foregoing constitutes the Decision, Judgment and Order of this Court.
Dated: Carmel, New York
April 15.2013
To: David K. Gordon, Esq.
12 6 Main Street . Suite I
N ew Paliz. N ew York 12561
Kcane & Beanc, P.C.
445 Hamilton Avenue, 15,h Fl.White Plains, New York 10601
Epstein Becker & Green. P.C.
250 Park Avenue
New York. N ew Y or k 10177-1211
Ion . Franci s A. Nicolai . JSC
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