tilly foster decision

8/22/2019 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



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



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



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.



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



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

8



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).



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

10



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).



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

12



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.

13



:'[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.

14



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

tilly foster decision

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