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A FOIL REQUEST FOR A ZONING BOARD OF APPEALS (ZBA) MEMO SHOULD NOT HAVE BEEN DENIED BECAUSE PETITIONER HAD UNSUCCESSFULLY SOUGHT TO ANNUL A ZBA RULING; MATTER REMITTED FOR REVIEW OF THE MEMO TO DETERMINE WHETHER IT IS EXEMPT FROM DISCLOSURE AS INTER-AGENCY OR INTRA-AGENCY MATERIAL (SECOND DEPT).

The Second Department, reversing the denial of the petition, determined the FOIL request for a memo prepared by the Chair of the Zoning Board of Appeals (ZBA) should not have been dismissed on the ground the petitioner had unsuccessfully sought to annul a determination by the ZBA. The matter was remitted for a review of the memo by the judge to determine whether it was exempt from disclosure as inter-agency or intra-agency material:

Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul a determination by the ZBA. “FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose. The underlying premise [is] that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government” … . “[T]he standing of one who seeks access to records under [FOIL] is as a member of the public, and is neither enhanced nor restricted because he [or she] is also a litigant or potential litigant” … .

… [E]xemptions are construed “narrowly, and an agency has the burden of demonstrating that an exemption applies ‘by articulating a particularized and specific justification for denying access'” … . When relying upon an exemption, “it is the agency’s burden to demonstrate that the requested material falls squarely within a FOIL exemption” … . “To meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient” … . Here, the exemption at issue provides that each agency shall make its records available for inspection, “except that such agency may deny access to records or portions thereof that . . . are . . . intra-agency materials which are not . . . statistical or factual tabulations or data” … . … Factual data “simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” … . Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00324, Second Dept 1-22-25

Practice Point: A FOIL request should not be denied on the ground the person making the request is, was or could be a litigant in a matter related to the request.

Practice Point: Intra-agency and inter-agency material, meaning opinions, ideas or advice exchanged as part of a deliberative process, is exempt from FOIL disclosure.

 

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RATHER THAN DISMISSING THE PETITION FOR FAILURE TO INCLUDE NECESSARY PARTIES, SUPREME COURT SHOULD HAVE DIRECTED THAT THE NECESSARY PARTIES BE SUMMONED; THE COURT’S POWER TO SUMMON NECESSARY PARTIES IS NOT AFFECTED BY THE RUNNING OF THE STATUTE OF LIMITATIONS; ONLY THE SUMMONED NECESSARY PARTIES THEMSELVES HAVE STANDING TO RAISE THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined dismissing the complaint was not the appropriate remedy for petitioners’ failure to include necessary parties, the property owners,, in this Article 78 proceeding challenging zoning variances. Supreme Court should have directed the necessary parties be summoned. The courts power to summon necessary parties is not affected by the running of the statute of limitations. Only the necessary parties themselves have standing to raise the statute of limitations defense:

When a necessary party has not been made a party and is “subject to the jurisdiction” of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned ([CPLR]. § 1001[b] …). Contrary to the respondents’ contention, the Supreme Court’s ability to direct joinder of the property owners at this juncture is not affected by the purported running of the statute of limitations … . Moreover, the respondents lack standing to assert a statute of limitations defense on behalf of the property owners, who have not yet appeared in this proceeding … . Thus, the respondents failed to demonstrate that the petitioners’ failure to join the property owners as respondents warranted dismissal of the petition. Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00323, Second Dept 1-22-25

Practice Point: Here the dismissal of the petition for failure to include necessary parties was not appropriate. The court should have directed that the necessary parties be summoned.

Practice Point: A court’s power to direct that necessary parties be summoned is not affected by the running of the statute of limitations.

Practice Point: Here only the necessary parties themselves have standing to raise the stature of limitations defense.

 

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THE MUNICIPAL LAW PROVISION WHICH REQUIRES JUNK YARDS TO BE LICENSED DOES NOT APPLY IN PLAINTIFF TOWN WHERE DEFENDANT OPERATES HER JUNK YARD; A LOCAL ZONING ORDINANCE, WHICH DOES NOT REQUIRE LICENSURE, IS THE CONTROLLING LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Municipal Law provision which requires junk yards to be licensed does not apply to defendant because the local zoning ordinance is the controlling law:

… [T]he parties dispute whether General Municipal Law § 136 applies to junkyards located within plaintiff [town]. That statute provides that it “shall not be construed to . . . supersede . . . ordinances or local laws for the control of junk yards . . . and shall not be deemed to apply to any municipality which has any ordinance or local law or regulation to license or regulate junk yards” (General Municipal Law § 136 [12]).

We agree with defendant that General Municipal Law § 136 is inapplicable to plaintiff’s regulation of her junkyard inasmuch as plaintiff has a local “zoning ordinance[] . . . for the control of junk yards . . . in effect” … . Plaintiff’s Zoning Ordinance … defines the term “Junkyard,” establishes Zoning Districts, including, as relevant here, an “Agricultural/Residential District” and an “Industrial Zoning District,” provides that a junkyard is allowed only in an Industrial Zoning District and only with a Special Use Permit, and governs the application for and issuance of Special Use Permits. Plaintiff [town] therefore effectively implemented an “ordinance or local law or regulation to license or regulate junk yards” … . It is of no moment that plaintiff’s Zoning Ordinance did not include a specific policy for issuing a license for junkyards … . Town of Montezuma v Smith, 2024 NY Slip Op 06433, Fourth Dept 12-20-24

Practice Point: By its own terms the General Municipal Law provision which requires licensure of junk yards does not apply in towns that have a zoning ordinance which regulates junk yards, even where the ordinance does not require licensure.