Preview
FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
X
In the Matter of the Application of
THE ORIENT YACHT CLUB (Incorporated)
aka Orient Yacht Club Index No.: 604402/2023
Petitioner/Plaintiff, Assigned Justice:
Hon. George Nolan, JSC
For a Judgment Pursuant to Article 78 of the
Civil Practice Laws and Rules,
And for Declaratory and Injunctive Relief
-against-
Suffolk County Aquaculture Lease Board;
Suffolk County Department of Economic Development and Planning;
Suffolk County
Respondents/Defendants
and Summer Wind Oysters LLC,
Respondent
COUNTY RESPONDENTS-DEFENDANTS' MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
Respectfully Submitted,
DENNIS M. COHEN
SUFFOLK COUNTY ATTORNEY
Attorneyfor County Respondents-Defendants
Suffolk County _Aquaculture Lease Board,
Suffolk County Department of Economic
Development and Planning, and Suffolk County
100 Veterans Memorial Highway, P.O. Box 6100
Hauppauge, New York 11788-0099
631-853-4846
By: LISA AZZATO
Assistant County Attorney
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
STATEMENT OF FACTs .2
ARGUMENT 5
POINT I
THE STANDAND SET FORTH IN CPLR §3211
DEMANDS DISMISSAL OF THIS ACTION
POINT II
THERE IS NO PERSONAL JURISDICTION OVER THE BOARD 6
POINT III
THE BOARD RESOLUTION IS NOT A FINAL DETERMINATION
AND, ACCORDINGLY, THIS MATTER IS NOT RIPE FOR
ARTICLE 78 REVIEW 8
POINT IV
PETITIONER LACKS STANDING TO BRING THIS ACTION 12
POINT V
THE DRASTIC REMEDY OF AN INJUNCTION IS NOT WARRANTED.. 14
POINT VI
NO JUSTICIABLE CONTROVERY EXISTS TO MERIT
DECLARATORY RELIEF 17
CONCLUSION 18
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TABLE OF AUTHORITIES
Page(s)
Cases
Aetna Insurance Co. v. Capasso,
75 N.Y.2d 860, 552 N.Y.S.2d 918 (1990) 16, 17
Best Payphones, Inc. v. Dept. of Info. Tech. & Telecom. Of City of
N.Y., 5 1V.Y.3d 30, 799 NYS2d 182 11
Cold Spring Harbor Civic Assn. v. Suffolk County Department of Health Services,
305 A.D.2d 499, 762 NYS2d 406 (2d Dept. 2003) 11, 12
Combustion Eng'g., Inc. v. Travelers Indem. Co.,
75 A.D.2d 777, 428 N.Y.S.2d 235 (1st Dep't 1980) 12
CPD N.Y. Energy Corp. v. Town of Poughkeepsie Planning Board,
139 A.D.3d 942, 32 N.Y.S.2d 275 (2d Dept. 2016) 13
Dairylea Coop. v. Walkley,
38 N.Y.2d 6 14
Dallemand v. Sun Company, Inc.,
300 A.D.2d 274, 751 N.Y.S.2d 505 (2d Dept. 2002) 6
Doe v. Poe,
189 A.D.2d 132, 595 N.Y.S.2d 503 (2d Dept. 1993) 15
Godfrey v. Spano,
13 N.Y.3d 358, 920 N.E.2d 328 (2009) 5
Haber v. Board of Estimate of City of New York,
33 A.D.2d 571, 305 N.Y.S.2d 520 (2d Dept. 1969) 14
Harlem River Consumers Coop. v. State Tax Commn.,
44 A.D.2d 738, 354 N.Y.S.2d 472 (3d Dept. 1974) 6
Macchia v. Russo,
67 N.Y.2d 592, 505 N.Y.S.2d 591 (1986) 7
Marietta Corp. v. Fairhurst,
301 A.D.2d 734, 754 N.Y.S.2d 62 (3d Dept. 2003) 15
Matter of Essex County v. Zagata,
91 N.Y.2d 447, 695 N.E.2d 232 (1998) 8, 10
Matter of Patel v. Bd. of Trustees of Inc. Vil. of Muttontown,
115 A.D.3d 862, 982 N.Y.S.2d 142 (2d Dept. 2014) 8
McMullen v. Arnone,
79 A.D.2d 496, 437 N.Y.S.2d 373 (2d Dept. 1981) 7
Network Fin. Planning v. Prudential-Bache,
194 A.D.2d 651, 599 N.Y.S.2d 1000 (2d Dept. 1993) 16
ii
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People v. New York City Transit Authority,
59 N.Y.2d 343, 452 N.E.2d 316 (1983) 5
Premier Restorations of New York Corp. v. New York State Dept. of Motor Vehicles,
127 AD3d 1049, 5 NYS3d 888 (2d Dept. 2015) 18
Rosa Hair Stylists; Inc. v. Jaber Food Corp.,
218 A.D.2d 793, 631 N.Y.S.2d 167 (2d Dept. 1995) 16
Stark v. Goldberg,
297 A.D.2d 203, 746 N.Y.S.2d 280 (1st Dept. 2002) 14
Teitler v. Pollack & Sons,
288 A.D.2d 302, 733 N.Y.S.2d 122 (2d Dept. 2001) 6
Town of Riverhead v. Central Pine Barrens Joint Planning and Policy Commission,
71 A.D.3d 679, 896 N.Y.S.2d 382 (2d Dept. 2010) 8, 12
Tri-State Sol-Aire Corp. v. County of Nassau,
156 AD2d 555, 548 NYS2d 810 (2d Dept. 1989) 18
U.S. Bank, N.A. v. Adrian Collymore,
68 A.D.3d 752, 890 N.Y.S.2d 578 (2d Dept. 2009) 14
Wheaton/TMW Fourth Ave., LP V New York City Dept of Bldgs.,
65 A.D.3d 1051, 886 N.Y.S.2d 41 (2d Dept. 2009) 15, 16
Statutes
New York Environmental Conservation Law §13-1302 .2, 3, 4
New York State Environmental Conservation Law §13-0316 3, 4
Rules
CPLR §312 6. 7
CPLR §3001 17
CPLR 3211 5, 6, 12
CPLR §6301 15
CPLR §6312 16
CPLR §7801 9
CPLR §7804 6
Other
Suffolk County Code, Chapter 475, §475-6 et seq., 2, 3, 9, 10
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PRELIMINARY STATEMENT
This is a hybrid Article 78 special proceeding brought by Petitioner-Plaintiff, The Orient
Yacht Club (Incorporated) a/k/a Orient Yacht Club ("Orient Yacht Club" or "Petitioner"), against
Respondents-Defendants, Suffolk County Aquaculture Lease Board (the "Board"), Suffolk
County Department of Economic Development and Planning ("Planning Dept."), and Suffolk
County ("County"), collectively (the "County Respondents") and others for a judgment pursuant
to Article 78 of the Civil Practice Law and Rules ("CPLR") and also seeking declaratory and
injunctive relief.
In this proceeding, Petitioner asserts two causes of action: (1) seeking Article 78 relief
claiming the Board's inclusion of the subject underwater parcels as being available for aquaculture
leasing was arbitrary and capricious, and contrary to SEQRA; and (2) seeking a declaratory
judgment preventing the approval and leasing of all lease sites in Orient Harbor without first
considering the method of aquaculture, navigational impact, and consistency with the Town of
Southold's Local Waterfront Revitalization Plan ("LWRP"), and further seeking a declaration
banning all floating aquaculture equipment in any future aquaculture lease site.
As discussed more fully below, personal jurisdiction has not been acquired over the Board,
subject matter jurisdiction is lacking because no final determination has been made, Petitioner
lacks standing to bring this proceeding, and the Board's review of the subject property for
aquaculture leasing was in accordance with law. For these and other reasons, respectfully, the
Petition should be dismissed.
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STATEMENT OF FACTS
Following a public meeting convened on October 18, 2022, by Resolution No. 10-2022,
the Suffolk County Aquaculture Lease Board approved certain underwater aquaculture sites
located within the previously approved Suffolk County Shellfish Cultivation Zone as being sites
which may be made available for leasing pursuant to Chapter 475, Article II, of the Suffolk County
Code under the County's Shellfish Aquaculture Lease Program. A copy of the Resolution is
attached as Exhibit "1" to the Affirmation of Lisa Azzato dated April 14, 2023.1 The sites at issue
are identified in the Resolution as sites T13, T14, and T15 located within the Revised Shellfish
Cultivation Zone, (the "Subject Parcels"). See Exhibit "1". A brief history of the establishment of
the Suffolk County Shellfish Aquaculture Lease Program in Gardiner's and Peconic Bays, the
creation and adoption of the Suffolk County Shellfish Cultivation Zone, and the applicability of
New York State Environmental Conservation Law §13-0302 are recited in the Resolution. See
Exhibit "1". The Shellfish Aquaculture Lease Program as set forth in Chapter 475 of the Suffolk
County Code also details the history of the program in New York State. The revised Shellfish
Cultivation Zone map as referenced in the Suffolk County Code is attached as Exhibit "3" and the
location of the Subject Parcels can be seen in Orient Harbor located at the top part of the map. For
the Court's and the parties' convenience, an enlargement of the relevant area is shown in Exhibit
"4".
As a plain reading of the Resolution itself makes clear, the Resolution does not make any
determination as to the leasing of any parcel and certainly makes no final determination confirming
an aquaculture lease. Instead, the Board Resolution resolves that the Subject Parcels may be made
All references to exhibits herein are references to Exhibits to the Affirmation of Lisa Azzato dated April 14, 2023.
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available for the purpose of shellfish cultivation under the provisions outlined in the Suffolk
County Code, Chapter 475, Article II, and the Revised Administrative Guidance. Exhibit "1".
In its Petition, Petitioner wrongly contends that the Board "has approved Respondent
Summer Wind Oysters LLC as the eventual lessee of underwater land in Orient Harbor, in the
Town of Southold, for the purposes of aquaculture". [NYSCEF Doc. No. 1 at ¶1.] The Resolution
does not approve the Respondent Summer Wind Oysters LLC ("Summer Winds") as lessee, but
resolves only that the Subject Parcels are eligible for future leasing. As a plain reading of the
applicable law makes clear, Chapter 475 of the Suffolk County Code provides that the role of the
Board is "to determine which proposed lease sites within the Shellfish Cultivation Zone will be
eligible for leasing" (Suffolk County Code §475-7) and that the Board "shall determine which sites
shall be available for leasing, in accordance with §475-18 of this article" (Suffolk County Code
§475-14, emphasis added). See Exhibit "2", Suffolk County Code, Chapter 475, §475-6 et seq.,
Shellfish Aquaculture Lease Program.
As to the operation of the Board, the Suffolk County Code is again clear stating that the
Board reviews "whether the proposed lease sites shall be available for leasing" and shall base its
review upon:
(1) Whether the proposed sites meet the criteria of New York Environmental
Conservation Law §13-1302 and the Suffolk County Shellfish Aquaculture Lease
Program.
(2) Factors affecting the desirability of the sites for shellfish cultivation; including,
but not limited to, regional and environmental factors.
Exhibit "2," Suffolk County Code §475-18(C)(1) & (2).
As a brief background of the history of aquaculture in Suffolk County, Environmental
Conservation Law §13-0302 provides that New York State ceded to the County all underwater
lands of Gardiner's and Peconic Bays for the purpose of shellfish and seaweed cultivation, except
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for underwater lands within 1,000 feet of the high water mark. ECL §13-0302(1). The New York
State Department of Environmental Conservation retains its authority over shellfish cultivation,
including, but not limited to, its permit requirements for shellfish cultivation pursuant to ECL §13-
0316 and its power to regulate and control the use of vessels and equipment for shellfish harvesting
and to enforce all applicable state laws relating to these underwater lands. ECL §13-0302(6) &
§13-0316. As the Environmental Conservation Law makes clear, no person shall engage in off-
bottom or on-bottom culture without first obtaining a permit from the Department of
Environmental Conservation and no permit shall be issued unless the applicant has obtained all
necessary permits or licenses required under state or federal law and obtained the written
authorization of the local political subdivision. ECL §13-0316(2). In sum, no shellfish cultivation
can occur unless and until the potential lessee has obtained the required permits under federal and
state law for such shellfish cultivation. The Board's approval of a site as available for shellfish
cultivation is not an approval of a lease or lessee and is certainly not a final determination subject
to Article 78 review.
Based on the clear language of the Resolution and the applicable law, it is irrefutable that
no final determination has been made which could bring the Board's Resolution within the scope
of Article 78 review and this proceeding should be dismissed.
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ARGUMENT
POINT I
THE STANDAND SET FORTH IN CPLR §3211
DEMANDS DISMISSAL OF THIS ACTION.
A motion to dismiss pursuant to CPLR §3211 will be granted where, as here, the moving
party establishes entitlement to dismissal as a matter of law.
CPLR §3211 (a) provides in relevant part:
3211. (a) Motion to dismiss cause of action. A party may move for
judgment dismissing one or more causes of action asserted against him on
the grounds that:
1. a defense is founded upon documentary evidence; or
2. the court has not jurisdiction of the subject matter of the
cause of action; or...
7. the pleading fails to state a cause of action; or
8. the court has not jurisdiction of the person of the defendant;
CPLR §3211 (a)(1),(2),(7)&(8).
It is well established that on a motion to dismiss the Court's task is to determine "whether,
accepting as true the factual averments of the Complaint, plaintiff can succeed upon any reasonable
view of the facts stated (internal citations omitted)." People v. New York City Transit Authority,
59 N.Y.2d 343, 348, 452 N.E.2d 316 (1983). Conclusory allegations, however, are insufficient to
survive a motion to dismiss. See, Godfrey v. Spano, 13 N.Y.3d 358, 373, 920 N.E.2d 328 (2009).
In this case, as discussed in detail below, Petitioner cannot succeed based on any reasonable
view of the facts, the reasons being independent and sufficient on their own, because: (i) there is
a lack of subject matter jurisdiction;. (ii) there is a lack of personal jurisdiction; (iii) Petitioner
lacks standing; (iv) because no final action was taken by the County Respondents; (v) injunctive
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and declaratory relief are not supported as a matter of law; and (vi) Petitioner has failed to state a
claim. Accordingly, the Petition must be dismissed.
More specifically, as to dismissal based on documentary evidence, in evaluating a motion
to dismiss pursuant to CPLR §3211(a)(1), the Court considers whether the documentary evidence
resolves all factual issues as a matter of law and conclusively disposes of Plaintiff's claims. Teitler
v. Pollack & Sons, 288 A.D.2d 302, 733 N.Y.S.2d 122 (2d Dept. 2001). Based upon the
documentary evidence of the affidavit of service as to the Board [NYSCEF Doc. No. 7], dismissal
is warranted as to the Board because the affidavit of service demonstrates that the chairman or a
member of the Board was not served in the manner required to obtain jurisdiction over the Board
as discussed more fully below.
For these reasons, dismissal is required.
POINT II
THERE IS NO PERSONAL JURISDICTION OVER THE BOARD
Pursuant to CPLR §7804(c), a notice of petition and petition shall be served on any adverse
party. CPLR §7804(c). Under CPLR §312, personal service upon a board may be made by
delivering the summons to the chairman or one of its members. CPLR §312. Personal service upon
a member of the Board was necessary to confer personal jurisdiction over the Board. In the absence
of personal jurisdiction, this Court may not determine the merits of this proceeding and the
proceeding must be dismissed. Dallemand v. Sun Company, Inc., 300 A.D.2d 274, 751 N.Y.S.2d
505 (2d Dept. 2002); Matter of Harlem River Consumers Coop. v. State Tax Commn., 44 A.D.2d
738, 354 N.Y.S.2d 472 (3d Dept. 1974).
Petitioner's affidavit of service as filed with this Court demonstrates that Petitioner
attempted service by delivering a copy of the Petition to the Suffolk County Attorney, not to the
Board. [NYSCEF Doc. No. 7]. As noted above, pursuant to CPLR §312, service on a Board is
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made by service upon its chairman or one of its members. No service has been made upon the
Chairman of the Board or the Board members in this matter. Instead, Petitioner improperly
attempted service upon an office assistant in the Office of the Suffolk County Attorney. This is
insufficient service as a matter of law. CPLR §312.
Further, the fact that the Petition was allegedly delivered to the Office of the County
Attorney is irrelevant to the required conclusion that service was improper. Notice received in a
manner other than as prescribed by statute does not confer personal jurisdiction. Macchia v. Russo,
67 N.Y.2d 592, 505 N.Y.S.2d 591 (1986). As the Second Department observed in McMullen v.
Arnone:
Litt is axiomatic that the failure to serve process in an action leaves the court
without personal jurisdiction over the defendant, and all subsequent proceedings
are thereby rendered null and void (internal citations omitted). Such a defect is
not cured by the defendant's subsequent receipt of actual notice of the suit, 'since
notice received by means other than those authorized by statute cannot serve to
bring a defendant within the jurisdiction of the court' (internal citations
omitted).
McMullen v. Arnone, 79 A.D.2d 496, 499, 437 N.Y.S.2d 373, 375 (2d Dept.
1981).
Here, Petitioner's failure to personally serve Respondent Board leaves this Court without personal
jurisdiction over the Board and this defect has not and cannot be timely cured. Moreover, other
than the Board's resolution, no claim has been made that any other County Respondent has taken
any action capable of Article 78 review.
Accordingly, personal jurisdiction is absent and the case must be dismissed.
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POINT III
THE BOARD RESOLUTION IS NOT A FINAL DETERMINATION AND,
ACCORDINGLY, THIS MATTER IS NOT RIPE FOR ARTICLE 78 REVIEW
A determination is only "final" when it represents a "definitive position" on an issue that
imposes an obligation, denies a right, or fixes some legal relationship, resulting in "an actual,
concrete injury." Matter of Essex County v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232 (1998).
Here, the Board Resolution makes no final determination and is not subject to Article 78 review.
The Resolution only provides that the Subject Parcels may be made available for aquaculture
leasing, not that they will be leased and not that they will be leased to a particular applicant.
Moreover, it is within the State's authority to decline to issue permits. Where the action of
the County can be mooted by the action of the State, there is no final determination and no actual
injury subject to Article 78 review. Matter of Patel v. Bd. of Trustees of Inc. Vil. of Muttontown,
115 A.D.3d 862, 982 N.Y.S.2d 142 (2d Dept. 2014).
Further, the Board's passage of its Resolution causes no actual or imminent injury or
damage. The classification of the land itself causes no harm. As to a speculative future harm, there
is a mechanism for Petitioner to seek enforcement if such future harm occurs, but until that time,
this matter is not ripe for review. Town of Riverhead v. Central Pine Barrens Joint Planning and
Policy Commission, 71 A.D.3d 679, 896 N.Y.S.2d 382 (2d Dept. 2010). As a matter of law, the
passage of the Resolution is not an action subject to Article 78 review and must be dismissed
accordingly.
Conspicuously absent from the Petitioner's application is the Resolution which Petitioner
challenges. In fact, contrary to the allegations of the Petition, Board Resolution No. 10-2022 does
not detenuine that a lease will be entered into. The Resolution instead provides that the Board has
found the Subject Parcels may be made available for the purpose of shellfish cultivation under the
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provisions outlined in the Suffolk County Code, Chapter 475, Article II, and the Revised
Administrative Guidance. Exhibit "1". The Resolution is not a final determination and therefore is
not capable of review pursuant to CPLR Article 78.
The County Respondents respectfully submit that the Board's Resolution, as a matter of
law, is not a final determination subject to review pursuant to CPLR Article 78 and, therefore, this
special proceeding must be dismissed in its entirety. CPLR § 7801 provides in relevant part:
7801. Nature of proceeding. Relief previously obtained by writs of certiorari to
review, mandamus or prohibition shall be obtained in a proceeding under this
article. Wherever in any statute reference is made to a writ or order of certiorari,
mandamus or prohibition, such reference shall, so far as applicable, be deemed to
refer to the proceeding authorized by this article. Except where otherwise provided
by law, a proceeding under this article shall not be used to challenge a
determination:
1. which is not final or can be adequately reviewed by appeal to a court or to
some other body or officer or where the body or officer making the determination
is expressly authorized by statute to rehear the matter upon the petitioner's
application unless the determination to be reviewed was made upon a rehearing, or
a rehearing has been denied, or the time within which the petitioner can procure a
rehearing has elapsed...
C.P.L.R. § 780/(McKinney 2018)(emphasis added).
The County Legislature adopted Local Law 25 of 2009, establishing the Suffolk County
Shellfish Aquaculture Lease Program, codified as §§ 475-6 to 475-23, under Chapter 475, Article
II of the Suffolk County Code. Suffolk County Code §§ 475-6, et seq. Furthermore, § 475-7 clearly
states that the Board was established for the sole purpose of determining "which proposed lease
sites within the Shellfish Cultivation Zone will be eligible for leasing." Suffolk County Code § 475-
7. Here, Petitioner erroneously alleges that the Resolution approved Summer Wind as the eventual
lessee of underwater land in Orient Harbor, covering sites numbered T13, T14, and T15. [NYSCEF.
Doc. No. 1 at ¶1 & 14.] Instead, the Resolution approved only that the identified lease sites within
the Shellfish Cultivation Zone will be eligible for leasing in accordance with Suffolk County Code
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§ 475-7. See Exhibit "1". The Resolution clearly states that the Subject Parcels "may be made
available for lease for the purpose of shellfish cultivation." See Exhibit 1. It does not purport to
approve any specific lease or lessee. See Exhibit 1.
As the County process and the applicable law makes clear, the Board does not approve any
lease. Whether a lease is entered into is determined in the discretion of the Director and is not a
determination made by the Board. Suffolk County Code § 475-15(B). Even if a lease for a single
site was later entered into by the Director, the lease applicant would still need to go through a
rigorous federal and state permitting process to obtain required permits, such as from the United
States Coast Guard, the U.S. Army Corps of Engineers and the New York State Department of
Environmental Conservation. ECL §13-0302(6) & §13-0316.
As such, no Board Resolution may be deemed a "final determination" as the approval of
aquaculture lease sites inflicted no actual, concrete harm on Petitioner. See, Essex County v.
Zagata, 91 N.Y.2d 447, 695 N.E.2d 232 (1998). For that matter, no future County determination,
including the later selection of an approved lessee, may be deemed a "final determination" since
it has not inflicted any actual, concrete harm on Petitioner. Any approved lessee must obtain the
required federal and state permits before any shellfish aquaculture activity may occur on an
approved lease site by an approved lessee. ECL §13-0302(6) & §13-0316. Accordingly,
Petitioner's rights have not been adversely affected by any Board Resolution and no other County
determination has been made.
The Court of Appeals, in Matter of Essex County v. Zagata, stated that "[t]o determine if
agency action is final...consideration must be given to 'the completeness of the administrative
action' and 'a pragmatic evaluation [must be made] of whether the decisionmaker has arrived at a
definitive position on the issue that inflicts an actual, concrete injury..." Matter of Essex County
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v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232 (1998)(internal quotations and citations omitted).
Furthermore, Courts in this State have used a two-part test to determine whether an agency
determination is final. "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." Best
Payphones, Inc. v. Dept. of Info. Tech. & Telecom. Of City of N.Y., 5 1V.Y.3d 30, 34, 799 1VYS2d
182 (internal citations omitted) (2005).
Here, it cannot be disputed that the Board Resolution, did not approve any lease in Orient
Harbor. Rather, the Board merely approved certain lease sites which may be available for lease for
the present lease cycle. In any event, under no circumstances could the Board's Resolution be
deemed a fmal determination as no aquaculture activities may occur on any lease site in Orient
Harbor unless and until such lessees have obtained the required federal and state permits from the
United States Coast Guard, the U.S. Army Corps of Engineers and the New York State Department
of Environmental Conservation.
The scenario herein is analogous to the facts in Cold Spring Harbor Civic Assn. v. Suffolk
County Department of Health Services, in which the Second Department affirmed the Supreme
Court's dismissal of an Article 78 proceeding challenging the Health Commissioner's granting of
a restaurant's application for variances from certain provisions of the Sanitary Code to construct a
sewage treatment plant, where no construction permits had been issued regarding said plant. Cold
Spring Harbor Civic Assn. v. Suffolk County Department of Health Services, 305 A.D.2d 499, 762
NYS2d 406 (2d Dept. 2003). The Second Department concluded that the proceeding had been
properly dismissed as there was "no final determination ripe for judicial review pursuant to Article
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78... [as] there was no showing by the petitioners that the Commissioner's action had a 'direct and
immediate' effect on them..." Id. at 500 (internal citations omitted.)
Accordingly, Petitioner has failed to demonstrate that a justiciable controversy between the
parties exists and, as such, this proceeding must be dismissed based on the Court's lack of subject
matter jurisdiction, pursuant to CPLR 3211(a)(2), under the doctrine of ripeness. See, Town of
Riverhead v. Central Pine Barrens Joint Planning & Policy Commn., 71 A.D.3d 679, 896 NYS2d
382 (2d Dept. 2010).
Here, it is respectfully submitted that Petitioner cannot establish that its riparian rights were
directly impacted by the Board's Resolution approving certain lease sites as available for leasing.
As such, it is clear that Petitioner has suffered no "actual and concrete" injury. It is also well settled
law that a court lacks subject matter jurisdiction to issue an opinion in the absence of a genuine
legal dispute, and thus does not have discretion as to whether to entertain an unripe claim. See,
Combustion Eng'g., Inc. v. Travelers Indem. Co., 75 A.D.2d 777, 428 N.Y.S.2d 235 (Pt Dep't
1980), aff d, 53 N.Y.2d 875 (1981).
For the foregoing reasons, it is clear that Petitioner has failed to establish that the Board's
Resolution was final and binding against it and, therefore, as a matter of law, Petitioner's
application for review of said determination under CPLR Article 78 must be denied and the
Petition dismissed, pursuant to CPLR Rule 3211(a)(2), as non-justiciable under the doctrine of
ripeness.
POINT IV
PETITIONER LACKS STANDING TO BRING THIS ACTION
In this proceeding, Petitioner does not allege a specific basis for standing, but instead
asserts that it is a yacht club "located in close proximity to proposed lease sites T13, T14, and T15.
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Its members have been sailing the waters of Orient Harbor for 90 years." [NYSCEF Doc. No. 1
at ¶18.] Petitioner further alleges various sailing activities of its members as well as boating and
recreational users of Orient Harbor. [NYSCEF Doc. No. 1 at 1[26.] Petitioner fails to allege the
actual proximity of the Subject Parcel to the Yacht Club property or any unique and special injury
to Petitioner.
In CPD N.Y. Energy Corp. v. Town of Poughkeepsie Planning Board, 139 A.D.3d 942, 32
N.Y.S.2d 275 (2d Dept. 2016), recognizing the need of the Petitioner to establish an injury different
from that of the public at large, the court rejected the amorphous allegation of indeterminate traffic
and neighborhood impacts and determined petitioner lacked standing concluding:
The Supreme Court properly determined that the petitioners failed to establish
standing on the basis of alleged traffic impacts, impacts arising from issues of
compliance, or community character impacts, as the petitioners failed to establish
any harm distinct from that of the community at large. Moreover, the court properly
determined that the petitioners did not have standing on the basis of any alleged
access issues related to an interconnection between the subject property and their
own, because they failed to establish any right of access to the interconnection and,
in any event, failed to allege any potential adverse impact of the interconnection's
closure.
CPD KY Energy Corp. v. Town of Poughkeepsie Planning Board, 139 A.D.3d
942, 944, 32 N.Y.S.2d 275, 278 (2d Dept. 2016).
As in CPD NY. Energy Corp., Petitioner has failed to establish standing on the basis of a special,
direct, or demonstrable injury which effects it.
Here, Petitioner has not alleged it is close enough in proximity in a manner sufficient to set
forth standing. Moreover, simply being close in proximity does not confer standing; a legally
protectable interest must be shown. Id. Petitioner has not met the burden of showing that their
injury is real and different than the injury most members of the public. Id. Petitioner has not alleged
any special damages it has suffered different in kind and degree from any allegedly suffered by
the boating community generally.
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It is well-settled that a plaintiff may not proceed with an action in the absence of standing.
See, Stark v. Goldberg, 297 A.D.2d 203, 204, 746 N.Y.S.2d 280 (1st Dept. 2002). Where, as here,
standing is put into issue by the County Respondents, the Petitioner must prove its standing in
order to be entitled to relief. See, U.S. Bank, N.A. v. Adrian Collymorei 68 A.D.3d 752, 753, 890
N.Y.S.2d 578 (2d Dept. 2009). As explained by the Court of Appeals: "[w]hether a person seeking
relief is a proper party to request an adjudication is an aspect of justiciability which, when
challenged, must be considered at the outset of any litigation." Matter of Dairylea Coop. v.
Walkley, 38 N.Y.2d 6, 9339 N.E.2d 865 (1975).
As to its declaratory judgment claim, standing is lacking in that regard as well. The
standing required to establish a challenge pursuant to CPLR Article 78 is the same standing criteria
needed to maintain a declaratory judgment action Matter of Haber v. Board of Estimate of City of
New York, 33 A.D.2d 571, 572, 305 N.Y.S.2d 520 (2d Dept. 1969). Accordingly, and for the same
reasons, Petitioner lacks standing to maintain the declaratory judgment claims in this hybrid
proceeding.
In the instant case, Petitioner has failed to allege a single fact supporting a unique and
special harm to it by the continuing inclusion of the Subject Parcels into aquaculture lease zone.
Accordingly, this motion to dismiss should also be granted based on lack of standing of Petitioner.
POINT V
THE DRASTIC REMEDY OF AN INJUNCTION IS NOT WARRANTED
In its Petition, Petitioner also seeks injunctive relief, including seeking "an injunction
preventing the ALB from executing a lease for sites in Orient Harbor that will interfere with or
prevent OYC and its members from sailing in the areas where lease sites T13, T14 and T15 are
located" and "preliminarily and permanently enjoining the Aquaculture Lease Board from
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granting any lease pursuant to Resolution 10-2022". [NYSCEF Doc. No. 1 at 56 and Wherefore
clause (b).] For the reasons noted above and set forth herein, it is respectfiffly submitted that
Petitioner has failed to demonstrate its entitlement to injunctive relief as it cannot show actual,
concrete injury as a result of any County determination. Moreover, the Court lacks subject matter
jurisdiction herein as it is clear that the Board's Resolution was not a final determination which
caused immediate injury to Petitioner, as a matter of law, and, therefore, Petitioner's application
for injunctive relief must be denied.
Petitioner has failed to establish the criteria necessary for the issuance of an injunction.
Preliminary injunctive relief is a drastic remedy that is not routinely granted. Marietta Corp. v.
Fairhurst, 301 A.D.2d 734, 736, 754 N.Y.S.2d 62 (3d Dept. 2003). The party seeking injunctive
relief must establish a clear right to relief under the law and the undisputed facts. Doe v. Poe, 189
A.D.2d 132, 136, 595 N.Y.S.2d 503 (2d Dept. 1993); Wheaton/TMW Fourth Ave., LP V. New York
City Dept. of Bldgs., 65 A.D.3d 1051, 886 N.Y.S.2d 41 (2d Dept. 2009). Petitioner has failed to
establish the right to injunctive relief.
A preliminary injunction and a restraining order can only be granted under these limited
grounds:
A preliminary injunction may be granted in any action where it appears that
the defendant threatens or is about to do, or is doing or procuring or
suffering to be done, an act in violation of the plaintiffs rights respecting
the subject of the action, and tending to render the judgment ineffectual, or
in any action where the plaintiff has demanded and would be entitled to a
judgment restraining the defendant from the commission or continuance of
an act, which, if committed or continued during the pendency of the action,
would produce injury to the plaintiff. A temporary restraining order may be
granted pending a hearing for a preliminary injunction where it appears that
immediate and irreparable injury, loss or damage will result unless the
defendant is restrained before the hearing can be had.
CPLR §6301.
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To demonstrate that it is entitled to a preliminary injunction, the movant must show a
probability of success on the merits, a danger of irreparable injury in the absence of a preliminary
injunction, and a balance of the equities in its favor. Aetna Insurance Co. v. Capasso, 75 N.Y.2d
Preview
FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK X In the Matter of the Application of THE ORIENT YACHT CLUB (Incorporated) aka Orient Yacht Club Index No.: 604402/2023 Petitioner/Plaintiff, Assigned Justice: Hon. George Nolan, JSC For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules, And for Declaratory and Injunctive Relief -against- Suffolk County Aquaculture Lease Board; Suffolk County Department of Economic Development and Planning; Suffolk County Respondents/Defendants and Summer Wind Oysters LLC, Respondent COUNTY RESPONDENTS-DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Respectfully Submitted, DENNIS M. COHEN SUFFOLK COUNTY ATTORNEY Attorneyfor County Respondents-Defendants Suffolk County _Aquaculture Lease Board, Suffolk County Department of Economic Development and Planning, and Suffolk County 100 Veterans Memorial Highway, P.O. Box 6100 Hauppauge, New York 11788-0099 631-853-4846 By: LISA AZZATO Assistant County Attorney 1 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 STATEMENT OF FACTs .2 ARGUMENT 5 POINT I THE STANDAND SET FORTH IN CPLR §3211 DEMANDS DISMISSAL OF THIS ACTION POINT II THERE IS NO PERSONAL JURISDICTION OVER THE BOARD 6 POINT III THE BOARD RESOLUTION IS NOT A FINAL DETERMINATION AND, ACCORDINGLY, THIS MATTER IS NOT RIPE FOR ARTICLE 78 REVIEW 8 POINT IV PETITIONER LACKS STANDING TO BRING THIS ACTION 12 POINT V THE DRASTIC REMEDY OF AN INJUNCTION IS NOT WARRANTED.. 14 POINT VI NO JUSTICIABLE CONTROVERY EXISTS TO MERIT DECLARATORY RELIEF 17 CONCLUSION 18 2 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 TABLE OF AUTHORITIES Page(s) Cases Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860, 552 N.Y.S.2d 918 (1990) 16, 17 Best Payphones, Inc. v. Dept. of Info. Tech. & Telecom. Of City of N.Y., 5 1V.Y.3d 30, 799 NYS2d 182 11 Cold Spring Harbor Civic Assn. v. Suffolk County Department of Health Services, 305 A.D.2d 499, 762 NYS2d 406 (2d Dept. 2003) 11, 12 Combustion Eng'g., Inc. v. Travelers Indem. Co., 75 A.D.2d 777, 428 N.Y.S.2d 235 (1st Dep't 1980) 12 CPD N.Y. Energy Corp. v. Town of Poughkeepsie Planning Board, 139 A.D.3d 942, 32 N.Y.S.2d 275 (2d Dept. 2016) 13 Dairylea Coop. v. Walkley, 38 N.Y.2d 6 14 Dallemand v. Sun Company, Inc., 300 A.D.2d 274, 751 N.Y.S.2d 505 (2d Dept. 2002) 6 Doe v. Poe, 189 A.D.2d 132, 595 N.Y.S.2d 503 (2d Dept. 1993) 15 Godfrey v. Spano, 13 N.Y.3d 358, 920 N.E.2d 328 (2009) 5 Haber v. Board of Estimate of City of New York, 33 A.D.2d 571, 305 N.Y.S.2d 520 (2d Dept. 1969) 14 Harlem River Consumers Coop. v. State Tax Commn., 44 A.D.2d 738, 354 N.Y.S.2d 472 (3d Dept. 1974) 6 Macchia v. Russo, 67 N.Y.2d 592, 505 N.Y.S.2d 591 (1986) 7 Marietta Corp. v. Fairhurst, 301 A.D.2d 734, 754 N.Y.S.2d 62 (3d Dept. 2003) 15 Matter of Essex County v. Zagata, 91 N.Y.2d 447, 695 N.E.2d 232 (1998) 8, 10 Matter of Patel v. Bd. of Trustees of Inc. Vil. of Muttontown, 115 A.D.3d 862, 982 N.Y.S.2d 142 (2d Dept. 2014) 8 McMullen v. Arnone, 79 A.D.2d 496, 437 N.Y.S.2d 373 (2d Dept. 1981) 7 Network Fin. Planning v. Prudential-Bache, 194 A.D.2d 651, 599 N.Y.S.2d 1000 (2d Dept. 1993) 16 ii 3 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 People v. New York City Transit Authority, 59 N.Y.2d 343, 452 N.E.2d 316 (1983) 5 Premier Restorations of New York Corp. v. New York State Dept. of Motor Vehicles, 127 AD3d 1049, 5 NYS3d 888 (2d Dept. 2015) 18 Rosa Hair Stylists; Inc. v. Jaber Food Corp., 218 A.D.2d 793, 631 N.Y.S.2d 167 (2d Dept. 1995) 16 Stark v. Goldberg, 297 A.D.2d 203, 746 N.Y.S.2d 280 (1st Dept. 2002) 14 Teitler v. Pollack & Sons, 288 A.D.2d 302, 733 N.Y.S.2d 122 (2d Dept. 2001) 6 Town of Riverhead v. Central Pine Barrens Joint Planning and Policy Commission, 71 A.D.3d 679, 896 N.Y.S.2d 382 (2d Dept. 2010) 8, 12 Tri-State Sol-Aire Corp. v. County of Nassau, 156 AD2d 555, 548 NYS2d 810 (2d Dept. 1989) 18 U.S. Bank, N.A. v. Adrian Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 (2d Dept. 2009) 14 Wheaton/TMW Fourth Ave., LP V New York City Dept of Bldgs., 65 A.D.3d 1051, 886 N.Y.S.2d 41 (2d Dept. 2009) 15, 16 Statutes New York Environmental Conservation Law §13-1302 .2, 3, 4 New York State Environmental Conservation Law §13-0316 3, 4 Rules CPLR §312 6. 7 CPLR §3001 17 CPLR 3211 5, 6, 12 CPLR §6301 15 CPLR §6312 16 CPLR §7801 9 CPLR §7804 6 Other Suffolk County Code, Chapter 475, §475-6 et seq., 2, 3, 9, 10 4 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 PRELIMINARY STATEMENT This is a hybrid Article 78 special proceeding brought by Petitioner-Plaintiff, The Orient Yacht Club (Incorporated) a/k/a Orient Yacht Club ("Orient Yacht Club" or "Petitioner"), against Respondents-Defendants, Suffolk County Aquaculture Lease Board (the "Board"), Suffolk County Department of Economic Development and Planning ("Planning Dept."), and Suffolk County ("County"), collectively (the "County Respondents") and others for a judgment pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") and also seeking declaratory and injunctive relief. In this proceeding, Petitioner asserts two causes of action: (1) seeking Article 78 relief claiming the Board's inclusion of the subject underwater parcels as being available for aquaculture leasing was arbitrary and capricious, and contrary to SEQRA; and (2) seeking a declaratory judgment preventing the approval and leasing of all lease sites in Orient Harbor without first considering the method of aquaculture, navigational impact, and consistency with the Town of Southold's Local Waterfront Revitalization Plan ("LWRP"), and further seeking a declaration banning all floating aquaculture equipment in any future aquaculture lease site. As discussed more fully below, personal jurisdiction has not been acquired over the Board, subject matter jurisdiction is lacking because no final determination has been made, Petitioner lacks standing to bring this proceeding, and the Board's review of the subject property for aquaculture leasing was in accordance with law. For these and other reasons, respectfully, the Petition should be dismissed. 5 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 STATEMENT OF FACTS Following a public meeting convened on October 18, 2022, by Resolution No. 10-2022, the Suffolk County Aquaculture Lease Board approved certain underwater aquaculture sites located within the previously approved Suffolk County Shellfish Cultivation Zone as being sites which may be made available for leasing pursuant to Chapter 475, Article II, of the Suffolk County Code under the County's Shellfish Aquaculture Lease Program. A copy of the Resolution is attached as Exhibit "1" to the Affirmation of Lisa Azzato dated April 14, 2023.1 The sites at issue are identified in the Resolution as sites T13, T14, and T15 located within the Revised Shellfish Cultivation Zone, (the "Subject Parcels"). See Exhibit "1". A brief history of the establishment of the Suffolk County Shellfish Aquaculture Lease Program in Gardiner's and Peconic Bays, the creation and adoption of the Suffolk County Shellfish Cultivation Zone, and the applicability of New York State Environmental Conservation Law §13-0302 are recited in the Resolution. See Exhibit "1". The Shellfish Aquaculture Lease Program as set forth in Chapter 475 of the Suffolk County Code also details the history of the program in New York State. The revised Shellfish Cultivation Zone map as referenced in the Suffolk County Code is attached as Exhibit "3" and the location of the Subject Parcels can be seen in Orient Harbor located at the top part of the map. For the Court's and the parties' convenience, an enlargement of the relevant area is shown in Exhibit "4". As a plain reading of the Resolution itself makes clear, the Resolution does not make any determination as to the leasing of any parcel and certainly makes no final determination confirming an aquaculture lease. Instead, the Board Resolution resolves that the Subject Parcels may be made All references to exhibits herein are references to Exhibits to the Affirmation of Lisa Azzato dated April 14, 2023. 2 6 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 available for the purpose of shellfish cultivation under the provisions outlined in the Suffolk County Code, Chapter 475, Article II, and the Revised Administrative Guidance. Exhibit "1". In its Petition, Petitioner wrongly contends that the Board "has approved Respondent Summer Wind Oysters LLC as the eventual lessee of underwater land in Orient Harbor, in the Town of Southold, for the purposes of aquaculture". [NYSCEF Doc. No. 1 at ¶1.] The Resolution does not approve the Respondent Summer Wind Oysters LLC ("Summer Winds") as lessee, but resolves only that the Subject Parcels are eligible for future leasing. As a plain reading of the applicable law makes clear, Chapter 475 of the Suffolk County Code provides that the role of the Board is "to determine which proposed lease sites within the Shellfish Cultivation Zone will be eligible for leasing" (Suffolk County Code §475-7) and that the Board "shall determine which sites shall be available for leasing, in accordance with §475-18 of this article" (Suffolk County Code §475-14, emphasis added). See Exhibit "2", Suffolk County Code, Chapter 475, §475-6 et seq., Shellfish Aquaculture Lease Program. As to the operation of the Board, the Suffolk County Code is again clear stating that the Board reviews "whether the proposed lease sites shall be available for leasing" and shall base its review upon: (1) Whether the proposed sites meet the criteria of New York Environmental Conservation Law §13-1302 and the Suffolk County Shellfish Aquaculture Lease Program. (2) Factors affecting the desirability of the sites for shellfish cultivation; including, but not limited to, regional and environmental factors. Exhibit "2," Suffolk County Code §475-18(C)(1) & (2). As a brief background of the history of aquaculture in Suffolk County, Environmental Conservation Law §13-0302 provides that New York State ceded to the County all underwater lands of Gardiner's and Peconic Bays for the purpose of shellfish and seaweed cultivation, except 3 7 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 for underwater lands within 1,000 feet of the high water mark. ECL §13-0302(1). The New York State Department of Environmental Conservation retains its authority over shellfish cultivation, including, but not limited to, its permit requirements for shellfish cultivation pursuant to ECL §13- 0316 and its power to regulate and control the use of vessels and equipment for shellfish harvesting and to enforce all applicable state laws relating to these underwater lands. ECL §13-0302(6) & §13-0316. As the Environmental Conservation Law makes clear, no person shall engage in off- bottom or on-bottom culture without first obtaining a permit from the Department of Environmental Conservation and no permit shall be issued unless the applicant has obtained all necessary permits or licenses required under state or federal law and obtained the written authorization of the local political subdivision. ECL §13-0316(2). In sum, no shellfish cultivation can occur unless and until the potential lessee has obtained the required permits under federal and state law for such shellfish cultivation. The Board's approval of a site as available for shellfish cultivation is not an approval of a lease or lessee and is certainly not a final determination subject to Article 78 review. Based on the clear language of the Resolution and the applicable law, it is irrefutable that no final determination has been made which could bring the Board's Resolution within the scope of Article 78 review and this proceeding should be dismissed. 4 8 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 ARGUMENT POINT I THE STANDAND SET FORTH IN CPLR §3211 DEMANDS DISMISSAL OF THIS ACTION. A motion to dismiss pursuant to CPLR §3211 will be granted where, as here, the moving party establishes entitlement to dismissal as a matter of law. CPLR §3211 (a) provides in relevant part: 3211. (a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the grounds that: 1. a defense is founded upon documentary evidence; or 2. the court has not jurisdiction of the subject matter of the cause of action; or... 7. the pleading fails to state a cause of action; or 8. the court has not jurisdiction of the person of the defendant; CPLR §3211 (a)(1),(2),(7)&(8). It is well established that on a motion to dismiss the Court's task is to determine "whether, accepting as true the factual averments of the Complaint, plaintiff can succeed upon any reasonable view of the facts stated (internal citations omitted)." People v. New York City Transit Authority, 59 N.Y.2d 343, 348, 452 N.E.2d 316 (1983). Conclusory allegations, however, are insufficient to survive a motion to dismiss. See, Godfrey v. Spano, 13 N.Y.3d 358, 373, 920 N.E.2d 328 (2009). In this case, as discussed in detail below, Petitioner cannot succeed based on any reasonable view of the facts, the reasons being independent and sufficient on their own, because: (i) there is a lack of subject matter jurisdiction;. (ii) there is a lack of personal jurisdiction; (iii) Petitioner lacks standing; (iv) because no final action was taken by the County Respondents; (v) injunctive 5 9 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 and declaratory relief are not supported as a matter of law; and (vi) Petitioner has failed to state a claim. Accordingly, the Petition must be dismissed. More specifically, as to dismissal based on documentary evidence, in evaluating a motion to dismiss pursuant to CPLR §3211(a)(1), the Court considers whether the documentary evidence resolves all factual issues as a matter of law and conclusively disposes of Plaintiff's claims. Teitler v. Pollack & Sons, 288 A.D.2d 302, 733 N.Y.S.2d 122 (2d Dept. 2001). Based upon the documentary evidence of the affidavit of service as to the Board [NYSCEF Doc. No. 7], dismissal is warranted as to the Board because the affidavit of service demonstrates that the chairman or a member of the Board was not served in the manner required to obtain jurisdiction over the Board as discussed more fully below. For these reasons, dismissal is required. POINT II THERE IS NO PERSONAL JURISDICTION OVER THE BOARD Pursuant to CPLR §7804(c), a notice of petition and petition shall be served on any adverse party. CPLR §7804(c). Under CPLR §312, personal service upon a board may be made by delivering the summons to the chairman or one of its members. CPLR §312. Personal service upon a member of the Board was necessary to confer personal jurisdiction over the Board. In the absence of personal jurisdiction, this Court may not determine the merits of this proceeding and the proceeding must be dismissed. Dallemand v. Sun Company, Inc., 300 A.D.2d 274, 751 N.Y.S.2d 505 (2d Dept. 2002); Matter of Harlem River Consumers Coop. v. State Tax Commn., 44 A.D.2d 738, 354 N.Y.S.2d 472 (3d Dept. 1974). Petitioner's affidavit of service as filed with this Court demonstrates that Petitioner attempted service by delivering a copy of the Petition to the Suffolk County Attorney, not to the Board. [NYSCEF Doc. No. 7]. As noted above, pursuant to CPLR §312, service on a Board is 6 10 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 made by service upon its chairman or one of its members. No service has been made upon the Chairman of the Board or the Board members in this matter. Instead, Petitioner improperly attempted service upon an office assistant in the Office of the Suffolk County Attorney. This is insufficient service as a matter of law. CPLR §312. Further, the fact that the Petition was allegedly delivered to the Office of the County Attorney is irrelevant to the required conclusion that service was improper. Notice received in a manner other than as prescribed by statute does not confer personal jurisdiction. Macchia v. Russo, 67 N.Y.2d 592, 505 N.Y.S.2d 591 (1986). As the Second Department observed in McMullen v. Arnone: Litt is axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void (internal citations omitted). Such a defect is not cured by the defendant's subsequent receipt of actual notice of the suit, 'since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court' (internal citations omitted). McMullen v. Arnone, 79 A.D.2d 496, 499, 437 N.Y.S.2d 373, 375 (2d Dept. 1981). Here, Petitioner's failure to personally serve Respondent Board leaves this Court without personal jurisdiction over the Board and this defect has not and cannot be timely cured. Moreover, other than the Board's resolution, no claim has been made that any other County Respondent has taken any action capable of Article 78 review. Accordingly, personal jurisdiction is absent and the case must be dismissed. 7 11 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 POINT III THE BOARD RESOLUTION IS NOT A FINAL DETERMINATION AND, ACCORDINGLY, THIS MATTER IS NOT RIPE FOR ARTICLE 78 REVIEW A determination is only "final" when it represents a "definitive position" on an issue that imposes an obligation, denies a right, or fixes some legal relationship, resulting in "an actual, concrete injury." Matter of Essex County v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232 (1998). Here, the Board Resolution makes no final determination and is not subject to Article 78 review. The Resolution only provides that the Subject Parcels may be made available for aquaculture leasing, not that they will be leased and not that they will be leased to a particular applicant. Moreover, it is within the State's authority to decline to issue permits. Where the action of the County can be mooted by the action of the State, there is no final determination and no actual injury subject to Article 78 review. Matter of Patel v. Bd. of Trustees of Inc. Vil. of Muttontown, 115 A.D.3d 862, 982 N.Y.S.2d 142 (2d Dept. 2014). Further, the Board's passage of its Resolution causes no actual or imminent injury or damage. The classification of the land itself causes no harm. As to a speculative future harm, there is a mechanism for Petitioner to seek enforcement if such future harm occurs, but until that time, this matter is not ripe for review. Town of Riverhead v. Central Pine Barrens Joint Planning and Policy Commission, 71 A.D.3d 679, 896 N.Y.S.2d 382 (2d Dept. 2010). As a matter of law, the passage of the Resolution is not an action subject to Article 78 review and must be dismissed accordingly. Conspicuously absent from the Petitioner's application is the Resolution which Petitioner challenges. In fact, contrary to the allegations of the Petition, Board Resolution No. 10-2022 does not detenuine that a lease will be entered into. The Resolution instead provides that the Board has found the Subject Parcels may be made available for the purpose of shellfish cultivation under the 8 12 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 provisions outlined in the Suffolk County Code, Chapter 475, Article II, and the Revised Administrative Guidance. Exhibit "1". The Resolution is not a final determination and therefore is not capable of review pursuant to CPLR Article 78. The County Respondents respectfully submit that the Board's Resolution, as a matter of law, is not a final determination subject to review pursuant to CPLR Article 78 and, therefore, this special proceeding must be dismissed in its entirety. CPLR § 7801 provides in relevant part: 7801. Nature of proceeding. Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article. Wherever in any statute reference is made to a writ or order of certiorari, mandamus or prohibition, such reference shall, so far as applicable, be deemed to refer to the proceeding authorized by this article. Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: 1. which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which the petitioner can procure a rehearing has elapsed... C.P.L.R. § 780/(McKinney 2018)(emphasis added). The County Legislature adopted Local Law 25 of 2009, establishing the Suffolk County Shellfish Aquaculture Lease Program, codified as §§ 475-6 to 475-23, under Chapter 475, Article II of the Suffolk County Code. Suffolk County Code §§ 475-6, et seq. Furthermore, § 475-7 clearly states that the Board was established for the sole purpose of determining "which proposed lease sites within the Shellfish Cultivation Zone will be eligible for leasing." Suffolk County Code § 475- 7. Here, Petitioner erroneously alleges that the Resolution approved Summer Wind as the eventual lessee of underwater land in Orient Harbor, covering sites numbered T13, T14, and T15. [NYSCEF. Doc. No. 1 at ¶1 & 14.] Instead, the Resolution approved only that the identified lease sites within the Shellfish Cultivation Zone will be eligible for leasing in accordance with Suffolk County Code 9 13 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 § 475-7. See Exhibit "1". The Resolution clearly states that the Subject Parcels "may be made available for lease for the purpose of shellfish cultivation." See Exhibit 1. It does not purport to approve any specific lease or lessee. See Exhibit 1. As the County process and the applicable law makes clear, the Board does not approve any lease. Whether a lease is entered into is determined in the discretion of the Director and is not a determination made by the Board. Suffolk County Code § 475-15(B). Even if a lease for a single site was later entered into by the Director, the lease applicant would still need to go through a rigorous federal and state permitting process to obtain required permits, such as from the United States Coast Guard, the U.S. Army Corps of Engineers and the New York State Department of Environmental Conservation. ECL §13-0302(6) & §13-0316. As such, no Board Resolution may be deemed a "final determination" as the approval of aquaculture lease sites inflicted no actual, concrete harm on Petitioner. See, Essex County v. Zagata, 91 N.Y.2d 447, 695 N.E.2d 232 (1998). For that matter, no future County determination, including the later selection of an approved lessee, may be deemed a "final determination" since it has not inflicted any actual, concrete harm on Petitioner. Any approved lessee must obtain the required federal and state permits before any shellfish aquaculture activity may occur on an approved lease site by an approved lessee. ECL §13-0302(6) & §13-0316. Accordingly, Petitioner's rights have not been adversely affected by any Board Resolution and no other County determination has been made. The Court of Appeals, in Matter of Essex County v. Zagata, stated that "[t]o determine if agency action is final...consideration must be given to 'the completeness of the administrative action' and 'a pragmatic evaluation [must be made] of whether the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury..." Matter of Essex County 10 14 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232 (1998)(internal quotations and citations omitted). Furthermore, Courts in this State have used a two-part test to determine whether an agency determination is final. "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." Best Payphones, Inc. v. Dept. of Info. Tech. & Telecom. Of City of N.Y., 5 1V.Y.3d 30, 34, 799 1VYS2d 182 (internal citations omitted) (2005). Here, it cannot be disputed that the Board Resolution, did not approve any lease in Orient Harbor. Rather, the Board merely approved certain lease sites which may be available for lease for the present lease cycle. In any event, under no circumstances could the Board's Resolution be deemed a fmal determination as no aquaculture activities may occur on any lease site in Orient Harbor unless and until such lessees have obtained the required federal and state permits from the United States Coast Guard, the U.S. Army Corps of Engineers and the New York State Department of Environmental Conservation. The scenario herein is analogous to the facts in Cold Spring Harbor Civic Assn. v. Suffolk County Department of Health Services, in which the Second Department affirmed the Supreme Court's dismissal of an Article 78 proceeding challenging the Health Commissioner's granting of a restaurant's application for variances from certain provisions of the Sanitary Code to construct a sewage treatment plant, where no construction permits had been issued regarding said plant. Cold Spring Harbor Civic Assn. v. Suffolk County Department of Health Services, 305 A.D.2d 499, 762 NYS2d 406 (2d Dept. 2003). The Second Department concluded that the proceeding had been properly dismissed as there was "no final determination ripe for judicial review pursuant to Article 11 15 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 78... [as] there was no showing by the petitioners that the Commissioner's action had a 'direct and immediate' effect on them..." Id. at 500 (internal citations omitted.) Accordingly, Petitioner has failed to demonstrate that a justiciable controversy between the parties exists and, as such, this proceeding must be dismissed based on the Court's lack of subject matter jurisdiction, pursuant to CPLR 3211(a)(2), under the doctrine of ripeness. See, Town of Riverhead v. Central Pine Barrens Joint Planning & Policy Commn., 71 A.D.3d 679, 896 NYS2d 382 (2d Dept. 2010). Here, it is respectfully submitted that Petitioner cannot establish that its riparian rights were directly impacted by the Board's Resolution approving certain lease sites as available for leasing. As such, it is clear that Petitioner has suffered no "actual and concrete" injury. It is also well settled law that a court lacks subject matter jurisdiction to issue an opinion in the absence of a genuine legal dispute, and thus does not have discretion as to whether to entertain an unripe claim. See, Combustion Eng'g., Inc. v. Travelers Indem. Co., 75 A.D.2d 777, 428 N.Y.S.2d 235 (Pt Dep't 1980), aff d, 53 N.Y.2d 875 (1981). For the foregoing reasons, it is clear that Petitioner has failed to establish that the Board's Resolution was final and binding against it and, therefore, as a matter of law, Petitioner's application for review of said determination under CPLR Article 78 must be denied and the Petition dismissed, pursuant to CPLR Rule 3211(a)(2), as non-justiciable under the doctrine of ripeness. POINT IV PETITIONER LACKS STANDING TO BRING THIS ACTION In this proceeding, Petitioner does not allege a specific basis for standing, but instead asserts that it is a yacht club "located in close proximity to proposed lease sites T13, T14, and T15. 12 16 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 Its members have been sailing the waters of Orient Harbor for 90 years." [NYSCEF Doc. No. 1 at ¶18.] Petitioner further alleges various sailing activities of its members as well as boating and recreational users of Orient Harbor. [NYSCEF Doc. No. 1 at 1[26.] Petitioner fails to allege the actual proximity of the Subject Parcel to the Yacht Club property or any unique and special injury to Petitioner. In CPD N.Y. Energy Corp. v. Town of Poughkeepsie Planning Board, 139 A.D.3d 942, 32 N.Y.S.2d 275 (2d Dept. 2016), recognizing the need of the Petitioner to establish an injury different from that of the public at large, the court rejected the amorphous allegation of indeterminate traffic and neighborhood impacts and determined petitioner lacked standing concluding: The Supreme Court properly determined that the petitioners failed to establish standing on the basis of alleged traffic impacts, impacts arising from issues of compliance, or community character impacts, as the petitioners failed to establish any harm distinct from that of the community at large. Moreover, the court properly determined that the petitioners did not have standing on the basis of any alleged access issues related to an interconnection between the subject property and their own, because they failed to establish any right of access to the interconnection and, in any event, failed to allege any potential adverse impact of the interconnection's closure. CPD KY Energy Corp. v. Town of Poughkeepsie Planning Board, 139 A.D.3d 942, 944, 32 N.Y.S.2d 275, 278 (2d Dept. 2016). As in CPD NY. Energy Corp., Petitioner has failed to establish standing on the basis of a special, direct, or demonstrable injury which effects it. Here, Petitioner has not alleged it is close enough in proximity in a manner sufficient to set forth standing. Moreover, simply being close in proximity does not confer standing; a legally protectable interest must be shown. Id. Petitioner has not met the burden of showing that their injury is real and different than the injury most members of the public. Id. Petitioner has not alleged any special damages it has suffered different in kind and degree from any allegedly suffered by the boating community generally. 13 17 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 It is well-settled that a plaintiff may not proceed with an action in the absence of standing. See, Stark v. Goldberg, 297 A.D.2d 203, 204, 746 N.Y.S.2d 280 (1st Dept. 2002). Where, as here, standing is put into issue by the County Respondents, the Petitioner must prove its standing in order to be entitled to relief. See, U.S. Bank, N.A. v. Adrian Collymorei 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 (2d Dept. 2009). As explained by the Court of Appeals: "[w]hether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation." Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 9339 N.E.2d 865 (1975). As to its declaratory judgment claim, standing is lacking in that regard as well. The standing required to establish a challenge pursuant to CPLR Article 78 is the same standing criteria needed to maintain a declaratory judgment action Matter of Haber v. Board of Estimate of City of New York, 33 A.D.2d 571, 572, 305 N.Y.S.2d 520 (2d Dept. 1969). Accordingly, and for the same reasons, Petitioner lacks standing to maintain the declaratory judgment claims in this hybrid proceeding. In the instant case, Petitioner has failed to allege a single fact supporting a unique and special harm to it by the continuing inclusion of the Subject Parcels into aquaculture lease zone. Accordingly, this motion to dismiss should also be granted based on lack of standing of Petitioner. POINT V THE DRASTIC REMEDY OF AN INJUNCTION IS NOT WARRANTED In its Petition, Petitioner also seeks injunctive relief, including seeking "an injunction preventing the ALB from executing a lease for sites in Orient Harbor that will interfere with or prevent OYC and its members from sailing in the areas where lease sites T13, T14 and T15 are located" and "preliminarily and permanently enjoining the Aquaculture Lease Board from 14 18 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 granting any lease pursuant to Resolution 10-2022". [NYSCEF Doc. No. 1 at 56 and Wherefore clause (b).] For the reasons noted above and set forth herein, it is respectfiffly submitted that Petitioner has failed to demonstrate its entitlement to injunctive relief as it cannot show actual, concrete injury as a result of any County determination. Moreover, the Court lacks subject matter jurisdiction herein as it is clear that the Board's Resolution was not a final determination which caused immediate injury to Petitioner, as a matter of law, and, therefore, Petitioner's application for injunctive relief must be denied. Petitioner has failed to establish the criteria necessary for the issuance of an injunction. Preliminary injunctive relief is a drastic remedy that is not routinely granted. Marietta Corp. v. Fairhurst, 301 A.D.2d 734, 736, 754 N.Y.S.2d 62 (3d Dept. 2003). The party seeking injunctive relief must establish a clear right to relief under the law and the undisputed facts. Doe v. Poe, 189 A.D.2d 132, 136, 595 N.Y.S.2d 503 (2d Dept. 1993); Wheaton/TMW Fourth Ave., LP V. New York City Dept. of Bldgs., 65 A.D.3d 1051, 886 N.Y.S.2d 41 (2d Dept. 2009). Petitioner has failed to establish the right to injunctive relief. A preliminary injunction and a restraining order can only be granted under these limited grounds: A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. CPLR §6301. 15 19 of 23 FILED: SUFFOLK COUNTY CLERK 04/14/2023 06:04 PM INDEX NO. 604402/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/14/2023 To demonstrate that it is entitled to a preliminary injunction, the movant must show a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in its favor. Aetna Insurance Co. v. Capasso, 75 N.Y.2d