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FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023
STATE OF NEW YORK
SUPREME COURT: ERIE COUNTY
In the Matter of the Application of Index No.
NEW YORK COALITION FOR
OPEN GOVERNMENT, INC.
NATHAN FEIST
MEMORANDUM OF LAW
MATTHEW AUSTIN
Petitioners
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules
-against-
CITY OF BUFFALO
CITIZENS SALARY REVIEW COMMISSION
CITY OF BUFFALO BOARD OF REVIEW
BUFFALO COMMON COUNCIL
Respondents
PRELIMINARY STATEMENT
Petitioners respectfully submit this memorandum of law in support of their petition seeking
judgment as a matter of law for the relief demanded. Specifically, Petitioners seek a declaration
that Local Law #2 (2023), which increases the salaries of elected officials in the City of Buffalo,
is void and of no force and effect because it was not enacted in accordance with the City Charter,
Common Council Rules and the Open Meetings Law.
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SUMMARY OF ARGUMENT
The Charter of the City of Buffalo ("Charter") establishes a process that must be followed
for city elected officials to receive a salary increase. Every two years, a Citizens Salary Review
Commission ("Commission") must be formed to study elected official salaries. The members of
the Commission, pursuant to the City Charter, are appointed by the Board of Review, which
consists of the Mayor, City Comptroller, and the President of the Common Council. The
Commission is required to report its salary recommendations to the Common Council by May 1.
Once the Common Council receives the Commission's report, the Council has the authority
to adopt, modify or reject the report by June 15. In order for the salaries of elected officials to be
increased, the Common Council must pass a local law, which does not become effective until the
Mayor holds a public hearing and approves the law. The Mayor has the authority to veto the local
law and the Council has the power to override such veto if they choose to do so.
With the City Charter-established deadline of May 1 fast approaching, the Common
Council took it upon itself to appoint members to the Commission on April 18, 2023. Under the
City Charter, only the Board of Review has the authority to appoint members to the Commission.
The Common Council appointment of Commission members was done in violation of the City
Charter.
The formation of the Commission is a required prerequisite to passing a local law to raise
the salaries of elected officials. As the Commission was illegally created by the Common Council,
the Commission's recommendations must be declared null and void. Likewise, the local law
passed after the Common Council acted upon the Commission's report must also be declared null
and void. In addition to violating the City Charter, the Common Council violated its own meeting
rules when making appointments to the Commission.
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If the Board of Review did act on appointments to the Commission, they did so in private
in violation of the New York State Open Meetings Law.
Furthermore, the Commission did not provide the public the ability to observe their
meetings virtually and held an illegal executive session in violation of the Open Meetings Law.
LAW AND ARGUMENT
POINT 1
PETITIONERS HAVE STANDING TO BRING THIS ACTION
As taxpaying, voting residents of the City of Buffalo, Petitioners have standing to address
the significant municipal concern of whether the City Charter was properly followed in enacting
a local law to raise the salaries of city elected officials. See Matter of Andrews v Nagourney, 41
(2nd
AD 2d 778 Dept. 1973, also affirmed by the Court of Appeals). In Nagourney, the court
stated:
The threshold question presented on this appeal concerns standing to sue. We are
of the view that the dismissal of the petition by Special Term on the stated ground
aggrieved"
that petitioner is not a "party was improper. In addition to being a citizen
and taxpayer of the City of Long Beach, petitioner is, as will be seen, a member of
a valid charter revision commission still in existence. In this matter of significant
municipal concern to the citizens of tong Beach, involving the actions ofmunicipal
officials and only tangentially related to fiscal matters, petitioner has standing to
bring this article 78 proceeding even though he does not show a personal grievance
or a personal interest in the outcome (Matter of Policemen's Benevolent Assn. of
Westchester County v. Board of Trustees of Vil. of Croton-on-Hudson, 21 A D 2d
693: see, also, Matter of Bon-Air Estates v. Building Inspector of Town ofRamapo,
31 A D 2d 502, 504; Matter of Werfel v. Fitzgerald, 23 A D 2d 306, 313; Semple
v. Miller, 38 A D 2d 174, 175; Matter of Marino v. Town of Ramapo, 68 Misc 2d
44, 47).
(4"'
In the Matter of the Julian, 22 AD 3D 1033 Dept. 2005), the court ruled:
respondents'
We note at the outset that, contrary to contention, petitioner has
standing to challenge "administrative action threatened or done pursuant to an
law"
allegedly invalid (Matter of Elefante v Hanna, 54 AD2d 822, 823 [1976], mod
on other grounds 40 NY2d 908 [1976]). Indeed, we note that petitioner's standing
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is of particular importance where, as here, the case involves a "matter of significant
concern"
municipal (Matter of Andrews v Nagourney, 41 AD2d 778, 778
[1973], affd 32 NY2d 784 [1973]).
(4th
In Matter of Elefante, 54 AD 2D 822 Dept. 1976), the petitioner, as a resident and
taxpayer of the City of Utica, challenged the validity of a local law which created a charter
revision commission. The court in its decision stated:
The petitioner, as a resident taxpayer and qualified elector of the City of Utica and
County of Oneida, has standing to collaterally attack, by means of an article 78
proceeding, administrative action threatened or done pursuant to an allegedly
invalid law (Matter of Barile v City Comptroller of City of Utica, 56 Misc 2d 190)
and is, therefore, entitled to seek declaratory relief with respect to the impending
submission by respondents election commissioners ofthe proposed new city charter
to the Utica electorate and the allegedly invalid local law which set the charter
revision process in motion.
In addition to challenging the invalid procedures which raised the salaries of elected
officials, Petitioners are also alleging violations of the Open Meetings Law. The Open Meetings
Law provides: "Any aggrieved person shall have standing to enforce the provisions of this article
against a public body by the commencement of a proceeding pursuant to article seventy-eight of
relief"
the [CPLR], or an action for declaratory judgment and injunctive (Public Officers Law §
(2"d
107[1]). Moreover, in McCory v Village of Mamaroneck, 181 AD3d 67 Dept. 2020), the
court ruled that:
The purpose of the Open Meetings Law and the intent of the legislature in enacting
that law dictate that the harm or injury is the alleged unlawful exclusion of the
public from a municipal meeting. The Open Meetings Law plainly confers upon the
public the right to attend certain meetings of public bodies (see Public Officers Law
§ 100). Consistent therewith, the harm or injury of being excluded from municipal
meetings that should be open to the public is sufficient to establish standing in cases
based upon alleged violations of the Open Meetings Law (see Matter of Sanna v
Lindenhurst Bd. of Educ., 85 AD2d at 162; Matter of Friends of Pine Bush v
Planning Bd. of City of Albany, 71 AD2d at 781).
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In the matter before the Court, the Board of Review is the only entity, pursuant to the
City Charter, with the authority to appoint rnembers to the Commission. As shown in the
the Board of Review did not meet in public, as required
Petition, by the City Charter and the
Open Meetings Law. At best, according to the City Comptroller, the members of the Board of
Review excluded the public by conducting their public business over telephone. Petitioners were
unlawfully excluded from attending and observing the Board of Review conduct public business,
which is sufficient to establish their standing alleged violations of the Open Meetings
regarding
Law.
Several members of the Commission and government officials who were not members
attended Commission meetings through video conferencing. Petitioners were unlawfully
excluded from observing Commission meetings through video as required
conferencing by
Public Officer's Law Section 103-a. Pursuant to 103-a, if members of a public body attend a
meeting through video conferencing, the public must be notified and provided the same ability to
observe the meeting through video conferencing. The Commission did not notify the public of
their right to observe Commission meetings through video conferencing.
(2nd
In Taxpayers Association v Town Board, 69 AD 2d 320 Dept. 1979), the court ruled
that a taxpayer association had standing to challenge a local law that was passed by the town
board under the liberalizing principles enunciated by the Court of Appeals in Matter
of Douglaston Civic Assn v Galvin, 36 NY2d 1 (1974). Under Douglaston, in order to establish
standing an association must show in its pleadings that: one or more of its members would
themselves have standing, the interests sought to be protected by the procedure are germane to
the association's purpose; and the participation of none of the members is necessary to the relief
requested.
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Petitioner, New York Coalition For Open Government as a non-profit organization meets
the standing requirements established by the Douglaston decision. The Coalition has members
who are taxpaying residents of the City of Buffalo. The City Charter and Open Meetings Law
issues addressed in the pleadings are germane to the Coalition's mission as an advocate for
transparency in government. Finally, the participation of none of the Coalition members is
necessary to the relief requested.
POINT II
PETITIONER'S HAVE TIMELY BROUGHT THIS ACTION
The beginning of CPLR article 78 provides in relevant part that "a proceeding under this
article shall not be used to challenge a determination: which is not final or can be adequately
court"
reviewed by appeal to a (see CPLR 7801[1] [emphasis added]; see also Watergate II Apts.
v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; Mahoney v Pataki, 261 AD2d 898, 899_[4th
Dept 1999]).
It is anticipated that the Respondents will attempt to dismiss this action on the basis of it
untimely. Petitioners are challenging the procedures followed in enacting a local law and
being
not the substance of the law. When challenging the procedures followed in enacting a local law,
the action must be brought within four months of the enactment of the local law. Here, the local
Common Council on October as such, this action
law in question was passed by the 3, 2023, and,
has been commenced well within the four month Statute of Limitations, if using the October 3,
2023 date.
the final and act to be completed in the process of enacting a local
Furthermore, binding
law is that the Mayor must hold a public and then approve the law in order for the law to
hearing
be enacted. The Mayor of Buffalo held a public hearing regarding the law in question on October
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30, 2023. The Mayor approved the law on October 30, 2023. As the local law passed the
by
Council was not final and enacted until October 30, 2023, Petitioner's have four months from
October 30 2023, to file an Article 78 proceeding the local law.
challenging
In the Matter of Llana v Town (3rd
of Pittstown, 234 AD 2d 881 Dept. 1996), the court
stated:
[W]hen the challenge is directed not at the substance of the local law but at the
procedures followed in its enactment, a CPLR article 78 proceeding is appropriate
(see, Matter ofSave the Pine Bush v City of Albany, 70 N.Y.2d 193, 202; Matter
of Voelckers v Guelli, 58 N.Y.2d 170, 177).
...
In petitioners'
short, we find that each of causes of action concern matters "of
procedure intrusion on"
only, eschewing any into the substance of the matter voted
(Matter of Voelckers v Guelli, supra, at 177), and were therefore brought
properly
in a CPLR article 78 proceeding, to which a four-month Statute of Limitations
applies.
This action/proceeding was commenced within four months of the enactment of
Local Law No. 3 and is thus timely.
A similar determination was reached in Eadie v N Greenbush Town Bd., 854 NE 2d 464 (Ct. of
Appeals 2006). The Court of Appeals stated in their decision:
An article 78 proceeding brought to review a determination by a body or officer
"must be commenced within four months after the determination to be reviewed
petitioner"
becomes final and binding upon the (CPLR 217 [1]). We have held that
this time period begins to run when the petitioner has "suffered a concrete injury
action"
not amenable to further administrative review and corrective (MatterofCity
of New York [Grand Lafayette Props. LLC), 6 NY3d 540, 548 [2006]: see also
Matter of Best Pavphones, Inc. v Department ofinfo. Tech. & Telecom. of City of
NY, 5 NY3d 30, 34 (2005]).
The Court additionally stated:
Here, petitioners suffered no concrete injury until the Town Board approved the
rezoning. Until that happened, their injury was only contingent; they would have
suffered no injury at all if they had succeeded in defeating the rezoning through a
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valid protest petition, or by one more member of the Town Board to
persuading
vote their way.
We thus reaffirm the holding of Save the Pine Bush, and make clear that an article
78 proceeding brought to annul a zoning change be commenced within four
may
months of the time the change is adopted.
As pointed out in the Petition before the Court, the New York Coalition For Open
Government from June until October 3, 2023, (when the local law was passed), urged the Buffalo
Common Council in multiple emails to not adopt the local law. The Common Council was made
aware of the improper actions by the Board of Review and of the Common Council's own
violations of the City Charter.
More recent decisions by the Appellate Division confirm that this action has been timely
brought atler the enactment of the local law in question. In Matter of Cor Route 5 Co., v Village
(4*
of Fayetteville, 147 AD 3d 1432 Dept. 2017), the Court stated:
We agree with petitioner the court that
erred in granting the motion [to dismiss].
"Generally, a CPLR article
78 proceeding may not be used to challenge a nonfinal
officer"
determination by a body or (Matter of Young v Board of Trustees of Vil.
of Blasdell, 221 AD2d 975, 977 [1995], affd 89 NY2d 846 [1996]). In order to
petitioner'"
determine whether an action is "'final and binding upon the (Matter
of Ranco Sand & Stone Corp. v Vecchio, 27 NY3d 92, 98 [2016]), courts follow a
two-step approach: "[f]irst, 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
party"
steps available to the complaining (Matter of Best Payphones, Inc. v
Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34
[2005], rearg. denied 5 NY3d 824 [2005]).
(4*
See also, Becker-Manning, Inc. v Coimnon Council of City of Utica, 114 AD 3d 1143 Dept.
2014):
The Court ofAppeals has consistently stated that in a proceeding alleging a SEQRA
violation in the enactment of legislation, the challenge must be commenced within
enactment"
four months of the date of its (Beneke v Town of Santa Clara, 36 AD3d
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1195, 1197 [2007], ly dismissed 8 NY3d 938 [2007], citing Matter of Eadie v
Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter
of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).
(2nd
In a very recent case, the court in Hoehmann v Town of Clarkstown, 216 AD 3d 865 Dept.
2023), stated:
of"
"[W]hen the challenge is directed not at the substance a local law "but at the
procedures followed in its enactment, it is maintainable in [a CPLR] article 78
proceeding,"
which is subject to a four-month statute of limitations period (Matter
of Save the Pine Bush v City of Albany, 70 NY2d at 202; see CPLR
217[1]; Village of Islandia v County of Suffolk, 162 AD3d 715, 717 [2018]; Baker
v Town of Wallkill, 84 AD3d 1 134, 1 135 [2011]).
POINT III
AN ARTICLE 78 IS THE PROPER WAY TO ADDRESS
INVALID PROCEDURE
The general rule is that
Preview
FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 STATE OF NEW YORK SUPREME COURT: ERIE COUNTY In the Matter of the Application of Index No. NEW YORK COALITION FOR OPEN GOVERNMENT, INC. NATHAN FEIST MEMORANDUM OF LAW MATTHEW AUSTIN Petitioners For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- CITY OF BUFFALO CITIZENS SALARY REVIEW COMMISSION CITY OF BUFFALO BOARD OF REVIEW BUFFALO COMMON COUNCIL Respondents PRELIMINARY STATEMENT Petitioners respectfully submit this memorandum of law in support of their petition seeking judgment as a matter of law for the relief demanded. Specifically, Petitioners seek a declaration that Local Law #2 (2023), which increases the salaries of elected officials in the City of Buffalo, is void and of no force and effect because it was not enacted in accordance with the City Charter, Common Council Rules and the Open Meetings Law. 1 1 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 SUMMARY OF ARGUMENT The Charter of the City of Buffalo ("Charter") establishes a process that must be followed for city elected officials to receive a salary increase. Every two years, a Citizens Salary Review Commission ("Commission") must be formed to study elected official salaries. The members of the Commission, pursuant to the City Charter, are appointed by the Board of Review, which consists of the Mayor, City Comptroller, and the President of the Common Council. The Commission is required to report its salary recommendations to the Common Council by May 1. Once the Common Council receives the Commission's report, the Council has the authority to adopt, modify or reject the report by June 15. In order for the salaries of elected officials to be increased, the Common Council must pass a local law, which does not become effective until the Mayor holds a public hearing and approves the law. The Mayor has the authority to veto the local law and the Council has the power to override such veto if they choose to do so. With the City Charter-established deadline of May 1 fast approaching, the Common Council took it upon itself to appoint members to the Commission on April 18, 2023. Under the City Charter, only the Board of Review has the authority to appoint members to the Commission. The Common Council appointment of Commission members was done in violation of the City Charter. The formation of the Commission is a required prerequisite to passing a local law to raise the salaries of elected officials. As the Commission was illegally created by the Common Council, the Commission's recommendations must be declared null and void. Likewise, the local law passed after the Common Council acted upon the Commission's report must also be declared null and void. In addition to violating the City Charter, the Common Council violated its own meeting rules when making appointments to the Commission. 2 2 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 If the Board of Review did act on appointments to the Commission, they did so in private in violation of the New York State Open Meetings Law. Furthermore, the Commission did not provide the public the ability to observe their meetings virtually and held an illegal executive session in violation of the Open Meetings Law. LAW AND ARGUMENT POINT 1 PETITIONERS HAVE STANDING TO BRING THIS ACTION As taxpaying, voting residents of the City of Buffalo, Petitioners have standing to address the significant municipal concern of whether the City Charter was properly followed in enacting a local law to raise the salaries of city elected officials. See Matter of Andrews v Nagourney, 41 (2nd AD 2d 778 Dept. 1973, also affirmed by the Court of Appeals). In Nagourney, the court stated: The threshold question presented on this appeal concerns standing to sue. We are of the view that the dismissal of the petition by Special Term on the stated ground aggrieved" that petitioner is not a "party was improper. In addition to being a citizen and taxpayer of the City of Long Beach, petitioner is, as will be seen, a member of a valid charter revision commission still in existence. In this matter of significant municipal concern to the citizens of tong Beach, involving the actions ofmunicipal officials and only tangentially related to fiscal matters, petitioner has standing to bring this article 78 proceeding even though he does not show a personal grievance or a personal interest in the outcome (Matter of Policemen's Benevolent Assn. of Westchester County v. Board of Trustees of Vil. of Croton-on-Hudson, 21 A D 2d 693: see, also, Matter of Bon-Air Estates v. Building Inspector of Town ofRamapo, 31 A D 2d 502, 504; Matter of Werfel v. Fitzgerald, 23 A D 2d 306, 313; Semple v. Miller, 38 A D 2d 174, 175; Matter of Marino v. Town of Ramapo, 68 Misc 2d 44, 47). (4"' In the Matter of the Julian, 22 AD 3D 1033 Dept. 2005), the court ruled: respondents' We note at the outset that, contrary to contention, petitioner has standing to challenge "administrative action threatened or done pursuant to an law" allegedly invalid (Matter of Elefante v Hanna, 54 AD2d 822, 823 [1976], mod on other grounds 40 NY2d 908 [1976]). Indeed, we note that petitioner's standing 3 3 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 is of particular importance where, as here, the case involves a "matter of significant concern" municipal (Matter of Andrews v Nagourney, 41 AD2d 778, 778 [1973], affd 32 NY2d 784 [1973]). (4th In Matter of Elefante, 54 AD 2D 822 Dept. 1976), the petitioner, as a resident and taxpayer of the City of Utica, challenged the validity of a local law which created a charter revision commission. The court in its decision stated: The petitioner, as a resident taxpayer and qualified elector of the City of Utica and County of Oneida, has standing to collaterally attack, by means of an article 78 proceeding, administrative action threatened or done pursuant to an allegedly invalid law (Matter of Barile v City Comptroller of City of Utica, 56 Misc 2d 190) and is, therefore, entitled to seek declaratory relief with respect to the impending submission by respondents election commissioners ofthe proposed new city charter to the Utica electorate and the allegedly invalid local law which set the charter revision process in motion. In addition to challenging the invalid procedures which raised the salaries of elected officials, Petitioners are also alleging violations of the Open Meetings Law. The Open Meetings Law provides: "Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of relief" the [CPLR], or an action for declaratory judgment and injunctive (Public Officers Law § (2"d 107[1]). Moreover, in McCory v Village of Mamaroneck, 181 AD3d 67 Dept. 2020), the court ruled that: The purpose of the Open Meetings Law and the intent of the legislature in enacting that law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting. The Open Meetings Law plainly confers upon the public the right to attend certain meetings of public bodies (see Public Officers Law § 100). Consistent therewith, the harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the Open Meetings Law (see Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d at 162; Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 71 AD2d at 781). 4 4 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 In the matter before the Court, the Board of Review is the only entity, pursuant to the City Charter, with the authority to appoint rnembers to the Commission. As shown in the the Board of Review did not meet in public, as required Petition, by the City Charter and the Open Meetings Law. At best, according to the City Comptroller, the members of the Board of Review excluded the public by conducting their public business over telephone. Petitioners were unlawfully excluded from attending and observing the Board of Review conduct public business, which is sufficient to establish their standing alleged violations of the Open Meetings regarding Law. Several members of the Commission and government officials who were not members attended Commission meetings through video conferencing. Petitioners were unlawfully excluded from observing Commission meetings through video as required conferencing by Public Officer's Law Section 103-a. Pursuant to 103-a, if members of a public body attend a meeting through video conferencing, the public must be notified and provided the same ability to observe the meeting through video conferencing. The Commission did not notify the public of their right to observe Commission meetings through video conferencing. (2nd In Taxpayers Association v Town Board, 69 AD 2d 320 Dept. 1979), the court ruled that a taxpayer association had standing to challenge a local law that was passed by the town board under the liberalizing principles enunciated by the Court of Appeals in Matter of Douglaston Civic Assn v Galvin, 36 NY2d 1 (1974). Under Douglaston, in order to establish standing an association must show in its pleadings that: one or more of its members would themselves have standing, the interests sought to be protected by the procedure are germane to the association's purpose; and the participation of none of the members is necessary to the relief requested. 5 5 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 Petitioner, New York Coalition For Open Government as a non-profit organization meets the standing requirements established by the Douglaston decision. The Coalition has members who are taxpaying residents of the City of Buffalo. The City Charter and Open Meetings Law issues addressed in the pleadings are germane to the Coalition's mission as an advocate for transparency in government. Finally, the participation of none of the Coalition members is necessary to the relief requested. POINT II PETITIONER'S HAVE TIMELY BROUGHT THIS ACTION The beginning of CPLR article 78 provides in relevant part that "a proceeding under this article shall not be used to challenge a determination: which is not final or can be adequately court" reviewed by appeal to a (see CPLR 7801[1] [emphasis added]; see also Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; Mahoney v Pataki, 261 AD2d 898, 899_[4th Dept 1999]). It is anticipated that the Respondents will attempt to dismiss this action on the basis of it untimely. Petitioners are challenging the procedures followed in enacting a local law and being not the substance of the law. When challenging the procedures followed in enacting a local law, the action must be brought within four months of the enactment of the local law. Here, the local Common Council on October as such, this action law in question was passed by the 3, 2023, and, has been commenced well within the four month Statute of Limitations, if using the October 3, 2023 date. the final and act to be completed in the process of enacting a local Furthermore, binding law is that the Mayor must hold a public and then approve the law in order for the law to hearing be enacted. The Mayor of Buffalo held a public hearing regarding the law in question on October 6 6 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 30, 2023. The Mayor approved the law on October 30, 2023. As the local law passed the by Council was not final and enacted until October 30, 2023, Petitioner's have four months from October 30 2023, to file an Article 78 proceeding the local law. challenging In the Matter of Llana v Town (3rd of Pittstown, 234 AD 2d 881 Dept. 1996), the court stated: [W]hen the challenge is directed not at the substance of the local law but at the procedures followed in its enactment, a CPLR article 78 proceeding is appropriate (see, Matter ofSave the Pine Bush v City of Albany, 70 N.Y.2d 193, 202; Matter of Voelckers v Guelli, 58 N.Y.2d 170, 177). ... In petitioners' short, we find that each of causes of action concern matters "of procedure intrusion on" only, eschewing any into the substance of the matter voted (Matter of Voelckers v Guelli, supra, at 177), and were therefore brought properly in a CPLR article 78 proceeding, to which a four-month Statute of Limitations applies. This action/proceeding was commenced within four months of the enactment of Local Law No. 3 and is thus timely. A similar determination was reached in Eadie v N Greenbush Town Bd., 854 NE 2d 464 (Ct. of Appeals 2006). The Court of Appeals stated in their decision: An article 78 proceeding brought to review a determination by a body or officer "must be commenced within four months after the determination to be reviewed petitioner" becomes final and binding upon the (CPLR 217 [1]). We have held that this time period begins to run when the petitioner has "suffered a concrete injury action" not amenable to further administrative review and corrective (MatterofCity of New York [Grand Lafayette Props. LLC), 6 NY3d 540, 548 [2006]: see also Matter of Best Pavphones, Inc. v Department ofinfo. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 (2005]). The Court additionally stated: Here, petitioners suffered no concrete injury until the Town Board approved the rezoning. Until that happened, their injury was only contingent; they would have suffered no injury at all if they had succeeded in defeating the rezoning through a 7 7 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 valid protest petition, or by one more member of the Town Board to persuading vote their way. We thus reaffirm the holding of Save the Pine Bush, and make clear that an article 78 proceeding brought to annul a zoning change be commenced within four may months of the time the change is adopted. As pointed out in the Petition before the Court, the New York Coalition For Open Government from June until October 3, 2023, (when the local law was passed), urged the Buffalo Common Council in multiple emails to not adopt the local law. The Common Council was made aware of the improper actions by the Board of Review and of the Common Council's own violations of the City Charter. More recent decisions by the Appellate Division confirm that this action has been timely brought atler the enactment of the local law in question. In Matter of Cor Route 5 Co., v Village (4* of Fayetteville, 147 AD 3d 1432 Dept. 2017), the Court stated: We agree with petitioner the court that erred in granting the motion [to dismiss]. "Generally, a CPLR article 78 proceeding may not be used to challenge a nonfinal officer" determination by a body or (Matter of Young v Board of Trustees of Vil. of Blasdell, 221 AD2d 975, 977 [1995], affd 89 NY2d 846 [1996]). In order to petitioner'" determine whether an action is "'final and binding upon the (Matter of Ranco Sand & Stone Corp. v Vecchio, 27 NY3d 92, 98 [2016]), courts follow a two-step approach: "[f]irst, 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 party" steps available to the complaining (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005], rearg. denied 5 NY3d 824 [2005]). (4* See also, Becker-Manning, Inc. v Coimnon Council of City of Utica, 114 AD 3d 1143 Dept. 2014): The Court ofAppeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within enactment" four months of the date of its (Beneke v Town of Santa Clara, 36 AD3d 8 8 of 21 FILED: ERIE COUNTY CLERK 12/20/2023 04:23 PM INDEX NO. 816293/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/20/2023 1195, 1197 [2007], ly dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]). (2nd In a very recent case, the court in Hoehmann v Town of Clarkstown, 216 AD 3d 865 Dept. 2023), stated: of" "[W]hen the challenge is directed not at the substance a local law "but at the procedures followed in its enactment, it is maintainable in [a CPLR] article 78 proceeding," which is subject to a four-month statute of limitations period (Matter of Save the Pine Bush v City of Albany, 70 NY2d at 202; see CPLR 217[1]; Village of Islandia v County of Suffolk, 162 AD3d 715, 717 [2018]; Baker v Town of Wallkill, 84 AD3d 1 134, 1 135 [2011]). POINT III AN ARTICLE 78 IS THE PROPER WAY TO ADDRESS INVALID PROCEDURE The general rule is that