INDEX NO.

EF2020-2075
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/19/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
-----------------------------------------------------------------------)[
61 CROWN STREET, LLC, 311 WALL STREET, LLC;
317 WALL STREET, LLC, 323 WALL STREET
OWNERS, LLC, 63 NORTH FRONT STREET, LLC,
314 WALL STREET, LLC, and 328 WALL STREET, NOTICE OF ENTRY
LLC
Plaintiffs Index No.: EF2020-2075

For a Judgment Pursuant to Article 78 of Assigned Judge:

the Civil Practice Law and for a Honorable Richard Mott
Declaratory Judgment Pursuant to§ 3001 of the
Civil Practice Law and Ru1es

-against-

CITY OF KINGSTON COMMON COUNCIL,

STEVEN T. NOBLE in his capacity as MAYOR OF THE
CITY OF KINGSTON; JM DEVELOPEMNT GROUP,
LLC, HERZOG SUPPLY CO., INC.; KINGSTONIAN
DEVELOPMENT, LLC; PATRICK PAGE HOLDINGS,
L.P.; BLUE STONE REALTY, LLC, and WRIGHT
ARCHITECT, PLLC
Defendants
-----------------------------------------------------------------------)[

PLEASE TAKE NOTICE, that the within is a true copy of a Decision/Order, signed by the

Honorable Richard Mott, J.S.C., on February 17, 2021 and du1y entered in the office of the Ulster

County Clerk on February 19, 2021.

Dated: February 19,2021

Poughkeepsie, New York
YOURS, ETC.

aR~
J. Scott GreG, Esq.
LEWIS & GREER, P.C.
Co- Counsel for Plaintiffs,
61 Crown Street, LLC, 311 Wall Street, LLC,
317 Wall Street, LLC, 323 Wall Street Owners,
LLC, 63 North Front Street, LLC, 314 Wall
Street, LLC, and 328 Wall Street, LLC
510 Haight Avenue, P.O. Box 2990
Poughkeepsie, New York 12603
Telephone: (845) 454-1200

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Victoria L. Polidoro, Esq.

RODENHAUSEN CHALE & POLIDORO LLP
Attorney for Plaintiffi,
61 Crown Street, LLC, 311 Wall Street, LLC,
317 Wall Street, LLC, 323 Wall Street Owners,
LLC, 63 North Front Street, LLC, 314 Wall
Street, LLC, and 328 Wall Street, LLC
55 Chestnut Street,
Rhinebeck, New York 12572
Telephone: (845) 516-4323

To: Michael T. Cook, Esq.

COOK, NETTER, CLOONAN,
KURTZ & MURPHY, P.C.
Attorney for Defendants,
Blue Stone Realty, LLC
Wright Architect, PLLC
85 Main Street,
Kingston, New York 12402
Telephone: (845) 331-0702

Kevin R. Bryant, Esq.

Corporation Counsel
Attorney for Defendants,
City ofKingston Common Council
Steven T. Noble in his capacity as
Mayor of the City ofKingston
420 Broadway,
Kingston, New York 12401
Telephone: (845) 334-3947

Daniel Gartenstein, Esq.

Assistant Corporation Counsel
Attorney for Defondants,
City ofKingston Common Council
Steven T. Noble in his capacity as
Mayor ofthe City ofKingston
420 Broadway,
Kingston, New York 12401
Telephone: (845) 334-3947

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Michael A. Moriello, Esq.

RISELEY AND MORIELLO, PLLC
Attorney for Defendants,
JM Development Group, LLC.,
Herzog Supply, Co., Inc.,
Kingstonian Development, LLC.,
Patrick Page Holdings, LP
Ill Garden Street,
Kingston, New York 12572
Telephone: (845) 338-6603

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
--------------------------------------------------------------------------){
61 CROWN STREET, LLC, 311 WALL STREET, LLC,
317 WALL STREET, LLC, 323 WALL STREET
OWNERS, LLC, 63 NORTH FRONT STREET, LLC,
314 WALL STREET, LLC, and 328 WALL STREET, LLC,

Plaintiff, DECISION/ORDER

-against- Index No. EF2020-2075

R.J.L No. 55-20-0873
Richard Mott, J.S.C.

CITY OF KINGSTON COMMON COUNCIL, STEVEN T. NOBLE,

IN HIS CAPACITY AS MAYOR OF THE CITY OF KINGSTON,
JM DEVELOPMENT GROUP, LLC, HERZOG SUPPLY CO., INC.,
KINGSTONIAN DEVELOPMENT, LLC, PATRICK PAGE
HOLDINGS, L.P., BLUE STONE REALTY, LLC, WRIGHT
ARCHITECT, PLLC,
Defendants.
----------------------------------------------------------------------------){
Motion Return Date: December 31, 2020

APPEARANCES:

Plaintiffs: Victoria Polidoro, Esq.

Rosenhausen Chale & Polidoro, LLC
55 Chestnut Street
Rhinebeck, NY 12572

-and-

J. Scott Greer, Esq.

50 Haight Avenue
Poughkeepsie, NY 12603

Defendants: Kevin R. Bryant, Esq.

Corporation Counsel- City of Kingston
420 Broadway
Kingston, NY 12401

-and-

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Daniel Gartenstein, Esq.,

Assistant Corporation Counsel - City of Kingston
420 Broadway/PO Box 3575
Kingston, NY 12402
For City of Kingston Common Council (Council) and Steven T.
Noble in his Capacity as Mayor of the City of Kingston (Mayor,
collectively, City)

Michael A. Moriello, Esq.

Riseley & Moriello
111 GreenStreet/PO Box 4465
Kingston, NY 12402
For JM Development Group, LLC, OM), Herzog Supply Co, Inc.,
(Herzog), Kingstonian Development, LLC and Patrick Page
Holdings, LLC (Developers)

Robert D. Cook, Esq.

Cook, Netter, Cloonan, Kurtz & Murphy, PC
85 Main Street
Kingston, NY 12401
For Blue Stone Realty, LLC (Blue Stone) and
Andrew Wright Architects, PLLC (Wright)
Mott, J.

Developers move for summary judgment dismissing this action for declaratory and

injunctive relief alleging illegal acts of the Council and/ or Mayor pursuantto CPLR § 3001

and General Municipal Law (GML) § 51.1 The City supports the motion. Plaintiffs oppose. 2

Background

Plaintiffs challenge the City's actions relative to Developers' Kingstonian Project

(Project) in the City's Stockade Historic District (KSHD) which involves City-owned parcels,

including, inter alia, 21 N. Front Street. The KSHD is zoned C-2 (commercial) with a Multi-

1 Thissection authorizes a taxpayer suit to "prevent any official illegal act." !d.
2 Blue Stone/Wright answers seeking dismissal and an attorney-fee award asserting this action is frivolous
and seeks the same relief against it in a prior pending proceeding. However, they have not made a submission
on this motion.

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Use Overlay District (MUOD) permitting residential use. 3 Following a Request for

Qualification to develop City parcels, including an outdoor parking lot and defunct

municipal parking garage (Garage), the Mayor signed a Memorandum of Understanding

(MOU) with Wright. The MOU states it is a non-binding agreement to work together to

obtain investors for the lease and/or sale of said property to develop "a minimum of200

parking spaces and a combination of street-level commercial, retail and dining

establishment with apartments or hotel." Thereafter, Wright, with the Mayor's consent,

assigned the MOU to )M, with consideration therefore conditioned upon obtaining, inter

alia," ... Council and referendum approval, if required." Following the Planning Board's (PB)

negative SEQR declaration, the Council approved the extension ofthe MUOD to Herzog's

.313-acre Project parcel bordering the KSHD (Herzog Parcel), also in the C-2 zoning district,

conditioned upon compliance with a 10% affordable housing quota.

Plaintiffs' 1st cause of action asserts that a 1,584' sq. picnic area is parkland that the

City intends to alienate without first obtaining required legislative approval. The znd seeks

to enjoin said alienation without such approval. The 3rd and 4th seek declarations that the

MOU and its assignment are null and void as lacking Council approval required for the

conveyance of City land. The 5th claims the Council engaged in illegal spot-zoning when it

extended the MUOD to the Herzog Parcel for the sole benefit of the Project, contrary to the

City's Comprehensive Plan (CP) and despite harm to neighboring landowners. They allege

3 The Project consists of a 420 space parking garage, 143 apartments a 32-room hotel and 9000' sq. of
retail/restaurant space, closure of Fair Street Extension to create a public pedestrian plaza with a footbridge
to a shopping mall across Schwenk Drive. This Project is subject of 3 other pending matters in which Plaintiffs
herein are petitioners, to wit: Creda, LLC, et al v. City of Kingston Planning Board, et al, Index No. EF2020-253
(the parkland issue is also the subject of this proceeding challenging the Project's negative SEQR declaration);
61 Crown Street, LLC, et al v. NYS Department of Parks, Recreation and Historic Preservation, Index No. EF2020-
2079; 61 Crown Street, LLC, et al v. City ofKingston Zoning Board ofAppeals, eta], Index No. EFZOZ0-2205.

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harm by increased traffic and noise, diminished parking and destruction of the historic

KSHD character, including a bluff feature and viewshed, due to the Project's scale.

Parties' Contentions

Developers claim the picnic area depicted in Plaintiffs' photographs is not public

parkland, has never been dedicated as such and that its use for festivals sponsored by a

local business association or as an urban beautification space does not impliedly render it

so. They submit the affidavit of professional land surveyor Christopher J. Zell (Zell) who

states that, per his survey, the depicted area extends 30' x 66' or 1,980' sq., is part of the

Garage's lot and has no separate tax map designation. He states that his investigation

reveals same has never been inventoried, utilized, administered or promoted as parkland

and is not listed or managed as a park by the City's Parks & Recreation Department, as

corroborated by its website park listings. 4 Further, he states said lot was acquired by the

City as successor-in-interest to the defunct Kingston Community Development Agency via a

1981 Assembly Bill which he attaches. He states that, prior thereto, it was surplused by a

Housing and Urban Development renewal project following Garage construction in 1968

and transferred to the City with the Garage. In addition, Developers submit the affidavit of

Ron Woods (Woods), 50-year chairman of the Kingston Recreation Commission, that the

subject parcel has never been used, maintained or occupied as a public park or listed by the

City in any tourist brochure or website as such during his chairmanship, which ended in

2019.

4Zell states the disputed area is located at North Front and Fair Streets by the entrance to the Garage, while
Plaintiffs assert it extends along the entire south side of North Front Street, between Fair and Wall Streets.
Notwithstanding the parties' contradictory assertions as to the size of the picnic area, its depiction in
photographs and Zell's estimate of its larger area renders this dispute irrelevant.

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Further, Developers claim the MOU and assignment are self-described as non-

binding and, therefore, cannot be construed as property conveyances. In addition, they aver

that objections to a potential future conveyance is not ripe for review. Moreover, they

maintain, inter alia, 5 that the Council's zoning determination is presumed valid and its

consideration of the Project's consistency with the City's land use plan is evidenced by its

reliance upon the PB's negative SEQR declaration and the Ulster County Planning Board's

(UCPB) recommendation of an affordable housing minimum for new development.

The City relies upon Developers' submission and asserts that summary judgment is

appropriate in land use matters against a municipality. They aver Plaintiffs fail to raise any

issues of fact or potentially relevant discovery in support of their claims. Finally, they insist

that out-of-context legislator comments are irrelevant to the core determination of

whether the Herzog Parcel rezoning is consistent with the City's land-use plan.

Plaintiffs contend issues of fact persist as to its parkland and spot-zoning claims and

that relevant information, within the exclusive control of Defendants, precludes summary

judgment pre-discovery. 6 They assert the picnic area's use for public events, such as the

annual Snowflake Festival and as a passive picnic recreation area is sufficient to raise an

issue of fact as to implicit parkland designation. They submit an Ulster County Property

Description Report for 21 North Front Street (Tax Map ID 48.80-1-26) indicating its use as

a parking lot with a 1584' sq. picnic area on a concrete patio. Further, they proffer

5 They claim, inter alia, failure to exhaust administrative remedies as Plaintiffs' did not intervene in
administrative proceedings/reviews that examined the Project and in which the parkland issue was never
raised. Further, hey claim dismissal of the parkland claims is merited as a discretionary matter, pursuant to
CPLR 3211(a)(4), since it has been raised by Plaintiffs in a prior proceeding, and because they lack standing.
Insofar as Plaintiffs' substantive claims lack merit, the objections in point oflaw have not been addressed.
6 Plaintiffs' reply does not address their MOD-related claims.

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Snowflake Festival announcements and photographs of people eating lunch at 4 picnic

tables during a 1 '\6-hour observation by William Pickney,7 as proof of its recreational use.

In addition, they maintain, upon information and belief, that there was once a sign or

plaque posted and that internal City documents regarding event permits and its

maintenance of the area may yield evidence in support of their parkland claim.

Further, they maintain the Council's rezoning of the Herzog Parcel constitutes spot-

zoning since it was approved solely to benefit the Project which was stymied by the

prohibition of residential use under its existing C-2 zoning. In support, it cites UCPB

comments that the MUOD does not appear to authorize new residential construction and

that the failure to impose an affordable housing requirement on such construction appears

contrary to the purpose of the MUOD. Further, they cite an alderperson's comments

opposing referral for a full vote due to outstanding questions about the implications of

extending the MUOD beyond the existing KSHD.

DiscussionjSummary Judgment

Summary judgment is appropriate in a declaratory judgment action upon an

undisputed factual record, Russell v Town of Pittsford, 94 AD2d 410, 412 [4th Dept 1983]

and upon the same standard as in any civil action. On summary judgment, the moving party

must establish prima facie entitlement to judgment as a matter of law "by adducing

sufficient competent evidence to show that there are no issues of material fact." Alvarez v

Prospect Hasp., 68 NY2d 320, 324 [1986]. "Only when the movant bears this burden and

the nonmoving party fails to demonstrate the existence of any material issue of fact will the

motion be properly granted." Staunton v Brooks, 129 AD 3d 1371 [3d Dept. 2015], citing

7 He is an employee of Plaintiffs' real estate management company.

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Lacasse v Sorbello, 121 AD3d 1241, 1241 [3d Dept. 2014]. However, "bald, conclusory

assertions or speculation and a shadowy semblance of an issue are insufficient to defeat

summary judgment, as are merely conclusory claims." Stonehill Capital Mgt., LLC v Bank of

theW., 28 NY3d 439,448 [2016].

Parkland/Public Trust Doctrinej1st and zna Causes ofActions

The public trust doctrine requires that the alienation ofland impliedly dedicated

to parkland be legislatively approved. Coney Is. Boardwalk Community Gardens v City of New

York, 172 AD 3d 1366, 1368 [2d Dept 2019]. Whether a parcel has been so dedicated is a

factual issue and is determined by,

"the owner's acts and declarations and the circumstances surrounding the use ofthe
land ... [and where ...] a landowner's acts are equivocal, or do not clearly and plainly
indicate the intention to permanently abandon the property to [public use], they are
insufficientto establish [parkland dedication]." !d.

Such acts and declarations must be "unmistakable in their purpose and decisive in their

character." Matter of Glick v Harvey, 25 NY3d 1175, 1180 [2015]. Further, a party seeking to

establish same, must show that "the public has accepted the land as dedicated to a public

use." !d.

Here, Developers and the City have met their burden of establishing, by the Zell and

Woods affidavits, the absence of any public declarations of unmistakable purpose or intent

to designate the picnic area for permanent use as a public park and that it was not acquired,

limited or designated for that purpose. Moreover, temporary recreational use of public land

is insufficient to establish implicit park dedication. Id; Coney Is. Boardwalk Community

Gardens v City of New York, 172 AD 3d 1366.

8 Plaintiffs have standing on the parkland issue as taxpayers, pursuant to GML § 51.

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Plaintiffs' reliance upon Matter of Lazare v Bd. of Trustees of Vii. of Massena, 191

AD2d 764, 765 [3d Dept 1993] (village's acceptance of disputed parcel only states that

parcel is to provide site for recreational purposes on the portion not needed for other

purposes) is misplaced. The Lazare court found no such dedication despite equivocal

references to park use in public documents and the parcel's denomination as a park in a

proposed zoning map. Moreover, unlike Vi/. of Croton-On-Hudson v Westchester County, 38

AD2d 979, 980 [2d Dept 1972], affd, 30 NY2d 959 [1972] where 20 acres had been used

recreationally for over 45 years, the disputed area here is a sidewalk setback, irrefutably

part of a Garage lot inherited from a defunct City development agency as surplused land.

Such circumstances are more akin to the facts in Coney Is. Boardwalk Community Gardens v

City of New York, 172 AD 3d 1366, where the court rejected an implied parkland claim

despite long-term licensing and use as a community garden, citing the municipality's years-

long indecision about its development.

In rebuttal, Plaintiffs fail to raise a triable issue of fact or establish a potential for

relevant discovery where even the management of a public area by a parks department

would be insufficient to establish parkland. Matter of Glick v Harvey, 25 NY3d at 1180

(management documentation, including permits, memoranda and leases show that parks

department management was temporary and provisional). Moreover, internal City

documents are incapable of evidencing a public unequivocal statement of such dedication

and Plaintiffs offer no support for their conclusory allegations as to potential discovery.

Thus, their iS' and 2nd causes of action are dismissed.

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MOUj3rd and 4<h Causes ofAction

Here, the MOU and its assignment establish, by their terms, that they do not entail

the lease or sale of real property because they are non-binding and reference only potential

future events subject to required approvals. Therefore, Defendants have met their initial

burden establishing the MOU and assignment are not conveyances ofland and Plaintiffs

have failed to raise a triable issue of fact in rebuttaL Thus, Plaintiffs' 3rct and 4th causes of

action are dismissed. Salvador v Town of Queensbury, 162 AD 3d 1359 [3d Dept 2018] (lack

of justiciable controversy requires dismissal of declaratory judgment action).

Herzog Parcel RezoningjS<h Cause ofAction

"Zoning determinations enjoy a strong presumption of validity, which can only be

overcome by a showing that the decision ... was unreasonable and arbitrary." Save Our

Forest Action Coalition Inc. v City ofKingston, 246 AD2d 217,221 [3d Dept 1998].

Prohibited spot-zoning,

"defined as the process of singling out a small parcel ofland for a use classification
totally different from that of the surrounding area for the benefit of the owner ... and
to the detriment of other owners --is the very antithesis of planned zoning." Rodgers
v Vi/. of Tarrytown, 302 NY 115, 116 [1951].

To determine if spot-zoning has occurred a court may consider the rezoning's consistency

with a comprehensive land-use plan, compatibility "with surrounding uses, the likelihood

of harm to surrounding properties, the availability and suitability of other parcels and the

recommendations of professional planning staff." Save Our Forest Action Coalition Inc. v City

of Kingston, 246 AD2d at 221. However, "the ultimate test is whether the change is other

than part of a well-considered and comprehensive plan calculated to serve the general

welfare of the community." !d.

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Here, although rezoning smoothed the way for the Project, that does not render it

inconsistent with the City's land-use plan. Reviews by City and County planning authorities,

perforce, considered the Project's coherence with KSHD zoning, evaluated environmental

impacts and were considered by the Council as stated in its resolution. Plaintiffs' reliance

upon an interim UCPB observation regarding potential inconsistencies of the Project with

the MUOD ignores that those issues later were addressed by the City's Zoning Board of

Appeals and by the Council's imposition of a 10% affordable housing requirement as a

condition of rezoning. Thus, the administrative record rationally supports the Council's

extension of the MUOD to the adjacent Herzog Parcel, with an underlying zoning

designation identical to that of the KSHD, as consistent with the City's land-use plan. In

rebuttal, Plaintiffs fail to raise an issue of fact impugning the presumptive validity of said

determination, requiring dismissal of the 5th cause of action. See, e.g., Matter of Lazare v Bd.

of Trustees of Vi/. ofMassena, 191 AD2d at 765.

Accordingly, the motion is granted and the action is dismissed.

This constitutes the Decision and Order of this Court. The Court is Efiling this

Decision and Order, but Developers are not relieved from compliance with the provisions

of CPLR §2220 with regard to notice of entry. The Court is remitting the original hard copy

of Plaintiffs Exhibit A to the Court Clerk for filing with the County Clerk

Dated: Hudson, New York

February 17, 2021

RICHARD
Papers Considered:

1. Notice of Motion, Memorandum of Law and Affirmation of Michael A. Moriello, Esq.,

dated November 30, 2020; Verified Answer, Affirmation and Memorandum of Law of
Michael A. Moriello, Esq., dated November 24, 2020 with Exhibits A-F;
2. Answer of Michael T. Cook, Esq., dated November 2, 2020;
10

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3. Verified Answer of Kevin Bryant, Esq., dated November 4, 2020 witb Record on Appeal,
Memorandum of Law of Kevin R. Bryant, Esq., and Daniel Gartenstein, Esq., dated
November 5, 2020 with Exhibits A-C; Affirmation in Support of Summary Judgment of
Daniel Gartenstein, Esq., dated December 24, 2020;
4. Opposition Affirmation of Victoria L. Polidoro, Esq., with Exhibits A-G 9 and
Memorandum of Law of Victoria L. Polidoro, Esq., and J. Scott Greer, Esq., dated
December 24, 2020; Memorandum of Law in Support of Complaint of Victoria Polidoro,
Esq., and J. Scott Greer, Esq., dated August 21, 2020;
5. Reply Affirmation and Memorandum of Law of Michael A. Moriello, Esq., dated
December 28, 2020 with Exhibits A-C.

9 Exhibit A, filed in hard copy, includes the Verified Complaint of Victoria L. Polidoro, Esq., and). Scott Greer,
Esq., Verification ofjulio Hernandez and Complaint Exhibits 1-18.

11

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SUPREME COURT
STATE OF NEW YORK, COUNTY OF ULSTER Index No. Year

61 CROWN STREET, LLC, 311 WALL STREET, LLC; 317 WALL STREET, LLC, 323 WALL STREET OWNERS, LLC, 63 NORTH
FRONT STREET, LLC, 314 WALL STREET, LLC, and 328 WALL STREET, LLC
Plaintiffs

For a Judgment Pursuant to Article 78 of the Civil Practice Law and for a Declaratory Judgment Pursuant to § 3001 of the Civil Practice Law
and Rules

-against-

CITY OF KINGSTON COMMON COUNCIL, STEVEN T. NOBLE in his capacity as MAYOR OF THE CITY OF KINGSTON; JM
DEVELOPMENT GROUP, LLC, HERZOG SUPPLY CO., INC.;KINGSTONIAN DEVELOPMENT, LLC; PATRICK PAGE HOLDINGS,
L.P.; BLUE STONE REALTY, LLC, and WRIGHT ARCHITECT, PLLC

l . -NOTICE OF ENTRY :

LEWIS & GREER, P.C.

Attorney(s}for Defendants 61 Crown Street, LLC, 311 Wall Street, LLC, 317 Wa
Street, LLC, 323 Wall Street Owners, LLC, 63 North Front Stree
Qffice and Post Ojfii£,Ai11d!riifs/!JStlep'Jdi>kC, and 328 Wall Street, LLC

510 Haight A venue, Suite 202

POUGHKEEPSIE, NEW YORK 12603
(845) 454-1200

Signature (Rule 130-1.1-a)

To

Print name beneath

Service of a copy of the within is hereby admitted.

Attorney(s) for Dated:--------------

PLEASE TAKE NOTICE:

0 NOTICE OF ENTRY

that the within is a (certified} true copy of a

duly entered in the office of the clerk of the within named court on

0 NOTICE OF SETTLEMENT

that an order of which the within is a true copy

will be presented for settlement to the HON. one of the judges of the
within named Court. at
on at M.
Dated,
Yours. etc.

LEWIS & GREER, P.C.

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