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STATE OF NEW YORK

SUPREME COURT ULSTER COUNTY


In the Matter of the Application of

HILLARY HARVEY, OWEN HARVEY, and DEANNA


BAUM,
Petitioners, DECISION/ORDER/JUDGMENT

For a Judgment Pursuant to Article 78 Index No.: 18-1139


of the Civil Practice Law and Rules RJI No.: 55-18-0507

- against -

ZONING BOARD OF APPEALS OF THE CITY OF


KINGSTON; JOSEPH SAFFORD, IN HIS CAPACITY AS
ZONING ENFORCEMENT OFFICER FOR THE CITY OF
KINGSTON; MARK BROWN, IN HIS CAPACITY AS FIRE
OFFICER FOR THE CITY OF KINGSTON, AND THE IRISH
CULTURAL CENTER HUDSON VALLEY, INC.,
Respondents.
PRESENT: HON. LISA M. FISHER:

APPEARANCES:

Warren S. Replansky, Esq. Kevin R. Bryant, Esq.


Counsel fir Petitioners Counsel for Kingston Respondents
Warren S. Replansky, P.C. Corporation Counsel
P.O. Box 838, 60 East Market Street City of Kingston
Rhinebeck, New York 12572 420 Broadway
Kingston, New York 12401
Ronald S. Pordy, Esq.
Counsel for Respondent Irish Cultural Center Hudson Valley, Inc.
Law Offices of Ronald S. Pordy
159 Greene Street, Suite 6
Kingston, New York 12401

FISHER, J.:

This combined proceeding pursuant to article 78 and for a declaratory judgment challenges
the written determination of the Respondent City of Kingston Zoning Board of Appeals
(hereinafter "ZBA") dated March 8, 2018, which reversed the decision of the City of Kingston
Historic Landmarks Preservation Commission (hereinafter "FILPC") and granted the application
by Respondent Irish Cultural Center Hudson Valley, Inc. (hereinafter -ICC") for a Preservation
Notice of Action (hereinafter "PNA"). This is the second challenge of three by Petitioners who
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reside and abut the Respondent ICC's proposed site. The first challenge was dismissed by
Supreme Court (Mott, J.) on May 23, 2017, and affirmed by the Appellate Division, Third
Department, on November 1, 2018.
A more thorough recitation of the facts is available in the Third Department's well-
reasoned and detailed decision which was issued during the pendency of this action. Pertinently
for discussion here, Respondent ICC seeks to build a three-story cultural center on vacant land it
purchased in January of 2013 in a mixed-use district. In March of 2016, Respondent ICC
submitted an application for site plan review and an off-street parking waiver request to the City
of Kingston Planning Board (hereinafter "Planning Board"). Such application did not request a
variance or special permit as the proposed project was allegedly within all bulk and zoning
requirements under the City of Kingston Zoning Code (hereinafter "Zoning Code").
On September 23, 2016, Respondent ICC submitted an application for its project to The
HLPC for a PNA pursuant to section 405-64 of the Zoning Code. Several public hearings and
meetings were held, including on November 3, 2016 and December I, 2016, which resulted in the
HLPC forwarding a comments letter dated December 9, 2016 to the Planning Board for its
consideration during the Planning Board's site plan and SEQRA review. Pursuant to such
comments by HLPC, Respondent ICC implemented several aesthetic and structural changes to the
building design seeking compliance with such comments. However, after several more public
meetings, on September 25, 2017 the HLPC voted to deny issuance of a PNA to Respondent ICC.
Such was memorialized in a written decision on November 2, 2017.
Respondent ICC filed a notice of appeal of such decision to the ZBA. A public hearing
was held on January 11, 2018, wherein several written and verbal public comments were
entertained—including from Petitioners' counsel. The public hearing continued on January 25,
2017, wherein several individuals from Respondent ICC provided testimony as well as a City of
Kingston representative. The public comments period was closed on February 20, 2018, and the
ZBA issued its determination in the form of an 11-page decision dated March 3, 2018. In this
decision, the ZBA reversed the HLPC's denial of the PNA on the grounds that such the denial was
arbitrary and capricious and further inappropriate by considering the proposed use of the building
and the "feelings" of the neighbors. As such, the ZBA issued a PNA to Respondent ICC.
Thereafter, the Planning Board approved the site plan and parking waiver request on April 16,
2018, which was after a SEQRA review culminating in a negative declaration.

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Now, Petitioners seek an order and judgment for the following relief: (1) To annul and
vacate the ZBA's decision dated March 8, 2018; (2) a declaration that the ZBA did not have the
requisite statutory jurisdiction or authority to set aside, vacate, or otherwise nullify the decision of
the HLPC; (3) to nullify and vacate the determination of the ZBA on the grounds that such
determination was illegal, arbitrary, capricious, and not supported by substantial evidence in the
record; (4) to nullify and vacate the determination of the ZBA on the grounds that the ZBA failed
to comply with the referral requirements of the General Municipal Law § 239-m prior to making
its determination; (5) to vacate and nullify the action of the ZBA granting a PNA to the ICC; (6)
to stay and/or enjoin Respondents from issuing a building permit and/or certificate of occupant to
the ICC both during this action and permanently; and (7) any and all other relief as this Court
deems just and proper.
This application was received by this Court after several judicial recusals and when the
matter was already fully briefed. Pursuant to the parties' request, the application was previously
held in abeyance pending a decision on the appeal. The Court conferenced this matter on
November 2, 2018, wherein the parties requested a decision on the pending application.
Initially, it is noted that Respondent ICC's standing challenge has possible merit because
Petitioners Hillary Harvey and Owen Harvey do not own the property about the proposed ICC site
since the residential property they are living in is held in a trust for a family member) Even though
Petitioner Hillary Harvey is the trustee, and both of the Harvey-Petitioners are future beneficiaries
of the subject property, it concerns the Court that Petitioners and their counsel's understanding of
fiduciary duties appears to be blurred. Nonetheless, Petitioner Deanna Baum appears to have
standing and, notwithstanding same, a procedural ejection would not help the tortured saga of this
matter and the Court elects not to determine whether standing is dispositive. It is understood that
a third challenge has been filed, and it is expected that any material misrepresentation with respect
to the Harvey Petitioners will be corrected before the Court considers the next challenge—if
Petitioners proceed with same.
Jurisdiction and Appellate Authority
Turning to the merits of this proceeding, the gravamen of the Petition is that the ZBA does
not have appellate authority over the HLPC and the ZBA cannot substitute its own findings in the

' As a result, paragraph 2 of the verified petition contains a false statement; neither Petitioner Hillary Harvey or Owen
Harvey own property abutting the subject property.

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place and stead of the HLPC, such as by issuing a PNA. The Court disagrees. The HLPC was
created pursuant to Zoning Code § 405-56 and is funded by the City of Kingston (§ 405-60). It is
afforded certain powers and duties under Zoning Code § 405-61, pertinently including the power
to apply or impose certain standards related to the historical significant of a landmark or Landmark
District which may be affected by the construction of a building. The review procedure by the
HLPC is governed by Zoning Code § 405-64, which requires a PNA before any person or entity
"shall carry out any exterior or historically designated publicly visible interior.... new construction
. .. within a Landmark District[.]" After completing its review and investigation, the HLPC shall
issue a written decision. (Zoning Code § 405-65 [D]). The EILPC is deputized to enforce the PNA
and/or building permit issued under this article of the Zoning Code. (See Zoning Code § 405-68.)
Here, the HLPC performed these tasks and denied Respondent ICC's application for a
PNA. The last sentence of the HLPC's written decision provides (in preserved emphasis)
"PURSUANT TO SECTION 81-A OF THE GENERAL CITY LAW AND SECTION 495 OF
THE CODE OF THE CITY OF KINGSTON, AN APPEAL FROM THIS DECISION CAN BE
TAKEN TO THE KINGSTON ZONING BOARD OF APPEALS WITHIN SIXTY DAYS OF
THE FILING OF THIS ORDER WITH THE CITY CLERK."
The citing reference to section 81-a of the General City Law is what governs the board of
appeals (ZBA) procedure. This specific section outlines the process for the filing of administrative
decisions and the time of appeal. (See General City Law § 81-a [5] [a]—[b]). Section 81-a (5) (a)
requires each decision or determination of an "administrative official charged with the
enforcement of the zoning local law or ordinance" to be filed, and subdivision (b) allows an appeal
of such decision or determination to the ZBA. This section applies to the HLPC given that the
City of Kingston funds the HLPC and that the HLPC is tasked with assessing and imposing the
standards of Landmark Districts on new construction, as well as being deputized to enforce its
determinations particularly related to PNAs. As such, if the last sentence of the HLPC's written
decision was not clear enough, the cited statutory references noted therein make it patently obvious
that an appeal is proper to the ZBA.
As for the powers of a zoning board of appeals. the Respondent ZBA was established by
Zoning Code § 405-53.1 which provides that the ZBA "shall have all the powers and duties
prescribed by § 81-b of the Article 5-A of the New York General City Law and by this chapter[.]"
The permitted action by the board of appeals is governed by General City Law § 81-b, which

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provides under subdivision (2) that the ZBA "may reverse or affirm, wholly or partly, or may
modify the order, requirement, decision, interpretation or determination appealed from and shall
make such order, requirement, decision, interpretation or determination as in its opinion ought to
have been made in the matter by the administrative official charged with the enforcement of such
ordinance or local law and to that end shall have all the powers of the administrative official from
whose order, requirement, decision, interpretation or determination the appeal is taken" (General
City Law § 81-b [2]). This power and duty is repeated verbatim in Zoning Code § 405-54.
As such, it is clear that the ZBA has appellate authority over the HLPC and that the ZBA
has authority to issue its own order, requirement, decision, interpretation, or determination as if it
were standing in the shoes of the HLPC. Relevantly here, this includes the authority to issue a
PNA. To the extent that Petitioners argue that Respondent ICC was required to file a "hardship"
pursuant to Zoning Code § 405-66 before appealing to the ZBA, the Court cannot agree because
this interpretation presumes that a hardship is a condition precedent to filing an appeal with the
ZBA, or that the hardship application is an exclusive remedy to an adverse decision which it is
not. Not only is this construction inconsistent with the law, but functionally it would be discordant
with the language of the HLPC's written decision directing an appeal to the ZBA. Moreover, the
hardship application in Zoning Law § 405-66 provides that an aggrieved applicant whose PNA
"has been denied may apply for relief on the grounds of hardship[,]" but only if three factors are
met which do not apply here. Thus, it so follows that the Court agrees with Respondents'
interpretation of Zoning Code § 405-69 which outlines how to use and exhaust administrative
remedies prior to commencing an article 78 proceeding, to wit: the Respondents would have to
take an adverse decision by the HLPC to the ZBA, wherein the ZBA would have to "support" or
affirm the HLPC's decision before Respondents could commence an article 78 proceeding. As
such, the causes of action in the Petition related to this challenge must fail.
Declarative Judgment

As for Petitioner's request for a declaratory judgment, this is denied as they are not entitled
to same. While Respondent ZBA and the other Kingston-Respondents do not request a declaratory
judgment, Respondent ICC does request a declaratory judgment.
Declaratory judgments are governed by CPLR § 3001, which provides that "[t]he supreme
court may render a declaratory judgment having the effect of a final judgment as to the rights and
other legal relations of the parties to a justiciable controversy . . . ." (emphasis added.) "The

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general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing
an uncertain or disputed jural relation either as to present or prospective obligations" (James v
Alderton Dock Yards, Ltd, 256 NY 298, 305 [1931]). It has further been well-established that
"[t]he granting of declaratory relief is discretionary" (Board of Educ. of Freeport Union Free
School Dist. v Nyquist, 50 NY2d 889, 891 [1980]; James, 256 NY at 305; see New York Pub.
Interest Research Group, Inc. v Carey, 42 NY2d 527, 529 [1977]; see also Guibord v Guibord, 2
AD2d 34,36 [1st Dept 1956] ["There is no absolute right to a declaratory judgment such as exists
in other forms of actions seeking to establish existing legal rights."], mot denied 4 NY2d 777
[1958], mot denied 5 NY2d 780 [1958]; New York Foreign Trade Zone Operators, Inc. v State
Liquor Auth., 285 NY 272, 275 [1941] ["The power to grant or deny a declaratory judgment rests
in the discretion of the Supreme Court."]). Such "discretion must be exercised judicially and with
care[J" thus the use of a declaratory judgment should only be exercised where it would be "useful
and necessary" (James, 256 NY at 305). Therefore, "Ulf a court declines to render such a judgment
it shall state its grounds." (CPLR § 3001.)
Here, the Court exercises its discretion and declines to issue a declarative judgment to
Respondent ICC. Not only is a declarative judgment not "usefiil and necessary" to Respondent
ICC, a community cultural center which has no municipal purpose for such declaration, but the
Court also does not find a declaration "useful and necessary" to the other parties. Even though an
exorbitant amount of time and resources was spent by all parties discussing the statutory
construction and intent of the Zoning Code and New York General City Law, the Court does not
believe such a herculean effort necessary to decipher the rather straightforward language. A
declaration of what the law presently provides for is no more powerful or useful than the
precedential effect of this Decision and Order.
Review of ZBA's Determination
Turning to the propriety of the decision by the ZBA, Petitioners argue that the decision by
the ZBA should be nullified and vacated because it is illegal, arbitrary, capricious, and not
supported by substantial evidence in the record. The Court again disagrees. A zoning board is
quasi-legislative agency and quasi-administrative body, meaning "determinations of such agencies
are reviewed under the 'arbitrary and capricious' standard of CPLR 7803(3)" (Francello v
Mendoza, 165 AD3d 1555, 1557 [3d Dept 2018]). In assessing whether the determination is
arbitrary and capricious, a reviewing court is therefore restricted to an assessment of whether the

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action in question was taken "without sound basis in reason and . . . without regard to the facts"
(Matter of Pell v. Board of Education, 34 NY 2d 222, 231 [1974]). The test usually applied. in
deciding whether a determination is arbitrary and capricious or an abuse of discretion is whether
the determination has a rational or adequate basis. (Matter of Peckham v. Calogero, 12 NY3d 424
[2009]).
The reviewing court in a proceeding pursuant to CPLR article 78 will not substitute its
judgment for that of the agency unless it clearly appears to be arbitrary, capricious or contrary to
the law. (Matter of Catlin v. Sobol., 77 NY2d 552 [1991]; Matter of Gundrum v. Ambach, 55
NY2d 872 [1982]). As such, it is well-established that "[c]ourts may set aside a zoning board
determination only where the record reveals that the board acted illegally or arbitrarily, or abused
its discretion, or that it merely succumbed to generalized community pressure" (Matter of
Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]). Therefore, "a
determination of a zoning board should be sustained on judicial review if it has a rational basis and
is supported by substantial evidence" (Matter qflfrah v Utschig, 98 NY2d 304, 308 [2002]; accord
Matter of Pecoraro, 2 NY3d at 613; see also Matter of Rehabilitation Support Servs., Inc. v City
of Albany Bd. of Zoning Appeals, 140 AD3d 1424, 1425 [3d Dept 2016]).
Here, the Court finds ZBA's decision to have a rational basis supported by substantial
evidence, and such decision cannot be said to be arbitrary and capricious or contrary to the law. It
is clear from the outset that the Respondent ZBA's decision was thorough, well-researched, and
well-reasoned--which is the opposite of HLPC's two-page decision, without application of any
facts to the Zoning Code, and quite frankly appearing to violate Zoning Code § 405-65 (D) (2)
which requires "[t]he Commission's decision shall state the reasons for denying or modifying any
application" (emphasis preserved).
Specifically, the Respondent ZBA's decision largely referenced the extraneous and
somewhat erratic discussions by the HLPC board members during the HLPC's hearing, which the
Respondent ZBA contended that the HLPC was not commissioned to consider these factors in
deciding whether an entity shall receive a PNA. Such discussions included environmental
concerns, neighbor objections, perceived zoning code compliance issues (bulk and size), and other
factors outside HLPC's authority and scope. Indeed, the purpose of the HLPC is not a zoning
purpose to protect the public health, safety, and welfare (see Academy Mews, Inc. v Kane, 143
AD2d 960, 961 [2d Dept 1988]), but to carry out six enumerated duties pertaining to landmarks

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and Landmark Districts. These powers and duties cite to the legislative intent behind the Landmark
Districts is "to provide for the promotion of the educational, cultural, economic and general welfare
of the public through the protection, enhancement, perpetuation and preservation of landmarks and
Landmark (L) District" (Zoning Code § 405-63 [a] [1]). The requisite evaluation to be undertaken
by the HLPC is whether the proposed project in the Landmark District 1) "[e]xemplifies or reflects
the broad cultural, political, economic or social history of the nation, state or community," 2) "[us
identified with historic personages or with important events in national state of local history," 3)
"[e]mbodies distinguishing characteristics of an architectural-type specimen, inherently valuable
for a study of a period, style, method of construction or of indigenous materials or craftmanship,"
or 4) "Ns representative of the notable work of a master builder, designer or architect whose
individual ability has been recognized" (Zoning Code § 405-62 [b] [1]-44]).
In reviewing the ZBA's decision, which the Court is not to substitute its own judgment for,
the Court agrees that the ZBA had a rational basis for reversing the HLPC's decision. A review
of the HLPC transcript reveals that, while the HLPC's hearing started by discussing paint and the
color, type, and source of stone to be used at the ICC, and while the HLPC board expressly stated
that it was not making environmental considerations under SEQRA or attempting to substitute its
judgment for another board's opinion (i.e., the Planning Board), these considerations dominated
the discussion in the approximately 175-page transcript. This is particularly true of the bulk and
size requirements which were found permissible by the Planning Board; the Respondent ICC's
proposed project fit squarely within the Zoning Code's bulk and size requirements without a
variance or special use permit. While the HLPC board contended its discussion of bulk and size
requirements were allowed under Zoning Code § 405-64 (C), some of the discussion exceeded this
authority. This section allows for consideration and comparison with neighboring properties for
the historical and aesthetic appearance, but it does not pertain to the bulk requirements which
govern minimum lot requirements, minimum yard requirements, maximum building height,
maximum lot coverage, minimum useable open square, floor to area rations, maximum length of
the building, and minimum distance between buildings. (See Zoning Code § 405, attachment 2).
This is the purview of the Planning Board/ZBA.
Nonetheless, HLPC board member Alan Baer commented that the size of the proposed
project on the lot has an "overall . . . feeling like a size 11-foot in a size 9 shoe"; this bulk
requirement is not for the HLPC to consider. This reasoning was used by HLPC board member

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Jane Birmingham when she voted nay for the PNA. The bulk requirements were also squarely
used by HLPC board member Marissa Marvelli as a reason for voting in the negative, as she stated
on the record that it was her opinion the proposed scale of the height, width, and depth was not
congruous with the district. These grounds were then parroted by Ms. Birmingham, whom agreed
specifically with what Ms. Marvelli stated as to the depth and height of the building. When the
vote for the PNA failed, Respondents' counsel asked questions of the board as to what remedial
steps were necessary to acquire the PNA. Ms. Marvelli stated "Ulf the building was smaller in
length and width I could vote" for issuance of the PNA.2 This is when Ms. Birmingham then
recalled Mr. Baer's comment about the size II foot in the size 9 shoe and agreed that was a reason
for voting in the negative. But these are not appropriate factors or reasons to deny the PNA under
Zoning Code § 405-64 (C) as they are bulk requirements. And while there was some appropriate
conversation in the record as to the building height in relation to surrounding buildings, substantial
and significant portions of the record—including the voting opinions/reasoning—contained more
references to bulk requirements which were not used in comparison with other properties in the
Landmark District; the opinions were solely on the subject project itself. This is not further
explained or reasoned in the short and conclusory written decision rendered by HLPC, leaving the
transcript as the only insight to the HLPC's reasoning.
But the reasoning may not appear to matter to the HLPC which is what the underlying tone
of the ZBA's decision portrayed. The Court's review of the transcript revealed a rather optimistic
flow of the discussion until the final vote for the PNA, which the outcome was unexpected given
how the HLPC board primed the discussion during the hearing. This is because the record contains
many laudatory comments by the various HLPC board members towards the project. On the vote
of the relevant criteria under Zoning Code § 405-64 (B), the HLPC board voted the proposed
project was positive for three of the four criteria. In one soliloquy prior to voting, HLPC board
member Ms. Marvelli shared her opinion as to the considerations under Zoning Code § 405-64,
including that the height of the building "I don't find too problematic, especially on Abeel Street
two stories, there's plenty of two-story buildings (inaudible) on the street[1" noting a concern
about the elevation of the building location because it was between two streets but finding that
"[t]he relationship of the nearby roof shapes, the flat roof! think it is totally appropriate, I take no
issue with that[,]" noting that the proposed building would be wider than most building except for

2 Ms. Marvelli's final word was "inaudible" but the context of the ensuing conversation was for a positive vote.

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two larger ones, that she would be comfortable with the parking lot in front of the building
(proposed in prior plans) but that it would be "new" for Abeel Street, she deferred to fellow board
member Alan Baer for materials, texture, and colors which he stated the new changes "looks great"
and had only slight concerns with the use of the same color of mortar which was alleviated by
Respondent ICC affirming they would use an appropriate blend, that "Nile entrances are fine,"
and other similar or neutral comments. However, Ms. Marvelli then summarily voted down each
of the four relevant criteria—the only HLPC board member to do so—after placing many laudatory
comments on the record. This includes voting in the negative as to the "factors of aesthetic,
historical and architectural values and significance, architectural style, design, arrangement,
texture, material and color" which she deferred to Mr. Baer, whom voted for that criteria in the
positive and stated "this for me was probably the easiest decision out of all of them." The Court
cannot say that the ZBA's decision finding this logic to be arbitrary and capricious was itself
irrational.
Moreover, the HLPC board members also made it clear that they were considering "a
friendly neighborly thing" because "[y]ou want to please your neighbors." This was stated by Mr.
Baer, and Ms. Birmingham answered "yes" when asked by Respondent ICC's counsel whether
"what everybody else feels" is supposed to be considered. These were two of the four negative
votes for the PNA.
Therefore, in reviewing the ZBA's decision and considering the HLPC transcript and
written decision, the Court finds that the ZBA decision was not "without sound basis in reason and
. .. without regard to the facts" (Matter of Pell, supra, 34 NY 2d at 231), and therefore the ZBA's
decision was not illegal, arbitrary, capricious, and unsupported by substantial evidence in the
record. The causes of action relating to this must fail.
Remaining Claims as to GML § 239-m, Stay/Injunction, Costs and Disbursements
As to Petitioners' claim that General Municipal Law § 239-m requires referral to the Ulster
County Planning Department, which is competently contested in the opposition papers and not
addressed or rebutted in the reply papers, this argument is denied as the Court agrees this section
does not apply.
Therefore, in that all relief sought by Petitioners is denied, the Court declines to issue a
stay and/or injunction of any Building Permit by the Fire Officer.

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Respondents request costs and disbursements, and attorneys' fees for the defense of this
action. While the Court declines to issue attorneys' fees, the Court finds that costs and
disbursements are appropriate to Respondent ICC and the Kingston-Respondents as paid for by
Petitioners in equal shares (one-third) pursuant to CPLR § 8101, CPLR § 81053, and CPLR § 8301.
The amount of costs shall be CPLR § 8201 (2), as no trial, inquest, or assessment of damages was
held. The authority for costs and disbursements in an article 78 rests statutorily and pursuant to
decisional law. (See Matter of Smith v Town of Menden, 4 AD3d 859, 860 [4th Dept 2004]
[affirming award of costs in article 78 and declarative judgment action regarding planning
board/zoning to the respondents pursuant to CPLR § 8201 (2)], affirmed 4 NY3d 1 [2004]; see
also City of Buffalo vi. W. Clement Co., 28 NY2d 241, 262-63 [1971] [finding "no good reason
for denying costs" to a successful defendant in a special proceeding, and modifying the decision
to award same]). Respondents shall submit their costs and disbursements to the county clerk
pursuant to the CPLR and NYCRR. Despite some allegations by Petitioners being attenuated and
false (L e. , the Harvey-Petitioners do not own the property they are residing in), the Court declines
to award attorneys' fees to Respondents based on frivolity at this time.
To the extent not specifically addressed above, the parties' remaining contentions have
been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED, DECIDED, AND ADJUDGED, that the Petition is DISMISSED and all
relief requested therein is denied in its entirety; and it is further

ORDERED AND DECIDED, that the Court DECLINES to issue a declarative judgment;
and it is further

The Court considers Respondent ICC to be one "party," and the remaining Kingston-Respondents to be another
"party," premised on the way of representation. Said differently, the Kingston-Respondents are entitled to collect
costs only once in total, and not once per named individual/entity.

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ORDERED, DECIDED, AND ADJUDGED, that the Respondents shall be entitled to
costs and disbursements, as noted herein, pursuant to CPLR §§ 8101, 8105, 8201 (2), and 8301;
and it is further

ORDERED, DECIDED, AND ADJUDGED, that all other relief is DENIED, in its
entirety.

This constitutes the Decision/Order/Judgment of the Court. Please note that a copy of this
Decision/Order/Judgment along with the original papers are being filed by Chambers with the
County Clerk. The original Decision/Order/Judgment is being returned to the prevailing party, to
comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule
with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED, DECIDED, AND ADJUDGED.

DATED: December 12, 2018 ENTER:


Catskill, New York

N. LISA
PREME • OU JU TICE

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Papers Considered:
1) Notice of petition, dated April 6, 2018; summons, dated April 6, 2018; verified
petition/complaint, with annexed exhibits, dated April 6,2018; memorandum of law, dated
April 6,2018, of Warren S. Replansky, Esq.;
2) Verified answer, for Kingston-Respondents, of Kevin R. Bryant, Esq., undated;
memorandum of law, of Kevin R. Bryant, Esq., with annexed exhibits, dated June 22, 2018
3) Verified answer, for Respondent ICC, of Ronald S. Pordy, Esq., dated June 25, 2018;
memorandum of law, of Ronald S. Pordy, Esq., with annexed exhibits, dated June 25, 2018;
affidavit of William Kearney, dated June 25, 2018; affidavit of Brad Will, dated June 25,
2018;
4) Reply memorandum of law, of Warren S. Replansky, Esq., dated July 19, 2018; affidavit
of Hillary Harvey in support of Petition, dated July 19, 2018; and
5) Various correspondence, affidavits of service, submitted record on review, and the decision
from the Appellate Division, Third Department, dated and entered on November 1, 2018.

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