To commence the statutory period for appeals as o f right under CPLR 5515|a|, you arc advised to serve a copy o f this order, with notice o f entry, upon all parties. SUPREME COURT O F THE STATE O F N E W YORK IA S PART, PUTNAM COUNTY P re se nt : Hon. Francis A. Justice o f th e Supreme Court PUT NAM COUNTY • :CLERK Ml )APR 19 PHt'06 AN N FANIZZI, Plaintiff, DECISION and ORDER INDEX NO. 861/2012 MOTION F/ S DATE: 11/19/12 Seq.Nos. 1,2,3 - against - SOCIETY FOR T H E PRESERVATION OF PUTNAM COUNTY ANTIQUITIES AND GREENWAYS, INC., PUTNAM COUNTY, PUTNAM COUNTY EXECUTIVE MARYELLE ODELL, WHIPPLE FOUNDATION FOR TH E PRESERVATION O F PUTNAMCOUNTY ANTIQUITIES AND GREENWAYS, INC., and PUTNAM COUNTY SHERIFF DONALD B. SMITH, Defendants. _X The following documents, numbered 1to 58. were read on the motions o f Defendants Putnam County, Putnam County Executive O'Del l and Putnam County Sheriff Smith (Putnam County Defendants) and De fendant Society for the Pres er vation o f Putnam County Antiquities and Gre emvays, Inc . (Society) to dismiss the Ame nded Ver ifi edComplaint,and on the Plaintiffs Cross-Motion to set a bond unde r General Municipal Law §51: Papers: Not of Mot (Scq No. I) (Putnam County Defendants)/ Affirmation/E.xhs. A-L/Mcmoranduin Not o f Mot (Seq. No. 2)( Prescr ve Putnam)/Af fir mation/ Exhs. A-C/Memorandum o f L aw Not o f Cross-Motion (No 3) (Plaintiff)/Affidavil/ Exhs. A-Z/Mcmorandum o f L a w Memorandum of Law(Putna m) in Oppos it ion Whi pple Affidavit in Fur the r Su ppori/Ex h. 1/ Reply Memorandum Rep ly Memorandum (Pu tnam) Reply Memorandum (Plaintiff) Gordon Le tt er [Rec'd 11/19/121 Pa nkcn Letter |dated 11/15/12] Numbered 1-15 16-21 22-50 51 52-54 55 56 5 7 5 8
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to notify legislature of interest in Lease" (id Exh. A, Complaintpassim).
1 Although theComplaint refers to a New Whipple Foundation and to WhippleOrganizations, there is no documentation establishing the existence ofaWhipple Foundation.For purposes of these motions, any allegations against the Whipple Foundation orWhippleOrganizations are deemed allegations against theSociety.
Inst vCityofNew York. 58 NY2d 1014. 101611983]). Plaintiff has not alleged any such
fraudulent conduct or use of public funds for illegal purposes. Thus, having failed tomeet these
pleading requirements.3 Plaintiffs First andSecond Causes ofAction against the Putnam County
2 Rather than '"standing" requirements, these pleading requirements have been identifiedas "conditions precedent" to maintaina taxpayer action underGeneral Municipal Law§51(NYPIRG. Inc. vBoard ofAssessment Review ofCity ofAlbany, !04Misc2d 128, 131 LSupCl
Albany Cty 19791; •"•'<•' «'•«'darkens Truck A- Equip vCity ofYonkers, 174 AD2d 127, 135 |2dDept 19921 [allegation that petitioner pays taxes inmunicipality is "condition precedent" toGML§51 claim).
year'" (Complaint, |250).3 She contends that she relied substantially on those commitments in
donating more than $20,000 to Tilly Foster during the remainderof2011. In her Sixth Causeof
Action. Plaintiffsimilarly alleges that, Whipple promised to report to Ms. Fanizzi regarding Tilly
Foster finances on amonthly basis (id, *]|*|258). In the Seventh Cause ofAction, Plaintiffclaims
that Whipple breached a commitment to exhibit the domestic life exhibit by continuingto allow
the rock and roll exhibit to occupy the homestead's first floor (id. 'fl 259-270).'' In the Eighth
Cause ofAction, Plaintiffsimilarlyclaims that the Society violated thecommitment lo establish
and runa bed and breakfastatTilly Foster, and (hat its removal of the bed and breakfast from the
cottage violated this commitment (id. ffi| 271-273).
Plaintiffclaims thai the Society breachedall of those commitments. However, Plaintiff
has failed to plead any injury she suffered as a resultofany of the purported breaches. For
example, she does not seek returnof the funds donated in relianceon those commitments, nor
docs she seek to benamed interim executive director. In the absenceof any claimed injuryto
Plaintiffas a result of the purported breaches, the Fifth Cause ofAction through Eighth Causes of
Action, as asserted against the Society, aredismissed.
With respect lo the Third and Ninth Causeof Action. Plaintiffalleges that the Society
violated the reporting andreinvestment requirements in the Lease between the Society and the
County. Both sets of Defendants move to dismiss these claims on the ground thai Plaintiff was
neither a party to. nor intendedbeneficiaryof. the Lease. Undeniably. PlaintilTwas not a party to
3 The Society counters that Fanizzi was, in fact, named interim executive director(Society Memo of Law. p. 16, n.6).
"* The Society contends that the rockand roll exhibit had historic value, andthai theSociety had authority to decide the natureof the exhibitions (id. p. 13).
'performance of the promise will satisfy an obligation of the promisee to pay
money lo the beneficiary" or that "thecircumstances indicate that the promisee
intends to give the beneficiary the benefit of the promised performance." Among
thecircumstances tobe considered is whether manifestation ofthe intention ofthe
promisor andpromisee is 'sufficient, in a contractual setting, tomake reliance bythebeneficiary both reasonable andprobable" (id,comment d). And under
[Restatement] section 313(1) the same rules apply to contracts with a government
or governmental agency except to the extent that application would contravene Ihe
policy of the law authorizing the contract or prescribing remedies for its breach
(emphasis supplied).
Defendants argue that Plaintiffhas pleaded no facts indicating that Fanizzi was an
intended beneficiary of the Lease. As Defendants further allege, the Lease does not mention
Plaintiff in any way. Plainiilfcounters that she qualifies as a third party beneficiary to the Lease
"because the County officials negotiating the Lease and Mr. Whipple wantedand
needed lo keep herasa donor. Given herconcern about the useof herdonatedfunds, there is little doubt that the accountability provisions in the lease, such as
the requirement for quarterly reporting to the legislature and annual accounting,were 'sufficient lo make Ms. Fanizzi's reliance 'both reasonable and probable"'
(Fanizzi Memo of Law in Opp, p 34).
However, the Court finds that Plaintiff has not sufficiently alleged that the Countyor the
Societymanifestedor demonstrated any intention logive her the benefit of the Society's
promises to report and reinvest under the lease. There are no allegations in the Complaint
suggesting themannerinwhicheitherpartyto theLease evidenced such intention. Without such
Referringto her prayer for relief, Defendant Society succinctly arguesthai Plaintiff:
requests that this Court (I ) annul a lease that she is not a party to; (2) appoint a
Receiver for a historic farm in which she has no ownership or other legal status;
(3) orderan accounting from Defendants as to that same farm for which heronlylegal connection is that shemadecertain monetary donations; (4) order eviction of
an exhibit on the farm which is not restrictedby the Lease so is lawfully present
and inwhich plaintiffhasno legal interest and(5) determine the internal
governance ofa defendant not-for-profit companyby terminating the tenureof its
current chairman (Memorandum of Law, p 10).
The Court agrees with this summaryof the allegations of theComplaint, andthe Society's
assertion that"none of these demands would redress any injury experienced by Fanizzi, as she
hassufferednocognizable injury and alleges none'' (id). Accordingly, the Defendants' motions
to dismiss aregranted in theirentirely. Plaintiffs cross-motionto fix a bond to proceed with her
suit is thus rendered moot. Given all the foregoing, it is hereby
ORDERED that the Defendants' motions to dismiss the Amended Verified Complaint are
granted in their entirety and this action is dismissed; and it is further
ORDERED that Plaintiffs cross-motion to fi x a bond i s d en ied a s moot.
The foregoing constitutes the Decision, Judgment and Order of this Court.
Dated: Carmel, New York
April 15.2013
To: David K. Gordon, Esq.
12 6 Main Street . Suite I
N ew Paliz. N ew York 12561
Kcane & Beanc, P.C.
445 Hamilton Avenue, 15,h Fl.White Plains, New York 10601