PUTNAM COUNTY

To commence the statutory period for appeals as of right under CPLR 5515|a|, you arc advised to serve a copy of this order, with notice of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK

:CLERK

Ml)APR 19 PHt'06

IAS PART, PUTNAM COUNTY

Present: Hon. Francis A. Nicolai

Justice of the Supreme Court

ANN FANIZZI,
DECISION and ORDER

Plaintiff,

INDEX NO.

861/2012 MOTION F/S DATE: 11/19/12

Seq.Nos. 1,2,3
- against SOCIETY FOR THE PRESERVATION OF

PUTNAM COUNTY ANTIQUITIES AND

GREENWAYS, INC., PUTNAM COUNTY,
PUTNAM COUNTY EXECUTIVE MARYELLEN

ODELL, WHIPPLE FOUNDATION FOR THE

PRESERVATION OF PUTNAM COUNTY

ANTIQUITIES AND GREENWAYS, INC., and

PUTNAM COUNTY SHERIFF DONALD B.

SMITH,
Defendants. _X

The following documents, numbered 1 to 58. were read on the motions of Defendants Putnam County, Putnam County Executive O'Dell and Putnam County Sheriff Smith (Putnam County Defendants) and Defendant Society for the Preservation of Putnam County Antiquities and Greemvays, Inc. (Society) to dismiss the Amended Verified Complaint, and on the Plaintiffs Cross-Motion to set a bond under General Municipal Law 51:
Papers:
Numbered
1-15
16-21

Not of Mot (Scq No. I) (Putnam County Defendants)/

Affirmation/E.xhs. A-L/Mcmoranduin

Not of Mot (Seq. No. 2)(Prescrve Putnam)/Affirmation/

Exhs. A-C/Memorandum of Law

Not of Cross-Motion (No 3) (Plaintiff)/Affidavil/

Exhs. A-Z/Mcmorandum of Law
22-50 51
52-54

Memorandum of Law (Putnam) in Opposition Whipple Affidavit in Further Suppori/Exh. 1/

Reply Memorandum Reply Memorandum (Putnam)

55 56
57
58

Reply Memorandum (Plaintiff)

Gordon Letter [Rec'd 11/19/121 Pankcn Letter | dated 11/15/12]

This action arises from Plaintiff Ann Fanizzi's involvement in efforts to preserve the

Tilly Foster Farm as a public agricultural center within Putnam County. The Amended Verified

Complaint (Complaint) asserts various claims against the Putnam County Defendantsand the Defendant Society, and both sets of Defendants now move to dismiss the Complaint.

Specifically, the Putnam County Defendants move to dismiss, claiming a defense founded upon
documentary evidence (CPLR 321 l|aJL!J): lack of subject matter jurisdiction and standing

(CPLR 32II [a][2], [3]); the causes of action are time-barred (CPLR 321 l[a] [5]); and the
pleading fails to state a cause of action (CPLR 3211 [al[7")). Defendant Society also moves to
dismiss pursuant to CPLR 3211 [a](3] and (a][71, claiming that Plaintifflacks standing and has
failed to state a cause of action.

To the extent these motions are addressed to the sufficiency of the pleadings, the

allegations of the Complaint are accorded every favorable inference. While facts alleged in the
complaint shall be accepted as true, and the Complaint givena liberal construction, '"allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary
evidence'" will be insufficient to defeat such motion (Salvaiore v Kumar, 45 AD3d 560,562-63

|'2d Dept 2007]). A prc-answer motion to dismiss based upon CPLR 3211 [a][l] will be granted
where the movant introduces controlling documents that resolve all factual disputes as a matter

of law (Fontanetta v Doe. 73 AD3cl 78, 86 |2d Dept 20101) The question for the Court is
whether the Plaintiff has a cause of action, not merely whether one has been stated (O'Connell

Fox &Conner v R-2000 Corp., 198 AD2d 154 [\A Dept 1993], citing Guggenheimer v
Ginxhurg. 43 NY2d 268.275 [I977|).

As background, the Putnam County Agricultural and Farmland Protection Board drafted

an agricultural and farmland protection plan for the County (the,Plan). The Plan identified the
Tilly Foster Farm as deserving protection, and recommended that the Farm be used as a public

space and education center (Not of Mot. Exh. C). The Putnam County Legislature adopted the

Plan after a public hearing, and the Plan was approved by the State Department of Agriculture
and Markets on September 24,2004 (id, Exh. D). On June 3,2008, the Putnam County

Legislature adopted Resolutions amending the Plan to permit then-Putnam County Executive
Robert Bondi to partner with George Whipple and the Society for the Preservation of Putnam

County Antiquities and Grcenways, Inc. to preserve Tilly Foster Farm. According to its
certificate of incorporation, the Society is a non-profit organization operated '"exclusively for

educational and charitable purposes * * * for the puipose of fostering preservation of the historic,
architectural character and natural environment of Putnam County"(Society Not of Mot, Exh. C). After the County was designated Lead Agency, and all environmental review was completed, the Legislature passed a Resolution on February 5.2009 approving a Lease

agreement (the Lease) between Putnam County and the Society to maintain and operate Tilly
Foster Farm as a public space and education center (id, Exh. H). The Lease was executed by

Putnam County and the Society on April 16.2009 (id. Exh. I).

According to Plaintiff Kanizzi, she has been involved in the Tilly Foster Farm project as
an advocate and by providing financial support for the Farm, having advanced in excess of
$200,000 as an anonymous donor. According to her Complaint, on May 4. 2008, she agreed to

partner with Mr Whipple and the Society to establish a farm museum atTilly Foster as envisioned by the Plan (County Not of Mot, Exh. Exh. A, Amended Verified Complaint. ffl]3233). Plaintiffalleges that she and Whipple agreed to seek breeds of rare and historic farm

animals as well as horses to house at the farm, to house six Randall Lineback cattle on the Farm,

and to fund displays of Putnam County's agricultural history- Plaintiff contends that Whipple

agreed to consult with her "on important decisions regarding the direction of the farm." In

exchange, she alleges. Whipple agreed to provide monthly financial reports to Plaintiff
concerning Tilly Foster Farm (id "J33-36.42)

According to the Complaint, based upon this arrangement, Plaintiff gave Whipple $50,000 on June 6,2008. In July 2008, she gave Whipple another $ 10,000 to be used for horses

{id, Wl, 44-45). On September 16,2008. she gave Whipple another$10,000, which Whipple
promised to use for the Tilly Foster Farm museum (id, ffi| 46-47).

Thereafter, Plaintiff alleges that certain disagreements emerged between Plaintiffand Whipple as to the operation of the Farm. For example. Plaintiff disagreed with Whipple's

decision to allow a third parly to maintain a rock-and-roll collection on the first floor of the
homestead, which was not in accord with the purpose of the farm. Plaintiff claims that Whipple

also failed to provide her with regular promised accountings, and that when he did provide an
accounting, it inaccurately rcllcctcd her donations. According to the Complaint, despite (he

disagreements, Plaintiff continued to donate funds to the Society. In 2009, she donated another
$30,000. and in early 2010 she donated S60.000 to paint the farm. After that, she provided
another $ 13.000 'Tor certain emergencies and unpaid feed bills" (id, W0.86).

The Complaint alleges that, in December 2010, the Society advised Plaintiff that it

decided to stop funding (he Tilly Foster Farm. Plaintiff gave Whipple another $12,000 for
arrears in feed and wages at that lime (id. ffl| 97.99-102). In 2011, Plaintiff advanced over

$27,000 (id, 1142), but then ceased makingdonations to the Society for Tilly Foster Farm.

According to Plaintiff, Whipple tailed to uphold various promises he made to her about

the maintenance and use of the Farm, failed to provide her with monthly accountings, kept inaccurate records, and under-reported her contributions in his financial reports to the

Legislature. They also had a dispute overthe number of cattle on the property. Afterthe Society
decided to stop funding the Tilly Foster Farm, Plaintiff attempted to undertake a leadership role.
She made a report to the Society regarding her plan for needed maintenance and repair, and threatened litigation if she was ignored (id, 1(128). Allegedly to avoid litigation, the Society set forth a plan to surrender its interest in and

"wind up" its involvement with Tilly Foster Farm (id. 1|136, 140). In furtherance of this plan,
the Society requested Plaintiff to sign a release. As part of this Settlement Agreement, Plaintiff
would serve as interim executive director of Tilly Foster Farm for the Society's one-year wind up
period, the farm animals would remain on the property, the Randall Lineback herd would be

reduced to six cattle and the rock and roll collection would be removed (id. 1|l38-140). Neither Putnam County nor Odell were partyto this settlement agreement. After enteringthis agreement, Plaintiff and the Society allegedly continued (heir disputes.
Plaintiff alleges that the Society never appointed her as its interim executive director, and thus, she never had "authority over Tilly Foster's finances,"' or operations, and was unable to negotiate
with subtenants. Instead, effective January 1. 2012. Meredith Whipple was appointed the

executive director of Tilly Foster, and the Society decided to retain its interest in Tilly Foster.

Sometime thereafter. Sheriff Smith was appointed as Chair of the Society's Board ofTrustees. Thereafter. Plaintiff commenced this action in which she seeks a judgment annulling the

Lease between the County and the Society, appointing a receiver for Tilly Foster, and an

accounting of the funds provided to or earned by Tilly Foster and expenses incurred at Tilly
Foster pursuant to the Lease and "defendants' commitment to Ms. Fanizzi."' She further sought an Order directing the eviction of a ''squatter" who was allowed to maintain a rock and roll
exhibit in the first floor of in favor of a historic exhibit on the Bloomer-Benedict life at Tilly

Foster, which was in line with the purpose of the site. Fanizzi also sought an Order terminating

Sheriff Smith's chairmanship of the "New Whipple Foundation"1 on the ground that his role as
Sheriff and Chair creates a conflict of interest, and attorneys fees and costs for the action. The Complaint contains the following twelve causes of action: (1) "Improper delegation

of governmental authority" by the County to the Society; (2) "Waste of municipal property*' by County's failure (o oversee Whipple Organizations' administration of Tilly Foster; (3) Whipple's
'violation of lease reporting requirements/' which required the Society to provide financial and

operations reports (4) violation of fiduciary obligations by Whipple to Plaintiff; (5) violation of
settlement agreement between Whipple and Plaintiff; (6) Whipple's "violation of commitment to

report finances to Plaintiff;" (7) Whipple's "violation of farm museum commitment for
homestead;"(8) Whipple's "violation of farm museum commitment for cottage as bed and

breakfast;" (9) Whipple's "violation of lease reinvestment requirement," which required the
Society to "donate all profits from the farm activities back to the community (10) "Sheriff acting outside scope of authority," (11) ''Shcriirs inherent conflict of interest;" and (12) "Sheriff lailurc to notify legislature of interest in Lease" (id Exh. A, Complaint passim).

1 Although the Complaint refers to a New Whipple Foundation and to Whipple Organizations, there is no documentation establishing the existence of a Whipple Foundation. For purposes of these motions, any allegations against the Whipple Foundation orWhipple Organizations are deemed allegations against the Society.

The Putnam County Defendants and Defendant Society now move to dismiss the
Complaint. Common to both motions are the claims that Plaintiff has no standing to commence

an action, and has failed (o state a claim for which relief may be granted. In essence, the Putnam

County Defendants claim that Plaintiff is trying to hold them responsible for her "frustrations"
with the Society's stewardship of Tilly Foster. Movants note that Plaintiffis not a party to the lease nor a named beneficiary of the lease, and thus claim she cannot enforce any of the obligations therein against any Defendants. The Putnam Defendants were not parlies to the agreements between Plaintiff and the Society, and argue any such agreements cannot be enforced
against the County. The first two causes of action lodge complaints solely against the County Defendants. In the First Cause of Action, Plaintiff alleges that the County Defendants improperly delegated to the Society the County's responsibility to establish and run the Tilly Foster Farm Museum as a

preserve of Putnam County agricultural history for the benefit of the general public, (id., ^216231). Plaintiff claims that the "responsibility includes the authority to construct, operate,

maintain and repair the farm and facilities at Tilly Foster, determine the animals and other

agricultural operations, and determine the lessees and vendors. It also delegates control of Tilly
Foster costs and finances" (id.. 1fl|216-218) Plaintiffalleges that, since executing the Lease in

2009, the County "has exercised little or no discretion or control over the operations at Tilly

Foster," and "has no authority to delegate the direction and operation of Tilly Foster to a private

business, by lease or any other contract, without anyeffective public oversight or control" (id.

1fl|2l9,223). Plaintiff has clarified in Opposition to the Motions to Dismiss thai, the first cause of action for improper delegation does not challenge the County's authority to enter the Lease

with the Society. Rather, she "challenges the County's ongoing failure to control or oversee Tilly
Foster governance and finances, resulting in damage to her and the public" and rendering it

"complicit in the mismanagement" (PI. Memo of Law in Opp, p. 10). In the Second Cause of Action for waste of municipal property. Plaintiff alleges that the Society allowed important assets on Tilly Foster to deteriorate, or remain in disrepair or
hazardous condition, that it failed to account for its finances, and that these "failures have hidden

the financial irregularities at Tilly Foster from Ms. Fanizzi and the County legislature" (id. ffi|
216-241). She further alleges that the Society has used Tilly Foster for purposes other than the

creationand maintenance of a farm museum, resulting in misuse and waste ofTilly Foster's
resources, diversion of revenue from Tilly Foster and consequent failure to pay bills and expenses"' (id. ffl| 225). She alleges on information and belief, that "the County's failure to
oversee the Whipple Organizations' administration of Tilly Foster, and their diversion of Tilly Foster resources for other purposes than the creation and maintenance of a farm museum, has

resulted from Whipple's political contributions to and support of County Officials." (id *J229).
Plaintiff also alleges that "|n]cither the County Executive nor the legislature has evinced any

interest in preventing the violations or waste of resources at Tilly Foster" (id, ffi] 229,230).
The County Defendants challenge Plaintiffs standing to assert the claims of improper

delegation of authority and municipal waste. Plaintiff counters that a person has standing when she suffers an injury-in-fact which is within the zone of interestsof the decision and the law she

is seeking to review (h'ew York Stale Assn of Community Action Agency lid. Members vShaffer.
119 AD2d 871. 874 |3d Dept 1986|). She contends that she falls within that ambil "as a result of

her direct, personal stake in the development of the" Tilly Foster farm and preserve, having been
8

an early and continuous advocate of the project, and having "substantially funded the preservation effort" (PI Memo of Law in Response, pp. 16-17). She also claims that she has "'injury different from the public at large as a result of her preservation efforts on Tilly Foster and her common use of the facility,"' (id., p. 18). However, Plaintiff is not claiming any financial or other injury different than that potentially suffered by the public at large. She is not seeking

return of her funds, and is not claiming that her funds were wasted. Plaintiff has not identified any particular injury that she has suffered as a result of the alleged mismanagement and waste.
Plaintiff alternatively argues that she has standing as a taxpayer pursuant to GM L 51. That section provides that a taxpayer having an assessment of $ 1,000. and who shall be liable to the County to pay taxes on such assessment, may prosecute an action "to prevent any illegal
official act on the party of any such officers * * * or to prevent waster or any injury to * * * any

properly, funds or estate of such county * * *. The Court of Appeals has explained that '*[a|
taxpayer suit under GML51 "lies only when the acts complained of are fraudulent, or a waste of
public property in the sense that they represent a use of public properly or funds for entirely

illegal purposes'" (Godfrey vSpano, 13 NY3d 358. 373 [2009J. quoting Mesivta ofForest Hills
Inst v CityofNew York. 58 NY2d 1014. 1016 11983]). Plaintiff has not alleged any such
fraudulent conduct or use of public funds for illegal purposes. Thus, having failed to meet these

pleading requirements.3 Plaintiffs First and Second Causes of Action against the Putnam County

2 Rather than '"standing" requirements, these pleading requirements have been identified as "conditions precedent" to maintain a taxpayer action under General Municipal Law51 (NYPIRG. Inc. v Board ofAssessment Review of City of Albany, !04Misc2d 128, 131 LSupCl Albany Cty 19791; "'<' '' darkens Truck A- Equip v City of Yonkers, 174 AD2d 127, 135 |2d Dept 19921 [allegation that petitioner pays taxes in municipality is "condition precedent" to GML
51 claim).

Defendants must be dismissed.

The Fourth through Eighth Causes of Action allege violations of agreements purportedly

made between the Society and Plaintiff. There is no allegation that any of the County Defendants were parties to these agreements, nor that they were obligated to cure any alleged defects in the
Society's performance of those private agreements with Plaintiff. Thus, the Fourth through

Eighth Causes of Action are dismissed to the extent they are asserted against County Defendants.
With respect to the Society, the Fourth Cause of Action alleges that, by accepting her

donations, Whipple and the Society "incurred a fiduciary obligation to use such monies to

preserve Tilly Foster as an exhibition of Putnam County's agricultural history," and that their
failure to account for the moneys contributed to or earned by Tilly Foster violated their fiduciary

obligations to Plaintiff (Complaint, ffi|242-248). A fiduciary relationship "may exist where one

party reposes confidence in another and reasonably relies on the other's superior expertise or
knowledge" (Faith Assemblyv Titledge ofNew York Abstract. LLC, 2013 NY Slip Op 2046 at *27 [2d Dept 3/27/13)). The "core of a fiduciary relationship is "a higher, level of trust than

normally present in the marketplace between ihosc involved in arm's length business transactions" (id at 27-28). Plaintiffhas failed to plead specific facts, with sufficientdetail as required by CPLR 3016(b). that would support the existence of a fiduciary duty owed to herby Whipple or the Society (id. at 28-29). Thus, the Fourth Cause of Action is dismissed against
Defendant Society.

In the Fifth Cause of Action, Plaintiff alleges that in a June 22,2011 settlement

agreement between her and the Society, the Society "committed to wind up its affairs at 'filly
Foster and appoint and employ Ms. Fanizzi as interim executive director during the ensuing
10

year'" (Complaint, |250).3 She contends that she relied substantially on those commitments in
donating more than $20,000 to Tilly Foster during the remainderof 2011. In her Sixth Cause of

Action. Plaintiff similarly alleges that, Whipple promised to report to Ms. Fanizzi regarding Tilly
Foster finances on a monthly basis (id, *]|*|258). In the Seventh Cause of Action, Plaintiff claims
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 of Action, Plaintiffsimilarly claims that the Society violated the commitment lo establish
and run a bed and breakfast at Tilly Foster, and (hat its removal of the bed and breakfast from the
cottage violated this commitment (id. ffi| 271-273). Plaintiff claims thai the Society breached all of those commitments. However, Plaintiff

has failed to plead any injury she suffered as a result of any of the purported breaches. For
example, she does not seek return of the funds donated in reliance on those commitments, nor

docs she seek to be named interim executive director. In the absence of any claimed injury to

Plaintiff as a result of the purported breaches, the Fifth Cause of Action through Eighth Causes of
Action, as asserted against the Society, are dismissed.

With respect lo the Third and Ninth Cause of Action. Plaintiff alleges that the Society violated the reporting and reinvestment 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 intended beneficiary of. 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 rock and roll exhibit had historic value, and thai the Society had authority to decide the nature of the exhibitions (id. p. 13).

that lease. The question is whether she has alleged sufficient facts to establish that she was an

intended beneficiary of that lease (Fourth Ocean Putnam Corp v Interstate Wrecking Co., Inc., 66 NY2d 38,43-44 11985]). The parlies agree that the governing standard in determining
whether Plainiilfis an intended beneficiary, enunciated in Fourth Ocean Putnam Corp v

Interstate Wrecking (66 NY2d 38,44 [19851. quoting Restaiemcnt (Second) of Contracts
302[2]), is whether

'performance of the promise will satisfy an obligation of the promisee to pay money lo the beneficiary" or that "the circumstances indicate that the promisee

intends to give the beneficiary the benefit of the promised performance." Among thecircumstances to be considered is whether manifestation ofthe intention ofthe promisor andpromisee is 'sufficient, in a contractual setting, to make reliance by
the beneficiary both reasonable and probable" (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 Plaintiff has 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. Plainiilf counters that she qualifies as a third party beneficiary to the Lease "because the County officials negotiating the Lease and Mr. Whipple wanted and

needed lo keep heras a donor. Given herconcern about the useof herdonated
funds, 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 County or the

Society manifested or demonstrated any intention lo give her the benefit of the Society's

promises to report and reinvest under the lease. There are no allegations in the Complaint
suggesting the manner in which either party to the Lease evidenced such intention. Without such
12

alleged evidence of intent. Plaintiffs claim of reasonable reliance on the Society's performance

of the lease for her benefit fails.5 Plaintifflitis not alleged any further facts from which a
reasonable inference may be drawn to establish that the lease's reporting and reinvestment

clauses were intended to satisfy any obligation to Plaintiff. Thus, the Third and Ninth Causes of
Action must also be dismissed for failure to state a claim.

The Tenth, Eleventh and Twelfth Causes of Action raise allegations specific to Sheriff

Smith. Plaintiff alleges in the Tenth Cause of Action that Smith is acting outside the scope of his
authority as Sheriff, and in violation of Stale Law and Putnam County Charier 11.03, by serving
as Chair of the Board of the Society. State law requires the sheriff to "perform the duties prescribed by law as an officer of the court and conservator of the peace within the county * * *
and such additional and related duties as may be prescribed by law and directed by the * * *

county legislature (County Law 650). The Putnam County Charier provides that ihe sheriff "shall hold no other electedpublic or electedpolitical office during his or her term of office and shall devote his or her full working time to the duties of the office" (Putnam County Charter
11.03 [italics supplied]). The Society is a non-profit organization, and Smith's role as Chair of

the Board is a volunteer position. There is no legal prohibition on Smith holding public office as Sheriff and serving as volunteer chair of a non-profit organization, and thus the Tenth Cause of
Action is dismissed.

In the Eleventh Cause of Action. Plaintiff alleges that Smith's chairmanship of the

Society creates an inherent conflict of interest with his dutiesas Sheriff/;? the event that there is
5 Under Plaintiffs theory, the County's mereawareness of financial donations to the
Farm at the lime it entered the lease would be sufficient to entitle all donors to enjoy the status of intended beneficiary of the lease The Court declines to make that leap here.
13

:'[a]ny potential wrongdoing at Tilly Foster * * * [thatj may become subject to the sheriffs law
enforcement and investigative authority." A municipal employee has an "interest" where there is

a "direct or indirect pecuniary or material benefit accruing to a municipal officeror employee as

the result of a contract with the municipality which such officeror employeeserves" (GML

800[3]). No such pecuniary or material benefit to SheriffSmith is alleged here.

Additionally, a municipal officer or employee is deemed to have an interest in a contract

of ua corporation in which such officer or employee is an officer, director or employee" (GML

800[3][c]). Such an interest is prohibited, however, in the limited circumstances where the

municipal officer has the power to negotiate or approve the contract or payment thereunder, audit

bills or claims under the contractor appoint an officer of employee who has such powers (GML
801). However, contracts 'with a membership corporation or other voluntary non-profit
corporation or association" which would otherwise by prohibited are expressly permitted (GML

802[fJ; Stettine v County ofSuffolk, 105 AD2d 109. 114 f2d Dept 19841, aff'dte NY2d 354

11985])

Plaintiffhas not alleged that Smith falls within any of the prohibited categories.

Accordingly, the conflict of interest alleged here against Smith in the Twelfth Cause of Action is

not actionable (GML 802|fJ). Plaintiff has also not established that she is entitled to assert any
private right of action for. or has been injured by Smith's alleged non-disclosure of that interest to the Legislature in violation of GML 803pl and Putnam County Charter 55-6|B]), especially since, as she admits, notice of Smith appointment as Chair of the Board was announced publicly

through the newspaper {Stettine. 105 AD2d at 117. supra). There is no allegation that Smith's
interest as member of the Board was ever concealed from the public or legislature (id). Thus,
Plaintiffs Thirteenth Cause of Action is also dismissed.

14

Referring to her prayer for relief, Defendant Society succinctly argues thai 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) order an accounting from Defendants as to that same farm for which her only

legal connection is that she made certain monetary donations; (4) order eviction of
an exhibit on the farm which is not restricted by the Lease so is lawfully present and in which plaintiff has no legal interest and (5) determine the internal governance of a defendant not-for-profit company by terminating the tenureof its current chairman (Memorandum of Law, p 10).

The Court agrees with this summary of the allegations of the Complaint, and the Society's assertion that"none of these demands would redress any injury experienced by Fanizzi, as she has suffered no cognizable injury and alleges none'' (id). Accordingly, the Defendants' motions
to dismiss are granted in their entirely. Plaintiffs cross-motion to 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 fix a bond is denied as moot.

The foregoing constitutes the Decision, Judgment and Order of this Court.
Dated: Carmel, New York

April 15.2013
Ion. Francis A. Nicolai. JSC

To:

David K. Gordon, Esq.

126 Main Street. Suite I

New Paliz. New York 12561

Kcane & Beanc, P.C.

445 Hamilton Avenue, 15,h Fl.

White Plains, New York 10601

Epstein Becker & Green. P.C.

250 Park Avenue

New York. New York 10177-1211