Knickerbocker Field Club v. Site Selection Board

jointly against respondents appearing separately and filing separate briefs; respondents’ motions denied; and Resolution No. 9, adopted by respondent Site Selection. Board, annulled. On October 18, 1971, in accordance with a request by the New York City Transit Authority, after holding requisite public hearings, the Site Selection Board of the City of New York adopted Resolution No. 9 designating petitioner’s property as the site for a forthcoming power substation proposed to be constructed in the Albemarle Road area of Brooklyn to service the BMT subway line, by an alleged majority vote. Thereafter, as is required by law in order that such resolution be given effect, the Mayor . of the City of New York approved the resolution on November 29, 1971 (New York City Charter, § 227, subd. b) and he further directed that proceedings be instituted to acquire the property in accordance with law. Objecting to-such' proceedings and. designation by the Site Selection Board, petitioner instituted the instant proceeding alleging in its petition merely that there were alternate sites under consideration for the proposed, construction which would not require condemnation of improved property, would cost the municipality less and would be more advantageous, and that the failure of the board to approve an alternate site constituted an arbitrary and capricious exercise of the board’s power. Respondents moved to dismiss the complaint for legal insufficiency. Special Term considered the petition not only- in the light of an article 78 proceeding, but also as a complaint seeking a declaratory judgment. Thereafter, Special Term dismissed the petition for failure to state a cause of action. Upon this appeal, petitioner argued the question of the sufficiency of its complaint and, in addition, raised for the first time the argument as to whether the Site Selection Board was properly composed at the October 18, 1971 meeting and whether the action it took that day in adopting the resolution in question was legal. We think we may take cognizance of this argu- . ment, even though it was not expressly propounded before the Special Term or alleged in the petition. The entire transcript of the minutes of the Site Selection Board’s meeting of October 18, 1971 was presented to the Special Term. A motion to dismiss a proceeding, pursuant to CPLR 32ll i¡subd. [a]) may be treated as one for summary judgment (CPLR 3211, subd. [c]). When such treatment is given to such a motion, the court is not bound in its review to the specific pleading in question, but rather may search the record and Consider all that is before it (Smith v. Melbraun, 21 A D 2d 830 ; Schoonmaker V. Schoonmaker, 21 A D 2d 777 ). Special Term could .have considered the underlying issue of whether the board was properly constituted at the October 18, 1971 meeting as a threshhold question to be reached prior to determining the validity of the board’s action. This court may now, on appeal, grant the judgment which Special Term could or should have granted (5. L. W. Realty Molding Co. v. Socony Mobil Oil Co., 32 A D 2d 312 , 315, affd. 26 N Y -2d 1002 ). Furthermore, upon appeal, as argument that the ruling at Special Term was incorrect, we think appellant has a right to urge a proposition of law which appeared upon the face of the record and which could not have been avoided by respondents if brought to their attention at the proper june- . turc and that such- a decisive argument should not be lost because of the error . of petitioner’s counsel in not raising it earlier (see Persky v. Bank of Amer. Nat. Assn., 261 N. Y. 212 ,- 218, 219). Converting the motion -to dismiss to ■ one for summary judgment upon this appeal does not offend our decision in Mareno v. Kibbe ( 32 A D 2d 825 ). Respondents- were informed' of appellant’s intention to argue the question of the propriety of the board’s composition in appellant’s brief and were further given the opportunity' to raise arguments' against this contention in a supplemental respondents’ brief requested of them by this court which was to deal specifically with this issue. Sufficient notice

of the court’s intention having been given the parties, our decision herein does not fly in the face of our prior ruling. Subdivision a of section 227 of the New York City Charter prescribes that members of the Site Selection Board “ shall be the director of city planning, the director of the budget, the administrator of municipal service, the comptroller and, with respect to a capital project located wholly or partly within a borough, the president * * * of the borough * * * in which the site is located.” None of the five designated officials actually attended the meeting of the board on October 18, 1971. Instead, each sent a representative. The specific title of each representative is not set forth in the minutes of the board’s meeting, with the exception of the Assistant Director of the Bureau of the Budget, who was the chairman of the meeting. Of the five officers comprising the Site Selection Board only three — the Borough President, the Comptroller and the Administrator of Municipal Service are provided with specific authority to appoint deputies who may possess their powers, exercise their judgment and cast their votes at Site Selection Board meetings (New York City Charter, §§ 82, 94, 1601). In the chapters of the charter dealing with the other two — the Bureau of the Budget and the Department of City Planning — the appointment of deputies is not precisely dealt with either in general or in connection with the Site Selection Board. In an oblique way several sections of the City Charter contemplate that the Director of the Budget may act personally or through a representative (vide § 111; also § 115). Similarly with respect to the Department of City Planning, subdivision b of section 192 provides that a vice-chairman of the City Planning Commission, appointed by the Mayor, shall serve as Director of City Planning in the absence of the chairman. Standing by themselves it is doubtful that these sections would authorize substitutions on the Site Selection Board. However, the municipal respondents rely additionally on subdivision a of section 1101 of the charter to justify that substitution. In relevant part that reads as follows: “ Any head of a department * * * may by instrument in writing filed in the department designate any deputy to possess any of his powers and exercise such of his duties * * * as he may specify” (italics supplied). We may assume that the Department of City Planning and the Bureau of the Budget are departments within the meaning of subdivision a of section 1101, although only the former has the word “department” in its title. As to the other three members of the Site Selection Board, subdivisions 1 and 5 of section 82, when read together, grant power to a Borough President to appoint a deputy to sit on the Site Selection Board; section 94 gives a similar power to the Comptroller without, however, mentioning the Site Selection Board in so many words; section 1601 authorizes the Mayor to appoint deputy administrators of Municipal Service and the Administrator to appoint assistant administrators. This distinction may be important, since it is usually a deputy who takes the place of his principal, rather than an assistant (Matter of Klipp v. New York State Civ. Serv. Comm., 42 Mise 2d 35, affd. 22 A D 2d 854 , affd. 15 N Y 2d 880 ). However, the significance is lost here, because the record is barren as to who represented whom at the meeting or as to the source of the authority to be present, except as to Mr. Zandalasini, who, as noted above, was an assistant rather than a deputy of the Director of the Budget. As to the others, we only learn from petitioner’s brief that Mr. Carroll sat in place. of the Comptroller, that Mr. Zuccotti represented the City Planning Commission, that Mr. Duchan represented the Administrator of Municipal Service and that Mr. Vaccarella was acting for the Borough President of Brooklyn. Assuming, arguendo, that among the various specific grants of authority and the general grant cited above there existed sufficient authority to designate substitutes, the fact that the city has