As board votes to authorize lawsuit that’s already been filed, deputy town attorney says it’s not necessary

The town board voted unanimously last Tuesday to authorize a lawsuit commenced three weeks earlier on its behalf by an outside law firm.

The authorization was made “nunc pro tunc” — a Latin phrase meaning “now for then” used by courts and official bodies to essentially back-date an order or document to correct an error or omission.

The vote came after deputy town attorney Ann Marie Prudenti spent nearly 20 minutes explaining why the resolution wasn’t really necessary.

Supervisor Yvette Aguiar asked Prudenti to step to the podium to review the resolution with the board.

“There seems to be some misunderstanding and some assertions made in the last meeting and we need to clear this up and I’m going to ask her to come forward,” Aguiar said.

The supervisor was referring to a discussion at the board’s April 1 work session that took place when the board was reviewing resolutions to be voted on at the April 6 regular meeting.

At the work session, Councilwoman Catherine Kent asked why a resolution authorizing the lawsuit wasn’t presented for board action prior to the lawsuit being filed.

“This should have been done a long time ago,” Kent said.

Town attorney Robert Kozakiewicz explained it was an oversight.

“It is something that should have been done, and it’s something that we want to make effective from the original date the board — I mean, I wasn’t present during that discussion so I don’t know when you actually spoke with counsel and advised him to proceed,” Kozakiewicz said.

Councilman Tim Hubbard agreed with Kent. “I just I think it should come up with a resolution before we actually took the action,” Hubbard said.

RiverheadLOCAL on March 30 reported the lawsuit brought by the town against the State Department of Environmental Conservation seeking to annul the agency’s “notice of incomplete application” on the town’s application for a permit needed to finalize its land subdivision at the former Grumman site in Calverton — and the DEC’s insistence that the Suffolk County Water Authority must “consent” to the Riverhead Water District serving the site.

The town attorney responded to RiverheadLOCAL’s Freedom of Information Law request for a copy of the town’s petition, which had been filed March 17 in State Supreme Court, Albany County. When asked if there had been a resolution authorizing the lawsuit, Kozakiewicz responded in an email that he wasn’t sure but would check. He never responded further, but two days later, a resolution authorizing the lawsuit and the hiring of special counsel Frank Isler of Smith, Finkelstein, Lundberg, Isler and Yakaboski was among the resolutions for the town board’s review at its April 1 work session. At the work session just before a regular meeting of the town board, members review resolutions for the agenda of the regular meeting.

When Kent at the work session asked Aguiar to explain why the suit was filed without an authorizing resolution, the supervisor told her to ask the town attorney.

“You’re gonna have to ask the attorney because you’re a council member just like I am,” Aguiar told Kent. “Let’s not put the blame here. That’s why we have four town attorneys,” Aguiar said.

“It came to my attention that we didn’t have a resolution. I looked to correct it,” Kozakiewicz said.

The supervisor pressed the town attorney to identify who brought it to his attention. Without explanation, Kozakiewicz said he’d “rather not say.”

Aguiar was clearly not pleased with his response.

“That person should have brought it to our attention and not bring it to the town board,” Aguiar said. “I’m sorry that you’re telling me it was brought to your attention, and that you can’t relate that and then now it comes up here. We all have to communicate and adjust things and that’s why we were a council,” Aguiar said. “And not that we’re going to speak together in threes, because that violates open meetings law,” she added.

If someone sees a discrepancy somewhere, Aguiar said she wanted to know about it before it “comes up in front of a town board meeting. and you can’t discuss who that person is. It’s a little— there’s no synergy. Let’s resolve this,” she said.

“I’m trying to correct an oversight and it feels like we’re ungrateful, which is very disparaging, to be honest,” Kozakiewicz said.

“It is, you’re right,” Aguiar replied.

“Our office tries to do everything we can in our will and power. That’s why you have an eraser on a pencil,” he said. He then acknowledged he realized the resolution wasn’t done as he responded to RiverheadLOCAL’s Freedom of Information Law request.

“Again, I’m looking to correct it. I know the board had discussed it and approved the action and I’m looking to memorialize it. It’s a little disappointing,” Kozakiewicz said.

At the Tuesday board meeting, Aguiar asked Prudenti to “clear up” what the supervisor called “a misunderstanding.”

Prudenti told board members they had actually “authorized” the lawsuit during a Jan. 14 executive session.

“[T]he town board was very clear with its direction to all the attorneys that were present. Those directions were authorizing the commencement of legal action against the New York State DEC regarding the Wild, Scenic and Recreational Rivers permit, and in particular the issue with respect to Riverhead water district’s right to provide water to the EPCAL property,” Prudenti said.

While Prudenti said she supported the town attorney’s recommendation for the resolution before the board that day to appoint outside counsel and authorize the lawsuit, told the board nonetheless the lawsuit filed on March 17 did not actually require a new authorizing resolution because the town was already in litigation with the DEC over another matter affecting the EPCAL site.

The town in 2010 authorized a lawsuit against the DEC challenging new regulations adopted by the agency requiring an “incidental take” permit — a permit required where development actions or proposals would impact threatened or endangered species or their habitats. The regulations apply statewide and the town’s challenge to the regulations deals with the procedures followed by the DEC in adopting them, the DEC’s adherence to the State Environmental Quality Review Act and substantive claims of harm resulting from the requirements of the “incidental take” regulations.

That lawsuit was filed in 2011. The town’s lawsuit was promptly consolidated with a separate action challenging the “incidental take” regulations filed by Association for a Better Long Island.

Over the course of the last decade, in decisions rendered by the State Appellate Division and the Court of Appeals, the plaintiffs’ claims regarding procedures followed in adopting the regulations have survived the state’s efforts to get the claims dismissed for lack of “standing” to sue. The state’s highest court dismissed the plaintiffs’ SEQRA claims and substantive claims in 2014 but upheld the plaintiffs’ right to sue on procedural grounds. The court remanded the procedural issue to the trial court in 2014.

The case remains pending in State Supreme Court in Albany.

“Numerous times there’s been settlement discussions…with the goal that settlement would be achieved between the parties, the town would receive the requisite permits in order to divide the property,” Prudenti told the board last Tuesday.

Prudenti said that during the Jan. 14 executive session, the town board asked that, if negotiations did not achieve the desired goal of getting the Suffolk County Water Authority to withdraw its demand to serve the EPCAL property, “any new proceedings that are brought and be brought and attempt to be made part of the Part 182 [incidental take] regulations.”

She said that on Feb. 12, the assistant attorney general representing the state in the 2011 lawsuit “sent a letter to the judge in Albany County, informing him that settlement negotiations have failed” and referenced the town’s currently pending permit application and the issue of whether the Riverhead Water District or the Suffolk County Water Authority would provide water to the EPCAL site “was in fact involved in that breakdown of negotiations,” Prudenti said.

After that, the town’s special counsel on Feb. 16 emailed the town board “alerting you that litigation was commencing…pursuant to the instruction of the town board,” Prudenti said.

The new proceeding filed this year in Albany County is pending before the same judge, Prudenti told the board, “and it’s anticipated that both will appear on the judge’s court docket on the same day and travel together,” she said.

The New York State Unified Court System website does not indicate any judge assigned to either the 2011 or the 2021 actions.

“So, what I’m trying to demonstrate to this town board, and what our special counsel did, is exactly what was discussed confidentially with the town board in bringing the Article 78,” Prudenti said.

“We didn’t bring it in Suffolk County, we brought it in Albany County. And We brought before the same judge as the Part 182 [incidental take regulations] and to make it part of the 182. And that was the discussion and representation before you on January 14 of 2021,” Prudenti said.

“I provide this information because I truly believe that it’s very difficult for a town board, who is stepping into the shoes of something that you did over a decade ago and for — to have the ability to deal with all these questions,” Prudenti said.

Nevertheless, Prudenti concluded, “I support the town attorney’s recommendation for the resolution. Why? Sometimes, more is more,” she said.

Under New York State’s rules of procedure governing civil actions, “actions involving a common question of law or fact” may, upon motion, be ordered to be tried jointly or may be ordered to be consolidated. There is no record as yet of any motion to consolidate or jointly try the two actions.