Effective: December 2010


OPEN MEETINGS LAW CASE SUMMARY


The following consists of an alphabetical listing of judicial determinations involving the interpretation of the Open Meetings Law that may be of precedential value.  The listing includes a brief summary of the determinations.

It is emphasized that the Open Meetings Law was amended, effective October 1, 1979.  Therefore, determinations  rendered prior to that date may in some instances be subject to reversal or modification under the revised provisions of the Law.

New decisions or decisions that were not reported in last year's summary are marked with an asterisk (*).

Ackman v. Giuliani, Supreme Court, New York County, NYLJ, March 17, 2000 ‑ ‑

Controversy dealt with policy of Taxi and Limousine Commission restricting access to its administrative proceedings.  In overturning the policy, one of the findings was that the "reference to the Open Meetings Law as permitting closure is unpersuasive."  Held that "Although the statute provides an exemption from public access for 'judicial and quasi‑judicial proceedings'...a review of the case law provides no support for the general closure of administrative proceedings."  Found that the exemption "is not intended to permit closure at the evidence or fact gathering stage", citing Orange County Publications v. City of Newburgh.

Addesso v. Sharpe, 44 NY2d 925 (1978) --

Mayor's removal of the city zoning board of appeals members for violating the Open Meetings Law by meeting in closed session to deliberate on evidence adduced at public hearing on variance application was improper where board met in executive session in good-faith belief that proceeding was quasi-judicial in nature and therefore exempt from the law's requirements.

Allan and Allan Arts, Ltd. v. Rosenbaum, 615 NYS2d 410, 210 AD2d 136 (1994), mot lv to app den, 627 NYS2d 319, 85 NY2d 921 --

Defamation action based on statements made at public hearing held by zoning board of appeals.  Held that since proceedings "were quasi-judicial in nature, it follows that an absolute privilege should attach to those statements made during the course of the proceedings and which were material and relevant to the proceedings."  By conferring absolute privilege, court is "advancing the important public policy of encouraging the active participation of the citizenry in issues of affecting the welfare of the community."  See also 600 West

American Society for the Prevention of Cruelty to Animals v. Board of Trustees of SUNY, 582 NYS2d 983, 79 NY2d 927 (1992) --

Since powers of a committee at State University "derive solely from Federal law...and for that reason alone", it was concluded that the committee was not a public body subject to the Open Meetings Law ; lower court discussed the issue of consensus and found that a consensus is a "judgement arrived at by most of those concerned...by some type of allocution by each member.  Whether by formal written ballot or informal oral expression, it is a vote...Thus according to P.O.L. §87(3) each member's final vote must be recorded."

Auburn Publishers, Inc. v. Netti et al., Supreme Court, Cayuga County, June 6, 1994 --

Found that job specifications for position of entry level firefighter were not legally adopted by the City of Auburn Civil Service Commission, that "good faith...in conducting the meetings in an open and public manner was not borne out"; court ordered that civil service exam scheduled to be held must be cancelled; also authorized award of attorney fees.

Baker v. Edwards, Supreme Court, Suffolk Cty., June 27, 1994 --

Village Architectural Review Board action was nullified due to failure to offer due process to petitioners, failure to give notice under Open Meetings Law, failure to give notice to holdover member, failure to abide by its own procedures.  Court noted that while failure to give notice was not intentional, "it appears to have been out of custom, habit and indifference to the apparently seldom referred to Open Meetings Law.  While such an unintentional failure to comply with the notice requirements does not alone require the invalidating of the ARB's action (Public Officers Law, §107[1]), it is this omission taken together with the other grounds enunciated herein which compel the court to invalidate this action."  Attorneys' fees awarded.

Becker v. Town of Roxbury, Sup. Ct., Chemung Cty., April 1, 1983 --

Town Board entered into executive session to consider continuation of the position of town constable based upon motion to discuss "personnel matters", reach a consensus and later passed a resolution in public; court held that the motion inadequately identified the subject to be discussed and that a discussion of abolition of a position should have been discussed publicly; for this and other unrelated reasons, action taken was invalidated and attorney fees were awarded.  See also Daily Gazette v. Town of Cobleskill

Bernstein v. Board of Trustees, Supreme Court, Westchester County, September 12, 2001 ‑ ‑

As the case related to the Open Meetings Law, found that Village Board appeared to have a proper basis for conducting an executive session under §105(1)(d), the "litigation" exception, but failed to follow the procedure required for entry into executive session.  Found that some aspects of gatherings were "quasi‑judicial" and exempt from the Open Meetings Law.  But also stated that "Even when assuming...that the Board met solely to develop a justification for the earlier reached determination, or that such meetings were not protected by the attorney‑client privilege and were not otherwise excluded or exempt from the Open Meetings Law, the Court would still deny the relief requested ‑ annulment of the Board's determination."  Even if Board acted contrary to law, court found that doing so was not in "wilful defiance of or wanton disregard for settled law", it would not assert discretionary power to nullify action taken.

Bergen v. Valette, Supreme Court, Oswego County, November 1, 1993 --

Executive session held to discuss "contract negotiations" involving water and sewer services was immediately followed, without discussion, by a vote to enter into contract.  At an ensuing open meeting during which the public was heard, proposed resolution to rescind prior action was defeated, and proceedings was brought to nullify action.  After suit filed, another open meeting was held on the issue, during which the Council "reconsidered its actions" and ratified original resolution and the contract.  Court held that the initial discussion regarding water and sewer services could not legally have occurred in executive session, but that later open meetings and public actions "cured" the prior violation.

Bigman v. Siegel, Sup. Ct., Queens Cty., NYLJ, September 29, 1977 --

Queens College Committee on Faculty Personnel and Budget found not to be subject to the Open Meetings Law due to its capacity only to recommend.
NOTE:  Decision would likely be reversed under amended Open Meetings Law.

Binghamton Press Company, Inc. v. Board of Education of the City School District of the City of Binghamton, 67 AD2d 797 (1979) --

Work session held by school board at which it considered proposed consolidation of city high schools was within the purview of the Open Meetings Law.  In view of resolution adopted in good faith by school board indicating that it would keep its work sessions open to the public, injunctive relief was denied.

Bliek v. Town of Webster, 429 NYS2d 811 (1980) --

Open Meetings Law was tangential to more major issues; found that deliberations of town zoning boards of appeals were quasi-judicial in nature and, therefore, exempt from the Open Meetings Law; that portion of the decision apparently conflicts with Katz and Town Law §267; also see Open Meetings Law as amended, §108(1).

Board of Managers of Bennett Commons v. Village of Millbrook Planning Board, Supreme Court, Dutchess County, July 13, 2009 - -

Held that judicial relief warranted only upon showing of good cause; none demonstrated here; petitioners failed to show that anyone objected to location of certain meeting or any physically handicapped person unable to attend.

Bogulski v. Erie County Medical Center, Supreme Court, Erie County, January 13, 1998 ‑‑
 
Held that hospital board of managers and its subcommittees are subject to the Open Meetings Law, that executive session held without vote identifying subject failed to comply with law, that discussion of layoffs pertaining to a class of individuals did not qualify for executive session under §105(1)(f), citing Weatherwax; court chose not to void action taken by subcommittee and found that its violation did not taint action later taken at legal meeting that ensued.

Botwin v. Board of Education, 451 NYS2d 577 (1982) --

Discussions held by school board in executive session concerning proposals for purchase of vacant school property did not violate the Open Meetings Law; the Court found no basis on which to award attorney's fees.

Bowen v. State Commission of Correction, 104 AD2d 238, 484 NYS2d 210 (3rd Dept., 1985) --

Where a Commission meeting was scheduled for September 30 on September 27, and public notice was given almost immediately thereafter, no basis for finding a violation of the Open Meetings Law existed.  Annulment was not required on the ground that the Commission failed to give at least one week's public notice.

Britt, Matter of v. County of Niagara, 440 NYS2d 790, 82 AD2d 65 (1981) --

Various meetings of majority party legislators which included gatherings of an ad hoc legislative committee did not violate the Open Meetings Law, for court found that no quorum was present at any of the meetings; additionally, failure to conspicuously post notice of ad hoc committee meeting did not justify invalidating action taken at its meeting.

Brown v. Casier, 95 AD2d 574 (1983) --

Dispute involved attempt by tenured faculty members to annul resolutions eliminating their positions; issue pertaining to whether resolutions were passed at meetings held in violation of the Open Meetings Law were unrelated to procedural questions arising under contract; therefore, lower court should not have dismissed claims based upon violation of Open Meetings Law.

Buffalo Evening News v. Buffalo Municipal Housing Authority, 510 NYS2d 422 (1986) --

Absent a quorum, the Open Meetings Law does not apply; however, if a quorum convenes a "work session" or a "pre-meeting meeting", the Open Meetings Law becomes applicable, notice must be given, procedure for entry into executive session must be followed.

Buffalo News v. City of Buffalo Common Council, 585 NYS2d 275 (1992) --

Held that closed caucus of Common Council, which consisted solely of members of one political party was a meeting subject to Open Meetings Law; found that intent of caucus exemption in §108(2) could not override general intent of law expressed in §100; distinguished caucuses in situations where public body has members of more than one party and held that one body has members of only one party it must "clearly announce the intent and purpose of future meetings and open the same accordingly consistent with the overall intent" of the Open Meetings Law.

Buffalo News v. Niagara Frontier Transportation Authority, Sup. Ct., Erie County, March 30, 1989 --

Although no written opinion was rendered, court enjoined the authority from "holding secret meetings" and ordered that it comply with the Law.

Burgher v. Purcell, 109 Misc.2d 531, 87 AD2d 888 (1982) --

Appellate Division affirmed lower court decision that trustees of the Trust who were appointed by town supervisors constituted a public body subject to the Open Meetings Law.  Since the trustees did not consider themselves subject to the Law, however, the court refused to void any action, citing an absence of bad faith by the trustees.

Cablevisions Systems v. Village of Massapequa Park, Supreme Court, Nassau County, January 23, 2006 - - 

Allegations involving private meetings held between open meetings were found to be "conclusory and speculative."  Further, even if "caucus" held during a meeting contravened Open Meetings Law, held that no "good cause" shown to invalidate action.  Citing Committee opinion, held that notice of meetings need not include agenda.

Cain & Sucker v. Reynolds, Supreme Court, New York Cty., October 13, 1995 --

Plaintiffs sought preliminary injunction enjoining CUNY Board of Trustees from holding meeting in particular room.  Court refused to issue injunction, stating that nothing in the Open Meetings Law requires that meeting be held in facility that accommodates all who want to attend; however, found viable cause of action based on factual allegations that Board "packed the meeting room with their employees", leaving little space for others and poor facility loudspeaker.

Caldor Corp. v. City of Yonkers, Supreme Court, Westchester County, NYLJ, November 10, 1994 --

City Council held a "closed deliberative session" to discuss an internal memorandum.  No notice was given, no minutes were taken, and court found that those omissions violated OML, §§104, 105 and 106.  Before an action was taken, two public hearings were held.  While court found that issues involving OML were moot, it invalidated action on other grounds.

Callanan Industries v. City of Schenectady, 116 AD2d 883 (1986) --

Court affirmed Special Term's dismissal of petition, which involved several issues, notwithstanding City's lack of compliance with the Open Meetings Law.

Canandaigua Messenger, Inc. v. Wharmby, Supreme Court, Ontario County, May 11, 2001, 739 NYS2d 508, 292 AD2d 835 (2002) --

Case involved status of Canandaigua Recreation Development Corporation under both FOIL and OML.  Entity is a local development corporation created under §1411 of the Not‑for‑Profit Corporation Law.  Held that fact that the entity is a not‑for‑profit corporation is not determinative and that its bonds were issued on behalf of the City, that all of its board members were appointed by the City, and that the city has "an option to purchase the property at any time while the bonds are outstanding and will ultimately take a fee title to the property..."  Concluded that the entity is performing a function "in place of the city" and therefore is an agency subject to FOIL.  For purposes of the Open Meetings Law, citing Smith, found that the entity is not advisory and has "officially established duties and organizational attributes of a substantive nature which fulfill a governmental function for public benefit."  Court cited opinion of Committee and ordered award of attorney's fees.  Lower court cited opinion of Committee and ordered award of attorney's fees; Appellate Division affirmed substance of holding, but found that lower court abused its discretion in awarding attorney's fees;  appears that Court might not have acknowledged distinction in standards between FOIL and OML

Center Square Association, Inc. v.  City of Albany Board of Zoning Appeals, 19 AD3d 968 (2005) - -

Board held "informal open meeting" without notice to be "briefed" by staff "concerning the agenda for the noticed meeting, as well as the positions of the planning staff on the agenda items."  Held that although "the unnoticed meeting arguably violated the Open Meetings Law", citing Goodson-Todman v. City of Kingston, because the determination "was adopted at a publicized, public meeting and the informal meeting was open to the public and did not include any deliberations or votes", found that good cause not shown to invalidate action.
 
Cheevers v. Town of Union, Supreme Court, Broome County, September 3, 1998 ‑‑
 
Four members of the Town Board wrote a "Dear Resident" article that was published in a local daily newspaper, and petitioner, the Town Supervisor, sought an order enjoining payment for publication authorized by resolution by 4 to 1 vote of the Town Board; petitioner contended that determination to publish the article was made during a meeting not preceded by notice given pursuant to §104 of the Open Meetings Law or to him as Supervisor.  Board members said they contacted one another by phone to review text of article.  Court held that: "There was no physical gathering, but four members of the five‑member board discussed the issue in a series of telephone calls.  As a result a quorum of members of the Board were present and determined to publish the 'Dear Resident' article.  The failure to actually meet in person or have a telephone conference in order to avoid a meeting circumvents the Open Meetings Law....this court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law"; cited Committee opinion; also held that: "The action which took place without benefit of public scrutiny is declared void" and awarded attorney's fees.

Christe v. Bedford Central School District, Supreme Court, Westchester County, October 18, 2002 --

Meeting of Finance Subcommittee of Board of Education was attended by members of the Board who were not members of the Subcommittee, and the total number of Board members exceeded a quorum.  Held that the presence of Board members who were not members of the Subcommittee "does not transform itself into a full meeting of the Board..."

Cioci v. Mondello, Sup. Ct., Nassau County, March 18, 1991 --

Members of the County Board of Supervisors met prior to scheduled meeting to seek legal advice from their attorney.  During the discussion, a reporter entered and refused to leave; she was permitted to stay for the remaining five minutes of the discussion.  Petitioners sought injunctive relief requiring the Board to comply with OML in the future.  Court held that discussion with the attorney fell within the attorney client privilege and was exempt from OML, but that the presence of the reporter resulted in a waiver of the privilege.  Court held that there was no purpose of granting relief, for the same kind of situation is not likely to recur.  Petition was dismissed.

Cipriano v. Board of Zoning Appeals of City of Glen Cove, 610 NYS2d 305, 203 AD2d 362 (1994) --

In a matter ancillary to the merits, while court held that Board "improperly failed to vote in public", the court found it unnecessary to void the Board's action.

Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 559 NYS2d 381, 159 AD2d 141 (1990) --

The Open Meetings Law was a minor issue, and the court found that the Long Island Power Authority properly provided notice of its meetings.

Clark v. Lyon, 147 AD2d 838 (1989) --

Petitioner sought an order from the Supreme Court enjoining County Legislature from holding meetings at locations that do not permit barrier-free access to physically handicapped persons.  Court granted the relief but denied application for attorney's fees.  Appellate Division upheld denial of attorney's fees, finding no abuse of discretion.

Coalition to Save Cedar Hill v. Planning Board of Incorporated Village of Port Jefferson, NY Slip Op 30324(u), January 22, Supreme Court, Suffolk County (2009) - - 

OML last of many issues in ongoing series of lawsuits.  “[A]llegations that private meetings ‘must have taken place’, without specific factual allegations, are merely conclusory and speculative in nature and insufficient to demonstrate a violation of the Open Meetings Law.”  OML silent regarding public participation.

Concerned Citizens Against Crossgates v. Town of Guilderland Zoning Board of Appeals, 91 AD2d 763 (1982) --

Several issues raised, one of which involved executive session held to deliberate; Court held that deliberations were quasi-judicial and exempt from the Open Meetings Law.

NOTE:  Result might now be different due to amendment to §103(1).

Concerned Citizens of Cattaraugus County, Inc. v. Town Board of Town of Farmersville, Supreme Court, Cattaraugus County, April 28, 1994 --

Citizens group sought to set aside actions concerning siting of a landfill based on alleged violations of SEQRA, Open Meetings Law and Freedom of Information Law.  Although court found "technical violations" of both Freedom of Information and Open Meetings Laws, also found that no decision made in private; said that petitioners "armed themselves with the smallest birdshot and fired away", did "score some hits, but none were sufficient to bring down the game."

Concerned Citizens to Review the Jefferson Mall, Matter of v. Town Board of the Town of Yorktown, 84 AD2d 612, appeal dismissed 54 NY2d 957 (1981) --

Court held that two closed meetings between town board and developer violated the Open Meetings Law; exception for "proposed, pending or current litigation" in executive session is intended to allow public bodies to discuss litigation strategy in private and not to shield discussions between a public body and private litigant.  Court did not invalidate action of board taken at subsequent open meeting due to attendant publicity regarding developer's proposal.

Council of Greenburg Civic Associations v. Town of Greenburgh, Sup. Ct., Westchester County, NYLJ, February 2, 1978 --

Town Board executive work sessions are meetings subject to Open Meetings Law.  A civic association is an aggrieved entity with standing to maintain an action if such association has been barred from any so-called work sessions; municipality has no standing to challenge the validity of a state statute relating to its governmental powers and duties, i.e., the Open Meetings Law.
 
Crain v. Reynolds, Supreme Court, New York County, August 12, 1998 ‑

Citing several Committee opinions, court found that meeting held in room that CUNY Board of Trustees knew would be too small to accommodate the expected audience was improper, stating that "This behavior was unreasonable, designed to deny public access to the meeting and inconsistent with the fundamental principles of the Open Meetings Law that the public business be performed in an open and public manner...and that every meeting...shall be open to the general public."  Held that "removal of all members of the public from the meeting room, as opposed to only those who were disruptive, was unreasonable.  The actions of a disruptive few did not justify depriving the public of its right to observe the vote."  Found that the Chairperson's statement in advance of the meeting "that no action would be taken, when action was indeed later taken, had the effect, if not the intent, of dissuading interested members of the public from attending the meeting, thereby vitiating the original notice and undermining the Open Meetings Law."  Because resolution was passed in violation of the Open Meetings Law, court issued preliminary injunction until further study of issue considered and meetings held in compliance with law.

Csorny v. Shoreham-Wading River Central School District, 759 NYS2d 513, 305 AD2d 83 (2003) --

By rule, president of school board was given authority to prohibit use of recording devices at meeting of board if any person in attendance a meeting requests that the use of such device be discontinued due, i.e., to "intimidation."   Although Supreme Court dismissed, finding that the rule was valid, Appellate Division reversed, for it imposed "unreasonable conditions" on right to record.  Court favorably cited opinion of Committee.

Daily Gazette Co., Inc. v. North Colonie Board of Education, 67 AD2d 803 (1978) --

Standing committees of board of education do not come within the definition of "public body"; committees were not empowered to "transact" any public business and as such, were not subject to the Open Meetings Law.

NOTE:  Decision was effectively reversed by amendments.

Daily Gazette v. Town Board, Town of Cobleskill, 444 NYS2d 44 (1981) --

Executive session held to discuss "proposed, pending or current litigation" must identify the specific litigation and not merely recite statutory language in §100(1)(d).

Deberardinis v. Village of Ossining, Supreme Court, Westchester County, September 26, 2001 ‑ ‑

Court accepted conclusory statements by respondents that executive sessions were properly held under §105(1)(h), even though the public was well aware of a variety of details relating to a waterfront development.

In Re D.E.P. Resources, Inc., 131 AD2d 719 (1987) --

Case did not deal with Open Meetings Law, but provides direction regarding quorum requirements and voting.  Held that in the case of a five member board, at least three members must concur in order for there to be a valid exercise of the board's powers, notwithstanding absence of abstention.

DeSantis v. City of Jamestown, 747 NYS2d 906 (2002) - -

OML “does not require” that the public be given the opportunity to debate an issue during meetings; if no quorum, OML does not apply; insufficient evidence to determine whether executive session was properly called, and therefore, because “[t]he burden is on petitioners to establish good cause why this Court should exercise its discretion to impose a sanction....there has been no such showing.”

Devitt v. Heimbach, 440 NYS2d 465, 89 AD2d 920 (1981) --

County legislature improperly authorized executive session to discuss sale of real property without substantiating that publicity would affect its value; court did not void legislature's action authorizing sale.

DiCesare v. Board of Education of the Beacon City School District, Sup. Ct., Dutchess County, January 9, 1989 --

Upon review of facts, court held that the failure to post notice of meeting was unintentional.  Notice was given to the news media and 100 to 150 people attended; also found that respondent "failed to identify with sufficient particularity the reason" for holding executive session, stating that "It is insufficient to merely reiterate the statutory language" of an exception.  However, court did not find good cause to void action taken, and pointed out that "there is no requirement that minutes of discussions which occur during executive session must be taken unless action is taken thereat by formal vote."

Dillon v. Town of Montour, Supreme Court, Schuyler County, June 1, 2007 - -

Open Meetings Law was minor element of proceeding largely involving SEQRA.  Court found that: A Notice was posted in the Town Clerk's Office and in eight other public locations.  No written notice was given to any Board member, and notice was not given to the news media.  Neither of these circumstances, however, renders the business conducted at the November 13, 2006, meeting null and void.  Notice to the news media was not 'practicable' (Public Officers Law §104) because the Town's newspaper of record publishes on a weekly schedule.  As to written notice, actions taken at a special meeting held without two days' written notice are not invalid if all board members have actual notice of the meeting, attend it, and participated therein.  190 Op. Atty. Gen. (Inf.) 129.  In this case, all Board members except for one who was in Florida and, according to Respondents, would not have attended the November 13 2006 meeting in any event, received actual notice of the November 13, 2006, meeting, attended the meeting, and voted unanimously to reschedule the hearing on Local Law 2006-002 to November 29, 2006.  All Board members attended and voted at the latter meeting, which was properly noticed according of the Municipal Home Rule Law.  Thus, no failure of actual notice occurred and no prejudice resulted."

Dombroske v. Board of Education, West Genesee School District, 642 NYS2d 146 (1983) --

Property committee designated to study school closing held more than a dozen closed meetings apparently in intentional violation of the Open Meetings Law; following submission of report recommending specific action, school board held open, properly noticed meetings; Court held that open meetings cured earlier violations by advisory body.  See also Gilbert, Woll v. Erie County Legislature

Doolittle, Matter of v. Board of Education, Sup. Ct., Chemung Cty., July 21, 1981 --

A school board agenda which scheduled an executive session in advance of a meeting technically violates the Open Meetings Law; public must also be informed with "necessary specificity" as to the topic of discussion during an executive session.  Court cited various opinions of the Committee.

Town of Eastchester v. NYS Board of Real Property Services, 23 AD3d 484 (2005) - -

State Board consists of five members.  At time of meeting at issue, there was a vacancy, and an absence; two members were present and a third participated by phone.  Based on amendments to Open Meeting Law and §41 of General Construction Law referring to a majority of a board "gathered in the presence of each other or through the use of videoconferencing", court annulled actions taken at meeting.  Cited memo in support of legislation specifying that "the Open Meetings Law has been construed as not allowing for telephonic voting." Also cited Committee opinion.

East End Prop. Co. No. 1 LLC v. Town Board of Town of Brookhaven, 15 Misc.3d 1138(A), 841 NYS2d 819, (2007) --

In one among many claims for relief, court found that Open Meetings Law was not violated, for no quorum was present.

Enos v. Village of Seneca Falls, Supreme Court, Seneca County, September 6, 2000, aff'd on other grounds 732 NY2d 785, 288 AD2d 853 (2001) ‑ ‑

Case involved a variety of issues relating to village board's termination of employment of village manager.  Actions taken were found to be null and void for a variety of reasons, including the board's failure to give reasonable notice; held that the meeting "did not qualify as an emergency."

Exmoore House LLC v. Village of Millbrook Planning Board, Supreme Court, Dutchess County, July 13, 2009 - -

Same as Board of Managers of Bennett Commons v. Village of Millbrook Planning Board

Feldman v. Town of Bethel, 106 AD2d 695 (1984) --

In an action for false imprisonment where plaintiff had been arrested for refusing to turn off his tape recorder at an open meeting, court stated that while plaintiff apparently had the authority to tape record the meeting in an unobtrusive manner, he could not, with intent to cause public inconvenience, annoyance or alarm and without lawful authority, disturb any lawful assembly or meeting of persons.

Fenton v. Randolph, 400 NYS2d 987 (1977) --

Town board directed to conduct all of its meetings with the exception of executive sessions at barrier-free facilities so as to allow access by handicapped persons.

Finger Lakes Preservation Association v. Town Board, NY Slip Op. 29396, 887 NYS 2d 499 (2009) - -

Challenge to local law regarding wind energy incentive zone on several grounds, including claim of violation of OML when 3 town board members met at a wind farm to assess wind farm noise levels.  Held that “this was not a meeting requiring notice” and that the three board members did not discuss the proposed law while studying the noise, but rather shared their observations at next public meeting.  Also held that notice of meeting scheduled less than a week in advance was sufficient because “There was no time for the meeting to be noticed in a newspaper, and clerk took reasonable steps to post notice.”

Flynn v. Citizen Review Board, Supreme Court, Onondaga Cty.,  March 11, 1996 --

Citizens Review Board created by local law has subpoena power, but no authority to take final action.  In holding that it is covered by Open Meetings Law, court found that "The fact that a public body can only make recommendations or is an advisory board is not, in and of itself, the brightline test that the governmental organization is not a public body...Rather, the inquiry is directed to whether the body has been endowed with some governmental function.  The essence of a governmental function is whether the body has the 'right to exercise some part of the power of the sovereign'", i.e., conducting investigations and issuing subpoenas.  Court advised that the CRB in the future "consult with" the Committee on Open Government and criticized it for failing to utilize "the free resources provided by the State", wasting time and "incurring needless litigation costs."  Held that actions taken in violation of Open Meetings Law invalid.

Friends of Pine Bush v. Planning Board of City of Albany, 71 AD2d 780, mot. lv. app. dis., 49 NY2d 860 (1979) --

Residents of city, individual petitioners, were persons aggrieved by decision of planning board and had standing, but association of which they were members had no standing where there was no indication in the record as to the size or composition of such association.

Gernatt Asphalt Products v. Town of Sardinia, 87 NY2d 668 (1996) --

In dealing with issue ancillary to the substance of the case, court held that town board validly closed meeting to seek legal opinions and advice from the town's counsel, citing §105(1)(d).

Gersen v. Mills, 737 NYS 2d 137, 290 AD2d 839 (2002).

Suit by school district to annul determination of Commissioner of Education dismissed based on finding that School Board authorized initiation of a suit in May based on alleged action to do so in March.  Found, however, that no vote was taken to do so at March meeting, and minutes do not indicate any such vote; Board could not adopt a resolution nunc pro tunc (now for then) in an effort to circumvent statute of limitations.

Gilbert et al. v. Board of Education of the Bath Central School District, Supreme Court, Steuben Cty., June 10, 1986 --

Reasons for entry into executive sessions found to be untenable.  School Board contended that, even if they violated the law, the violations were cured by means of subsequent open meetings during which action was taken publicly; the Court disagreed and voided the action. See also, Woll, Dombroske

Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 601 NYS2d 29, 195 AD2d 898 (1993) --

Committee of County Legislature conducted executive session "to discuss a proposal to utilize a neighboring county's landfill" pursuant to §105(1)(h).  Held that before a meeting can be closed based on that exception, "it must first be shown that publicity would substantially affect the value of the property," and that there was "no evidence to support such a claim, which is pure speculation."  Concluded that committee violated OML and converted into declaratory judgment action.  See also, Oneonta Star.

Goetschius v. Board of Education of Greenburgh Eleven Union Free School District, 664 NYS2d 811, 244 AD2d 552 (1997) ‑‑ 
 
Appellate Division holding of lower and found that annulment of certain actions and award of attorney's fees "was not an improvident exercise of discretion in view of persistent pattern of deliberate violations of the Open Meetings Law through insufficient notice, unreasonable starting times, improper convening of executive sessions, and improper exclusion of members of the public."  Lower court agreed with Committee's opinion that the Board through disciplinary actions relating to employment could not exclude petitioners as members of the public from its meetings.  Also found that Board "sought to manipulate notice requirements through cancellation and rescheduling of meetings to bring them within the ambit of Section 104(2) rather than rescheduling with only minimal delay for a date which would have required the more extensive notice required by Section 104(1)", found that notice was not posted in conspicuous public location, that meeting held at 7:30 a.m. effectively precluded many, including petitioners, from attending.  See also Previdi, Gordon

Goetschius v. Board of Education, Supreme Court, Westchester County, NYLJ, March 10, 1999 --

Prior to meetings held in December 1996, respondents posted notice indicating that those who attend must pass through a metal detector; at meeting, Board also used a bomb sniffing dog", hired plain clothed security guards, had sergeant at arms, and pointed video cameras on the audience.  Court held that there was "no reliable established significant possibility of the risk of violence", that the "instant intrusion... was wholly unjustified... and evidenced....deliberate, ongoing and intentional attempts to avoid public scrutiny."  "Chilling effects of this 'screening practice' was "unwarranted ."  Due to history of "repeated violations", and "unlawful conduct", attorney's fees awarded.

Goetschius v. Board of Education, Supreme Court, Westchester County, March 5, 1999 -

Case involved meetings held in March 1997; Court again held that security measures taken were unreasonable and the Board could not rely on two isolated incidents unrelated to the Board to implement those measures; found that use of "electronic screening devices was a per se violation of the Fourth Amendment and , necessarily, the Open Meetings Law.". Court "permanently enjoined" the Board from violating OML and use of electronic devices or excessive number of security personnel at meetings.

Goetschius v. Board of Education, Supreme Court, Westchester County, March 8, 1999 --

Case related to meeting held on June 18, 1997.  Board hired seventeen (17) people to provide security at the meeting ; audience was situated approximately 60 feet from the Board, which sat on a stage and did not use a microphone; "majority of the meeting was inaudible to the audience.  Court held that "actions" of Board were "tantamount to deliberate and intentional exclusion of members of the public from its meetings through intimidation and invasion of the constitutional right to be free from unreasonable search of the person."  Also held that "scheduling of meeting at a location some twenty (20) miles distant from the Town of Greenburgh is also a violation of the letter and spirit of the Open Meetings Law."  Court declared actions taken at meeting null and void.

Goetschius v. Board of Education, Supreme Court, Westchester County, June 23, 2000 ‑ ‑

This is the latest in a series of lawsuits brought by teachers' union against the district.  Key holding involved court's finding that Board of Education could not "retroactively 'revote' those resolutions which were annulled by the prior decisions and orders of this Court" and nullified those actions. Several contentions by petitioners, however, were rejected, for court found that change in the location of meeting was preceded by reasonable notice; that notice indicating that a "lengthy executive session" would be held was not inconsistent with law; that contention that meeting was invalid because it lasted until 1:25 a.m. was "untenable", for there is nothing in the law that would "restrict the length of any such meeting"; that presence of three security personnel was not unreasonable; that there is no requirement that an agenda be distributed at a meeting; that minutes of executive session are exempt from disclosure under the FOIL, citing Kline

NOTE: §106 refers to disclosure of minutes of executive session); that there is no requirement to permit public participation.

Goetschius v. Board of Education, 721 NYS2d 270 and 271, 281 AD2d 417 (2001) ‑ ‑

Three short decisions, all involving the same parties.  First, court affirmed order annulling certain determinations made in violation of Open Meetings Law and awarding attorney's fees; second, affirmed a different determination the same grounds; and third, affirmed dismissal of motion for leave to renew.

Goldin v. Board of Education of Wappingers Central School District, 761 NYS2d 282, 306 AD2d 410 (2003) --

For reasons unexplained by the Court, held that petitioner did not have standing to challenge alleged failure to comply with Open Meetings Law.

Goodson-Todman Enterprises, Ltd. v. Dutchess County Legislature, Supreme Court, Dutchess Cty., March 1, 1989, appeal dismissed as academic, 552 NYS2d 313, 159 AD2d 460 (1990) --

A four member ad hoc committee consisting of county legislators was created by the Chairman of the Legislature to review the implications of a sales tax increase proposed by the County Executive.  The Supreme Court held that the committee is not a public body, for it was advisory, had no power to "transact any public business" and, therefore, did not perform a governmental function.  Appellate Division dismissed the appeal, for the committee in question had ceased functioning.  See also, Poughkeepsie Newspaper, Goodson-Todman v. Town of Milan, Syracuse United Neighbors

Goodson-Todman Enterprises, Ltd. v. City of Kingston Common Council, 550 NYS2d 157, 153 AD2d 103 (1990) --

One meeting involved a committee of a city council, which gathered at a member's home informally; the court held that the gathering was a "meeting", for a quorum of the committee was present, "the meeting was not a casual encounter but, rather, a planned informal conference"; a second meeting was called by a person other than a member of the public body to brief a city official; again, the meeting was planned, a quorum was present, and, therefore, the gathering was a "meeting".

Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS2d 373, 151 AD2d 642 (1989) --

Town Board created a Zoning Revision Committee, whose function was to recommend changes in the town zoning ordinance.  Court held that the Committee is not a public body, for it is advisory, has no power to implement its recommendations and does not exercise governmental functions.  See Poughkeepsie Newspaper, Syracuse United Neighbors

Goodson-Todman Enterprises, Ltd. v. Town of Woodstock, Sup. Ct., Ulster Cty., January 7, 1985 --

Court found that a private meeting of the Town Board, the Planning Board and the Town Attorney held without public notice, was contrary to the provisions of the Open Meetings Law where the discussion involved possible litigation and formulation of ground rules to be followed at public meetings.  Instead, such discussion could have been held in executive session.  Since it found no design to evade the Law, the Court refused to enjoin Town from holding secret meetings in the future.

Gordon v. Village of Monticello, Supreme Court, Ulster County, August 5, 1993; modified, 620 NYS2d 573, 207 AD2d 55 (1994); reversed on other grounds, 87 NY2d 124 (1995) -- --

Board of Trustees held executive session pursuant to a motion to discuss "personnel, contract and a legal issue."  Lower court found that the motion "lacked the particularity required"; held that although initial issue was appropriate for discussion in executive session, a "further discussion regarding the practicality of employing a full time attorney to replace two part time attorneys" and a "request to have the Village Manager investigate the creation of a full time attorney with a job description and an evaluation of the fiscal impact..." of the proposal "were policy matters which should have been discussed in an open meeting...", and that discussion of vacancy in elective position could not be discussed in executive session; also held that §105(1)(f) does not permit an executive session to be held to discuss filling a vacancy in an elective office: "given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointments to fill the unexpired terms of elected officials".  The Appellate Division cited §105(1)(f) and held that motion for entry into executive session citing the subject as a "personnel issue" fails to comply with law, referring to an opinion of the Committee, that consideration of whether to create a position could not validly have been considered in executive session and that invalidation of action did not reflect an abuse of discretion on the part of Supreme Court.  Held that lower court erred in awarding attorney's fees, stating that there was no indication that respondent repeatedly violated the OML or acted in bad faith.  Court of Appeals dealt only with the issue of award of attorneys' fees and held that when there is a finding of "intentional and deceitful conduct", a "denial of a request for attorneys' fees    would constitute an abuse of discretion...", and that "it is very often the possibility of recovering costs and attorneys' fees that gives private citizens like plaintiffs the impetus they need to bring meritorious lawsuits to enforce the Open Meetings Law thus advancing the statutory policy of keeping New Yorkers better apprised of the actions of their elected officials."

Gray v. University Auxiliary Services at Albany, Inc., Supreme Court, Albany County, July 25, 2002 --

Respondent "UAS is a not-for-profit corporation...whose purpose is to aid the students and faculty of the University at Albany in every way possible in their study, work, living and extracurricular activities..."  That is the "only purpose for which UAS exists..." and its authority is derived from its contract with SUNY.  Held that UAS is a public body required to comply with OML, but refused to invalidate its actions or award attorney's fees. 

Village of Great Neck Plaza v. Nassau County Rent Guidelines Board, 69 AD2d 528 (1979) --

County rent guidelines board did not violate Open Meetings Law during its discussion of rent guidelines.

Griswald v. Village of Penn Yan, 244 AD2d 950 (1997) - -

Although board conducted an executive session in violation of Open Meetings Law, court held that petitioner failed to show good cause to invalidate action.

Grossman v. Planning Board Town of Colonie, 126 AD2d 887 (1987) --

Petitioner, a developer, alleged that Board reached a decision at a meeting from which petitioner was purposely excluded; court held that general notice procedures were followed, that others attended and that petitioner's exclusion in and of itself did not constitute a violation of  the Law.

Hart v. Trumansburg Board of Trustees, 838 NYS2d 246, 41 AD3d 1025 (2007) - -

Case involved attempt to remove members of village board of trustees from office pursuant to §36 of the Public Officers Law.  Held that removal under §36 is a "drastic remedy" that is "reserved for malicious and corrupt acts as compared to minor neglect of duties, administrative oversights and violations of law."  Found here that "the misconduct alleged...essentially consists of the board returning to open session following executive session and failing to properly notify the public of the changed date" of a meeting.  Even if "conduct constituted a violation of the Open Meetings Law, these allegations do not rise to the level of 'unscrupulous conduct or gross dereliction of duty...or connote a pattern of misconduct and abuse of authority'" that would justify removal.

Hill v. Planning Board of Town of Amherst, 529 NYS2d 642, 140 AD2d 967 (1988) --

Conference between several members of town board and its attorney during which no determinations were made was not subject to the Open Meetings Law.  Decision is unclear as to the number of board members present.

Holden v. Board of Trustees of Cornell University, 440 NYS2d 58, aff'd 80 AD2d 378 (1981) --

Meetings of Board of Trustees of Cornell University are subject to the Open Meetings Law when the Board deliberates with respect to the four statutory colleges of the State University of New York at Cornell and when it exercises powers delegated to it under §§5708 and 5709 of the Education Law; court cited opinion of Committee.

Holdsworth, Matter of, Sup. Ct., Chemung County, November 13, 1980 --

County Board of Representatives was directed to hold all future meetings in barrier-free locations accessible to the physically handicapped; attorneys fees were awarded due to failure of county to timely comply with requirements of the Open Meetings Law.

Humphrey v. Posluszny, 573 NYS2d 790, 175 AD2d 587 (1991) --

Majority of board of trustees of village were members of the Independent Party and met with the Village Police Benevolent Association in a closed political caucus.  Citing the 1985 amendment concerning political caucuses, court wrote that Legislature found that "the public interest was promoted by 'private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies'," but that discussion at the meeting in question "went beyond a candid discussion" and violated the OML; court did not address whether Independent Party was a political party for purposes of the OML.

Inner-City Press v. NYS Banking Board, 657 NYS2d 275 (1996) --

Executive session held prior to meeting held to be illegal, but that there must be a Ademonstration a prejudice from the ... violation ... to constitute the requisite good cause to declare the action void."

Inner City Press/Community on the Move v. New York State Banking Department, Supreme Court, NYLJ, July 20, 2001 ‑ ‑

Case involved ability of Banking Board members to vote by proxy or otherwise.  Banking Law, §13(4) states in part that "any action which may be taken by the board at a meeting may be taken by instrument in writing signed by all members of the board without a meeting and any action so taken shall have the same force and effect for all purpose as if taken at a meeting."  Court upheld action taken by Board, citing a Committee opinion advising that action may not be taken proxy or without being present "absent specific statutory authority to do so", which existed in this instance.

Ireland v. Town of Queensburg Zoning Board of Appeals, 571 NYS2d 834, 169 AD2d 73 (1991) --

Issue largely involved conduct of a hearing and the opportunity to be heard; found that violation of OML resulting in action  is not void but voidable and that no good cause was shown to declare a meeting void.

Jae and Lewis v. Board of Education of Pelham Union Free School District, 802 NYS2d 228, 22 AD3d 581 (2005) - -

Court found that petitioners Acontinue to engage in speculation coupled with conclusory, inflammatory allegations apparently designed to cast an ill light upon the members of the Pelham Board of Education" and suggested that they Aeither support other candidates or run for office themselves."  Court addressed two issues; first, held that motion to enter into executive session is not required to identify persons invited to attend the executive session other than members of the Board; and second, held that AWhere an ad-hoc advisory committee consists of members other than members of the 'public body' and the committee has no power to take final action (ie: is advisory only), the committee clearly is not subject to the open meetings law" and that "if committees are partially comprised of members of a public body and those committees are advisory only, they are not obligated to comply with the open meetings law."  Appellate Division affirmed the substantive aspects of the lower court decision.

Jennings v. New York City Council, 814 NYS2d 890, 10 Misc.3d 1073(A) (2006) - -

NYC Councilman found by Council to have engaged in misconduct.  Court determined that Council's executive sessions were proper, citing §105(1)(f).

Joseph-Hunter v. Town of Cairo, Slip Op 30000(U), Supreme Court, Greene County, January 6, 2009 - -

Court invalidated resolution; vote never taken in public; vote “to deny the application....is not supported by the public record of proceedings.”  “The ‘good cause’ to void the Board’s September 3 Resolution is the fact that it does not comport with the public transcript of the actual meeting of the Board.”

Johnson Newspaper v. Howland, Supreme Court, Jefferson County, July 28, 1982 --

A committee comprised of town supervisors and established under County Law, §209 to investigate the performance of a county sheriff and jail employees was found to be a public body.  Although some testimony and records might fall within the provisions of Civil Rights Law, §50-a, the court stated that the committee did not possess quasi-judicial authority and therefore was not exempt from the Open Meetings Law under §103.

Jones v. Common Council of the City of Norwich, Supreme Court, Chenango County, August 13, 1980 --

Discussion of acquisition of real property in executive session was improper, for the Council "had no control over the minimum amount to be offered for the property"; action taken during open meeting to enter into contractual agreement was rendered null and void due to earlier violation of the Law; committee found to be subject to the Law; court cited Committee's memorandum regarding amendments to the Open Meetings Law; taxable costs and disbursements were awarded to petitioner.

Jones v. Koch, 117 AD2d 647 (1986) --

Issue surrounded selection by New York City Board of Education of new chancellor; court held that a resolution of the Board scheduling executive session every Wednesday "violates both the letter and the spirit of the statute", citing procedure for entry into executive session; found that particular executive session was illegal based upon findings that specificity of motion for entry into executive session was inadequate and that no particular person was discussed and court voided selection of new chancellor by Board.  Appellate Division revered order granting attorney's fees, because the candidate for chancellor had withdrawn, making the aware "gratuitous"; held that, under the circumstances, plaintiffs did not constitute "successful" parties.

Kamlet v. Board of Education, Plainedge Union Free School District, 399 NYS2d 366 (1977) --

Respondent School Board deemed to be a public body within the meaning, and subject to the provisions of the Open Meetings Law.  All meetings of the School Board convened to transact public business must be open to the public except those "executive sessions" properly convened pursuant to §95(1)(a-h) (now §105); attorney fees were awarded to petitioner.

Katz, Matter of, Sup. Ct., Westchester Cty., NYLJ, June 25, 1989; appeal dismissed as moot, App. Div., 2nd Dept,, NYLJ, May 23, 1980 --

Town Zoning Board of Appeals' closed session violative of Town Law, §267(1) rather than the Open Meetings Law.  Court found that the holding in Orange County Publications v. Newburgh inapposite, for Newburgh case dealt with a city zoning board of appeals; has been appealed.

Kessel v. D'Amato, 412 NYS2d 303 (1979) --

Dinner gathering "sandwiched" between two open meetings during which discussion of budget was incidental to general social intercourse between supervisors did not violate the Open Meetings Law; technical violation occurred when at a luncheon gathering, staff reported to board on cutting expenses and increasing anticipated income, but such violation was insufficient to warrant the invalidation of the entire budget.

Wm. J. Kline & Sons v. County of Hamilton, 663 NYS2d 339, 235 AD2d 44 (1997) ‑‑
 
Held that tape recording of executive session is exempt from FOIL under §87(2)(a), which pertains to records that are specifically exempted from disclosure by state or federal statute. Note:  There is no statute that exempts such records from disclosure; holding seems to conflict with decisions of Court of Appeals; see also Runyon in Open Meetings Law case summary.

Kloepfer v. Commissioner of Education, 82 AD2d 974, aff'd 56 NY2d 687 (1981) --

Court held that vote by school board in executive session to appeal a tenure hearing decision was appropriate under "proposed, pending or current litigation" [§100(1)(d)] and "particular person" [§100(1)(f)] categories for executive session, even though board failed to authorize entry into executive session as required in §100(1).

Koerner v. Board of Education, Deer Park Union Free School District, 61 AD2d 796 (1978) --

Weekly planning session of board of education are meetings within the meaning of the Open Meetings Law; to the extent that certain subjects fall within areas covered by §100 of the Public Officers Law, board allowed to conduct executive sessions.

Kopald v. Planning Board of the Town of Highlands, Supreme Court, Orange County, February 24, 1984 --

Court held that executive session to discuss application for subdivision was improper.  Cited Committee opinion regarding "litigation" exception and found that "potential" litigation is not a proper subject for entry into executive session, "for virtually any subject discussed by a public body could eventually be a topic of litigation."

Kosmoski v. Board of Education, Mt. Markham Central School District, Supreme Court, Herkimer County, June 27, 2000 ‑ ‑

Controversy involved use of schools and bussing.  Court found that action was taken outside of a meeting and without any public vote and that, therefore, Open Meetings Law was violated.  Court declared any actions take by Board to close a school should be nullified. 

LaCorte Electrical Construction and Maintenance Inc. v. County of Rensselaer, 576 NYS2d 397 (1991) --

Discussion of firm's "financial, credit and employment history" in executive session was proper.

Lakeville Journal v. Village Board of the Village of Millerton, Supreme Court, Dutchess County, December 6, 1986 --

Held that a series of secret meetings violated the Law, but refused to invalidate action; that the "litigation" exception should be narrowly construed, that the exception "does not permit confidential discussion simply because the Village Attorney is present and legal advice is sought".  Court ordered award of attorney's fees.

Laurel Ridge Clinton Woods Residents Association v. Town of Tuxedo, Supreme Court, Orange County, April 22, 1977 --

Although violations of Open Meetings Law may have been committed, petition was dismissed, for there was no action to be made null and void.

County of Lewis v. O'Connor, Supreme Court, Lewis County, January 21, 1997 --

Meetings of standing committees of hospital Board of Managers found to be subject to OML.

Lucey v. NYS Low-Level Radioactive Waste Siting Commission, Supreme Court, Ulster County, July 25, 1990 --

The court held that "allegations made upon information and belief" that the Commission held secret meetings was "devoid of specific factual allegations" and failed to state a cause of action; petition was dismissed.

Magee v. Town of Stony Point Zoning Board of Appeals, Supreme Court, Rockland County, NYLJ, May 10, 2000 ‑ ‑

Held that zoning board did not comply with §105 of OML "since the Executive Session was not called or voted on during a public meeting, and was in fact held ten (10) days after the meeting..." but that "does not result in an automatic nullification of a Board's action."  Was no evidence that merits of the matter were discussed in executive session and that "there was ample opportunity for public comment and deliberation." Dismissed petition.  See NYU v. Whalen; Puka

Malone Parachute Club, Inc. v. Town of Malone, 610 NYS2d 686, 197 AD2d 120 (1994) --

An ancillary issue, held that discussion held in violation of OML prior to action at open meeting would not, "without more", constitute good cause for invalidating action.

Martin v. Central Islip Union Free School District, U.S. District Court, Eastern District of New York, CV 94 5688 (1994) --

Plaintiff forcibly excluded from meeting of Budget Advisory Committee held on school property.  Court held that exclusion violated his civil rights, apparently on the basis of Education Law, §414.

McGovern v. Tatten, 623 NYS2d 370, 213 AD2d 778 (1995) --

Among other matters, court held that Town Board violated OML when it held an executive session to discuss the status of a road; however, held also that it is discretionary on the part of a court to nullify action taken and found that there was no proof of "good cause" to void action taken at illegal executive session.

MCI Telecommunications Corp. v. Public Service Commission, 659 NYS2d 563, 231 AD2d 284 (1997) --

As decision involved OML, Court rejected allegation that absence of debate before a vote necessarily must result in conclusion that private meetings were held; no evidence that discussions Between PSC members and members of staff involved presence of a quorum; court noted that there was extensive public input at each stage of proceeding and that even if a violation of OML was found, there would not be good cause to invalidate.

MFY Legal Services, Inc. v. Toia, 402 NYS2d 510 (1977) --

An advisory committee appointed by Governor found to be a "public body" within statutory definition.  Meetings must be conducted in accordance with the Open Meetings Law.

Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD2d 924 (1985) --

Court found that school board had no justifiable basis for prohibiting the use of unobtrusive, hand-held tape recording devices at its public meetings and that such a prohibition was far too restrictive when viewed in light of the legislative scheme embodied in the Open Meetings Law.  Court affirmed the judgment annulling the Board's resolution prohibiting tape recording.

Mitzner v. Goshen Central School District Board of Education and Superintendent Colistra, Supreme Court, Orange Co, April 15, 1993 --

Petitioner made several complaints of an unspecified nature involving matters that were considered in executive session, and court held that "It is clear that respondents have misunderstood or disregarded their responsibilies under the OML.  Their actions respecting petitioner's ten complaints have been in one way or another invalid."  Minutes merely indicated that "the Board hereby ratifies the action of the President in signing and issuing eight Determinations in regard to complaints received from Mr. Bernard Mitzner."  Held that "these bare-bones resolutions do not qualify as a record or summary of the final determination as required" by §106, and that "If communications with members of the public with whom the body disagreed merited less complete coverage in the public record than those with whom the body agreed, then the public record could be sanitized so as to make it appear that the body's performance was universally applauded, a degree of popularity virtually without precedent in a free society."  Also found that board failed to follow procedure for entry into executive session.  Petitioner did not seek attorney's fees or invalidation, but rather only that the Board "mend its ways."  As such, court found respondents in violation of OML.  See also, Previdi

Mobil Oil Corp. v. City of Syracuse Industrial Development Agency, 646 NYS2d 741, 224 AD2d 15, leave to appeal denied, 89NY2d 811 (1997) --

Court rejected claims based on speculation that Open Meetings Law was violated.  Two of five members of five person board attended staff meeting, and third member arrived at end of meeting.  Held that in absence of quorum, Open Meetings Law does not apply, and that "Even where quorum is present, a meeting does not rise to the level of public business implicating the Open Meetings Law where the participants meet in a casual encounter rather than with the intent to conduct public business."  See also Goodson Todman v. City of Kingston

Monroe-Livingston Sanitary Landfill, Inc. v. Bickford, 486 NYS2d 566, 107 AD2d 1061; mot lv to app dis, 65 NY2d 943 (4th Dept., 1985) --

Court held that invalidation of Town Board's denial of the petitioner's permit was not warranted where notice of three special meetings, all scheduled less than a week in advance, was given to the local newspaper and posted in the Town Clerk's office on the same days as the meetings.  Court state that notice was given within "a reasonable time prior to" the meetings and even if such notice was not in full compliance of the Law, invalidation was not appropriate where a new hearing would be held.

Town of Moriah v. Cole - Layer Tumble Co., 606 NYS2d 822, 200 AD2d 879 (1994) --

Held that Town Board voted to commence litigation in executive session and took no minutes, thereby violating Open Meetings Law; however, also held that petitioner could not show good cause for invalidating action, particularly since resolution was later passed at open meeting.

Muriel Towers Company v. City of New York Rent Guidelines Board, 459 NYS2d 390 (1983) --

Meeting became a "shambles" for a "circus atmosphere prevailed" due to presence of unruly crowd; no violation found, petition was dismissed.

City of New Rochelle v. Public Service Commission, 541 NYS2d 49, 150 AD2d 441 (1989) --

OML was not violated when Commissioners toured proposed power line routes.

New York University v. Whalen, 46 NY2d 734 (1978) --

Inclusion by the Legislature of language vesting in the courts the discretion to grant remedial relief makes it clear that not every breach of the Open Meetings Law automatically triggers its enforcement sanctions; judicial relief is warranted only upon a showing of good cause.  A burden appellants failed to sustain.

NYPIRG v. Governor's Advisory Commission, 507 NYS2d 798; aff'd with no opinion, 135 AD2d 1149; motion for leave to appeal denied, 71 NY2d 964 (1988); Court of Appeals noted that denial of motion for leave to appeal "is not equivalent to an affirmance and has no precedential value" --

Advisory body created by executive order found to be outside the scope of the Law because it "lacks the power to transact public business."  See also, Syracuse United Neighbors, Poughkeepsie Newspapers

Oakleigh Thorne v. Village of Millbrook Planning Board, Supreme Court, Dutchess County, July 13, 2009 - -

Same as Board of Managers of Bennett Commons v. Village of Millbrook Planning Board

Okeyibi v. Cortines, 641 NYS2d 791 (1996) --

School District administrator "conferred" with certain members of Board of Trustees and made a decision to terminate petitioner.  Court held that Board may not delegate its authority to the administrator and directed Board to convene a meeting for the purpose of taking action.

Olish v. Heaney, Supreme Court, Suffolk County, NYLJ, April 30, 2003 --

Open Meetings Law a minor aspect of decision; held that there was no proof that quorum of Town Board met in private, and that allegations "are simply not supported by the record."

Olsen v. Loehr, Mayor of Yonkers, et. al., Supreme Court, Westchester County, March 31, 1982 --

If a reapportionment committee of the City of Yonkers held meetings during a particular time period, failure to have given notice in accordance with §99 and to have compiled minutes under §101 would constitute a "flagrant violation" of the Law and would be sufficient to declare legislation resulting from action taken by a committee valid.

Oneonta Star Division of Ottoway Newspapers, Inc. v. Board of Trustees of Oneonta School District, 66 AD2d 51 (1979) --

Secret meeting of city council members and school board during which quorum of board was present constituted violation of the Open Meetings Law, executive session could be held to discuss sale of real property only when publicity would substantially affect the value of the property; joint meetings found to be subject to the Law.

Oneonta Star Division of Ottoway Newspapers, Inc. v. County of Schoharie, 112 AD2d 611 (1985) --

Court reversed judgment of Supreme Court which had declared that majority caucuses of the Schoharie County Board of Supervisors were subject to the Open Meetings Law whenever a quorum of the Board convened.  Court found that the May, 1985 amendment to the Law (L.1985, ch 136) was a declaration of pre-existing law and was controlling as to the issues raised in this case.

Orange County Publications, Division of Ottoway Newspapers, Inc. v. The City of Middletown, The Common Council of the City of Middletown, Supreme Court, Orange Cty., December 6, 1978 --

Personnel lay-offs are primarily budgetary matters and not among the specifically enumerated personnel subjects in §100(1)(f) of the Open Meetings Law proper for executive sessions.

Orange County Publications, Division of Ottoway Newspapers, Inc. v. Council of the City of Newburgh, 60 AD2d 409, aff'd 45 NY2d 947 (1978) --

The word "meeting" within the Open Meetings Law includes the gathering or meeting of public body whenever a quorum is present for the purpose of discussing public business, whether or not a vote of the members of the public body is taken.  Thus, informal meetings which are not convened for the purpose of taking final  action fall within the scope of the Open Meetings Law; in portion of the Appellate Division decision not appealed it was held that the deliberations of a city zoning board of appeals are quasi-judicial, for they affect rights and liabilities of individuals and are exempt from the Open Meetings Law.

Orange County Publications, Division of Ottoway Newspapers, Inc. v. Council of City of Newburgh, Supreme Court, Orange County, October 4, 1982 --

City of Newburgh hired a firm to prepare a development plan for revitalization of portion of City; went into executive session with representatives of the firm to discuss the concepts of the plan, which would involve transactions affecting real property; court held that closed session was improper, for plan was tentative and due to vital public interest; court awarded attorney fees.

Orange County Publications, Division of Ottoway Newspapers, Inc. v. County of Orange, Supreme Court, Orange County, December 26, 1978 --

Even if the executive session of the County Legislature had been properly convened, the personnel matters discussed at closed meeting did not fall within any of the specific personnel-related issues deemed appropriate for executive session under §100(1)(f).  Fact that no official action may have been taken does not avoid the mandatory requirements of the Open Meetings Law; punitive damages and counsel fees sought, but not granted.

Orange County Publications, Division of Ottoway Newspapers v. County of Orange, Legislature of the County of Orange and Rules, Enactments and Intergovernmental Relations Committee of the County Legislature, Supreme Court, Orange County, October 26, 1983 --

Executive session held by legislative committee to discuss salaries for two elected positions; courts held that Open Meetings Law applies to subcommittee and that issues involved questions of policy and that no ground for executive session could be cited; request for punitive damages was rejected, but attorney fees were awarded.

Orange County Publications, Division of Ottoway Newspapers, Inc. v. County of Orange, 120 AD2d 596 (1986) --

Held that grounds for entry into executive session "are no more than thinly veiled references to areas delineated under section 105".  In view of failure to comply with previous court orders requiring compliance, County Legislature was found to be in contempt, was fined and petitioner was awarded attorney's fees.

Oshry v. Zoning Board of Appeals of Village of Lawrence, 713 NYS2d 564, 276 AD2d 491 (2000) --

Held that ZBA "violated the 'Open Meetings Law'...by failing to vote in a public session when approving the subject applications for variances"; decision was announced "without any vote or discussion by the members of the ZBA".  Also held that "While a violation of the Open Meetings Law alone may not be sufficient to invalidate the determination of the ZBA...., where, as here, there are other concerns regarding the procedures followed in granting the variances, the Supreme Court providently exercised its discretioin in annulling the determination".  See Cipriano; NYU v. Whalen

Parents Action Committee v. Community School Board 31, Supreme Court, Richmond Cty., November 14, 1984, NYLJ, December 28, 1984 --

Article 78 proceeding in the nature of mandamus is an appropriate remedy to compel performance of a statutory duty that is ministerial in nature, such as a failure to comply with the Open Meetings or Freedom of Information Laws.  A petitioner must exhaust all administrative remedies in compelling an official to comply with his statutory duties before seeking judicial review.  The four month statute of limitations begins to run after a public official's refusal to perform his or her duty as prescribed by law.

Parents on Watch v. Board of Education of the New Paltz Central School District, Supreme Court, Ulster Cty., September 22, 1982 --

A school board at an open meeting adjourned its meeting to noon the following day with the stipulation that the meeting reconvene later in the day.  Court held that Open Meetings Law does not require that notice of a meeting include a proposed agenda and concluded that the second meeting constituted a "mere continuation" of the meeting convened the previous day, thereby dispensing with the need to provide a separate notice for the later meeting.  Although the school board violated the Open Meetings Law by failing to enter into executive session by means of a majority vote of the board, the Court chose not to make any sanctions.

Park Newspapers of St. Lawrence, Inc. v. City of Ogdensburg, Supreme Court, St. Lawrence County, April 26, 1984 --

Court enjoined Zoning Board of Appeals from deliberating upon and making determinations of applications for zoning variances during executive sessions and vacated determinations made during a prior closed session of the Board.

Peloquin v. Arsenault, 616 NYS2d 716 (1994) --

Court held that Town Board's blanket ban on video recording devices was invalid, finding that use of video equipment valid only if it is "obtrusive and distracting"; board members claiming that they are "distracting...because they do not wish to appear on television" was found to be unjustifiable; court cited and agree with Committee opinions.

Perez v. City University of New York, 5 NY3d 522 (2005) - -

Court of Appeals held that Hostos Community College Senate and Executive Committee constitute public bodies required to comply with Open Meetings Law, citing Smith.  Both entities have been "charged with a number of responsibilities delegated by the Legislature to the CUNY Board and ....functions as a proxy for the faculty councils authorized by CUNY bylaws".  Senate has "power to formulate new policy recommendations and review existing policies" and is not solely advisory.  Senate and Executive Committee "constitute integral components of the governance structure" of the College and "perform functions of both advisory and determinative natures which are essential to the operation and administration of the college."

Perryman v. Village of Saranac Lake, 64 AD3d 840 (2009) - -

“While it is true that the minutes reflect that only one member formally said the word ‘yes’ while the other two other voting members moved to approve the resolution and seconded it, the unrefuted affidavit submitted by the Village Clerk established that it was the general practice in the Village...” to do so.  The members who made and seconded a motion, based on that practice, were considered to have voted in the affirmative.

Village of Philmont v. X-Tyal International Corp., 67 AD2d 1039 (1979) --

Even if there was a defect in notice given prior to special meeting, '102 of the Open Meetings Law provides that an unintentional failure to fully comply with the notice provisions "shall not alone be grounds for invalidating any action taken at a meeting of a public body."

Phillips v County of Monroe, 18 Misc.3d 1127(A), 856 NYS2d 506 (2007) - -

Issue involved notice of meeting, and court found that “the procedure used, while truncated, was designed to ensure that the goals of the open meetings law would be met by thoroughly public deliberation and vote.”  Referred to opinions of others (not courts) indicating that notice given less than two days in advance of special meeting to members is valid if all members attend and participate.

Pirrotti v. Town of Greenburgh, 25 Misc.3d 1226(a) (2009)- -

Petitioners contend that public precluded by Planning Board from responding to comments made by developer at July 1 meeting.  Held that the “OML is designed to foster public awareness, not to assure public participation” and that the “public was afforded ample opportunity to comment on the proposed application during the course of the four public hearings held”.  Claimed violation of OML regarding gathering of various town officials, but no planning board member, but court held that no public body and no quorum, citing Jae.  No merit to “unsupported and conclusory claim that the Town Attorney and Town Planner acted as agents or de facto members of the board.”

Pissare v. City of Glens Falls, Supreme Court, Warren County, March 7, 1978 --

Advisory commission designated by the Mayor, as well as its component committees and subcommittees, were found to be public bodies subject to the Law; even though Commission and its committees were solely advisory, members had "power" greater than that of other citizens of the City to influence decisions and deliberations of Common Council; court cited Committee advisory opinion.

Plattsburgh Publishing Company v. City of Plattsburgh, 586 NYS2d 346, 185 AD2d 518 (1992) --

City Council's discussions "focused upon job performance and employment history of particular individuals" in conjunction with budget issues, and court held that §105(1)(f) permitted executive session; also held that absence of minutes of executive sessions did not violate Open Meetings Law "as no formal vote was taken at those meetings...and the binding decision to lay off City employees came not at an executive session but at an open meeting".

Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force on New York City Water Supply Needs, 145 AD2d 65 (1989) --

Task force created by the Mayor of New York City was directed to make recommendations concerning the City's long range water supply needs and consisted of representatives of City, federal, state and local agencies.  Court held that it is not a public body, for it has no power or authority, but rather gives advice, and performs no governmental function, i.e., does not "exercise the power of the sovereign."  See Goodson-Todman v. Town of Milan, New York Public Interest Research Group

Prestopnik v. Whelan, U.S. District Court, Northern District of New York, March 26, 2003 --

Case brought under 42 USC §1983 due to school board's refusal to permit plaintiff's attorney to speak on her behalf at a board meeting.  Held that "it must be plaintiff who was denied an opportunity to speak at the Board meeting; not some person with whom she is associated (i.e., her attorney)" and that there was no basis "upon which to conclude that plaintiff has a First Amendment or other constitutional or federal statutory right to be heard through an attorney at the Board meeting."

Previdi v. Hirsch, 524 NYS2d 643 (1988) --

Notice of hastily called meeting was found to be inadequate and unreasonable; motion for entry into executive session were insufficient in that the motion merely cited personnel matters, and negotiations; held that a vote taken by "consensus" represents "final action" and must be recorded and disclosed in minutes; executive session held to discuss litigation with counsel for adversary present was invalid; statute of limitations was extended because no minutes of executive session were prepared; court found that failure to fully comply with notice provisions was not "unintentional", but rather was "calculated to minimize public awareness of a sensitive political decision..."; therefore, action taken was declared void.  See also Concerned Citizens, Daily Gazette v. Town of Cobleskill, Doolittle

Prisco v. Community School Board 31, Appellate Division, Second Dept., February 29, 1996, 226 AD2d 467  --

Court affirmed decision of Supreme Court, Richmond County, February 21, 1995.  Supreme Court found in 1985 that Board violated Open Meetings Law and ordered compliance.  In 1995, same court found that "consensus" was official action, that action taken by "polling" the members constituted violations of Open Meetings Law, that prior court order was violated, and that Board members were in contempt.  See also Previdi, Orange County Publications v. County of Orange

Puka v. Greco, 104 AD2d 362 (1984) --

Although there was a clear violation of the Open Meetings Law, the Court found that petitioner could not show "good cause" sufficient to invalidate action taken by a public body.  See Whalen

Ramapo Homeowners Association v. Town of Ramapo, Supreme Court, Rockland County, NYLJ, April 17, 2002 - -

OML one of several issues regarding zoning controversy.  Public hearing held, but new evidence found thereafter, and court found that "failure to allow any participation and public debate regarding new evidence presented and new issues raised may raise a violation of the law", particularly in view of public hearing requirements in Town Law.  Court chose not to assert its discretionary authority to invalidate action under OML. 

Rampello v. East Irondequoit Central School District, 653 NYS2d 469 236 AD2d 797  (1997) --

Board failed to provide notice prior to meeting and court voided resolution to pay a retirement incentive to a retiring principal.

Reese v. Daines, 877 NYS2d 801, 62 AD3d 1254 (2009) - -

Affirmed lower court decision holding that certain entities are public bodies subject to OML.  “‘[A] realistic appraisal of [the] functional relationship [of respondents] to affected parties and constituencies’ establishes that respondent Western New York Health Systems Inc. (WHNYS) performs a quintessentially governmental function, as did respondent Board of Trustees before it, by overseeing the merger and consolidation of serves of the Erie County Medical Center Corporation (ECMCC), a public benefit corporation, with a privately owned entity”, citing Smith and Perez.  Will be considered a public body until merger is completed and ECMCC is no longer a public benefit corporation.  However, held that court “abused its discretion in awarding attorneys’ fees”, for there was no finding of “a persistent pattern of violations” of the OML, citing Goetschius, Gordon, Canandaigua.

Reiff v. NYC Conciliation and Appeals Board, Supreme Court, New York Cty., NYLJ, July 3, 1985 --

Court held that the Board, which consists of nine members, is a public body.  Its order carried by a 3-2 vote was found to be invalid and "equal to non-action" because action must be based upon an affirmative vote of a majority of its total members in accordance with General Construction Law, §41.

Rent Stabilization Association of New York City, Inc. v. Rent Guidelines Board for the City of New York, 98 Misc.2d 312 (1978) --

Unannounced closed meetings of quorum or rent guidelines board for consideration of data which resulted in a final vote to adopt rent guidelines violated the Open Meetings Law; violations resulted in remand and direction to hold public hearings.

Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 545 NYS2d 303, 149 AD2d 266 (1989) --

Plaintiffs alleged that private meetings were held among members of a town board and others.  Court found that allegations were "merely conclusory and speculative in nature and not supported by an specific facts".  Rather, facts indicate that "meetings" were negotiations between the parties' attorneys, and that plaintiffs, therefore, failed to state a valid cause of action concerning violations of the Open Meetings Law.

Roberts v. Town Board of Carmel, 615 NYS2d 725, 207 AD2d 404 (1994) --

Held that litigation exception properly invoked and that "There  was no evidence to suggest that the Town Board's failure, if any, to comply precisely with the requirements of Public Officers Law §105, was anything more than mere negligence which...was not a sufficient ground upon which to invalidate a board's action.

Riverkeeper v. Planning Board of the Town of Somers, Supreme Court, Westchester County, June 14, 2002 - -

Issue involved whether site visit was subject to OML.  Court cited City of New Rochelle decision and quoted from Committee opinion, which advised that: "...site visits or tours by public bodies should be conducted solely for the purpose of observation and acquiring information, and that any discussions or deliberations regarding such observations should occur in public during meetings conducted in accordance with the Open Meetings Law."  Held, therefore, that site visit in question was not a "meeting" subject to OML.

Runyon v. Board of Education, West Hempstead Union Free School District, Supreme Court, Nassau County, January 29, 1987 --

In an action for damages in connection with alleged wrongful termination of employment, plaintiff sought to compel defendant members of board of education to appear for examination before trial.  Therefore, the question was whether discussions conducted during executive sessions could be considered "privileged and exempt from disclosure under Article 31 of the CPLR."  Court concluded that the discussions are not privileged, required defendants to appear and produce minutes or other notes taken at executive session relating to discharge of plaintiff.

Russell v. Village Board of Spring Valley, Supreme Court, Rockland County, NYLJ, July 18, 1997 --

Defamation claim dismissed; held that absolute privilege attaches to statement made by board member in executive session in the context of his official duties; board member was, therefore, "immune form ability."

Sanna v. Lindenhurst, 107 Misc.2d 267, modified 85 AD2d 157, aff'd 58 NY2d 626 (1982) --

Discussion and approval of petitioner's termination as a probationary teacher occurred during an executive session held by the school board without following the appropriate procedure for entry into executive session.  Although the Supreme Court nullified the board's vote taken in executive session, the Court of Appeals affirmed the Appellate Division's reinstatement of such vote.  Since petitioner's standing to sue under the Open Meetings Law arose from her position as an aggrieved member of the public she could not use the same law to obtain relief, i.e., reinstatement as a school employee whose employment has been terminated.  An award of reasonable attorney's fees and costs was affirmed due to school board's failure to property enter into executive session.  The Court of Appeals did not specifically address whether the Education Law, §1708(3), prohibits school board voting in executive session.

County of Saratoga v. Newman, 476 NYS2d 1020 (1984) --

A committee designated by county legislative body sought to conduct collective bargaining negotiations in public, PERB found that the Open Meetings Law was not applicable, and the Court agreed.

Schofield v. Community School Board District No, 11, New York City, Supreme Court, Bronx County, NYLJ, May 15, 1990 --

Petitioner claimed that a meeting was held without notice; respondent contended that, even if the meeting was improperly held, resolution later was adopted at an open meeting that was properly noticed; court dismissed the petition, saw no reason to invalidate when resolution was later passed at an open meeting.

Schuldiner v. City University of New York, Supreme Court, Richmond County, September 13, 1999 -

Citing Smith, held that student government association is a "public body", subject to the Open Meetings Law, and that blanket prohibition of use of tape recorders is " violative of the public policy embodied in the Open Meetings Law, citing Mitchell; because controversy arose before Smith decision.

Schulman v. County of Sullivan, Supreme Court, Sullivan County, April 9, 2001 ‑ ‑

Matter involved sale of county owned property to Concord Hotel developer for less than assessed value.  Issue relating to Open Meetings Law involved failure of County Legislature to give proper notice, which County conceded; also purpose of executive session not stated.  Found that there was no evidence presented to justify claim that publicity would affect value of the property and that "closure of the meeting violated the Open Meetings Law."  However, no action was taken and no resolution was passed at the meeting in question.  Court's conclusions and order were based on different considerations.

Sciolino v. Ryan, 103 Misc.2d 1021, 431 NYS2d 664, aff'd 81 AD2d 475, 440 NYS2d 795 (1981) --

Controversy concerned situation in which single minority member of city council was excluded from "caucuses" during with eight majority members received information about and discussed matters relating to city government that were likely to come before the city council; court held that definition of "meeting" includes gatherings of majority of members, whether or not minority members are included; that the exemption for political party business is discussed, and that the exemption for political party business is discussed, and that the exemption for political caucuses does not apply if the discussion concerns "any topics that may come before the body at a regular public meeting"; court cited opinion of the Committee in supreme court decision.

Shibley v. Miller, 623 NYS2d 283, 212 AD2d 799 (1995) --

"The fact that respondent [a village zoning board of appeals] went into executive session 'to obtain advice of counsel' does not require vacatur of the subsequent determination."  See also, Young, Gernatt.

600 West 115th Street Corp. v. VonGutfeld, 80 NY2d 130 (1992) --

Defendant spoke in opposition to proposal by plaintiff at public hearing, and plaintiff sued for defamation.  Court held that absolute privilege is available "only to those who in speaking are discharging a public function arising from the duties of their office", but recognized that at public hearing, speakers are citizens, debate may be heated and that forum was official governmental session, and that "reasonable listeners would not conclude that the speakers were charging the developer with the actual charge of blackmail", and that speaker is offering layperson's opinion; expectation at public hearing is "opinion, much of it unpolished and uninformed."  Court dismissed action.  See also Allan

Smith v. Town of Warwick, 564 NYS2d 874, 169 AD2d 976 (1991) --

Injunctive relief sought directing town board to hold meetings at a facility permitting barrier free access, rather than town hall, which did not.  Court found that board had not made "reasonable effort" to hold meetings are barrier free site, held that grant of relief sought by Supreme Court was properly within its discretion.

Smith v. City University of New York, First Department, Appellate Division, NYLJ, July 28, 1997 --

Reversed lower court and held that student government was not a public body because it does not perform governmental functions.

Smith v. CUNY, 92 NY2d 707 (1999) B

Association comprised of administrators, faculty members and students at community college authorized to review proposed budgets, allocate student activity fees and disbursements constitutes "public body" subject to the Open Meetings Law; performs "substantially more than advisory function", rather has "decision-making authority to implement its own initiatives"

Smithson v. Ilion Housing Authority, 130 AD2d 965 (1987), aff'd 72 NY2d 1034 (1988) --

In an executive session, the Board of the Authority voted by secret ballot to dismiss petitioner from his position with the Authority.  The Appellate Division held that the Board could validly determine an employment issue during an executive session under §105(1)(f), but that the use of secret ballot voting was improper.  The Court of Appeals affirmed, stating that the Appellate Division did not abuse its discretion by concluding that a violation of the OML did not require the annulment of the Board's decision.

Specht v. Town of Cornwall, 13 AD3d 380, 786 NYS2d 546 (2004) - -

Town Board voted to terminate probationary employee during executive session but failed to record its decision in minutes.  Lower court held that failure to do so required annulment of action, but Appellate Division reversed, stating that it was a "non-prejudicial, technical violation" and held that determination to annul was "unwarranted".

Steele v. City of Niagara Falls, Supreme Court, Niagara County, March 30, 1980 --

Series of closed sessions held at motels and city hall without notice were "meetings" subject to the Law, even though respondents contended that the gatherings were not "official convenings" and no action was taken; fact that topics discussed may have been appropriate for executive session was irrelevant, because procedure for entry into executive session was not followed; court costs and attorney fees awarded to petitioner; court cited Committee opinions.

Stop BHOD v. City of New York, 22 Misc. 3d 1136(A) (2009) - -

BHOD is Brooklyn House of Detention, and issue regarding OML involved meeting held by State Commission of Correction to determine NYC Department of Correction request to reopen BHOD.  OML one among many issues.  Court referred to prior decisions indicating that “where a lack of notice appears to have been ‘calculated to minimize public awareness’ of a ‘sensitive political decision’ relating to ‘a highly publicized matter’, a court may void the action taken...”, citing Previdi and Warren, where in the latter, there was “prejudice to the public.”  Held in this case, however, that petitioners “have made no showing that respondents may have sought to minimize public awareness of this sensitive and controversial issue...”

Student Association of the State University v. Clifford P. Wharton, Chancellor of the State University of New York, Supreme Court., Albany Cty., June 30, 1981 --

Discussions by State University Board of Trustees in executive session concerning financial situation and credit history of University in relationship to dormitory rental increases were appropriate under Open Meetings Law, §100(1)(f).

Syracuse United Neighbors v. City of Syracuse, 437 NYS2d 466, 80 AD 2d 984, appeal dismissed, 55 NY2d 995 (1982) --

Appellate Division reversed lower court decision and held that meetings of mayoral appointed task force and "homestead committee" are subject to the Open Meetings Law even though such bodies are advisory in nature and cannot take formal action; minutes of those public bodies' meetings are available subject to deletions to protect personal privacy invasions under the Freedom of Information Law.  The Court of Appeals dismissed without opinion.

Szurnicki v. Janisch, Supreme Court, Suffolk County, NYLJ, February 13, 1992 --

Only issue pertinent to Open Meetings Law involved sufficiency of notice given prior to a special meeting of a board of education, held that, even though it was "arguable" that news media was not given notice, notice was posted in various locations and provided in writing to "members of the school community", as such, although notice was "imperfectly executed", failure to fully comply was found to be unintentional; also held that notice need not include a proposed agenda.  

Thiel v. Incorporated Village of Mineola, Supreme Court, Nassau County, October 19, 1993 --

Petition alleging violation of Open Meetings Law was dismissed.  Meeting was held followed by public hearing and adjournment of pubic hearing, at which time, "the residents left, [and] the Board retired to the Board Room to continue its previously adjourned meeting, at which time, it took action."  Despite claim that action taken then was "devious", there was "no claim nor any indication that any persons were denied access to the meeting," even though the meeting appeared to be over after the completion of the hearing. 

Tri-Village Publishers, Inc. v. St. Johnsville Board of Education, 110 AD2d 932 (1985) --

Where a series of private meetings was held by school board members and none involved a quorum of the board, the Court held that the Open Meetings Law did not apply to such meetings.  Significantly, the Court recognized that a "series of less-than-quorum meetings" could be used by a public body to thwart the purposes of the Law.  However, the Court found no evidence in this case to indicate that the board attempted to evade the Law.

Valet v. Sachem Central School District, Supreme Court, Suffolk Cty., NYLJ, August 27, 1996 --

Although board of education developed and implemented redistricting plan in private and in violation of Open Meetings Law, court held that when action is later taken at an open meeting, "the fact that the public body may have undertaken previous discussions or held prior meetings in violation of Open Meetings Law does not, without more, constitute good cause for overturning the resolution",   citing Malone, Town of Norwich, Gilbert.

NOTE:  Decision appears to be inconsistent with thrust of Court of Appeals decision in Gordon.

Van DeLoo v. City of Schenectady, Supreme Court, Schenectady County, September 6, 2002 -

Court found that zoning board of appeals is subject to the OML and that it failed to follow procedure for entry into executive session, failed to vote in public session and failed to prepare minutes or record of vote of members.  "[C]onsidering multiple violations and procedural concerns", court annulled Board's determination.

Van Ness v. Center for Animal Care and Control, Supreme Court, New York County January 28, 1999 B

Held that Center is an "agency subject to FOIL and, therefore, is " public body" for purposes of OML; in dealing with request for minutes of meetings that should have been held in accordance with OML, court directed that they be disclosed, except those portions involving matters that could properly have been considered in executive session.

Wallace v. City University of New York, Supreme Court, New York County, NYLJ, July 7, 2000 ‑ ‑

Question involved whether the University Student Senate (USS) at CUNY is subject to FOIL and the Open Meetings Law and if USS election of officers by secret ballot vote violated those statutes.  USS is funded by mandatory student activity fees, which are considered to be public funds, and the allocation of those funds constitutes a governmental function.  Also, Chancellor cannot allocate certain funds without initial recommendation by USS.  Held that "USS's decision not to allocate funds for a particular purpose is tantamount to a final determination" and as such, "USS performs a governmental function for purposes of the OML and FOIL" and the secret ballot election of USS officers violated" both statutes.  Court awarded attorney's fees under OML to "successful party." See Smith; Ilion

Warren v. Giambra, Supreme Court, Erie County, NYLJ, May 4, 2006 - -

Decision referred to several gatherings, and court held that:  (1) meeting of 8 democrat members of County Legislature (15 members in total) with County Executive (a republican) constituted a meeting held in violation of law;  (2) meeting of ten members, republican and democrats, was a meeting subject to Open Meetings Law, not a political caucus exempt from the coverage of that law; (3) following commencement of suit challenging budget cuts, judge appointed mediators and convened meeting in chambers with mediators, Legislature and County Executive; found to be a judicial proceeding exempt from Open Meetings Law; (4) meeting held in private next day by Legislature with mediators at local college violated Law; (5) gathering among County and State legislators found not to be a meeting but rather an "instructional session as opposed to one characterized by debate and decision."

County of Westchester v. Rent Guidelines Board of Westchester County, 71 AD2d 665, appeal dismissed, 48 NY2d 692 (1979) --

Conflicting affidavits as to whether Board deliberately misled the public by scheduling a work session on less than one day's notice at which session guidelines were formally adopted; precluded grant of summary judgment on issue of failure to give reasonable notice.

Weatherwax v. Town of Stony Point, 97 AD2d 840 (1983) --

Town's decision to terminate postretirement health insurance benefits was not arbitrary; however, the issue was discussed in violation of the Law during an executive session while town attorney expressed belief that the matter would lead to litigation, a "fear that litigation may result" could not justify the executive session and litigation strategy was not discussed; further, although the Town's action affected only the petitioner, it was a "policy decision" applicable to a class of retirees; since petitioner was unaware of Board's decision, he was "deprived of the opportunity" to obtain alternate coverage or exercise an option, thereby resulting in "direct harm"; as such, court found "good cause" for nullifying board's action.

White v. Battaglia, 434 NYS2d 537, 79 AD2d 880 (1980) --

School board took action at a hastily convened meeting without notifying the news media; court invalidated the board's action due to failure to comply with notice requirements under §99 of the Law.

White v. Kimball, Mayor, City of Jamestown, Supreme Court, Chautaugua County, January 2, 1997 --

Resolution to abolish bus system was introduced for the first time during an executive session; held that the issue should have been discussed in public; "Taking into account the manner in which the public was kept in the dark ... over a 8 month period", court void action; held that "contract negotiations" did not justify executive session, that "closure of bus system was a separate issue from the approval of proposed agreement with the union settling grievances and improper practice charges"; while "exception exists for attorney-client privileged communications... once the legal advice is offered, discussions with regard to substance... do not fall within the privilege," citing Committee opinion; decision reached by "consensus" is an action that must be recorded in minutes; good cause shown to invalidate action; also awarded attorney's fees.

City of White Plains v. New York State Board of Real Property Services, 795 NYS2d 292, 18 AD3d 549 (2005) - -

Board consisting of five members took action at meeting during which two members were physically present and one participated by phone.  Citing §41 of the General Municipal Law and the Open Meetings Law, court held that action could not validly be taken unless quorum, majority of total membership physically gathered or gathered through use of videoconferencing.

Wilson v. Board of Harborfields Central School District, 65 AD3d 1158 (2009) - - 

Reversed lower court, holding that “Even if there had been a technical violation of the Open Meetings Law, the petitioner failed to establish that there was good cause to annul the Board’s action.”  Technical violation involved inadequate notice.  Found that lower court erred in annulling action in light of failure to establish bad faith or prejudice to public; also erred in awarding attorney’s fees.

Windsor Owners Corp. V.  City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009) - -

            Challenge to City Planning Commission determination to approve plans for a development.  Hearing attended by approximately 100 people, and those “who could not fit into the hall sat in the building’s lobby, which was equipped with a video broadcast where they could view and listen to the proceedings.  About fifty people spoke at the hearing, and all who wished to testify had the opportunity.” Contention that hearing violated OML because it was held “in a small room at a mid-week and mid-day hour and therefore chilled participation by the many neighbors of the new development who wanted to testify against” the project.  Claim that this situation was not like Crain, where it was found that meeting should have been held in larger facility.  Court distinguished Crain, in which the court found “numerous intentional violations”.  In this instance, hearing held in the “usual location” and the “usual time.”  In consideration of chairs and video in the lobby and testimony by 52 people, court found “no evidence that the Commission denied anyone who wished to speak an opportunity to do so.  Nor does the record reveal that the Commission intentionally or knowingly discouraged anyone from attending.”  Held that time and location proper.

Woll v. Erie County Legislature, 83 AD2d 792 (1981) --

Local law regarding reapportionment was adopted after closed meetings were held in apparent violation of Open Meetings Law; court held that violations of the Open Meetings Law "were sufficiently cured by the two subsequent public meetings held by the county legislature".  See also Dombroske v. Board of Education, West Genesee School District

Town of Woodstock v. Goodson-Todman Enterprises; Goodson-Todman Enterprises v. Town of Woodstock, 505 NYS2d 540 (1986) --

Is a case dealing also with the Freedom of Information Law (see Freedom of Information Law case summary), court held that Town Board complied with Open Meetings Law.  Executive session was properly held to discuss issues regarding disciplinary action relating to constables.

Young v. Board of Appeals of Incorporated Village of Garden City, 599 NYS2d 632, 194 AD2d 796 (1994) --

In ancillary matter, held that "any confidential communications between the board and its counsel, at which time counsel allegedly advised the Board of the legal issues involved in the determination of the variance exception, were exempt from the provisions of the Open Meetings Law", citing §108(3).

People v. Ystueta, 99 Misc.2d 1105, 418 NYS2d 508 (1979) --

NOTE:  Reversed Arthus cited earlier; charges of obstructing governmental administration and criminal trespass for bringing tape recorders to an open meeting were dismissed; despite capacity of board to adopt by-laws to govern its own proceedings, prohibition of use of tape recorders failed to recognize advances in technology and principles of the Open Meetings Law; therefore, by-law found to be invalid.

 

INDEX TO OPEN MEETINGS LAW CASES

Action Invalidated   Auburn Publishers, Baker, Becker, Bergen, Cablevisions, Cheevers, Crain, Town of Eastchester, Enos, Gilbert, Goetschius (1) & (6), Gordon v. Village of Monticello, Jones v. Common Council, Joseph-Hunter, Kline, Kosmoski, Park Newspapers, Previdi, Ramapo, Rampello, White, White v. Kimball, Van DeLoo
Action Not Invalidated Bernstein, Bowen, Britt, Burgher, Caldor, Callanan, Center Square, Cipriano, Concerned Citizens, Dicesare, Dombroski, Griswald, Inner City Press,  Kessel, Lakeville Journal, Laurel Ridge, Magee, Malone, MCI Telecommunications, Monroe-Livingston, North Bellmore Board of Education, Village of Philmont, Puka, Roberts, Schofield, Smith, Smothers, Specht, Valet, White, Wilson, Woll,
Advisory Bodies  American Society, Bigman, Canandaigua, Daily Gazette, Flynn, Goodson-Todman v. Dutchess Cty. Legis., Goodson-Todman v. Town of Milan, Jae and Lewis, MFY Legal Services, NYPIRG, Oshry, Perez, Pissare, Poughkeepsie Newspapers, Syracuse United Neighbors,
Agenda Cablevisions, Goetschius (5),
Attorney-Client Privilege Cioci, White v. Kimball, Young,
Attorney's Fees Becker, Cheevers, Canandaigua, Clark, Goetschius (1), (2) & (6), Gordon, Holdsworth, Jones, Kamlet, Orange County Publications v. Council of City of Newburgh (1982), Orange County Publications v. County of Orange (1983 and 1986), Reese, Sanna,  Schuldiner, Steele, Auburn Publishers, White v. Kimball, Wilson,
Barrier Free Facilities Board of Managers of Bennett Commons, Clark, Exmoore House LLC, Fenton, Holdsworth, Oakleigh Thorne, Smith,
Briefing Center Square, Goodson-Todman(2),
Committee of Public Body Bogulski, Christe, Glens Falls, Goodson-Todman v. City of Kingston Common Council, Jae and Lewis, County of Lewis,
Consensus Vote  American Society, Mitzner, Previdi, Prisco, White v. Kimball,
Construction with Other Laws  Inner City Press (2),
Contempt of Court Orange Cty. Publications v. County of Orange, Prisco,
Contract Negotiations Bergen, Doolittle, White v. Kimball,
Corporation, Financial or Credit History of  LaCorte,
Defamation  Allan, 600 West,
Discipline of Member Jennings,
Disruption at Meeting   Crain,
Enforcement Remedies Addesso, Auburn Publishers, Baum, Bergen, Brown, Baker, Bogulski, Crain, DeSantis, Gernatt, Goetschius (4), Gordon, Hart, Kline, Ireland, New York University, Rent Stabilization Association, Sanna, Smith, Specht, Parents Action Committee,
Executive Session, Collective Bargaining County of Saratoga,
Executive Session, Entry Procedures Bogulski, Doolittle, Gordon, Jones v. Koch, Kloepfer, Magee, Orange Cty. Publications v. Orange County (1986), Parents on Watch, Sanna, Steele, White v. Kimball,
Executive Session, Motion to Enter Becker, Daily Gazette v. Town Board, Dicesare, Doolittle, Gordon, Jones v. Koch, Previdi,
Executive Session, Particular Person Gordon v. Village of Monticello, Plattsburgh,
Executive Session, Persons Present at Jae and Lewis,
Executive Session, Personnel Matters   Gordon, Orange Cty. Publications v. City of Middletown, Orange Cty. Publications v. Cty of Orange (1978), Student Association, Woodstock,
Executive Session, Litigation Concerned Citizens, Daily Gazette v. Town Board, Gernatt, Kloepfer, Lakeville Journal, Previdi, Shipley, Smothers, Weatherwax,
Executive Session, Purchase or Sale of Real Property Botwin, Debarardinis, Glens Falls, Jones v. Common Council, Oneonta Star v. Board of Trustees, Orange Cty. Publications v. Council of Newburgh (1982), Schulman,
Good Cause Board of Managers of Bennett Commons, Exmoore House LLC, Oakleigh Thorne,
Hospital, Board of Managers  Bogulski,
Judicial Proceeding as Exempt Warren,
Local Development Corp.  Canandaigua,
Meeting, Defined  Britt, Christe, Coalition to Save Cedar Hill, East End, Finger Lakes Preservation Association, Goodson-Todman, Goodson-Todman v. City of Kingston Common Council, Hill, Kessel, Mobil Oil, Okeyibi, Oneonta Star v. Bd. of Trustees, Orange Cty. Publications v. Council of Newburgh (1978), Rent Stabilization Association, Riverkeeper, Tri-Village Publishers, Warren,
Meeting, Site of Board of Managers of Bennett Commons, Cain, Crain, Exmoore House LLC, Goetschius (4), Oakleigh Thorne, Windsor Owners Corp.,
Meeting, Time of Goestschius(1) and (5), Windsor Owners Corp.,
Minutes Mitzner, Olsen, Previdi, Van DeLoo,
Minutes of Executive Session  Goetschius (5), Moriah, Plattsburgh, Specht, VanNess,
Not-for-Profit Corporation Performing   Government Function Canandaigua, Gray, VanNess,
Notice Baker, Bowen, Britt, Caldor, Coalition Against Rent, Dicesare, Dillon, Enos, Finger Lakes Preservation Association, Goetschius(1) and (5), Hart, Monroe-Livingston, Olsen, Village of Philmont, Parents on Watch, Phillips, Previdi, Rampello, Stop BHOD, County of Westchester, White, Wilson,
Nullity or Nullification of Purported Action  Cheevers, Gerson,
Political Caucuses  Buffalo News, Bulmer, Cooper, Humphrey, Oneonta Star v. City of Schoharie, Orange Cty. Publications v. City of Orange (1981), Sciolino, Warren,
Proxy Voting  Inner City (2),
Public Body, Defined American Society for the Prevention of Cruelty to Animals, Burgher, Canandaigua, Flynn, Gray, Kamlet, Perez, Pirrotti, Reese, Schuldiner, Smith v. CUNY, Smith and Maitland, Syracuse United Neighbors, VanNess,
Public Participation Baum, Coalition to Save Cedar Hill, DeSantis, Fertile Land, Ltd., Goetschius (5), Parents and Taxpayers, Pirrotti, Prestopnik, Ramapo,
Quasi-Judicial Ackman, Bernstein
Quorum Christe, DEP Resources, DeSantis, Town of Eastchester, East End, Goodson-Todman v. City of Kingston Common Council, MCI Telecommuications, Mobil Oil, Okeyibi, Perryman, Reiff, City of White Plains,
Recording Devices, Use of Audio or Video Arthus, Csorny, Feldman, Mitchell, Peloquin, Schuldiner, Ystueta,
Secret Ballot Voting Perez, Smithson, Wallace,
Security at Meetings  Goestschius (2), (3), (4) and (5)
Site Visit City of New Rochelle, Finger Lakes Preservation Association, Riverkeeper,
Standing to Sue Council of Greenburgh, Friends of Pine Bush, Sanna,
Statute of Limitations Previdi,
Student Government Body Schuldiner, Smith v. CUNY, Smith and Maitland, Wallace,
SUNY Auxiliary Services Corporation Gray,
Telephone Meeting Cheevers, Town of Eastchester, City of White Plains,
University Boards Gray, Holden, Perez, Smith v. CUNY, Student Association,
Work Sessions Binghamton Press Co., Buffalo Evening News, Orange Cty. Publications v. Council of Newburgh (1978), Steele,
Zoning Board of Appeals  Bliek, Capital Newspapers, Concerned Citizens, Matter of Katz, Orange Cty. Publications v. Council of Newburgh (1978), Oshry, Park Newspapers, Van DeLoo,