# Florance v. Town of Dickinson

> New York Supreme Court, Broome County · January 8, 2026 · 2025 NY Slip Op 34890(U)

URL: https://www.frixlaw.com/law-library/cases/11240438

## Case

- **Court:** New York Supreme Court, Broome County
- **Decided:** January 8, 2026
- **Citations:** 2025 NY Slip Op 34890(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Eugene D. Faughnan
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Florance v Town of Dickinson
2025 NY Slip Op 34890(U)
January 8, 2026
Supreme Court, Broome County
Docket Number: Index No. EFCA2025001010
Judge: Eugene D. Faughnan
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
At a Motion Tenn of the Supreme Court of
the State of New York held in and for the
Sixth Judicial District at the Broome County
Courthouse, Binghamton, New York, on the
15th day of August 2025.

PRESENT: HON. EUGENE D. FAUGHNAN
Justice Presiding

STATE OF NEW YORK
SUPREME COURT: COUNTY OF BROOME

MARK FLORANCE,

Plaintiff,
DECISION AND ORDER
vs.
Index No.: EFCA2025001010

TOWN OF DICKINSO~,

Defendant.

APPEARANCES:

Counsel for Plaintiff: LAW OFFICE OF RONALD R. BENJAMIN
By: Ronald R. Benjamin, Esq.
126 Riverside Dr., P.O. Box 607
Binghamton, NY 13902-0607

Counsel for Defendant: SOKOLOFF STERN LLP
By: Marissa D. Embola, Esq.
179 Westbury Avenue
Carle Place, NY 11514

[* 1]
EUGENE D. FAUGHNAN, J.S.C.

This matter is before the Court upon the pre-Answer motion of Defendant, Town of
Dickinson (the ''Town"), to dismiss the Complaint pursuant to CPLR 3211 (a)(l) and (7).
Plaintiff, Mark Florance ("Florance"), has filed opposition to the motion, and also filed a cross-
motion to amend the Complaint! Oral argument was conducted, and counsel for both parties
were present. After due deliberation, this Decision and Order constitutes the determination of
this Court. 1

BACKGROUND FACTS

This is a land use case involving construction of a solar farm in th_e Town of Dickinson.
Florance owns property adjacent to· the solar farm and claims damages due to the loss of a scenic
view, diminution in property value, emotional distress and mental anguish resulting from the
solar development.
In approximately Augus~ of 2021, Citizens Energy/Citizens Dickinson Solar, LLC
("Citizens Energy") applied to the Town to construct a solar farm. The Town determined that
the proposed development was a Type 1 under the New York State Environmental Quality
Review Act, which means it is more likely to have environmental impacts and must go through a
more rigorous review (see 6 NYCRR § 617.4). The Town declared itself as the lead agency for
review. On or about October 18, 2021 the Town Planning Board issued a negative declaration
(meaning that proposed project will not have a significant adverse environmental impact) and
approved the Site Plan. Citizens Energy then moved forward with the solar farm construction,
which was completed.
Plaintiff alleges that he has been adversely impacted by the solar farm. He filed a Notice
of Claim on November 14, 2024, and a 50-h hearing was held on February 10, 2025. Plaintiff
filed a Summons and Complaint on April 2, 2025. The parties agreed to an extension of time for
the Town to file an Answer or make a motion. The Town opted to make this motion to dismiss
the Complaint.

1 The Court has considered all the papers filed in support and opposition to the motion and cross.;.motion, as well

as all the other documents contained in the electronic case file.

2

[* 2]
In.his Complaint, Plaintiff alleges that the Town "failed to complete the proper
environmental impact review and to otherwise ensure that the operation of the solar farm will not
adversely impact the environment and otherwise damage the area adjoining the farm" (Plaintifr s
complaint, NYSECF Doc. No. 2 at ,I 18). He also claims that there was no application made for
a varianc.e, and that there was a conflict of interest because the Town's attorney has also
represented solar farm developers. Plaintiff claims that he suffered aesthetic harm (Plaintiff's
complaint, NYSCEF Doc. No. 2 at ,I 16) and a "reduction in [the property's] value ... and ...
significant emotional distress and mental anguish as a result of having to look at solar panels
inst~ad of the scenic view and the wildlife in the area which is one of the reasons he purchased
the property" (Plaintiff's Complaint at ,I 19)
The Town filed the instant motion on June 3, 2025, seeking to dismiss the Complaint. It
argues that this case should be dismissed because: the action should have been brought as an
Article 78 action, and not a plenary action; it is barred by the statute of limitations [CPLR
321 l(a)(S)], and the Plaintiff did not serve a timely Notice of Claim; and the Town is immune
from negligence liability.
Plaintiff filed opposition to the motion to dismiss and also cross moved to amend the
Complaint to add additional defendants and causes of action. He attached a proposed Amended
Complaint. With respect to adding additional defendants, Plaintiff wants to add the operator of
the solar farm (Citizens Energy) and owners of the parcel(s) where the solar farm was
constructed. There is no indication why those parties were _not named as Defendants in the initial
Complaint. Plaintiff also seeks to assert in the proposed Amended Complaint that the property
where the solar farm was constructed is d~signated as R-M Residential, and that a variance was
required for approval, which Citizens failed to obtain; and that had the proper procedure been
followed, Plaintiff (and other adjoining landowners) would have been entitled to notice of the
project and been able to make timely objections; and that the Town failed ·to properly consider
visual· impact, noise impact and environmental damage that would result from the proposed
development.

3

[* 3]
LEGAL DISCUSSION AND ANALYSIS

"In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded
a liberal construction" Goshen v. Mut. Life Ins. Co., 98 NY2d 314, 326 (2002), see Leon v.
Martinez, 84 NY2d 83, 88 (1994). The Court must "accept the facts as alleged in the complaint
as true, accord plaintiffI] the benefit of every possible favorable inference, and determine only
whether the facts as alleged fit within any cognizable legal theory" Goldman v. Metropolitan Life
Ins., Co., 5 NY3d 561, 570-571 (2005); see Leon v. Martinez, supra.
Although a motion to dismiss does not have the benefit of a full discovery, a party may
seek to rely on written records in some circumstances, which the moving party believes clearly
establish that the other party cannot succeed on the claim. This is addressed in CPLR 321 l(a)(l)
and deals with "documentary evidence." To prevail on a motion to dismiss pursuant to CPLR
321 l(a)(l), the movant must demonstrate that ''the documentary evidence utterly refutes
plaintiffs factual allegations, conclusively establishing a defense as a matter of law" R.L Is.
House, LLC v. North Town Phase II Houses, Inc., 51 AD3d 890, 893 (2 nd Dept. 2008), quoting
Goshen v. Mut. Life Ins. Co., 98 NY2d at 326; see Ko/chins v. Evolution Mkts., Inc., 31 NY3d
100 (2018); HSBC Bank USA, N.A. v. Decaudin, 49 AD3d 694,695 (2nd Dept. 2008); Fontanetta
v. John Doe I, 73 AD3d 78 (2nd Dept. 201 O); see also, Leon v. Martinez, supra at 88. "Materials
. that clearly qualify as documentary evidence include documents reflecting out-of-court
transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are
essentially undeniable" Ganje v. Yusuf, 133 AD3d 954, 956-957 (3 rd Dept. 2015); citing
Midorimatsu, Inc. v. Hui Fat Co., 99 AD3d 680,682 (3 rd Dept. 2012),-/v dismissed22 NY3d
1036 (2013). In the instant case, the Town has raised CPLR 321 l(a)(l) and relies on the records
of the Town Planning Board; in particular, the October 18, 2021 Planning Board Minutes where
a negative declaration was made. A negative declaration reflects that the lead agency has
concluded that there "are no significant adverse effects associated with the project" Matter of
Creda, LLC v. City of Kingston Planning Bd, 212 AD3d 1043, 1044 (3 rd Dept. 2023); Matter of
South Bronx Unite! v. New York City Indus. Dev. Agency, 115 AD3d 607, n.1 (1 st Dept. 2014); 6
NYCRR 617. The Court concludes that the meeting minutes of the Planning Board, which
provide a written account of the Planning Board's actions, qualify as documentary evidence that
could be considered on a motion to dismiss under CPLR 321 l(a)(l).

4

[* 4]
In addition to CPLR 321 l(a)(l), another ground for dismissal is found in CPLR
321 l(a)(7), which allows a defendant to challenge the legal sufficiency of a complaint and
permits the Court to grant dismissal when the Complaint fails to state a cause of action. That
generally involves showing either that the factual allegations do not support a claim recognized
under the law, or that even if there is a potential claim,_ the allegations do not support all the
el~ments. When addressing a motion to dismiss under CPLR 321 l(a)(7), the "ultimate criterion
is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated
one" Schmidt & Schmidt, Inc. v. Town ofCharlton, 68 AD3d 1314, 1315 (3rd Dept. 2009),
quoting Leon v. Martinez, 84 NY2d 83, 88. If the plaintiff alleges facts that support a claim, the
complaint would be sufficient, even if the causes of action were not specifically and properly
identified. The pertinent consideration "'is whether plaintiffs have a cause of action and not
whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal
theory"' Duffy v. Baldwin, 183 AD3d 1053, 1054 (3 rd Dept. 2020), quoting Alaimo v. Town of
Fort Ann, 63 AD3d 1481, 1482 (3 rd Dept. 2009) (other citations omitted). Thus, a poorly drafted
complaint will be saved from dismissal if the court can discern a possible cause of action.
The distinction between CPLR 321 l(a)(l) and (a)(7}can become blurred in some
situations. "When documentary evidence is submitted by a defendant, 'the standard morphs from
whether the plaintiff stated a cause of action to whether it has one'" Basis Yield Alpha Fund
(Master) v. Goldman Sachs Group, Inc., 115 AD3d 128, 135 (1 st Dept. 2014), quoting John R.
Higgitt, CPLR 3211 [a][7] and [a][7] Dismissal Motions-Pitfalls and Pointers, 83 NY St. BJ 32,
33 (2011). That is because the documentary evidence is being used to conclusively establish that
no cause of action actually exists. See, e.g. Maldonado v. DiBre, 140 AD3d 1501 (3 rd Dept.
2016). Even though the complaint may contain a well-pleaded cognizable claim, the
documentary evidence shows plaintiff cannot prevail. See, Basis Yield Alpha Fund (Master) v.
Goldman Sachs Group, Inc., 115 AD3d at 135.
With that backdrop, the Court now turns to the motion presented in this case. Florance's
initial Complaint alleges that the Town allowed the project to move forward without properly
notifying owners of neighboring properties, and also without the Town conducting an
environmental impact study. As such, it is essentially a challenge to the Town's decision
concerning the solar project.

5

[* 5]
CPLR Article 78 is the main method to review and challenge administrative actions. See,
Riverview Dev. LLC v. City of Oswego, 125 AD3d 1417 (4th Dept. 2015); Lund v. Town of
Yorktown, 226 AD2d 1043 (3 rd Dept. 1996); see also, Matter of Van Dykv. Town ofGreenfield
Planning Bd, 190 AD3d 1048 (3 rd Dept. 2021); Haggerty v. Planning Bd ofSand Lake, 166
AD2d 791 (3 rd Dept. 1990). Plaintiff is challenging the actions and/or inactions of the Planning
Board that resulted in the negative declaration, site plan approval and development of the solar
project. Those issues would be properly addressed in an Article 78 action. See, e.g. Matter of
Hoefler v. Town ofPompey Planning Bd, 2025 NY App. Div. LEXIS 6562 (4 th Dept. 2025)
(Article 78 action .to challenge Planning Board's negative declaration and site plan approval for a
project); Matter ofCaci v. Board ofEduc. ofthe Cornwall Cent. Sch. Dist., 241 AD3d 820 (2nd
Dept. 2025) (negative declaration constitutes final determination for purposes of challenge to
action of public body); Matter ofRoss v. Village ofFayetteville, 233 AD3d 1466 (4 th Dept. 2024)
(Article 78 to challenge Planning Board's negative declaration and site plan approval); Bristol
Homeowners Envtl. Preserv. Assoc., LLC v. Town ofS. Bristol, 122 AD3d 1259 (4th Dept. 2014)
(challenge to Planning Board's actions could be taken by an Article 78 and is thus subject to a
shorter statute of limitatio~s). Instead, Florance brought this case as a plenary action, not an
~icle 78 action. That flaw is not necessarily insurmountable, as the- Court may exercise its
discretion to convert the action into an Article 78 proceeding. See, CPLR 103(c); Awan v. City
ofNew York, 92 AD3d 406, (1 st Dept. 2012); see also, Jackson v. Town ofNanticoke, 2025 NY
Misc LEXIS 1814 (Sup. Ct. Broome County 2025).
A court, however, is not free to simply convert a case to an Article 78 action in every
instance. If a claim should have been brought as an Article 78 action, but would be barred by the
Statute of Limitations, then the Court cannot convert the action. See, Meisner v. Hamilton,
Fulton, Montgomery Bd. of Coop. Educ. Servs., 175 AD3d 1653 (3 rd Dept. 2019). "R~gardless
of how a plaintiff may label or style his or her claim[s], courts must look to the core of the
underlying claim[s] and the relief sought and, if the claim[s] could have been properly addressed
in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply"
Schulz v. Town Bd. of the Town of Queensbury, 178 AD3d 85, 89 (3 rd Dept. 2019) (emphasis
added), app dismissed 34 NY3d 1177 [2020], Iv denied 35 NY3d 1.080 (2020), cert denied 141 S.
· Ct. 2513 (2021 ).

6

[* 6]
Here, the Planning Board issued the negative declaration on October 18, 2021. That was
an action (or inaction) of a governmental body. The proper way to challenge that finding and
action was by an Article 78. The Summons and Complaint were filed on April 2, 2025, long
after the expiration of the 4-month limitation for an Article 78 action. CPLR 217(1); Doyle v.
Goodnow Flow Assn., Inc., 193 AD3d 1309, 1311 (3 rd Dept. 2021) ("CPLR article 78
proceedings must be commenced within four months after a challenged determination becomes
final and binding" [citations omitted]). Therefore, conversion to an Article 78 action is not
appropriate in this circumstance. Based on the documentary evidence concerning the date of the
Planning Board's determination, the Court can conclude that the challenge should have been
made within 4 months of October 18, 2021, but that was not done. 2 Since the action was not
timely commenced, the Court does not have latitude to convert the action to an Article 78
proceeding.
The Court also notes that even if this claim was considered as a plenary action, and under
a negligence theory instead of an Article 78 proceeding, it is still untimely. A negligence claim
has a three-year statute of limitations. CPLR § 214. Claims against a municipality must be
brought within one-year and ninety days. CPLR § 217-a. Plaintifr s Complaint was filed almost
3 ½ years after the Planning Board's determination, so a negligence claim would be time barred
by CPLR § 214 and§ 217-a.
Furthermore, to the extent that the Complaint asserts that the Town's actions/inactions
constituted negligence by failing to alert adjoining landowners and/or to protect those adjoining
landowners from environmental harm, the Court also concludes that such a claim is not available
to the Plaintiff. When a municipality is exercising a governmental function, a claim of
negligence can only be maintained if the municipality owed a special duty to the plaintiff.
Ferreira v. City ofBinghamton, 38 NY3d 298 (2022); see, Maldovan v. County ofErie, 39 NY3d
166 (2022); Kulon v. Liberty Fire Dist., 212 AD3d 1033 (3 rd Dept. 2023). "A special duty is one

2
Although not specifically addressed by the Town, and not crucial in the Court's determination, a shorter statute
of limitation might arguably apply. Town Law§ 267-c{l) states that "(a]ny person or persons, jointly or severally
aggrieved by any decision of the board of appeals or any officer, department, board or bureau of the town, may
apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and
rules. Such proceeding shall be instituted within thirty days after the filing of a decision of the board in the office of
the town clerk." Here, since the action was not commenced within even the 4-month timeframe, it also was not
commenced within the timeframe listed in Town Law§ 267-c{l). Similarly, Town Law§ 274-a {11) provides for a
30-day limitations period for challenging a decisio·n {by an Article 78 proceeding) of a Planning Board or an officer,
department or board of a town.

7

[* 7]
that is more than that owed the public generally. This doctrine was developed to rationally limit
the class of citizens to whom the municipality owes a duty of protection. Thus, the existence of a
special duty is an element ·that is essential to plaintiffs negligence cause of action" Kulon, 212
AD3d at 1035 (internal quotation marks and citations omitted). Florance's Complaint does not
even allege a special duty or a breach or any special duty. Therefore, it fails to state a cause of
action for negligence against the Town.
To summarize, the Court concludes that this action should have been commenced as an
Article 78 proceeding to challenge the determination of the Planning Board. While the Court
does have discretion to convert a plenary action into an Article 78 proceeding, that option is not
available here because it would be beyond the 4-month statute of limitations, or even the
applicable statute of limitations for the specific tort action. In addition, Plaintiff has not alleged a
special duty owed to the Plaintiff by the Town.
The Town has also raised defenses related to the Plaintiff's failure to state a claim for an
alleged conflict of interest involving the Town attorney, and for Plaintiffs failure to file a timely
notice of claim. Due to the Court's conclusions that the case is time barred, there is no need to
consider those additional arguments.
Plaintiff's proposed Amended Complaint fares no better. The statute of limitations still
precludes an Article 78 claim or any claim with a three~year statute of limitations, so amending
the Complaint would not alter the Court's discussion above concerning the time bar for an
Article 78 claim or a negligence claim. However, Plaintiffs proposed amendments also seek to
add causes of action for ongoing trespass, as well as private and public nuisance. Since the
offenses are ongoing, Plaintiff claims they have continued to accrue and would not be barred by
the statute of limitations.
When considering amendments, "[p]ursuant to CPLR 3025 (b), a party may amend its
pleadings 'at any time by leave of [the] court,' which 'shall be freely given upon such terms as
may be just"' NYAHSA Servs., Inc. Self-Ins. Trust v. People Care Inc., 156 AD3d 99, 102 (3 rd
Dept. 2017), quoting Kimso Apts., LLC v. Gandhi, 24 NY3d 403,411 (2014); Walden v.
Varricchio, 195 AD3d 1111 (3 rd Dept. 2021). "When leave is sought to amend a pleading, 'the
movant need not establish the merits of the proposed amendment and, in the absence of prejudice
or surprise resulting directly from the delay in seeking leave, such applications are to be freely
granted uriless the proposed amendment is palpably insufficient or patently devoid of merit"'

8

[* 8]
Lakeview Outlets Inc. v. Town ofMalta, 166 AD3d 1445, 1446 (3 rd Dept. 2018), quoting Belair
Care Ctr., Inc. v. Cool Insuring Agency, Inc., 161 AD3d 1263, 1265-1266 (3 rd Dept. 2018);
Passeri v. Brody, 199 AD3d 1260, 1261 (3 rd Dept. 2021); Gulfstream Anesthesia Consultants,
P.A. v. Cortland Regional Med. Ctr., Inc., 165 AD3d 1430 (3 rd Dept. 2018); NYAHSA Servs.,
Inc., Self-Ins. Trust v. People Care Inc., 156 AD3d at 102. "Prejudice is more than the mere
exposure of the party to greater liability [and] [r]ather, there must be some indication that the
party has been hindered in the preparation of the party's case or has been prevented from taking
some measure in support of its position. The burden of establishing prejudice is on the party
opposing the amendment" Kimso Apts., LLC v. Gandhi, 24 NY3d at 411 (internal quotation
marks, brackets, citations and end citations omitted); Tardi v. Casler-Bladek, 216 AD3d 1267
(3 rd Dept. 2023); Lilley v. Greene Cent. Sch. Dist., 187 AD3d 1384 (3 rd Dept. 2020); see, Verdi v.
SP Irving Owner, LLC, 227 AD3d 932 (2 nd Dept. 2024); Lakeview Outlets Inc. v. Town ofMalta,
166 AD3d 1445. "The decision to grant leave to amend a complaint is within the trial court's
sound discretion and will not be disturbed absent a clear abuse of that discretion" Place v.
Preferred Mut. Ins. Co., 190 AD3d 1208, 1212 (3 rd Dept. 2021) (internal quotation marks and
citations omitted); Walden v. Varricchio, 195 AD3d at 1112-1113; Green Tree Servicing, LLC v.
Feller, 159 AD3d 1246 (3 rd Dept. 2018); Cowsertv. Macy's E., Inc., 14 AD3d 1444 (3 rd Dept.
2010) Gersten-Hillman Agency v. Heyman, 68 AD3d 1284 (3 rd Dept. 2009).
In addition to the consideration of delay or prejudice, a proposed amendment must also
have some basic validity, in order to avoid a waste of judicial resources. For example, if a claim
is utterly refuted by documentary evidence [41 N 73 W., Inc. v. Westair Aviation Servs., LLC, 77
AD3d 707 (2nd Dept. 2010)] or is otherwise facially defective [see e.g., Kalivia Food Corp. v.
Hunts Point Coop. Mkt., 244 AD2d 460 (2nd Dept. 1997)], it would be pointless to permit an
amendment. Similarly, if a proposed amendment would be barred by the statute of limitations, it
. is "palpably insufficient or patently devoid of merit." Belair Care Ctr., Inc. v.. Cool Insuring
Agency, Inc., 161 AD3d at 1266.
Plaintiff's proposed Amended Complaint seeks to add a claim for trespass. "[T]he
elements of a trespass cause of action are an intentional entry onto the land of another without
permission" Ivory v. International Bus. Machines Corp., 116 AD3d 121, 129 (3 rd Dept. 2014)
(claim for vapor intrusion from soil contamination to residential homes). Florance seeks to add a
cause of action based on the interference the solar development has had on his use and

9

[* 9]
enjoyment of his property, and he claims that such an encroachment constitutes an ongoing
trespass.
Initially, the Court notes that intangible intrusions are generally categorized as nuisances,
rather than trespasses. Del Vecchio v. Gangi, 225 AD3d 667,669 (2nd Dept. 2024) ("Generally,
intangible intrusions, such as by noise, odor, or light alone, are treated as nuisances, not trespass
because they interfere with nearby property owners' use and enjoyment of their land, not with
their exclusive possession of it") (internal quotation marks and end citation omitted); see, Ivory
v. International Bus. Machines Corp., 116 AD3d 121. Regardless of that potential misnomer or
mischaracterization, even if the Court considers this under a trespass theory, Plaintiff has not set
forth a viable cause of action because "a municipality cannot be liable for trespass ~ased on its
regulation of land use unless it also was affirmatively involved in an approved project" City of
Albany v. Normanski/l Cr., LLC, 165 AD3d 1437, 1439 (3 rd Dept. 2018). There are no
allegations in the proposed Amended Complaint that the Town's actions implicate anything other
than its land use authority; there are no aliegation such as an ownership interest, financial interest
or any other connection with the solar farm. Therefore, the Court concludes that a claim against
the Town for trespass is palpably insufficient.
Plaintiff also seeks to add claims for private and public nuisance. "The elements of a
private nuisance cause of action are an interference (1) substantial in nature, (2) intentional in
origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5)
caused by another's conduct in acting or failure to act" De/Vecchio v. Collins, 178 AD3d 1336,
1337 (3 rd Dept. 2019), quoting; Broxmeyer v. United Capital Corp., 79 AD3d 780, 782 (2nd Dept.
2010); Burdickv. Tonoga, Inc., 191 AD3d 1220 (3 rd Dept. 2021). Here, there are no allegations
in the Amended Complaint that touch on the Town's intent: Therefore, any claim for a private
nuisance is palpably insufficient.
Turning to the next possibility, ''[a] public nuisance consists of 'conduct or omissions
which offend, interfere with or cause damage to the public in the exercise of rights common to
all, in a manner such as to offend public morals, interfere with use by the public of a public place
or endanger or injure the property, health, safety or comfort of a considerable number of
persons"' Duffy v. Baldwin, 183 AD3d at 1054-1055, quoting City ofNew York v. Smo~s-
Spirits.Com, Inc., 12 NY3d 616, 626 (2009). A private cause of action is only available to a
private individual if the person suffered some special injury beyond that of the public at large.

10

[* 10]
See, 532 Madison Ave. Gourmet Foods, I_nc. v. Finlandia Ctr., Inc., 96 NY2d 280 (2001).
Plaintiff's proposed amendments do not allege a special injury to Florance and therefore, the
claim for any public nuisance is palpably insufficient.
The Court therefore concludes that the motion to amend the Complaint to add causes of
action against the Town must be denied. The proposed amendments would be barred-by the
applicable statutes of limitation, rendering them palpably insufficient, or they fail to allege all
necessary elements for the cause of action being claimed.
The Court will next consider the Plaintiffs request to add additional defendants to this
case. Currently, the Town is the only Defendant on notice and appearing on this motion, but
Plaintiff seeks to add new parties to the action. Since the proposed amendment of the Complaint
is being denied due to being palpably insufficient (as being time barred or lacking in necessary
allegations), the Court could simply dismiss the Complaint and deny the request to join
additional parties. See, Mees v. Stibbe N. Y.B. V., 195 AD3d 569 (1 st Sept. 2021 ); 0 'Connell v.
Zoning Bd ofAppeals, 267 AD2d 742 (3 rd Dept. 1999). However, the C~urt will address the
r:ules concerning requests to add additional parties.
A distinction must be made between a motion to amend the Complaint (CPLR 3025) and
a motion to add a party (See CPLR §§1001, 1002, 1003). Plaintiff's cross-motion also seeks to
add new parties, and he claims it is appropriate under CPLR § 1002(b), concerning permissive
joinder of parties. Plaintiff argues that the new parties "engaged in conduct ranging from failing
to properly apply for a variance, to trespassing on the plaintiffs property and creating a nuisance
with the noise levels that were going on and continue to go on day in and day out interrupting
plaintiffs quiet enjoyment of his premises" (Plaintiffs Memorandum of Law, NYSCEF Doc.
No. 17 at p.3). CPLR § 1002(b) provides that "[p]ersons against whom there is asserted any
right to relief jointly, severally, or in the alternative, arising out of the same transaction,
occurrence, or series of transactions or occurrences, may be joined in one action as defendants if
any common question of law or fact would arise." The proposed new defendants are the
operator of the solar farm and the owners of parcels upon which the solar farm was built. Those
parties were clearly involved in the transactions upon which the Complaint was based-the
approval and development of a solar farm. Thus, they would appear to be included within the

11

[* 11]
terms of CPLR § 1002(b). 3 The statute does not require notice to a party sought to be joined.
Siegel & Connors, NY Prac §138 (6 th ed 2018). However, it bears noting that the proposed new
defendants have not had an opportunity to be heard on the question ofjoinder, or to brief the
issue for the Court.
When any Complaint is filed, a defendant is not generally invited to comment on whether
he or she has any objection to being sued. Instead, the action is simply brought against a
potential defendant, and after service of the summons and complaint, there is an opportunity °for
a defendant to make a motion to dismiss, if appropriate. In this case, however, the issue is
. presented to the Court in the context of Plaintiffs motion to amend the Complaint and to add
new parties. Since a Complaint has already been filed, it is appropriate for the Court to assess
the validity of any claims against new defendants, and determine if the Plaintiff should be
permitted to add additional defendants.
As discussed above, the defocts in the proposed Amended Complaint against the Town
deal with statute of limitations and failure to state a cause of action for the additional claims.
Those arguments would apply equally to any new defendants. Any claim under Article 78 could
not be brought against the potential new defendants who are private individuals or businesses.
The Court will consider the claims of negligence, trespass, public nuisance and private
nuisance against the proposed new defendants. Ultimately, the Court concludes that those cl~ms
are barred by the statute of limitations.
Claims of trespass or nuisance against the proposed new defendants are deficient. With
respect to the claim of an ongoing trespass (which could arguably evade the statute of
limitations), "the elements of a trespass cause of action are an intentional entry onto the land of
another without permission. Regarding intent, the defendant 'must intend the act which amounts
to or produces the unlawful invasion, and the intrusion must at least be the immediate or
inevitable consequence of what he or she willfully does, or which he or she does so negligently
as to amount to willfulness"' City ofAlbany v. Normanskill Cr., LLC, 165 AD3d at 1439,
quoting Ivory v. International Bus. Machines Corp., 116 AD3d at 129. Further, as already

3
The Plaintiff does not provide any explanation as to why those entities were not included in the
original Complaint, or address if they were "necessary parties" under CPLR § 1 l0i. The Court
makes no determination as to that question and will focus on the issue as framed by the parties;
to wit, permissive joinder under CPLR §§ 1002, 1003.
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mentioned, courts have not allowed trespass claims when the alleged entry was intangible. See,
C & B Enters. USA, LLCv. Koegel, 136 AD3d 957 (2nd Dept. 2016). The claimed entry.here
involves obstruction of Plaintiff's view, interference with his ability to watch television arid
sleep. The Court concludes that these are "intangible entries", not coming within a trespass
·cause of action. Furthermore, the proposed amendments do not allege an intentional entry onto
Plaintiff's land. Therefore, consistent with the discussion above concerning the Town, the
claims here do not constitute a trespass. Thus, the amended Complaint is palpably insufficient as
to the trespass claim. The Court will next consider the claims for private nuisance and public
nuisance.
A private nuisance claim involves "action or inaction that substantially and unreasonably
interferes with other people's use and enjoyment of their property" De/Vecchio v. Collins, 178
AD3d 1336, 1336. "In order to bring a cause of action for private nuisance, a plaintiff must also
show that the defendant's interference was intentional. An interference is intentional when the
actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially
certain to result from his conduct" Berenger v. 261 W. LLC, 93 AD3d 175, 183 (1 st Dept. 2012)
(internal quotation marks and citations omitted). The proposed Amended Complaint does not
contain any allegations as ~o the intent of the proposed ·new defendants, nor allegations that the
proposed new parties meant to cause an interference or knew (or were substantially certain) that
the interference would result. Therefore, the proposed Amended Complaint fails to state a cause
of action for private nuisance as to the new parties, thereby making it palpably insufficient.
As to a claim for a public nuisance, Plaintiff's failure to allege special injury is equally
applicable to any claims against the new defendants. A private cause of action is only available
if the person "suffered special injury beyond that suffered by the community at large" Duffy v.
Baldwin, 183 AD3d at 1055, quoting 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96
NY2d 280, 292. It is conduct that interferes with, or causes damage to, the public, or interferes
with use of public places or has deleterious effects on a large number of people. Here, there are
no allegations that the interests involved herein involve a public place or public rights, nor are
there allegations to establish a special injury that would permit a private person to bring a claim
for a public nuisance.
After review of the proposed amendments, the Court finds that the allegations do not set
forth grounds or facts that could state valid claims against the proposed new parties.

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Accordingly, the Court also denies amendment of the Complaint to add any new defendants
under CPLR 1002 or CPLR 1003.

CONCLUSION

Based on the foregoing, the Court concludes that Town has shown its entitlement to
dismissal of the original Complaint and that the proposed Amended Complaint is palpably
insufficient.
Accordingly, it is hereby

ORDERED, that the Town' s motion to dismiss the Complaint is GRANTED; and it is further

ORDERED, that Plaintiff's motion to file and serve an Amended Complaint is DENIED.

Any issues raised by the parties and not specifically addressed herein have been found to be
without merit.

This constitutes the Decision and Order of this Court.

_z__,
Dated: January 2026
Binghamton, New York
- FAUGHNAN
Supreme Court Justice

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NYSCEF Confirmation Notice
Broome County Supreme Court
The NYSCEF website has received an electronic filing ·on. 01/08/2026 01 :32 PM. Please keep this notice
as a confirmation of this filing.
EFCA2025001010
Mark Florance v. Town of Dickinson
Assigned Judge: Eugene D. Faughnan

. .
Documents Received on 01/08/2026 01:32.PM
Doc# Document Type
23 DECISION + ORDER ON MOTION, Motion #1

Filing User
Filed by court user.

E-mail Notifications
An email regarding this fili'ng has been sent to the following on 01/08/2026 01:32 PM:

RONALD R BENJAMIN - ronbenjaminlaw@stny.rr.com
MARISSA DADA EMBOLA - membola@sokoloffstern.com
KIMBERLY HUNT LEE - klee@sokoloffstern.com

Joseph A. Mihalko, Broome County Clerk - clerklnfo@co.broome.ny.us
Phone: Phone: 607.778.2255 Fax: Fax: 607.778.2243 Website: http://www.gobroomecounty.com/clerk

NYSCEF Resource Center, nyscef@nycou~s.gov
Phone: (646) 386-3033 I Fax: (212) 401-9146 I Website: www.nycourts.gov/efile

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11240438. Public record. Not legal advice.