Challenge Brought In 2009 To Claimed Improper Use Of Parkland Which Started In 1946 Is Not Time Barred

Citing the public trust doctrine, the Appellate Division sustained the issuance of a preliminary injunction against the non-park use of alleged parkland, despite the fact that the use of the property for non-park purposes dates to 1946. In Capruso v. Village of Kings Point, the Second Department upheld the issuance of a preliminary injunction by the lower court and agreed that this 2009 action was not time barred.

Plaintiffs commenced this action seeking a declaration that the current and proposed use of certain Village property for non-park purposes, without permission of the State Legislature, violates the public trust doctrine. The lower court granted a preliminary injunction against continued non-park use and denied the defendant's motion to dismiss. But plaintiffs were unable to post the required bond. Thereafter, the State commenced a second action on essentially the same grounds and was granted a preliminary injunction, while the court again denied a cross motion to dismiss.

On appeal, the Appellate Division sustained denial of the motion to dismiss and the granting of the preliminary injunctions.

"Contrary to the appellants' contention, the statute of limitations did not bar the subject actions. A municipality's current and ongoing use of dedicated parkland for nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine is a continuing wrong that the municipality has the ability to control and abate.... insofar as the plaintiffs' second cause of action seeks declaratory and injunctive relief predicated on allegations of the Village's current and ongoing use of the alleged parkland for certain nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine, the plaintiffs' second cause of action is not time-barred.... Moreover, insofar as the plaintiffs' first cause of action and the State's first and second causes of action seek declaratory and injunctive relief based on the public trust doctrine to prevent the Village's proposed use of the alleged parkland for certain nonpark purposes without State Legislative approval pursuant to a plan first publicly announced by the Village in November 2008, those causes of action also are not time-barred...."

-Steven Silverberg.