Cite as: Mahler v. Campanie, 2502-11, NYLJ 1202574198810, at *1 (Sup., ALBANY, Decided October 3, 2012)

Justice Michael C. Lynch

Decided: October 3, 2012

ATTORNEYS

Attorneys for Plaintiff: George F. Carpinello, Esq., of Counsel, Boies, Schiller & Flexner, LLP, Albany, NY.

Attorneys for Defendants S. John Campanie, Esq. and Campanie Wayland-Smith, PLLC, William J. Dreyer, Esq., of Counsel, Dreyer Boyajian, LLP, Albany, NY.

Attorney for Defendant Thomas DiNapoli, Comptroller of the State of New York, Nelson Sheingold, Esq., Assistant Counsel, Nancy G. Groenwegen, Esq., Counsel to the Comptroller, Albany, NY.

Papers Considered:

1. Notice of Motion of defendants Campanie returnable June 28, 2012, with Affirmation of William J. Dreyer, Esq. dated June 1, 2012, with Exhibits "A" — "H"; Affidavit of S. John Campanie, Esq., dated June 1, 2012 with Exhibit "A"; Affirmation of Seth Agata, Esq., dated May 31, 2012 with Exhibit "A"; Affirmation of Andrew Rose, Esq. dated May 23, 2012' Memorandum of Law dated June 1, 2012;

2. Notice of Motion of defendant State Comptroller returnable June 28, 2012 with Memorandum of Law dated June 1, 2012; Affidavit of Margaret Becker dated May 30, 2012 with Exhibits "A" — "D"; Affirmation of Set Agata, Esq., dated May 31, 2012 with Exhibit "A"; Affirmation of Nelson Sheingold, Esq. dated June 1, 2012 with Exhibits "A" — "F";

3. Plaintiffs' Memorandum in Opposition dated June 29, 2012; Affirmation of George Carpinello, Esq. dated June 29, 2012 with Exhibits "A" — "B";

4. Reply Affidavit of S. John Campanie, Esq. dated July 20, 2012 with Exhibits "A" — "C"; Reply Affirmation of William J. Dreyer, Esq. dated July 20, 2012 with Exhibits "A" — "B"; Reply Memorandum of Law dated July 20, 2012;

5. Comptroller's Reply Memorandum of Law dated July 20, 2012. Other Papers submitted:

6. Notice of Motion to Subpoena by Plaintiffs, initially returnable April 18, 2012 with Affirmation of George Carpinello, Esq. dated April 13, 2012, and Exhibits "A" — "B"; and

7. Affirmation in Opposition of Daniel Berman, Esq. dated May 31, 2012 with Exhibits "1"-"4"; Supplemental Affirmation of Daniel Berman, Esq. dated July 19, 2012.

 

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The underlying facts are set forth in the Court's Decision and Order (Lynch, J.) dated January 24, 2012 (see Mahler v. Campanie, 34 Misc 3d 1219A).

By Notice of Motion returnable June 28, 2012, the defendants S. John Campanie and Campaine and Wayland-Smith, PLLC (hereinafter Campanie collectively) seek an order of summary judgment dismissing the complaint as moot or, alternatively, a protective order as to discovery. Also, by separate motion returnable June 28, 2012, defendant Thomas DiNapoli, as Comptroller of the State of New York, has effectively applied for the same relief. Plaintiffs have opposed each application. Oral argument was held on October 1, 2012.

This Court has determined that plaintiffs' claim is subject to a one year statute of limitations, and thus embraces payments to Campanie from April 11, 2010 forward (Id.). In their submissions, Campanie represents that all payments received through the State — Nixon Peabody contract and from Madison County since April 11, 2010 have been refunded to the State and County respectively, with interest.1 Attorney Campanie has affirmed that neither he nor his firm would seek any future payments pursuant to State Law §10 from Nixon Peabody, or expense reimbursement from Madison County (see Affirmation of S. John Campanie, Esq. dated June 1, 2012 at paragraphs 11 and 12). On May 30, 2012,

 

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Campanie signed an agreement with the County of Madison terminating a Memorandum of Understanding by which the County had provided payments to Campanie as reimbursement for his private office expenses (see Exhibit "A" annexed to Affidavit of S. John Campanie dated June 1, 2012). The County authorized the termination of the MOU by Resolution No. 165-12 adopted by the Madison County Board of Supervisors on May 8, 2012 (Exhibit "A"). That resolution further memorialized that future payments to the County Attorney would be limited to his salary (Exhibit "A"). By letter dated April 11, 2011 counsel to the Governor notified Nixon Peabody that no further compensation would be paid for the legal services of Attorney Campanie (see Exhibit "A" annexed to the affirmation of Seth H. Agata, Esq. dated May 31, 2012). In turn, Nixon Peabody has represented that no payments have been made to Attorney Campanie or his firm since September 13, 2010 and "we have no intention or expectation of doing so in the future" (see Affirmation of Andrew Rose, Esq dated May 23, 2012 at paragraph 4).

Since the Governor has disallowed any continued payments to Attorney Campanie, the State Comptroller points out that as a practical matter no future payment vouchers for Attorney Campanie's services will be submitted to the Comptroller for review and approval (NY Const and v. §1; State Finance Law

 

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§§8[7], 110 and 111). Pertinent here, under State Law §10, the Governor is authorized to contract with counsel to defend the County against a land claim, not the State Comptroller (Matter of County of Broome v. Cuomo, 102 AD2d 266, affirmed 64 NY2d 1051).

Given the above, defendants contend that the case is moot because any further judicial determination would not have a direct, immediate impact on the rights of the parties (see Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714). The Court agrees. The funds have been returned and each participant in the underlying transaction has disavowed the future payment of state funds to Campanie or his firm. In addition, both Campanie and the County of Madison have terminated their office expense reimbursement arrangement and limited his future compensation to his salary. This is not a situation where a party, acting alone, has simply discontinued conduct challenged as illegal, leaving open the real prospect of simply resuming the same conduct once the case was dismissed (compare Adams v. Bowater Incorporated, 313 F3d 611 [case not moot where employer refused to confirm that it would not resubmit a pension plan amendment restricting employee benefits in the future]). Here, each participant in the underlying transaction has represented that no further state payments under State Law §10 or County reimbursement for private office expenses will be made.

 

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While plaintiff characterizes the parties as "acting in concert" for "the sole purpose of mooting this case" (Plaintiff's Memorandum of Law at p.1), the Court does not see it that way. Certainly, Attorney Campanie and his law firm are not in a position to dictate to the Governor's Office, the State Comptroller, the County of Madison and the private law firm of Nixon Peabody how to proceed in this matter. Each participant has expressly confirmed that the transactions with Campanie have been terminated and will not be resumed. The Comptroller's explanation is not equivocal, but a due recognition of the authority and statement by the Governor's counsel, that no further payments for Campanie's services to Madison County will be sanctioned. Plaintiffs' contention that future public officials might proceed otherwise is speculative. This Court is satisfied that defendants have shown that the likelihood of renewed payments to Campanie is sufficiently remote as to make injunctive relief unnecessary (United States v. WT Grant Co., 345 US 629, 635; Matter of Schultz v. State of New York, 175 AD2d 356, lv denied 78 NY2d 862; New York Pub. Interest Research Group v. Regan, 91AD2d 774, 775, lv denied 58 NY2d 610; Funderburke v. New York State Dept. of Civ. Serv., 49 AD3d 809; Matter of Schultz v. State of New York, 210 AD2d 781).

With due recognition that this is a taxpayer action under State Finance Law §123-b and General Municipal Law §51, the Court finds that the refunding and

 

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discontinuance of the Campanie payments has resolved the controversy, rendering the case moot. This holds true even without an express acknowledgment of wrongdoing by the defendants (Id). Plaintiffs' final thesis that the case is not moot since County Law §201 entitles Madison County to the compensation received by Campanie mistakenly presupposes that the payments were authorized. Notably, Madison County makes no such claim. The compensation funds at issue were properly returned to the State. Since the Court finds no exception to the mootness doctrine, the action must be dismissed (see Matter of Hearst Corp. v. Clyne, supra 50 NY2d at 714-715). In view of this determination, plaintiffs' motion to issue subpoenas pursuant to CPLR 2307, initially returnable April 18, 2012 is hereby dismissed.

Accordingly, it is hereby

ORDERED, that defendants' respective motions for summary judgment dismissing the Complaint are granted, and the Complaint is dismissed, without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to William J. Dreyer, Esq., attorney for defendants S. John Campanie, Esq. and Campanie & Wayland-Smith, PLC. The original papers are being sent to the Albany County Clerk. The signing

 

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of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

1. At oral argument, Campanie's counsel confirmed that the checks have been negotiated.