In this combined Article 78 proceeding and action for a declaratory judgment, defendants/respondents move to dismiss the Amended petition/complaint. The State of New York appeared by letter dated December 5, 2007, indicating that it would not be submitting papers. By stipulation of the parties, and contrary to the prior OTSC pertaining to the same, the parties ask the court to convert the motion to dismiss into a motion for summary judgment "pursuant to CPLR 3211(c) on due notice to all parties." Stipulation and Order, dated November 28-29, 2007, and endorsed as an order of the court on December 3, 2007. That request is granted.

STANDING [*2]

The County defendants/respondents contend that plaintiff/petitioners lack standing to bring the proceeding. To the extent the challenge is to the constitutionality of the intercept program, as implemented by the County Legislature resolution, it appears that plaintiffs/petitioners indeed do lack standing. Havranek v. Mathews, 160 AD2d 1207, 1208 (3d Dept. 1990); Forward v. Webster Cent. School Dist., 136 AD2d 277, 280 (4th Dept. 1988). Even if standing was present, however, plaintiffs/petitioners cannot succeed on the merits of their claims.

CLAIMED VIOLATION OF COUNTY LAW §150-a(2) and §152(2)

Relying on Plumley v. County of Oneida, 57 A.D. 1062 (4th Dept. 1977) and McGovern v. Tatten, 213 AD2d 778 (3d Dept. 1995), plaintiffs/petitioners contend that the special meeting should be declared a nullity by virtue of the failure to comply with the two day notice requirement of County Law §150-a(2) and §152(2). The County defendants/respondents contend that the County Charter provisions relating to notice trump the County Law in this regard by virtue of County Law §2, and that a declaration of nullity is inappropriate given the attendance of all members of the legislature and their active participation in the meeting.

In Plumley, not all members attended the meeting, and the court held that the remaining members at the meeting could not cure the defect. Here all members attended, and so that case is distinguishable. "Moreover, if all members of a town board are present at a special meeting and participate therein, business may properly be transacted even though the two days' notice in writing was not given to all members." 25 NY Jur.2d Counties, Towns and Municipal Corporations §141, at 252-53 (2001). The Attorney General has consistently opined that, if all members are present and participate in the meeting, the defect is waived. 1980 Op. (Inf.) Att'y Gen. 129 (April 14, 1980); 1977 Op. Att'y Gen. 226; 1950 Op. Att'y Gen. 117. The Comptroller has opined to the same effect. 18 Op. St. Compt. 442, 443 (#

62-977 Decemberv 5, 1962)("presence of all members of a town board at a special meeting and their participation therein would satisfy that requirement"). See also, Brechner v. Village of Lake Success, 25 Misc 2d 920 (Sup. Ct. Nassau Co. 1960)(Meyer, J.)("Since all of the Board members were present and voted, the ordinance may not be invalidated simply because oral rather than written notice of the meeting was given. 4 McQuillen, Municipal Corporations (3d Ed.) § 13.37; 62 C.J.S. Municipal Corporations § 297d, p. 756."), aff'd, 14 AD2d 567 (2d Dept. 1961), cited with approval, Alscot Investing Corp. v. Laibach, 65 NY2d 1042, 1044 (1985). Accordingly, the County Law two day notice claim is without merit and a declaratory judgment to that effect may be submitted for signature.

OPEN MEETINGS LAW CHALLENGE

Plaintiffs/petitioners contend that the special session of the legislature was called to order in violation of Public Officers Law §104. The county defendants/respondents respond that they made extraordinary efforts to alert the public, through the news media and via internet and other channels, of the meeting and to ensure widespread public access. Moreover, it is undisputed that the public attended the meeting and plaintiff/petitioners acknowledged that at least two members of the public made comment during the meeting. There was also a motion to adjourn which was defeated by a majority vote. The court finds that the procedure used, while truncated, was designed to ensure that the goals of the open meetings law would be met by throughly public deliberation and vote, and thus was reasonable within the meaning of the statute. Even if there was a violation of the statute effected exclusively by the truncated nature of the public notice [*3](and I find that there was not, see below), invalidation is not an appropriate sanction. Only if good cause is established, is it discretionary with a court to nullify an action taken by a public body in violation of the Open Meetings Law. Public Officers Law §107; Matter of New York Univ. v. Whalen, 46 NY2d 734; McGovern v. Tatten, 213 AD2d 778. It is the challenger's burden to show good cause warranting voiding the public action. Gernatt Asphalt v. Sardinia, 87 NY2d 668, 686 (1996).

The purpose of the Open Meetings Law is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public (see, Matter of Gordon v. Village of Monticello, 87 NY2d 124, 126-127; Matter of Sciolino v. Ryan, 81 AD2d 475, 440 NYS2d 795). Courts are empowered, "in their discretion and upon good cause shown, to declare void any action taken by a public body in violation of the mandate of this legislation" (Matter of New York Univ. v. Whalen, 46 NY2d 734, 735 [emphasis in original]; see, Public Officers Law § 107 [1]). It is the challenger's burden to show good cause warranting judicial relief (Matter of New York Univ. v. Whalen, 46 NY2d, at 735, supra ).

Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 NY2d 668, 686 (1996). As in Mobil Oil Corp. v. City of Syracuse Indus. Development Agency, 224 AD2d 15 (4th Dept. 1996), "Petitioners have not met their burden of establishing that the . . . [County Legislature] carried out public business in private." Id., 224 AD2d at 29-30. The resolution was adopted at a special session "open to the public," and by all accounts well attended. Griswald v. Village of Penn Yan, 244 AD2d 950, 951 (4th Dept. 1997). See also, Schweichler v. Village of Caledonia

—- AD3d ——, 2007 WL 3318068 (4th Dept. November 29, 2007); Carrier v. Town of Palmyra Zoning Bd. of Appeals, 30 AD3d 1036, 1038 (4th Dept. 2006), and esp. Monroe-Livingston Sanitary Landfill, Inc. v. Bickford, 107 AD2d 1062 (4th Dept. 1985)(involving same day public notice of special session deemed reasonable under Public Officers Law § 104 [2]).Accordingly, the Open Meetings Law challenge to the resolution is without merit, and a declaratory judgment to that effect may be submitted for signature.

INFRINGEMENT OF STATE'S CONSTITUTIONAL DUTY TO PROVIDE MINIMAL EDUCATION

Plaintiffs/petitioners have wholly failed to meet their heavy burden to show that the County Legislature resolution which adopted the sales tax intercept option would be a "causal link between the present funding system and a proven failure to provide a sound basic education to . . . children." Campaign for Fiscal Equity, Inc. v. State of New York, 8 NY3d 14, 15 (2006). Defendants/respondents establish as a matter of law on this record that, with the affected suburban and adjoining school districts, that establishing such a causal link is, at best, premature. We do not know yet how the affected districts will respond to the shortfall, either by cutting services or by raising property taxes, or otherwise, nor is their any record of "proven failure to provide a sound basic education to . . . children" in these districts which might be used as a predicate for the speculative and indirect claims made here.

The remaining contentions of the plaintiffs/petitioners in the various and separately stated causes of action, which are largely derivative of the claims treated above, do not warrant separate comment, and are without merit. Accordingly, the Article 78 proceeding is dismissed, and a declaratory judgment may be submitted for signature consistent with the above. [*4]

SO ORDERED.

______________________

Kenneth R. Fisher

Justice Supreme Court

DATED:December 10, 2007

Rochester, New York