Third Department, May 11, 2023

Robert L. Schulz, appellant pro se.

Anthony Futia Jr., appellant pro se.

Joshua Trost, appellant pro se.

William C. James, appellant pro se.

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondents.

Appeals (1) from a judgment of the Supreme Court (James P. Gilpatric, J.), entered July 20, 2022 in Albany County, which, among other things, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motion to dismiss the petition/complaint, and (2) from an order of said court, entered August 9, 2022 in Albany County, which denied petitioners' motion to accept a surreply.

In March 2022, respondent Governor Kathy Hochul announced an agreement between respondent State of New York, Erie County and the Buffalo Bills to build a new stadium in the Town of Orchard Park, Erie County that is expected to cost $1.4 billion. The State's contribution of $600 million was included in the 2022-2023 budget bill for capital projects, which appropriated the funds to the Urban Development Corporation (hereinafter UDC) for services and expenses related to the development of the proposed stadium. Petitioners, four resident taxpayers, commenced this hybrid CPLR article 78{**216 AD3d at 24} proceeding and declaratory judgment action alleging that the appropriations in the budget bill to UDC violate NY Constitution, article VII, § 8 (1), which prohibits the State from appropriating public funds in aid of a private undertaking. In addition, petitioners challenged part YY of the budget bill, which they contend "authoriz[ed]" Erie County to appropriate funds, and violated NY Constitution, article VIII, § 1 by using public funds in aid of a private undertaking. Respondents moved, pre-answer, to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) (7) arguing that the budget appropriations are constitutional. Petitioners opposed, and Supreme Court, in July 2022, dismissed the petition, relying primarily on Bordeleau v State of New York (18 NY3d 305 [2011]) and finding that appropriations to a public benefit corporation do not violate the prohibition on providing public funds, even in the aid of a private undertaking. In August 2022, the court also denied a motion filed by petitioners seeking to file a surreply on the grounds that, among other things, it was submitted after the court had rendered its decision. Petitioners appeal from the July 2022 judgment and the August 2022 order.^[FN1]

Petitioners contend that Bordeleau v State of New York is inapplicable or incorrectly decided and that the appropriations of State funds to the UDC and use of Erie County funds for a new stadium violate the NY Constitution.^[FN2] Before examining the constitutionality of the legislation authorizing the expenditures, a brief discussion of the UDC is warranted. The UDC is a public benefit corporation, created in 1968 by statute (see McKinney's Uncons Laws of NY § 6254 [1] [New York State Urban {**216 AD3d at 25}Development Corporation Act, as added by L 1968, ch 174, § 1, as amended]). Its enabling act contained legislative findings that it is "the policy of the state to promote a vigorous and growing economy" and that "there is a serious need throughout [*2]the state for adequate educational, recreational, cultural and other community facilities" (Uncons Laws § 6252). Accordingly, the UDC "may provide . . . the capital resources necessary" to build, rebuild, or otherwise improve such facilities (Uncons Laws § 6252). The UDC has broad authority to improve urban environments, including "provid[ing] for the construction, reconstruction, improvement, alteration or repair of any project" (Uncons Laws § 6255 [9]). A project includes a "[c]ivic project," which is defined as any facility designed for "the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes" (Uncons Laws § 6253 [6] [d]). Many civic projects also involve "private entities" (Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 258 [2010], cert denied 562 US 1108 [2010]), including former renovations to Rich Stadium, the same stadium which is the subject of this appeal (see L 1998, ch 387, §§ 2 [j]; 4). The stadium was originally built following the passage of chapter 252 of the Laws of 1968, the findings declaring the "very public purpose for which the stadium is authorized"—to provide "recreation, entertainment, amusement, education, enlightenment, [and] cultural enrichment" (Murphy v Erie County, 28 NY2d 80, 87 [1971], quoting L 1968, ch 252, § 2).

We now turn to the constitutionality of the legislation authorizing the current expenditures. To begin, "[l]egislative enactments carry an exceedingly strong presumption of constitutionality, and while this presumption is rebuttable, one undertaking that task carries a heavy burden of demonstrating unconstitutionality beyond a reasonable doubt" (Matter of Walt Disney Co. & Consol. Subsidiaries v Tax Appeals Trib. of the State of N.Y., 210 AD3d 86, 92 [3d Dept 2022] [internal quotation marks and citations omitted]; see White v Cuomo, 38 NY3d 209, 216 [2022]). This presumption is "exceedingly strong" where a plaintiff challenges state expenditures designed to further the public interest (Bordeleau v State of New York, 18 NY3d at 313 [internal quotation marks and citation omitted]). In this regard, the Court of Appeals has "recognized the need for deference involving 'public funding programs essential to addressing the problems of modern life, unless such programs{**216 AD3d at 26} are patently illegal' " (id. [internal quotation marks omitted], quoting Schulz v State of New York, 84 NY2d 231, 241 [1994], cert denied 513 US 1127 [1995]). Significantly, "when a court reviews such a decision, it must operate on the rule that it may not substitute its judgment for that of the body which made the decision. Judges, however much they might disagree with the wisdom of the act under review, are not free to invalidate it on that ground" (Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358, 370 [1978] [citation omitted]). Nevertheless, as noted, the presumption is rebuttable, and an unconstitutional expenditure [*3]cannot abide (see generally Schulz v State of New York, 84 NY2d at 241).

As to the substantive controlling law, the NY Constitution establishes that "[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking" (NY Const, article VII, § 8 [1]).^[FN3] "[T]he appropriate standard for resolving a challenge to an appropriation, whether under article VIII, § 1 or article VII, § 8 (1)," is that "an appropriation is valid where it has a predominant public purpose and any private benefit is merely incidental" (Bordeleau v State of New York, 18 NY3d at 317, 318; see Murphy v Erie County, 28 NY2d at 87-88). Moreover, "it is undisputed that article VII, § 8 (1) permits the granting of public funds to public benefit corporations for a public purpose" (Bordeleau v State of New York, 18 NY3d at 316) and expenditures for stadiums have expressly been found to have a public purpose (see e.g. Murphy v Erie County, 28 NY2d at 87-88). Further, "[b]ecause public benefit corporations[, like UDC,] benefit from a status separate and apart from the State, money passed to public corporations consequently cannot be subject to the article VII, § 8 (1) prohibition against gifting or loaning state money as such money is no longer in the control of the State" (Bordeleau v State of New York, 18 NY3d at 316 [emphasis added]).^[FN4]

In support of their motion to dismiss, respondents submitted portions of the Capital Projects appropriations from the 2022-{**216 AD3d at 27}2023 budget bill, which provides $2,204,000 "for services and expenses related to the retention of professional football in Western New York" and $600 million "for services and expenses for athletic facilities related to professional football in Orchard Park," including the "demolition of existing facilities" and development and construction of the stadium. The appropriation also specifies that funds are subject to contractual agreement between Erie County Stadium Corporation and the Buffalo Bills. Respondents also submitted portions of part YY of the budget bill, which indicates that the development of the stadium is a "specific . . . purpose for which indebtedness may be contracted and serial bonds and bond anticipation notes of [Erie County] may be issued," but which does not appropriate any money from or to Erie County itself (L 2022, ch 56, § 1, part YY, § 1). In opposition to respondents' motion to dismiss, petitioners submitted a news article indicating that the Buffalo Bills is a private corporation, as well as a press release indicating that Erie County will contribute $250 million towards the stadium, with the State contributing $600 million and the Buffalo Bills contributing the remainder of the cost.

[2] Initially, we find petitioners' challenges to the appropriations to the UDC unavailing since the expenditures are for a statutorily authorized purpose, i.e., a stadium rebuild (see Murphy v Erie County, 28 NY2d at 87-88; see e.g. L 1998, ch 387, § 1; L 1997, ch 432, § 13; L 1982, ch 459, § 1[*4]; L 1974, ch 699, § 1), and thus fall outside the prohibitions contained in{**216 AD3d at 28} article VII, § 8 (1).^[FN5] Despite this, petitioners assert that the appropriations nevertheless violate article VII, § 8 (1) because they support a private undertaking. First, it is true that the appropriations will aid a private undertaking and, as such, petitioners' concerns are legitimate. However, it is equally true that sports stadiums serve a public purpose and, as recognized by the Legislature, "improve the quality of life for the state's citizens, create and retain jobs, attract business investment and enhance the state's reputation as a national or global destination" (L 1997, ch 432, § 21; see L 1998, ch 387, § 1; L 1982, ch 459, § 1; L 1974, ch 699, § 1). To this point, "an appropriation is valid where it has a predominant public purpose and any private benefit is merely incidental" (Bordeleau v State of New York, 18 NY3d at 317 [emphasis added]; see Murphy v Erie County, 28 NY2d at 87-88). Second, as noted by respondents, the constitutional prohibitions against gifts and loans do not apply to a one-time transfer of funds or property—whether to a public or private entity—that fulfills "a predominantly public purpose" (Bordeleau v State of New York, 18 NY3d at 318; see Murphy v Erie County, 28 NY2d at 84, 87-88; see Tribeca Community Assn. v New York State Urban Dev. Corp., 200 AD2d 536, 537 [1st Dept 1994], appeal dismissed 83 NY2d 905 [1994], lv denied 84 NY2d 805 [1994]). As the Court of Appeals held in Murphy v Erie County, the stadium in Erie County to be used by the Bills has "for its primary object a public purpose" (28 NY2d at 88 [internal quotation marks and citation omitted]). Thus, the appropriation of State funds to the UDC does not violate the NY Constitution.

[4] We turn now to petitioners' claim that part YY of the budget bill violates article VIII, § 1 of the NY Constitution. As a threshold matter, we note that Erie County is not a party and a declaratory judgment action can only decide "the rights and other legal relations of the parties to a justiciable controversy" (CPLR 3001). Further, part YY neither provides funds to an entity nor requires Erie County to do so; rather it clarifies and amends a 1968 law by providing that Erie County may issue bonds for the stadium (see L 2022, ch 56, § 1, {**216 AD3d at 29}part YY, § 1). Regardless, for the same reasons that petitioners' challenge to the State's appropriation to the UDC fails, so would such challenge to appropriations by Erie County. To the extent that Erie County appropriates money to the UDC, or any other public benefit corporation, those appropriations are not subject to the constitutional prohibition on gifting money to private entities (see Bordeleau v State of New York, 18 NY3d at 313, 315). To the extent that Erie County appropriates money directly to private parties for the stadium project, we find that those appropriations are similarly not barred by that constitutional prohibition because, as detailed above[*5], the stadium fulfills a predominantly public purpose (see id. at 318; Murphy v Erie County, 28 NY2d at 87-88).

[5] Finally, respondents contend that Supreme Court should not have dismissed petitioners' claims but, rather, should have issued a declaration in respondents' favor and that this Court should modify the judgment accordingly.^[FN6] We agree.

"Upon [a pre-answer motion to dismiss a declaratory judgment action], a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented by the controversy . . . [and, u]nder such circumstances, the motion to dismiss the cause of action for failure to state a cause of action should be taken as a motion for a declaration in the defendant's favor and treated accordingly" (Sullivan v New York State Joint Commn. on Pub. Ethics, 207 AD3d 117, 124 [3d Dept 2022] [internal quotation marks and citations omitted]).

Given that there are no questions of fact, the judgment will be modified by reversing the dismissal of the complaint and instead granting a declaration in favor of respondents that the challenged appropriations do not violate the NY Constitution.

Garry, P.J., Lynch, Reynolds Fitzgerald and McShan, JJ., concur.{**216 AD3d at 30}

Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed the petition/complaint; it is declared that the appropriations in the 2022-2023 budget bill to the Urban Development Corporation do not violate NY Constitution, article VII, § 8 (1) and that part YY of the budget bill does not violate NY Constitution, article VIII, § 1; and, as so modified, affirmed. Ordered that the order is affirmed, without costs.