DECISION AND ORDER The matter came on for the return of an Order to Show Cause and a Cross-Motion to Dismiss.On September 20, 2018, the Respondent voted to dissolve under GML Article 17-A. Thereafter, the Petitioner brought this Article 78 Proceeding to rescind the dissolution plan claiming that the Respondent failed to provide a dissolution plan, that the Respondent cannot dissolve until the Town of Oneonta has established and put in place a plan to provide fire protection to the residents of the Town of Oneonta Fire District, that there was improper notice, and that the Respondent violated the open meeting law (POL §104).In response, the Respondent submitted a Motion to Dismiss, claiming that there is no mechanism within GML Article 17-A for Petitioner to intervene or disrupt a duly commenced dissolution proceeding, and in any event, the action taken by the Respondent was neither arbitrary nor capricious.The seminal issue is standing. The Petitioner admits that it has no statutory authority to challenge the Respondent’s dissolution, but argues that since “there is no clear legislative intent negating a review” (Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 NY2d 148, 156 [1994]), the capacity to sue is inferred as a “necessary implication from [the Agency's] power[s] and responsibilit[ies]” (ID). While it may arguably have the capacity to sue, the Petitioner must nevertheless show (1) injury in fact and (2) that the Petitioner’s injury falls within the zone of interests or concerns sought to be promoted or protected by GML Article 17-A (New York State Assn. of Nurse Anesthetists v. Novello, 2 NY3d 207, 212 [2004]).Here, the Petition does not contain any specific allegations that the Petitioner was, or would be harmed, only conjecture. Petitioner claims that it does not have any plan for fire protection services in place, nor the time or legal authority to provide such services before Respondent’s dissolution, but it ignores the fact that fire/ambulance services will continue to be provided by the City of Oneonta, without any action required from Petitioner. It simply has to pay for those services (GML §790). The Respondent’s contract with the City of Oneonta does not expire until December 31, 2018. And the City of Oneonta has already expressed a willingness, and in fact, a desire, to enter into a one-year contract with Petitioner to continue providing services.And the claim that this will have a dramatic impact on its budget is not injury in fact. The taxpayers within the Fire District pay for the present services, whereas all the taxpayers in the Town will pay for future services. The Town’s budget does not have to be approved until November 14, 2018, and therefore, there is ample time to calculate the appropriate tax levy.Furthermore, the Petitioner has failed to provide any legal basis upon which to challenge the Respondent’s dissolution proceeding. If the Court would allow same, it would permit one governmental entity to prohibit another governmental from dissolving upon a whim and would frustrate the intent of the statute. The Respondent does not need a reason to dissolve, it simply must do so in accordance with the law. And a review of the Respondent’s dissolution plan dated August 14, 2018 shows that it has clearly complied in all respects to the statutory mandates of GML Article 17-A.Notwithstanding the foregoing, the Respondent’s proposed plan of dissolution specified that the Petitioner would continue to provide for fire protection services to those properties within Respondent’s boundaries as required by GML §790, which states, unequivocally, that the Petitioner shall assume all the outstanding debts, liabilities and obligations of Respondent which “shall be a charge upon the taxable property within the limits of the dissolved entity.” The argument that dissolution should be stayed pending Petitioner’s adoption of a specific plan is irrelevant and immaterial inasmuch as there is no requirement that dissolution be conditioned upon the Petitioner’s approval of that plan.The claim of defective notice is also without merit. Notice was posted at the town hall, as was custom, because it was the best, and only, place to ensure that the proposed dissolution plan was readily accessible to the public (GML §775(1)). Although this failed to comply precisely with the statutory provision, it is harmless and excusable as a mere irregularity (see Cipperley v. Town of E. Greenbush, 213 AD2d 933 [3rd Dept 1995]). In addition thereto, notice was also made in the Daily Star and on the Town’s website. The fact that there were so many members of the general public in attendance, as well as the news media and all the members of Petitioner, belies the claim of defective notice.Finally, the allegation that the Respondents violated the open meeting law is without any basis in fact. The special meeting was scheduled on the only date all the Commissioners could attend on less than one week notice, both fax and e-mail notices were sent to the Daily Star, and notice was posted. Since each member of the Oneonta Town Board was at the meeting and public hearing on September 18, 2018 and special meeting on September 20, 2018, Petitioner waived its claim that notice was not given in strict compliance with the law (see John P. Krupski & Bros., Inc. v. Town Board of Town of Southhold 54 AD3d 899 [2nd Dept 2008]).Not only does the Petitioner not have standing, but there is no evidence to substantiate the allegations contained in the Petition. Quite to the contrary, the facts and law offered by Respondent clearly warrant a dismissal of this proceeding.NOW, THEREFORE, after due deliberation thereon, it isORDERED, that the Temporary Restraining Order contained in the Order to Show Cause be and the same is hereby VACATED; and it is furtherORDERED, that the Cross-Motion to Dismiss is GRANTED, and this proceeding is DISMISSED, together with costs.Dated: October 31, 2018Cooperstown, New YorkThe following documents upon which this Decision and Order is made have been filed in the Office of the Otsego County Clerk:1. Order to Show Cause2. Affidavit of Robert T. Wood, sworn to October 2, 20183. Notice of Petition dated October 3, 20184. Verified Petition dated October 3, 20185. Affirmation of Robert A. Panasci, Esq., dated October 4, 20186. Memorandum of Law dated October 3, 20187. Affirmation of Terence S. Hannigan, Esq., dated October 4, 20188. Verified Answer dated October 15, 20189. Record of Non-Adjudicatory Proceeding10. Supplemental Record of non-Adjudicatory Proceeding11. Affidavit of Johna Peachin, sworn to October 15, 201812. Notice of Motion13. Affirmation of Terence S. Hannigan, Esq., dated October 15, 201814. Respondent’s Memorandum of Law dated October 15, 201815. Affirmation of Robert A. Panasci, Esq., dated October 17, 201816. Affidavit of Robert T. Wood, sworn to October 22, 201817. Memorandum of Law in Opposition dated October 23, 201818. Affirmation of Terence S. Hannigan, Esq., dated October 26, 2018
