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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
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In The Matter of Index No .:
RJINo. :
2-4 KIEFFER LANE LLC,

Petitioner-Plaintiff, NOTICE OF
PETITION
For .a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules and a Declaratory Judgment
Pursuant to Section 3001 of the Civil Practice Law
And Rules,

-against-

THE COUNTY OF ULSTER and THE ULSTER COUNTY


INDUSTRIAL DEVELOPMENT AGENCY, JOHN MORROW,
RANDALL LEVERETTE, ROBERT KINNIN, MICHAEL
BERNHOLZ, JOHN LIVERMORE AND JAMES MALCOLM,

Respondent-Defendant( s).

-:--~--------------------------------------------------------------------------)(

PLEASE TAKE NOTICE, that upon the Verified Petition and Complaint, verified on

September 18, 2017, and the Affirmation in Support of the Verified Petition and Complaint dated

September 18, 2017, and the exhibits annexed thereto, and all prior pleadings and proceedings had

herein, 2-4 KIEFFER LANE LLC ("Petitioner"), by and through its attorneys, Timothy P.

McColgan, Attorney at Law, will move this Court, located at 285 Wall Street, Kingston, New York

12401 , at a Special Term thereof, on the 20th day of October, 2017, at 9:30 AM, or as soon

thereafter as counsel may be heard, for an Order and judgment pursuant to CPLR Article 78

granting the relief sought in the accompanying Verified Petition and Complaint in full, including:

(i) annulling the determinations of Respondents the County of Ulster and the Ulster County

Industrial Development Agency (collectively, "Respondents") on August 9, 2017, to wit: the


' . n

Industrial Development Agency Board's unanimous vote in favor of the Resolution denying

Petitioner's application for sales and use tax exemption; (ii) compelling and directing Respondents

to approve Petitioner's application for sales and use tax exemption pursuant to CPLR 7801; (iii)

declaring that the Respondents proceeded in excess of its jurisdiction pursuant to CPLR 7803(2);

(iv) declaring that as a result of a hearing held and based on the entire record the determination of

the Respondents is not supported by substantial evidence pursuant to CPLR 7803 (4); (v) declaring

that the determination of the Ulster County Industrial Development Agency was made in violation

of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse

of discretion pursuant to CPLR 7803(3) and (vi) declaring the process and determination of

Respondents to be in violation of Petitioners fundamental rights of due process and substantial

fairness.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 7804(e), Respondents are

directed to file with the Clerk of the Court a certified transcript of the record of proceedings under

consideration in the Verified Petition.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 7804(c), all answering

papers and cross motions, with supporting papers, if any, shall be served at least five days before

the aforesaid return date.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 506(b), Petitioner designates

Ulster County as the proper place of venue for this proceeding, as a county within the judicial

district where Respondents made the determination complained of or refused to perform the duty

specifically enjoined upon them by law, where the material events took place, and in which

Respondents have its principal office.


Lfj f iJ ip ()

Dated: September 18, 2017


New Paltz, New York
By: --:/- ,.,.-~~-:;:!;~ ,. . . . . . . . . . . . ..-
Timothyp~"McColgan
Attomf at Law
Attq.riieys for Petitioner-Plaintiff
20 Duzine Road
New Paltz, New York 12561
(845) 419-5022
mccolganlaw@twcmetrobiz.com
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
----------------------------------------------------------------------------)(
In The Matter of IndexNo. 1'7-aSo(j.._
RJINo .:
2-4 KIEFFER LANE LLC,
VERIFIED PETITION
Petitioner-Plaintiff, AND COMPLAINT

For a Judgment Pursuant to Article 78 of the Civil


Practice Law and Rules and a Declaratory Judgment
Pursuant to Section 3001 of the Civil Practice Law FILED
And Rules,

-against-
----
3 H f i lM
2~

THE COUNTY OF ULSTER and THE ULSTER COUNTY


INDUSTRIAL DEVELOPMENT AGENCY, JOHN MORROW,
RANDALL LEVERETTE, ROBERT KINNIN, MICHAEL
BERNHOLZ, JOHN LIVERMORE AND JAMES MALCOLM,

Respondent-Defendant( s).

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Petitioner-Plaintiff 2-4 KIEFFER LANE LLC ("Petitioner"), by and through its attorneys,

Timothy P. McColgan, Attorney at Law, as and for its Verified Petition and Complaint alleges as

follows:

PRELIMINARY STATEMENT

1. This is a CPLR Article 78 proceeding and Declaratory Judgment action seeking,

among other relief, (i) annulling the determinations of Respondents the County of Ulster and the

Ulster County Industrial Development Agency (collectively, "Respondents") on August 9, 2017,

to wit: the Industrial Development Agency Board's unanimous vote in favor of the Resolution

denying Petitioner's application for sales and use tax exemption; (ii) cdhipelling and directing

Respondents to approve Petitioner's application for sales and use tax exemption pursuant to CPLR
7801; (iii) declaring that the Respondents proceeded in excess of its jurisdiction pursuant to CPLR

7803(2); (iv) declaring that as a result of a hearing held and based on the entire record the

determination of the Respondents is not supported by substantial evidence pursuant to CPLR 7803

(4); (v) declaring that the determination of the Ulster County Industrial Development Agency was

made in violation of lawful procedure, was affected by an error of law, or was arbitrary and

capricious or an abuse of discretion pursuant to CPLR 7803(3) and (vi) declaring the process and

determination of Respondents to be in violation of Petitioners fundamental rights of due process

and substantial fairness.

PARTIES

2. 2-4 Kieffer Lane LLC is a domestic limited liability company existing under the

laws of the State of New York with a principal place of business located at 2-4 Kieffer Lane,

Kingston, New York 12401.

3. Upon information and belief, the County of Ulster is a municipal corporation of the

State of New York with a principal place of business located at 244 Fair Street, Kingston, New

York 12401.

4. Upon information and belief, the Ulster County Industrial Development Agency is

a duly constituted corporate governmental benefit agency under Article 18-A of the New York

State General Municipal Law with a principal place of business located at 244 Fair Street, 6th Floor,

Kingston, New York 12401.

5. Upon information and belief John Morrow is an individual residing in the County

of Ulster, State ofNew York.

6. Upon information and belief Randall Leverette is an individual residing in the

County of Ulster, State of New York.


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7. Upon information and belief Michael Bemholz is an individual residing in the

County of Ulster, State ofNew York.

8. Upon information and belief Robert Kinnin is an individual residing in the County

of Ulster, State ofNew York.

9. John Livermore is an individual residing in the County of Ulster, State of New

York.

10. Jrunes Malcolm is an individual residing in the County ofUlster State ofNewYork.

FACTS

11. 2-4 Kieffer Lane LLC, Petitioner herein, was formed for the business purpose of

the operation and lease of tower cranes for the erection of high rises, heavy infrastructure and other

uses within an area from New York City to Buffalo.

12. Sole Member, Thomas Auringer, is the owner of Urban Precast LLC (hereinafter

"Urban") which is a hollow core precast plank manufacturer located in the Town of Ulster.

13. Urban has been in business in the Town of Ulster since 2003 and produces and

transports to New York City and other municipalities three million (3,000,000) square feet of

precast plank annually.

14. Petitioner is also sole member of US Crane and Rigging LLC which is a crane

company that erects both precast plank and structural steel in high rise buildings in New York

City.

15. Urban employs forty eight (48) people and contributes five (5) to seven (7) million

dollars into the local economy (County and Town of Ulster) and to local vendors annually.

16. Urban's workmen's compensation experience modification rate or MOD is .88

which is considered an excellent safety rating.


~--------------------------------- --- ----

(\
I

17. Mr. Auringer decided to open and operate a crane business in the County of Ulster.

To that end Mr. Auringer purchased a 4.4 acre facility with a thirty eight thousand square foot

existing building with a purchase price of two million dollars ($2,000,000).

18. This parcel is located in the Town of Ulster and adjoins the property of Urban

Precast LLC which Mr., Auringer has owned and operated since 2003.

19. Since its inception, Urban has never experienced any labor or safety issues at the

manufacturing site located in the County and Town of Ulster which is reflected through the MOD

safety rating.

20. Urban has become one of if not the largest manufacturer in the Town of Ulster.

21. As part of the business plan Mr. Auringer formed 2-4 Kieffer Lane LLC as the real

estate holding company and US Crane LLC as the operating crane company. Both entities are

located at 2-4 Kieffer Lane, Kingston, New York.

22. Us Crane and Rigging LLC is one of if not the largest open shop (non-union) crane

company in the City of New York.

23. As a result for a period of twenty five (25) years labor unions within the City of

New York have attempted to obstruct Mr. Auringer's business including but not limited to

approaching his employees, obstructing work sites and publishing defamatory materials for public

consumption.

24. Particularly active in obstruction and dissemination of defamatory and

unsubstantiated materials is a labor interest Group known as the NYC Community Alliance for

Worker Justice (the "Alliance").

25. The Alliance is based in New York City and has no business interest or business

location in the County of Ulster.


26. Now, on April 3, 2017, 2-4 Kieffer Lane LLC submitted to Respondents an

application for sales and use tax exemption with a request for nine hundred and seventy five

thousand two hundred dollars ($975,200) for the purchase of mobile cranes in furtherance of its

business plan. (Ulster County Industrial Development Agency Application annexed hereto as

Exhibit "A").

27. In consideration of the sales and use tax exemption and as part of Petitioner's

business plan, Petitioner would provide eighteen (18) full time jobs as follows: two (2) managerial

jobs, twelve (12) skilled and four (4) semi-skilled positions.

28. Petitioner's application for sales and use tax exemption was submitted and a

Resolution for a Public Hearing was approved at the April 12, 2017 regular meeting. The Public

Hearing was scheduled for May 4, 2017. (Public Hearing Resolution Affidavit and Notice annexed

as Exhibit "B").

29. The NYC Alliance for Worker Justice, a New York City union interest group, then

began a series of ex parte communications with Respondents.

30. Upon information and belief the Alliance did not submit any written materials prior

to the First Public Hearing which is reflected in the Proposed Statement issued by Respondents to

be read at the first public hearing which states "[No] (emphasis in the original) written comments

have been received by the Agency prior to this Public Hearing". (See Public Hearing Opening

remarks annexed as Exhibit "R")

31. Upon information and belief, in a hand-bill created by the union interest group, a

series of spurious, unsubstantiated, inaccurate and in some instances, intentionally false allegations

were submitted to Respondents. (Alliance hand-bill annexed as Exhibit "C").


n n

32. The Public Hearing was conducted on May 4th, 2016 and aside from Costanzi

Crane, a mobile crane business located on Sawkill Road in the Town of Kingston, not one resident

or property owner from the Town of Ulster or the County of Ulster unaffiliated with organized

labor appeared to object to the project nor did any resident unaffiliated with organized labor of the

Town of Ulster or the County of Ulster appear to object to the requested sales and use tax

exemption.

33. Instead, the public hearing was inundated with members of the New York City

union interest group and local union representatives. (Transcript of May 4th Public Hearing

annexed as Exhibit "D").

34. The Public Hearing was closed on May 4th to public comments. Any additional

comments were to be in writing and submitted to the Board for a period of twenty one (21) days.

35. On May 10th, 2017, at the Respondent's regular monthly meeting the Board

engaged in ex parte communication and public comment with Michael Hamm, a representative of

the International Union of Operating Engineers.

36. Mr. Hamm, the union representative, made a public comment which was recorded

by the Respondent and was even published in the Kingston Daily Freeman.

37. The Chairman of the Board of Respondents made it clear at the closing of the May

4th public hearing that any further comments would need to be in writing.

38. Petitioner did not appear at the May 10th regular monthly meeting as the public

comment period was closed. The public comments received and documented by the Board were

made after the public comment period was closed and outside the presence of Petitioner, and

therefore, upon information and belief, an illegal, improper ex parte communication in violation

of Respondents own mandates made on the record at the May 4th public hearing.
(~

39. Upon information and belief, the continued ex parte communication and public

statements likewise constitute a violation of the Petitioner's right to due process and opportunity

to be heard. (Draft minutes of the May 10th Regular meeting of the Respondent annexed as "E").

40. Subsequent to the May 4th Public Hearing, Petitioner reviewed the issue of

uniqueness and decided to Amend its Application to reflect a purchase of Tower Cranes and one

(1) mobile crane. A search of Ulster County was conducted and Petitioner found that there were

no companies within the County of Ulster which offered the lease and operation of Tower Cranes.

41. Counsel for Respondent advised that Amendments to Applications are done by

letter and that any application wherein there was not a one hundred thousand dollar ($100,000)

difference in the application request, would not have to undergo a second public hearing.

42. In or about May 24, 2017, Petitioner submitted a letter Amendment to Respondent

as instructed by Respondents Counsel and the amount of the requested sales and use tax exemption

was within one hundred thousand dollars ($100,000) and therefore a second public hearing was

not called for under 859-a of the General Municipal Law. (May 24th letter Amendment to

Application annexed as Exhibit "F").

43. The requested sales and use tax exemption in the first application was nine hundred

and seventy five thousand two hundred dollars ($975,200).

44. The Amended requested sales and use tax exemption is nine hundred and seventy

eight thousand two hundred and sixty eight dollars ($978,268), a difference of three thousand and

sixty eight dollars ($3,068).

45. At the June regular meeting of the Respondent, again subsequent to the closing of

public comment at the first public hearing, Mr. Hamm from the International Union of Operating
(/~,

Engineers Local 825 and Eddie Jorge representative of the union interest group NYC Community

Alliance for Worker Justice appeared at the meeting. Petitioner was not present.

46. According to the minutes of the meeting, the chairman for Respondent, Mr.

Horodyski, summarized that Petitioner had submitted an Amended application and that an expert

chosen by Respondent and paid by Petitioner had conducted and issued a study, wherein, the tower

cranes were judged to be unique within the County of Ulster.

47. Upon information and belief, the Respondent than decided on improper procedures

and did require Petitioner to submit an entirely new application, notwithstanding 859-a of the

General Municipal Law.

48. Upon information and belief, the decision by the Board requiring a new application

in the instant case was an unknown, without notice, material change in policy from all other

applicants similarly situated in the entire history of the Ulster County Industrial Development

Agency.

49. Upon information and belief, the Respondent did materially alter its policy singling

out this Petitioner and did apply requirements to Petitioner differently than any similarly situated

applicant in the history of that body all in direct contradiction to the advice and instructions given

to Petitioner by Respondent's counsel. (June 14th, 2017, regular meeting draft minutes annexed as

Exhibit "G").

50. Upon information and belief, at the June 14th regular meeting the Respondent

issued a second improper and illegal Resolution for a public hearing on the Amended Application.

(Public Hearing Resolution and Notice of Public Hearing on the Amended Application annexed

as Exhibit "H")
51. Respondent states in its "Opening Remarks" of the Public Hearing "Pursuant to

Section 859-a(2) of the General Municipal Law of the State of New York (the "Act"), prior to the

Agency providing any 'financial assistance' (as defined in the Act) of more than $100,000 to any

project, the Agency, among other things, must hold a public hearing pursuant to Section 859-a of

the Act with respect to said project. Since the proposed 'financial assistance' to be provided by

the Agency with respect to the Proposed Project may exceed (emphasis added) $100,000, then

prior to providing any 'financial assistance" .... the agency must hold a public hearing ... ".

52. Upon information and belief, the referenced statement in connection to the amount

of the Amended sales and use tax request exceeding the request in the first application by one

hundred thousand dollars ($100,000) is erroneous on its face.

53. Upon information and belief, the conduct of the Respondents reflect a common

purpose between organized labor and Respondents to schedule the second public hearing in order

for organized labor to submit its prejudicial written hand bill which was not submitted prior to the

first public hearing and was time barred.

54. Upon information and belief, by scheduling the second public hearing the

Respondent could now make the time barred hand bill a part of the record.

55. Now, the expert study as to the uniqueness of the project was conducted by

Cammoin Associates, wherein, the expert stated "New crane service is crane equipment that, as

defined by its type and capacity, IS NOT (emphasis added) comparable to currently available

service and is therefore not currently available in Ulster County.

56. The expert approved all of the Tower Cranes as unique within Ulster County and

that would serve a valuable service and provide jobs within the County of Ulster. (Cammoin

Expert Study annexed hereto as Exhibit "I").


n

57. Upon information and belief, Chairman Michael Horodyski objected to the

improper procedures applied to Petitioner at that meeting and resigned as Chairman of the Ulster

County Industrial Development Agency, having lead that body since 2011.

58. Mr. Horodyski states that the discussion over Petitioner's amended application and

the expert report "has been emotional and vigorous, the way it should be". These statements are

quoted in an article, wherein, Mr. Horodyski, as it related to Petitioner's application, "has been

more favorably inclined to consider then had some of his colleagues".

59. Upon information and belief, Mr. Horodyski was inclined to approve Petitioner's

application but resigned during the pendency of that application. Although Mr. Horodyski denies

his resignation was predicated on petitioner's application, he states in the article relating to

Petitioner, "something had to give".

60. Upon information and belief, the Chairman now having resigned, a circus

atmosphere ensued with members of the Respondent Board making derogatory statements to the

press concerning Petitioner before the second public hearing and before all materials were

collected and almost a month and a half before the final vote on the Resolution.

61. Randall Leverette, a board member, at that same regular meeting in which the

chairman resigned stated "a crane is a crane. . . . .like a lawyer is a lawyer". This is in complete

contradiction with the expert study ordered and chosen by the Respondent. Mr. Leverette stated

unequivocally he would not vote to approve Petitioner's application a full month before the second

public hearing and almost two months prior to the final vote on the application.

62. That same Article describes Mr. Auringer as being a New York City business

owner. In reality, Mr. Auringer was born and raised in Rifton New York and has owned Urban

Precast in the Town of Ulster since 2003. Mr. Auringer attended Anna Devine elementary school,
n n

MJM Junior High School in Kingston and Kingston High School. The union interest group

however is located in the City of New York, is not a resident organization and has no other contact

with Ulster County other than appearing at every regular meeting of the Respondent. (June 23,

2017 article in hvl annexed hereto as Exhibit "J")

63. Upon information and belief, the derogatory statements made by the Respondent

Board members were made even prior to the Board receiving the Amended Application. Therefore

Board member Laverette made a public statement that he would not support the amended

application prior to the amended application even being submitted. An application which was

against the Board's own regulations to require. (Petitioner's Amended Application dated June 20,

2017, annexed hereto as Exhibit "K").

64. The second Public Hearing was noticed for July 10, 2017. Due to the

unsubstantiated allegations contained within the union interest group's hand-bill, the Board

notified petitioner that it was required to disclose Court ordered and otherwise confidential

business and personnel information at the public hearing.

65. The Petitioner had requested an executive session to address the intentionally false

allegations within the Alliance hand-bill and that request while at first approved, was subsequently

rejected after Mr. Horodyski resigned as chairman.

66. On July 10, 2017, Petitioner was forced to disclose court ordered confidential and

internal employee information at the public hearing in support of its application.

67. Again, excepting the appearance of a Costanzi Crane employee, no property owner,

resident, neighbor or any other interested member of the public who is unaffiliated with organized

labor and who resides within Ulster County objected to Petitioner's application.
68. To an individual, all objections were made from persons not residing in Ulster

County and/or affiliated with organized labor. The attendance of members of organized labor was

organized by the Alliance and the International Union of Operating Engineers.

69. At the July 10th public hearing Petitioner was forced, in support of its application,

to disclose a federal case involving the Fair Labor Standards Act and a group of employees as

plaintiffs which was settled favorably to Petitioner.

70. Petitioner was forced, in support of its application, to publically disclose a Court

Ordered confidential US Equal Employment Opportunity Commission case which was settled

favorably to the Petitioner.

71. Petitioner was forced, in support of its application, to publicly disclose a bankruptcy

proceeding in 2010 which converted to a Court Ordered reorganization in which Petitioner

completed each and every court ordered condition, reorganized the company and paid all debts

and taxes.

72. Due to an unsubstantiated and intentionally false allegation by the union interest

group, petitioner was forced, in support of its application, to submit records from the New York

State Unified Court System and a finger print analysis evidencing that Petitioner's sole member,

Thomas Auringer, was not a felon.

73. Upon information and belief, in the history of the Respondents, Respondents have

never requested any applicant to undergo this harassing, ruthless public disclosure. Therefore,

Respondent applied a completely unknown and materially different set of standards for this

Petitioner then would have been applied to any other similarly situated applicant. These

procedures were unilaterally created by Respondent as the process unfolded and belies the
requirement of equal treatment to all applicants and regularity in governmental affairs. (Transcript

of Public Hearing dated July 10, 2017 annexed hereto as Exhibit "L").

74. Again, the Respondent closed the public hearing and the public comment period

was ended. Any further comments could be submitted in writing within 21 days from closure of

the public hearing.

75. Upon information and belief, on July 12, 2017, two days after the public comment

period was closed, Respondents again, outside the presence of Petitioner and Petitioner's counsel,

ex parte, took in and recorded public comments at the regular monthly meeting in violation of its

own written policies.

76. At the regular monthly meeting the International Union of Operating Engineers

Local 825, the NYC Community Alliance for Worker Justice appeared along with Constanzi Crane

and made public comments derogatory to the applicant, without applicant having notice of the

public comments and subsequent to the public comment period being closed.

77. Attorney for Petitioner only learned of the improper public comments made at the

regular monthly meeting when a reporter for the Daily Freeman called him to inform him that his

client's application had been discussed without his presence and after the public comment period

had been closed.

78. Counsel for Petitioner immediately issued an email to Counsel for the Respondent

sounding in an objection and a violation of his client's due process rights as the public comment

period was closed and applicant was not present at the meeting in order to have an opportunity to

be heard.

79. Upon information and belief, Respondent engaged in numerous ex parte

communications with the union lobbyist and the International Union of Operating Engineers
n

outside the presence of counsel for Petitioner and subsequent to the closing of the public comment

period. But for the reporter notifying counsel for Petitioner, this improper ex parte communication

would not have been discovered. (July 12 Regular Meeting Minutes annexed hereto as Exhibit

"M").

80. Upon information and belief, the newly elected chairman of the Respondent

continued making derogatory comments while discussing Petitioners application and prior to the

transcript of the public hearing being issued and almost a month before the final vote on the

Application.

81. Upon information and belief, newly elected chairman John Morrow used the

expression "smoke and mirrors" while discussing Petitioner's application at the regular monthly

meeting. Mr. Morrow made sure to prejudice Petitioner further by making the public statement

"If they're going to fill out an application that says they've never been bankrupt or been arrested".

(July 13, 2017, Daily Freeman Article annexed hereto as Exhibit "N").

82. Upon information and belief, Mr. Morrow admitted in that article that the Board

had no written policies for vetting applicants and/or had to update its policies regarding the vetting

of applicants.

83. Mr. Morrow's admission in that article begs the question, where did the Board

acquire the procedures so vigorously applied to Petitioner if Mr. Morrow admits that no such

procedure existed at the time Petitioner's application was submitted?

84. As Petitioner has stated many times publically and within the Public Hearing,

Petitioner did not receive a judgment in bankruptcy and was never charged or convicted of a

felony. Nonetheless, upon information and belief, Mr. Morrow, the newly elected chairman of the
Board, continued to make the statements publically in furtherance of a common purpose with

organized labor and in order to prejudice Petitioner's application.

85. Annexed as Exhibit "O" are a series of articles all instructive in exposing the

organized effort of the union interest group and the International Union of Operating Engineers

Local 825 in its successful mission, upon information and belief, in unduly influencing the

Respondent and its Board members.

86. Finally, on August 9, 2017, the Board approved a Resolution, concluding that the

jobs promised would in fact not materialize and that the service was not unique, this in complete

contradiction to the expert study conducted by an entity which was chosen by the Respondent.

87. Upon information and belief, the reasons for the Resolution denying Petitioner's

application are contrary to a large body of evidence and the issue of whether jobs would actually

materialize was very little or not at all addressed by the Respondent or Petitioner during the

pendency of the application nor in either of the public hearings.

88. Upon information and belief, the Respondent, having now understood the many

violations of due process, the arbitrary nature of its conduct, the improper ex parte meetings after

the closing of the public hearing, the improper requirement for Petitioner to disclose court ordered

confidential documents, the continued furtherance of a common purpose with organized labor, the

violation of its own policies in requiring Petitioner to undergo a second public hearing and to

submit a second application, the derogatory public statements made by Board members prior to

receipt of all the materials and prior to the second public hearing, decided to approve a final

Resolution denying Petitioner's application predicated on completely erroneous and unrelated

determinations.
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89. Upon information and belief, the final determination of the Board is completely

unrelated to the union allegations, allegations which made up most if not of all of the evidence

submitted to the Board and made up most if not all of the topics within the two (2) public hearings.

90. Upon information and belief, any thorough reading of both transcripts of the public

hearings and the annexed exhibits as a whole, make clear that the final determination of the Board

is an attempt by Respondent to absolve itself of all wrong doing. (August 9, 2017, Respondent

minutes of regular meeting and the final Resolution annexed as Exhibit "P" and Article from the

Daily Freeman entitled "Agency turns down tax breaks for crane purchase" annexed as Exhibit

"Q").

AS AND FOR THE FIRST CAUSE OF ACTION

91. Petitioner repeats and realleges all of the foregoing allegations set forth in this Verified

Petition and Complaint with the same force and effect as though set forth at length herein.

92. Upon information and belief, Respondents repeated ex parte communication and

acceptance of public comment at its regular monthly meeting by a union interest group that is

located in foreign county and the International Union of Operating Engineers, subsequent to

closure of the public comment period and without Notice to Petitioner, is a violation of lawful

procedure, was affected by an error oflaw, was arbitrary and capricious an abuse of discretion and

in violation of Petitioner's due process and rights of substantial fairness.

93. Upon information and belief, Respondent's repeated public derogatory statements against

Petitioner expressing a final determination before all materials have been submitted and prior to

the public hearing was affected by an error of law, was arbitrary and capricious an abuse of

discretions and in violation of Petitioner's due process and fairness and substantial justice.
94. Upon information and belief, Respondent's deviation from 859-a of the General

Municipal Law that an application amendment not exceeding one hundred thousand dollars

($100,000) in requested tax benefits does not require a public hearing nor require the submission

an amended application was unique to this Petitioner, singling this Petitioner out for prejudicial

treatment, an attempt to continue to prejudice, harass and injure petitioner and therefore was

affected by an error of law, was arbitrary and capricious an abuse of discretions and in violation

of Petitioner's due process and fairness and substantial justice.

95. Upon information and belief, Respondent's requirement that Petitioner publically disclose

confidential employee information and court ordered confidential documents in support of its

application subsequent to its rejection of a request by Petitioner that an executive session be

conducted was affected by an error of law, was arbitrary and capricious an abuse of discretions

and in violation of Petitioner's due process and fairness and substantial justice.

96. Upon information and belief, Respondent's denial of Petitioner application was based upon

substantial evidence to the contrary and/or based upon reasoning not raised nor noticed to

Petitioner during the pendency of Petitioner's application. Therefore, Petitioner was denied its

opportunity to be heard on the issues that form the basis of Respondent's denial of Petitioner's

application and therefore was affected by an error oflaw, was arbitrary and capricious an abuse of

discretions and in violation of Petitioner's due process and fairness and substantial justice.

97. No adequate remedy at law exists.

98. No previous application for the relief demanded herein has been made to any Court.

99. Petitioner is therefore, entitled to an Order and judgment pursuant to CPLR 7803(3)

annulling Respondents determination to deny Petitioner's Application for sales and use tax

exemption.
AS AND FOR A SECOND CAUSE OF ACTION

100. Petitioner repeats and realleges all of the foregoing allegations set forth in this Verified

Petition and Complaint with the same force and effect as though set forth at length herein.

101. Upon information and belief, based on its determination to deny Petitioner's application

for sales and use tax exemptions the Board failed to perform its duty as described in Article 18-A

of the General Municipal Law.

102. Upon information and belief, Respondent's failed to provide any evidence the basis upon

which supports its denial of Petitioners application.

103. Upon information and belief, Respondent's determination is not only based upon evidence

not in the record, but also, is in complete contradiction to the written report of the expert chosen

by the Respondent.

104. Upon information and belief, based upon the evidence in the record, including but not

limited to the expert written report, an expert of the Respondents own choosing, the Respondent

has a mandatory and non-discretionary obligation pursuant to Article 18-A of the General

Municipal Law to approve Petitioner's application for sales and use tax exemptions. Respondent's

failure and refusal to approve Petitioner's application has significantly prejudiced Petitioner.

105. Upon information and belief, Respondent's failure to approve Petitioner's application is

without any legal basis.

106. Petitioner is therefore entitled to an Order and judgment pursuant to CPLR 7803 (1)

compelling and Directing Respondents to comply with their mandatory duty enjoined upon them

by law and approve a Resolution for Petitioner's sales and use tax exemptions.
AS AND FOR A THIRD CAUSE OF ACTION

107. Petitioner repeats and realleges all of the foregoing allegations set forth in this Verified

Petition and Complaint with the same force and effect as though set forth at length herein.

108. Upon information and belief, as set forth above, Respondent has engaged in numerous

violations of its own policy and engaged in conduct violating Petitioner's due process and rights

of fairness and substantial justice.

109. Upon information and belief, as further set forth above, Respondent has engaged in conduct

in violation of Article 18-A of the General Municipal Law.

110. Upon information and belief, Respondents received all of the information requested from

Petitioner and an expert of its own choosing issued a written report in support of Petitioners

application but nevertheless nakedly denied Petitioners application for sales and use tax

exemptions on meritless and baseless reasoning and against substantial evidence.

111. Upon information and belief, Respondents determined, in the complete absence of any

evidence in the record to form the basis of its determination, to deny Petitioner's application.

112. Upon information and belief, Respondents determinations are arbitrary and capricious an

abuse of discretion and in violation of Petitioner's due process and fairness and substantial justice.

113. Based on the foregoing, Petitioner is entitled to a judgment declaring that the

determinations of the Respondent are invalid, that the Resolution determinations denying

Petitioner's application are not supported by the record, contrary to its own experts written study

and that Respondent's conduct as it relates to Petitioner's application is a violation of its own

written policies and a material deviation from policies applied to similarly situated applicants and

in violation of Petitioner's due process and rights of substantial fairness.


114. Petitioner's demand for declaratory judgment is proper because the parties have a direct

interest in determining the validity of the Resolution denying Petitioner's application for sales and

use tax exemptions.

115. There is no other judicial proceeding in which these issues may be effectively and

efficiently resolved.

116. Petitioner has no adequate remedy at law.

WHEREFORE, Petitioner-Plaintiff, 2-4 Kieffer Lane LLC, respectfully requests that this

Court issue an Order (i) annulling the determinations of Respondents the County of Ulster and the

Ulster County Industrial Development Agency (collectively, "Respondents") on August 9, 2017,

to wit: the Industrial Development Agency Board's unanimous vote in favor of the Resolution

denying Petitioner's application for sales and use tax exemption; (ii) compelling and directing

Respondents to approve Petitioner's application for sales and use tax exemption pursuant to CPLR

7801; (iii) declaring that the Respondents proceeded in excess of its jurisdiction pursuant to CPLR

7803(2); (iv) declaring that as a result of a hearing held and based on the entire record the

determination of the Respondents is not supported by substantial evidence pursuant to CPLR 7803

(4); (v) declaring that the determination of the Ulster County Industrial Development Agency was

made in violation of lawful procedure, was affected by an error of law, or was arbitrary and

capricious or an abuse of discretion pursuant to CPLR 7803(3) and (vi) declaring the process and

determination of Respondents to be in violation of Petitioners fundamental rights of due process

and substantial fairness.


(~

Dated: September 18, 2017


New Paltz, New York

TIMOTHY P. MCCOLGAN
ATTORNEY AT LAW

--
By: I. ;~..:;:7--------r
Ti~p!htif McColgan, Esq.
AJ~6fneys for Petitioner-Plaintiff
,f-24 Kieffer Lane LLC
/20 Duzine Road
New Paltz, New York 12561
845-419-5022
mccolganlaw@,twcmetrobiz.com
VERIFICATION

STATE OF NEW YORK )


)ss.
COUNTYOF ULSTER )

Thomas Auringer, being duly sworn, deposes and says:

1. I am the sole member of2-4 Kieffer Lane LLC, Petitioner-Plaintiff in this action.

2. I have read the foregoing Verified Petition and Complaint and know the contents

thereof.

3. The same is true to my own knowledge except as to the matters therein stated to

be alleged upon information and belief, and as to those matters I believe then to be true.

Sworn to before me this

/ gl-- ,day of, ~ 2017.

r '

TIMO"lliY PATRICK MCCOLGAN


Notary Pubic, State of New York
Reg. # 02MC6189308
Qualffled In Ulster County
Commllslon Expires June 23, 2o?o
n

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF ULSTER
----------------------------------------------------------------------------)(
In The Matter of Index No.
RJINo.:
2-4 KIEFFER LANE LLC,

Petitioner-Plaintiff,
AFFIRMATION IN SUPPORT
For a Judgment Pursuant to Article 78 of the Civil OF VERIFIED PETITION
Practice Law and Rules and a Declaratory Judgment
Pursuant to Section 3001 of the Civil Practice Law
And Rules,

-against-

THE COUNTY OF ULSTER and THE ULSTER COUNTY


INDUSTRIAL DEVELOPMENT AGENCY, JOHN MORROW,
RANDALL LEVERETTE, ROBERT KINNIN, MICHAEL
BERNHOLZ, JOHN LIVERMORE AND JAMES MALCOLM,

Respondent-Defendant(s).

-----------------------------------------------------------------------------)(

Timothy P. McColgan, an attorney at law, duly admitted to practice before the courts of

the State of New York, affirms the following to be true under the penalties of perjury:

1. I am the sole proprietor of Timothy P. McColgan, Attorney at Law, attorney(s) for

Petitioner-Plaintiff 2-4 KIEFFER LANE LLC (hereinafter referred to as "Petitioner"). I am

familiar with the facts and circumstances of this action based upon my review of the file and

records in my possession.

2. I make this Affirmation in Support of Petitioner's request for an Order (i) annulling

the determinations of Respondents the County of Ulster and the Ulster County Industrial

Development Agency (collectively, "Respondents") on August 9, 2017, to wit: the Industrial

Development Agency Board's unanimous vote in favor of the Resolution denying Petitioner's
application for sales and use tax exemption; (ii) compelling and directing Respondents to approve

Petitioner's application for sales and use tax exemption pursuant to CPLR 7801; (iii) declaring

that the Respondents proceeded in excess of its jurisdiction pursuant to CPLR 7803(2); (iv)

declaring that as a result of a hearing held and based on the entire record the determination of the

Respondents is not supported by substantial evidence pursuant to CPLR 7803 (4); (v) declaring

that the determination of the Ulster County Industrial Development Agency was made in violation

of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse

of discretion pursuant to CPLR 7803(3) and (vi) declaring the procedures and determination of

Respondents to be in violation of Petitioners fundamental rights of due process and substantial

fairness.

3. The pertinent facts concerning this matter are more fully set forth in the Verified

Petition dated September 18, 201 7, and those facts will not be repeated and are incorporated with

reference herein.

I
Respondents Exclusive Authority

4. The Ulster County IDA is an Industrial Development Agency established in and for

the County of Ulster pursuant to section 923 of the General Municipal Law. The Ulster County

IDA is a public benefit corporation, established by the New York State Legislature "for the

accomplishment of any or all of the purposes specified in title one of article 18-A of the General

Municipal Law". As provided in Article 18-A, the Ulster County IDA's purpose is to "promote,

develop, encourage and assist in the acquiring, construction. . .and furnishing industrial,

manufacturing, warehousing, commercial, research and recreation facilities ... and thereby advance

the job opportunities, health, general prosperity and economic welfare of the people of the State

of New York (see GML852).


n

5. The Ulster County IDA, therefore, is authorized to take title to properties to be

developed so as to render them exempt from local property and sales and use taxes. The Industrial

Development agency is further authorized '"to acquire, construct, reconstruct, lease, improve,

maintain, equip or furnish one or more projects"' and to provide 'financial assistance' including

tax exemptions to 'private developers' ... 'who act as the agency's agent for project purposes'"

(see Elmer W. Davis Inc. v. Com'r of Taxation & Finance, 104 AD3d 50, 52 [3d Dept 2012]

[emphasis in original]).

6. The Ulster County IDA maintains exclusive authority over its uniform tax

exemption policy and the tax exemption benefits provided therein. Section 888 of the General

Municipal Law states "[i]nsofar as the provisions of [GML Article 18-A] are inconsistent with the

provisions of any other act, general or special, or of any local laws of the municipality, the

provisions of [GML Article 18-A shall be controlling... "' (see GML 888).

II
CPLR Article 78

7. Pursuant to CPLR 7803, the only questions that may be raised in an Article 78

proceeding are (i) whether the body or office failed to perform a duty enjoined upon it by law

(mandamus to compel), (ii) whether the body or officer proceeded, or is about to proceed without

or in excess of jurisdiction (prohibition), and (iii) whether a determination was made in violation

of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse

of discretion, and (iv) Whether a determination made as a result of a hearing at which evidence

was required to be and was taken is, on the entire record, supported by substantial evidence. (NY

CPLR 7803[1]-[4]).

8. While it is well established that a challenge to the validity of legislation may not be

brought under CPLR article 78, this principal does not apply to quasi legislative acts and decisions
(~

of administrative agencies, which are subject to a four-month statute of limitations". (Thrun v

Cuomo, 112 AD3d 1038, 1040 [3d Dept 2013]; Accord Walton v New York State Dept. of

Correctional Services, 8 NY3d 196, 195 [2007]), (see CPLR 217).

9. Respondents determination and unanimous vote to deny Petitioner's sales and use

tax exemption was made on August 9, 2017 and while it is unknown whether Respondents

recorded and filed that Resolution with the Ulster County Clerk's office, this hybrid Article 78 and

Declaratory Judgment action is made timely.

III
Time Barred Union Hand-Bill Made Part of the Record/The Executive Session is
Summarily Canceled

10. In a proposed Public Hearing Notice for the public hearing scheduled for May 4th,

2017, the Respondents issued a Notice which stated unequivocally under the heading "Written

Comments" "[No](emphasis in the original) written comments have been received by the Agency

prior to this Public Hearing". Therefore, the union interest group's hand-bill was submitted after

the first public hearing. (Proposed Public Hearing Notice for the May 4, 2017 public hearing

annexed as Exhibit "Q")

11. Upon information and belief, since the International Union of Operating Engineers

and the NYC Alliance for Worker Justice had not submitted the written pamphlet and was time

barred, the Board's motive for the second public hearing was in furtherance of the objectives of

the representatives of organized labor and to require a second hearing in order to make the hand-

bill a part of the written record.

12. Upon Information and Belief, the Board acted arbitrarily and capriciously when it

set in motion an avenue for the union representatives to submit the written hand-bill after the first
public hearing and to allow the union representatives a second bite of the apple when it missed

written submissions prior to the first public hearing.

13. In an email dated Wednesday, May 10, 2017 from Joseph A. Scott, II, and counsel

to Respondent, counsel stated "With respect to next steps, the UCIDA board identified the issue

of the 'retail/project/providing a service not otherwise reasonably accessible' as the most

significant issue for the board to resolve. The board would like to resolve the issue by retaining a

third party consultant to provide a report on the issue .... "(see email from counsel to Respondent

dated Wednesday May 10, 2017 6:33 PM annexed hereto within Exhibit "S").

14. In an email dated June 9, 2017, counsel for Respondent states "The Board would

also like to accept your offer to meet with the board to review the comments/issues surrounding

the completed IDA Application. It is my firm's position that we can arrange this to occur in

executive session with the full board. So we would like you and your special counsel to attend the

meeting on Wed. The discussions/questions will occur in executive session and this will you the

opportunity to speak to the full board on these matters (as you did in Orange County)". (see email

from counsel to Respondent dated June 9, 2017 annexed within Exhibit "S")

15. In an email dated June 20, 2017 5:07 PM in connection to the executive session

scheduled for June 21, 2017, counsel wrote" ... the IDA had determined to cancel the special

meeting scheduled for tomorrow at 7:00 PM (see email from counsel to Respondent dated June

20, 2017 5:07 PM annexed within Exhibit "S").

16. Counsel for Respondent was informed on several occasions that the litigation listed

in the union interest group's hand-bill was either confidential personnel matters or specifically

confidential pursuant to Court Order. Nonetheless, upon information and belief, Respondent

canceled the executive session and scheduled the second Public Hearing requiring Petitioner to
(l

publically disclose confidential information in common purpose with organized labor in an attempt

to further injure, harass and prejudice Petitioner's application.

IV
The Export Chosen by Respondent Issues Report

17. The Expert chosen by Respondent confirmed the uniqueness of the cranes

Petitioner listed within its amended application for sales and use tax benefits. One specific

objection came from Costanzi Crane who is under an erroneous presumption that we are a

competitor. We are not now nor have we ever been a competitor of Costanzi Crane. Costanzi

Crane does not and cannot perform the services in which Petitioner undertakes. (see expert report

[chosen by Respondent] annexed hereto as Exhibit "I").

18. The expert chosen by Respondent agreed when it states "The Project fleet proposes

one mobile and five freestanding tower-type cranes. Tower cranes are moved to a work site on a

series of trucks and assembled on site, with 40 or more trucks needed for a very large piece of

equipment. Tower cranes are used in building construction, particularly high-rise buildings,

because they can be jumped or lifted higher, to enhance their lifting height beyond the boom

capacity, a feature not available to mobile cranes. They are also used in infrastructure projects

such as bridges, roads, and power plants. In addition to the extra height, tower cranes can operate

in a tightly confined area and provide a larger picking radius than mobile cranes, allowing them to

move materials from a greater range of locations.

19. Constanzi Crane is a mobile crane business and they own no tower cranes.

20. The expert report continues "However, there appear to be no tower crane providers

within the county and tower cranes provide substantially different capacities from mobile cranes.

Therefore, as shown in the table below, we find that 75% of the proposed investment for the 2-4
n n

Kieffer Lane LLC Project is for equipment that would not otherwise be available from existing

county providers".

21. Therefore, the final determination of the Respondent, specifically that the services

were not unique and that 2-4 would not reinvest in the local economy is against most if not all of

the evidence submitted, including but not limited to the expert's report, an expert chosen by the

Respondent.

v
Case Law

22. It is well settled that local boards have discretion in considering applications and

judicial review is limited to determining whether the action taken by the board was illegal, arbitrary

or an abuse of discretion (Ifrah v Utschig, 98 NY2d 304 [2002]); Matter of Sasso v Osgood, 86

NY2d 374 [1995]). A board's determination may not be set aside in absence of illegality,

arbitrariness or abuse of discretion, and such determination will be sustained if it has a rational

basis and is supported by substantial evidence (So Ho Alliance v New York City Board of Standard

and Appeals, 95 NY2d 437 [2000]). The reviewing Court in a proceeding pursuant to CPLR

Article 78 will not substitute its judgment for that of the local Board unless is clearly appears to

be arbitrary, capricious, or contrary to the law (Massa v City of Kingston, 235 AD 2d 947 [3rd

Dep[t. 1997]).

23. Here, Upon information and belief, Respondents repeated ex parte communication

and acceptance of public comment at its regular monthly meeting by a union interest group that is

located in foreign county and the International Union of Operating Engineers, subsequent to

closure of the public comment period and without Notice to Petitioner, is a violation of lawful

procedure, was affected by an error oflaw, was arbitrary and capricious an abuse of discretion and

in violation of Petitioner's due process and rights of substantial fairness.


24. Here, upon information and belief, Respondent's repeated public derogatory

statements against Petitioner expressing a final determination before all materials have been

submitted and prior to the public hearing was affected by an error of law, was arbitrary and

capricious an abuse of discretions and in violation of Petitioner's due process and fairness and

substantial justice.

25. Here, upon information and belief, Respondent's deviation from 859-a of the

General Municipal Law that an application amendment not exceeding one hundred thousand

dollars ($100,000) in requested tax benefits does not require a public hearing nor require the

submission an amended application was unique to this Petitioner, singling this Petitioner out for

prejudicial treatment, an attempt to continue to prejudice, harass and injure petitioner and therefore

was affected by an error of law, was arbitrary and capricious an abuse of discretions and in

violation of Petitioner's due process and fairness and substantial justice.

26. Here, upon information and belief, Respondent's requirement that Petitioner

publically disclose confidential employee information and court ordered confidential documents

in support of its application subsequent to its rejection of a request by Petitioner that an executive

session be conducted was affected by an error of law, was arbitrary and capricious an abuse of

discretions and in violation of Petitioner's due process and fairness and substantial justice.

27. Here, upon information and belief, Respondent's denial of Petitioner application

was based upon substantial evidence to the contrary and/or based upon reasoning not raised nor

noticed to Petitioner during the pendency of Petitioner's application having no rational basis in

fact or in the record. Therefore, Petitioner was denied its opportunity to be heard on the issues that

form the basis of Respondent's denial of Petitioner's application and therefore was affected by an
n n

error of law, was arbitrary and capricious an abuse of discretions and in violation of Petitioner's

due process and fairness and substantial justice.

28. The Court will find instructive a well balanced article written by Daniel Axelrod of

the Times Herald Record which provides the entire history of Peitioner' s experience with the

Alliance and how the Orange County IDA dealt with the exact same issues as the issues presented

in the within matter. (Times Herald Record Article annexed as Exhibit "U")

29. No adequate remedy at law exists.

30. No previous application for the relief demanded herein has been made to any Court.

WHEREFORE, Petitioner-Plaintiff, 2-4 Kieffer Lane LLC, respectfully requests that this

Court issue an Order (i) annulling the determinations of Respondents the County of Ulster and the

Uister County Industrial Development Agency (collectively, "Respondents") on August 9, 2017,

to wit: the Industrial Development Agency Board's unanimous vote in favor of the Resolution

denying Petitioner's application for sales and use tax exemption; (ii) compelling and directing

Respondents to approve Petitioner's application for sales and use tax exemption pursuant to CPLR

7801; (iii) declaring that the Respondents proceeded in excess of its jurisdiction pursuant to CPLR

7803(2); (iv) declaring that as a result of a hearing held and based on the entire record the

determination of the Respondents is not supported by substantial evidence pursuant to CPLR 7803

(4); (v) declaring that the determination of the Ulster County Industrial Development Agency was

made in violation of lawful procedure, was affected by an error of law, or was arbitrary and

capricious or an abuse of discretion pursuant to CPLR 7803(3) and (vi) declaring the process and

determination of Respondents to be in violation of Petitioners fundamental rights of due process

and substantial fairness.


(\
\

Dated: September 18, 2017


New Paltz, New York

TIMOTHY P. MCCOLGAN
ATTORNEY AT LAW

By:.. .. ( . -.~~?J/~ ,-----------------r


TimotP'.y ;P!McColgan, Esq.
Attq.fheys for Petitioner-
Pflilntiff
I
2'~4 Kieffer Lane LLC
20 Duzine Road
New Paltz, New York 12561
845-419-5022
mcco lganlaw@,twcmet:robiz.com