Shelton v. New York State Liquor AuthorityShelton v. New York State Liquor Authority
Plaintiff’s applications to register the six labels were submitted on October 3, 2006. Thirty-one days later, an employee of the Authority allegedly called plaintiff and informed him that the applications had been denied. Although no written denial had been issued,1 plaintiff commenced action No. 1 in Supreme Court on November 21, 2006 seeking to enjoin the Authority from prohibiting the sale of the subject beers in New York and alleging various state and federal constitutional and statutory violations by the Authority and its three Commissioners, the individual defendants named in action No. 1. By letter dated November 28, 2006, the Authority officially approved the labels of the subject beers. Nevertheless, plaintiff commenced action No. 2 in the Court of Claims, also seeking damages for alleged constitutional violations stemming from the denial of his applications.
In action No. 1, the Authority and its Commissioners (hereinafter collectively referred to as defendants) moved to dismiss plaintiff’s amended and second amended complaint.2 Plaintiff opposed the motion and cross-moved for leave to amend the complaint a third time to add as defendants the Department of Taxation and Finance and its acting Commissioner. In a November 2007 order, Supreme Court partially granted defendants’ motion by dismissing the first eight causes of action as moot and the 11th cause of action for failure to state a cause of action and lack of subject matter jurisdiction. The court also partially granted plaintiff’s cross motion, permitting modification of the complaint only with respect to the remaining two
Plaintiff appeals from Supreme Court’s November 2007 order dismissing nine of his causes of action, that court’s January 2008 order denying his motion to amend his complaint with respect to his 11th cause of action, and the Court of Claims’ order dismissing his claim in action No. 2. We consolidated the appeals and now modify the orders in action No. 1.
First addressing action No. 1, we find that plaintiff’s first eight causes of action were properly dismissed. The Authority’s ultimate approval of the labels rendered moot plaintiff’s claims based upon the denial of his applications and, contrary to plaintiff’s argument on appeal, the exception to the mootness doctrine has not been demonstrated. The exception may only be found when all of the following three factors are present: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). Here, plaintiff has failed to demonstrate that either the first or second factor is present.
The unique factual underpinnings that render plaintiff’s first eight causes of action moot are not likely to recur. The Authority ultimately approved the applications; thus, plaintiff’s claimed injury stems solely from the alleged verbal communication denying the applications and plaintiff’s subsequent reliance on that information. Accordingly, the emphasis that plaintiff places on the fact that defendants have denied applications in the past based on similar—and, according to plaintiff, illegal—criteria, is misplaced. A future denial of plaintiff’s applications could certainly happen but, unlike here, a denial would present an actionable controversy.
Indeed, for this scenario to repeat itself, defendants would have to verbally communicate the Authority’s position on pending applications and plaintiff would, once again, have to rely on
Further, we cannot agree with plaintiff that, should this situation repeat itself, it would continue to evade review. Plaintiff argues that defendants have the unfettered ability to delay approval during a critical marketing period—here the months immediately preceding Christmas—and then approve the labels at the onset of litigation, thereby continually evading review. However, given the Alcoholic Beverage Control Law’s express statutory protection against undue delay by the Authority, discussed above, we find plaintiff’s concerns to be unfounded (see
Next, we hold that plaintiff’s 11th cause of action seeking damages pursuant to
Plaintiff’s second amended complaint, even when liberally construed (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004]), fails to include allegations of personal involvement by any of the individual defendants. Indeed, the general allegations that “defendants refused to license the beers” and that such refusal was done in bad faith offer nothing specific with regard to any particular action taken by any of the individually named defendants. Because ” ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983,’ ” plaintiff’s 11th cause of action was properly dismissed (Williams v Smith, 781 F2d 319, 323 [1986], quoting McKinnon v Patterson, 568 F2d 930, 934 [1977], cert denied 434 US 1087 [1978]; see Davis v County of Nassau, 355 F Supp 2d at 676-677; see also Mansour v Abrams, 185 AD2d 670, 670 [1992]; Colon v Coughlin, 58 F3d 865, 873-874 [1995]; Al-Jundi v Estate of Rockefeller, 885 F2d at 1065-1067).
We reach a different conclusion, however, with respect to Supreme Court’s denial of plaintiff’s motion for leave to amend his complaint so as to remedy these deficiencies. “Provided that there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit, leave to amend pleadings under
Under these circumstances, we cannot agree that the proposed allegation of personal involvement—albeit of a kind that may
Turning to action No. 2 in the Court of Claims, we conclude that the court’s dismissal of plaintiff’s state constitutional tort claims was proper. Although, in limited situations, a private cause of action to recover monetary damages for state constitutional violations can arise (see Brown v State of New York, 89 NY2d 172, 177-178 [1996]), no such claim will lie where the claimant has an adequate remedy in an alternate forum (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Bullard v State of New York, 307 AD2d 676, 678 [2003]). Here, plaintiff’s action in Supreme Court—where he had the opportunity to seek redress for the same wrongs asserted in his action in the Court of Claims—demonstrates that he had an alternative remedy, rendering his constitutional tort claims against the State unnecessary and inappropriate. In addition, allegedly unlawful actions taken by the Authority could have been challenged in the context of a
In addition, the Court of Claims correctly dismissed plaintiff’s
Cardona, P.J., Peters and Malone Jr., JJ., concur. Ordered that the orders and amended order entered November 2, 2007 and January 11, 2008 are modified, on the law, without costs, by reversing so much thereof as granted defendants’ motion dismissing the 11th cause of action and as denied plaintiff’s motion for leave to amend the complaint with respect to the 11th cause of action; defendants’ motion denied to said extent and plaintiff’s motion granted to said extent; and, as so modified, affirmed.
Ordered that the order entered June 12, 2008 is affirmed, without costs.