By Lewis Tesser, Partner, and Timothy Nolen, Associate, of Tesser, Ryan & Rochman, LLP
A recent opinion from the Appellate Division, Third Department, weighed in on a novel question for many litigants: when is it too early to file a lawsuit? The case involved issues of administrative law, constitutional law, business law and real estate law.
The case, New York Blue Line Council, Inc. v. Adirondack Park Agency, 2011 NY Slip Op 5920, 2011 N.Y. App. Div. LEXIS 5783, Index No. 510786 (3d Dept July 14, 2011), concerned municipalities and corporations which challenged new regulations issued by the Adirondack Park Agency that required a variance for an expansion of preexisting structures that did not comply with shoreline set-back requirements. They also challenged a separate regulation which affected subdivision of lots. The corporations alleged that, since they were involved in construction and logging, they had suffered a “concrete injury.” Justice Mercure’s opinion for the unanimous Court, however, rejected the corporation’s arguments, noting that the harm could be prevented by further administrative action and was therefore “wholly speculative and abstract.” Accordingly, the corporations had not yet suffered an injury and the claims were dismissed.
New York Blue Line provides an interesting example of one of the difficulties litigants face when challenging administrative actions: even when a regulation may harm a plaintiff, it may nonetheless be too early for the plaintiff to file suit, undermining plaintiff’s standing.