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Appellate Division Weighs in on the Ripeness and Justiciability of Corporations’ Challenge to Administrative Regulation

25 Jul 2011
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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.

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About Post Author

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Lewis Tesser is a senior partner in the New York law firm of Tesser, Ryan & Rochman, LLP, concentrating his practice in litigation and mediation, representing licensed professionals and professional practices, administrative law and commercial law. Lew Tesser is Vice-President of the New York County Lawyers’ Association and Director of its Ethics Institute. Prior to private practice, Mr. Tesser was an Assistant United States Attorney in the Eastern District of New York. In that capacity, he represented various agencies of the United States government in litigation in the United States District Court and United States Court of Appeals. Mr. Tesser also served as a Judge Advocate in the United States Army where he prosecuted and defended criminal cases and was the chief legal advisor to the Commanding General of the U.S. Army War College, Carlisle, Pennsylvania. He also has served as an Arbitrator for the American Arbitration Association, New York City Civil Court, a Judge for the Environmental Control Board of the City of New York and a lecturer for various Bar Associations and New York area law schools. Mr. Tesser, who was admitted to practice in 1971, is a 1970 Honors graduate from the National Law Center, George Washington University, a Masters graduate from the Wharton Business School, University of Pennsylvania (l974) and a graduate of the Harvard Law School Program of Instruction for Lawyers. He is a past President of Congregation Sons of Israel, Nyack, NY. Publications and Speaking Engagements Editor-In-Chief, “The New York Rules of Professional Conduct Annotated”, Oxford University Press, New York, 2010. A complete list of Mr. Tesser’s speaking engagements and publications is available if you would like to learn more about Mr. Tesser’s work. Representative Cases In Re Zhang, 376 Fed. Appx. 104 (2d Cir. 2010) Continental Casualty Co. v. JBS Construct. Mgmt., 2010 U.S. Dist. LEXIS 85467 (S.D.N.Y. 2010)

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Tesser, Ryan, & Rochman Blog

At Tesser, Ryan, & Rochman we are committed to keeping current, former, and future clients up to date. Here on our blog we will have news regarding our firm, as well as business analysis, various cases, case studies, and legal findings for the benefit of our clients.