Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the plaintiff, dated August 28, 2012, and supporting papers 1 - 10; (2) Affirmation in Opposition by the Trustees, dated March 6, 2013, and supporting papers 11 - 17 (including Supplemental Memorandum of Law dated March 6, 2013); (3) Notice of Cross Motion/Order to Show Cause by the Trustees, dated September 27, 2012, and supporting papers 18 - 34 (including Memorandum of Law dated September 27, 2012); (4) Affirmation in Opposition by the plaintiff, dated March 6, 2013, and supporting papers 35 - 36; (5) Notice of Cross Motion/Order to Show Cause by the Town and Town Board, dated October 15, 2012, and supporting papers 37 - 40 (including Memorandum of Law dated October 15, 2012); (6) Notice of Motion/Order to Show Cause by the Trustees, dated February 5, 2013, and supporting papers 41 - 48; (7) Memorandum of Law of the plaintiff, dated March 6, 2013, and supporting papers 49 - 50; (8) Notice of Motion/Order to Show Cause by the plaintiff, dated February 5, 2013, and supporting papers 51 - 61 (including Memorandum of Law dated February 5, 2013); (9) Reply Memorandum of Law by the plaintiff, dated March 25, 2013, and supporting papers 62 - 63 ; (10) Reply Affidavit by the Trustees, dated March 25, 2013, and supporting papers 64 - 65; (11) Other(and after hearing counsels' oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motions and cross motions are decided as follows: it is

ORDERED that the motions and cross motions are hereby consolidated for the purposes of this determination; and it is further

ORDERED that the motion (010) by the Village for summary judgment on the first and second causes of action of its complaint based on the collateral estoppel effect of this Court's decisions in related actions is denied; and it is further

ORDERED that the cross motion (011) by the Trustees to dismiss the action as moot, as the outstanding issues have been determined, there is no actual controversy and the Village lacks standing, is denied; and it is further

ORDERED that the cross motion (012) by the Town and the Town Board to dismiss the action as against them on the ground that no controversy exists between the Town and the Village is denied; and it is further

ORDERED that the motion (013) by the Trustees to vacate the prior order of this Court to the extent that said order denied their motion to dismiss the first three causes of action and ordered that this action be joined for trial with the related actions is denied; and it is further

ORDERED that the motion (014) by the Village for summary judgment on the first three [*2]causes of action in the complaint, and for leave to renew pursuant to CPLR 2221 the prior motion of the Trustees to dismiss the fourth and fifth causes of action as well as the CPLR article 78 petition, which was granted by this Court's order dated January 12, 2012, and upon renewal, for an order granting the Village summary judgment is determined herein.

This is a hybrid action/proceeding commenced on November 16, 2010 by the Incorporated Village of West Hampton Dunes (Village), individually and in parens patriae on behalf of its residents, against the Trustees of the Freeholders and Commonalty of the Town of Southampton (Trustees), the Town of Southampton (Town), and the Town Board of the Town of Southampton (Town Board) for a determination of the scope of the powers and duties of the Trustees within the Village's ocean beaches and with respect to the management and control of monies coming into the Trustees' hands as a result of Trustee activities, and the retention and compensation of private counsel by the Trustees.

The Trustees "are the successors to the original Trustees of the Freeholders and Commonalty of the Town of Southampton whose proprietary rights to certain lands and waters of the Town of Southampton and their right to legislate and control the same as a body politic is derived from antique, royal land grants and patents which have been repeatedly confirmed and upheld throughout the history of this State for over 300 years by both the framers of the State Constitution and the Legislature despite various specific attacks upon such authority ..." (State v Trustees of Freeholders and Commonalty of Town of Southampton, 99 AD2d 804, 805, 472 NYS2d 394 [2d Dept 1984] [internal citations omitted]). "The town of Southampton, Suffolk county, NY, was created by royal charter, the first patent of the town being granted by Governor Andros in 1676, the second by Governor Dongan ten years later. The Dongan patent, after vesting all the undivided land within the town limits in twelve trustees, provides as follows: And that they and their Successors by the name of Trustees of the freeholders and commonalty of the town of Southampton be and shall be forever in future times, persons able and Capable in law to have perceive receive and possess not only all and singular the premises but other messuages lands Tenements Privileges Jurisdictions franchises and hereditaments of whatsoever kind or species ... to plead and be impleaded answer and to be answered unto defend and be defended they are and may be Capable in whatsoever place and places and before whatsoever Judges and Justices'" (People v Lister, 106 App Div 61, 62-65, 93 NYS 830 [2d Dept 1905]).

"The act of 1818 ... created a body of trustees for the proprietors of the undivided lands and meadows in the town of Southampton, and there were conferred upon them all rights of management of the undivided lands, meadows, and mill streams' of the town, and the power to sell, lease, and partition' the same, while there was reserved to the trustees of the town [the Trustees] the right of management of the waters within the town, and of the fisheries, seaweed, and productions of the waters,' for the benefit of the town, and to its inhabitants was reserved the privilege of taking seaweed from the shores of any of the common lands of the town.' " (Trustees of Freeholders, etc., of Town of Southampton v Betts, 163 NY 454, 458 [1900]). Chapter 239 of the Laws of 1831 further delineated the rights and powers of the Trustees indicating that the "Trustees shall have the sole control over all the fisheries, fowling, sea-weed, waters, and the [*3]productions of the waters within the said Town not the property of individuals, and all the property, commodities, privileges and franchises granted to them by [the Dongan Patent] except so far as are abrogated, changed and altered by the laws of this state, passed in conformity to the Constitution and not now belonging to individuals, nor to the proprietors by virtue of [Chapter 155 of the Laws of 1818] and they shall have power to make rules, orders, and bylaws for the management thereof and the regulation of their affairs." The Appellate Division, Second Department has held that the Trustees hold an easement, which extends along the beach, for the benefit of the inhabitants of the Town of Southampton (see Burch v Trustees of Freeholders and Commonalty of Town of Southampton, 47 AD3d 654, 849 NYS2d 622 [2d Dept 2008] see also Town Code, article VII, § 111-31).

By its first and second causes of action against the Trustees, the Village seeks a declaration that the Trustees have no lawful governmental or regulatory power, duties or authority over (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance and use of structures and lands located anywhere within the Village's ocean beaches including management of any of the activities or uses reserved to the Town's inhabitants by Chapter 155 of the Laws of 1818 except management of the specific activities and uses reserved to the Town's inhabitants under the Laws of 1818, such as "taking seaweed from the shores of any of the common lands of the town, or carting or transporting to or from, or landing property on said shores [emphasis added], in the manner heretofore practiced" (Art. IV of the Laws of 1818). The Village seeks a further declaration that any attempt by the Trustees to exercise or extend such power or authority over ocean beaches within the Village's boundaries, including enforcement of any provisions of the "Trustee Blue Book," a set of Rules and Regulations for the Management and Products of the Waters of the Town enacted by the Trustees, is unlawful, unenforceable and null and void.

By its third cause of action against the Town and its Town Board, the Village seeks a declaration that the Town and Town Board have no lawful governmental or regulatory power, duties or authority over (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance and use of structures and lands located anywhere within the Village's ocean beaches, and that the Town's purported extension of its municipal zoning powers and authority through its incorporation and enforcement of the "Trustee Blue Book" by adopting and enforcing Chapter 111 of the Town Code of the Town of Southampton (Town Code), specifically Town Code §§ 111-30 (A) and 37, to areas of ocean beaches located wholly within the Village's boundaries is unlawful, unenforceable and null and void.

The fourth cause of action for declaratory judgment against the Town, the Town Board and the Trustees seeks a declaration that (i) the Town and Town Board have the sole lawful power, authority, duty and obligation to manage and control all the monies that come into the Trustees' hands and to secure and deposit said monies into duly designated Town accounts, (ii) the Town may neither delegate such management and control to the Trustees nor exempt the Trustees from Town's management and control of such monies, and (iii) the Trustees may not retain, deposit, control, manage or expend any monies coming into their hands, regardless of [*4]source, but must instead direct and relinquish all such monies to the Town to be deposited into duly designated Town accounts under the authority and control of the Town and Town Board. The fifth cause of action for declaratory judgment against the Trustees seeks a declaration that (i) the Trustees may not retain or compensate private counsel or otherwise cause the Town or the Trustees to become indebted to private counsel for legal services rendered except by authority of the Town Board or Town Attorney, and (ii) the Trustees may not commence or prosecute litigation without the authorization of the Town Board and without being subject to the authority of the Town Attorney.

The portion of the petition of the CPLR article 78 proceeding concerning maintenance and control of accounts seeks to compel the Town and the Town Board pursuant to CPLR 7803 (1) to (i) assume and exercise independent management, dominion and control over all monies coming into the Trustees' hands regardless of source, (ii) subject said monies to all lawful controls, policies and procedures regarding the maintenance, accounting, budgeting, use or expenditure of same in full compliance with the Town Code and State law, (iii) restrict and prohibit the Trustees from continuing the unlawful maintenance of independent accounts into which public monies are deposited or expending such monies and to take all necessary measures for enforcement, and (iv) require the Trustees to identify, relinquish and deliver to the Town all monies presently deposited or otherwise secured under their separate independent dominion or control.

The portion of the petition of the CPLR article 78 proceeding concerning retention and compensation of private counsel seeks to compel the Town, the Town Board and the Town attorney to (i) exercise exclusive control over the retention and compensation of private counsel in connection with the prosecution or defense of any action or lawsuit on behalf of the Town or the Trustees pursuant to Town Law § 65 and the Town Code, (ii) require that the retention and/or compensation of private counsel to provide services in connection with the prosecution or defense of any action comply with Town Law § 65 and the Town Code, (iii) restrict and prohibit the Trustees from the unlawful and unauthorized retention of counsel and from expenditure of public monies for counsel's compensation in violation of Town Law § 65 and the Town Code, and to take all necessary measures for enforcement, and (iv) to restrict and prohibit the Trustees from independently commencing or prosecuting litigation without the authority of the Town Board.

By order dated January 12, 2012, this Court granted the dismissal motions of the Trustees and the Town and Town Board solely to the extent of dismissing the fourth and fifth causes of action as well as the CPLR article 78 proceeding, and granted the Village's motion to consolidate for joint trial the instant action with the related actions then pending in Suffolk County Supreme Court entitled Semlear, et al. v Albert Marine Construction, Inc., et al. under Index No. 10-11287 and Semlear, et al. v Incorporated Village of Quogue under Index No. 10-30131.

The Court initially addresses that portion of the cross motion (011) of the Trustees for an order dismissing the action in its entirety for lack of standing of the Village, which brings the [*5]action as parens patriae on behalf of its residents, or for an order dismissing as moot this action as against the Trustees for lack of an actual or concrete controversy between the Trustees and the Village. The Trustees argue that the Village lacks standing because it does not own the portion of the ocean beaches subject to the Trustees' regulation based on the stipulation of settlement in the federal action entitled Maurice Rapf and Carl Hansen v Suffolk County of New York (US Dist Ct, ED NY 1985, 84 Civ. 1478), in which the Village was an intervenor and agreed to the execution of a boundary line agreement granting New York State title to all land between the southerly toe of the primary dune and the high water mark of the Atlantic Ocean on which the Trustees' easement rights are impressed. The Trustees assert that the agreement was recorded against each of the ocean-facing properties within the Village. The Trustees also argue that no statute confers upon the Village standing to challenge the Trustees' regulation of use of the beach easement, that Village residents also lack standing because they cannot show how the Trustees' beach regulation caused them an "injury in fact", and that the Village has a conflict of interest with its citizens who have an interest in having their easement privileges protected by the Trustees.

The Trustees further argue that there is no actual, concrete, justiciable controversy. The current President of the Board of Trustees, Eric Shultz, asserts by affidavit dated September 13, 2012 that he knows of no attempt by the Village to challenge the Trustees' easement rights over the ocean beaches within the Town or to interfere with the rights of the Town's inhabitants to use said beaches or to obstruct any effort by the Trustees to protect the inhabitants' rights to use the ocean beaches located within the Incorporated Village of West Hampton Dunes. Mr. Shultz states in his affidavit that "based upon the historical records, including the Dongan Patent, Chapter 155 of the Laws of 1818; Chapter 283 of the Laws of 1831; and the plenitude of court decisions, the Trustees for more than three centuries have preserved and protected the rights of Southampton's inhabitants to use the ocean beaches for bathing, fishing, and other traditional purposes, that they have done so by requiring permits for activities that threaten to obstruct or interfere with the rights of the Town's inhabitants."

The Village contends in opposition that the Trustees' motion to dismiss violates the single- motion rule of CPLR 3211 (e) and the doctrine of law of the case inasmuch as the Trustees already made a pre-answer motion to dismiss (002) in this action and did not seek leave to reargue the resulting order dated January 12, 2012, nor did they appeal from said order. The Village adds that any new arguments raised by the instant motion were waived by not having been raised in the original CPLR 3211 motion. According to the Village, the Trustees' attempted imposition of an onerous successive layer of regulatory control over the use of ocean beaches within the Village's boundaries in addition to the existing regulation by the Village and the New York State Department of Environmental Conservation imposes an undue and unnecessary burden on the residents of the Village and violates the Village's home rule powers. It is the Village's position that a justiciable controversy does exist as to the scope of the Trustees' regulatory powers and jurisdiction as to where and what they may regulate, and that the Trustees relied on said justiciable controversy in commencing the action of Semlear, et al. v Incorporated Village of Quogue. The Village argues that it was a necessary party to, and unsuccessfully [*6]sought intervention in, the related action entitled Semlear, et al. v Albert Marine Construction, Inc., et al. involving the justiciable controversy of the installation of "Geotubes" by defendant property owners on the beach fronting the Atlantic Ocean in the Village of Quogue without a permit or consent from the Trustees. The Village emphasizes that its jurisdictional and geographic boundary is the mean high water mark of the Atlantic Ocean. The Village further contends that the stipulation of settlement and resulting boundary line agreement in Maurice Rapf and Carl Hansen v Suffolk County of New York are irrelevant inasmuch as the Trustees were not a party to said litigation and were referenced fleetingly in the stipulation, and the documents do not contain any recognition by the Village that the Trustees' regulatory powers apply within the Village's boundaries.

The Court initially notes that Maurice Rapf and Carl Hansen v Suffolk County of New York involved storm damage protection construction in an area of the Village of West Hampton Dunes bounded on the south by the Atlantic Ocean, on the north by Moriches Bay, on the west by the boundary between the Towns of Southampton and Brookhaven, and on the east by a line running north/south through the westernmost of a series of groins. Pursuant to the terms of said stipulation, the plaintiffs, who were owners in fee simple of lands in the Village, were to execute a boundary line agreement together with the County and/or New York State which agreement was to be "subject to any property interest in favor of the Trustees of the Freeholders and Commonalty of the Town of Southampton under the Dongan Patent." The resulting Boundary Agreement dated March 20, 1996 was not executed by a representative of the Village or the Trustees and the agreement deeded lands owned by private property owners in the Village "lying south of the boundary line so established."

Here, the Trustees have failed to demonstrate that the entire ocean beach area within the Incorporated Village of West Hampton Dunes was deeded to the State and, in any event, the Village has a sovereign or quasi-sovereign interest in the management or regulation of lands within its boundaries and thus has standing to assert the first three causes of action (see The Trustees of the Freeholders and Commonalty of the Town of Southampton v Betts, 163 NY 454, 460 [1900] Incorporated Village of Northport v Town of Huntington, 199 AD2d 242, 604 NYS2d 587 [2d Dept 1993]). Moreover, to the extent that there was a justiciable controversy between the Trustees and the Incorporated Village of Quogue in Semlear, et al. v Incorporated Village of Quogue which involved similar issues, there is a justiciable controversy between the Trustees and the Village in this matter. Therefore, that portion of the Trustees' cross motion (011) to dismiss for lack of standing or a justiciable controversy is denied.

The Town and its Town Board cross-move (012) to dismiss the action as against them on the ground that no controversy exists between the Town and the Village inasmuch as the Town and its Town Board have no power to regulate the ocean beaches situated within the incorporated villages located within the Town of Southampton, noting that Town Code § 111-31 specifically excludes the incorporated villages from the definition of "Ocean Beach Area." They argue that the sole reason for inclusion in this action is the requirement in the Town Code that all persons shall comply with the Rules and Regulations of the Trustees for the Management and Products of [*7]the Waters of the Town of Southampton commonly referred to as the "Trustee Blue Book."

Town Code, article VI, § 111-30 (A) provides that "[n]o dock, spile, bulkhead, jetty, retaining wall, revetment, catwalk, walkway, stairs, steps, artificial beach nourishment or fill, upland retaining wall or any other structure shall be constructed or placed within the bay beach area or ocean beach area, as defined in this chapter, without first obtaining a permit from the Town Trustees." Town Code, article VIII, § 111-37 requires that "[e]very person shall comply with the regulations as provided in the Rules and Regulations for the Management and Products of the Waters of the Town of Southampton promulgated by the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton in all matters."

"Ocean Beach Area" is defined in the Town Code as "[t]hose premises along the Atlantic Ocean bounded on the north by the crest of the primary dune, on the east by the easterly Town line, on the south by the high-water mark of the Atlantic Ocean and on the west by the westerly Town line, excluding incorporated villages, and the Suffolk County Beach known as Shinnecock Inlet East.' This area is a right-of-way controlled by the Town Trustees." (Town Code, article VII, § 111-31).

The Trustee Blue Book definition of "Ocean Beach Area" is "all those premises along the Atlantic Ocean bounded on the north by the crest of the primary dune, on the east by the East Hampton town line, on the south by the high-water mark of the Atlantic Ocean and on the west by the Brookhaven town line, including those areas within incorporated villages. Said area shall be the easement held in favor of the Freeholders and Commonalty of the Town of Southampton." (Rules, article I).

Inasmuch as the Village is alleging that the Town is extending its municipal zoning powers and authority to areas of ocean beaches within the Village's boundaries through its incorporation of the "Trustee Blue Book" into its Town Code and its enforcement of the "Trustee Blue Book" provisions, there is a justiciable controversy as against the Town and Town Board (see CPLR 3001) such that the cross motion (012) of the Town and Town Board to dismiss the action as against them must be denied.

The Village moves (010) for summary judgment on its first and second causes of action based on collateral estoppel, arguing that the Court's decisions in the related actions involving the Incorporated Village of Quogue entitled Semlear, et al. v Albert Marine Construction, Inc., et al. and Semlear, et al v Incorporated Village of Quogue determined that the Trustees do not have any power to govern or regulate ocean beaches inside the Incorporated Village of Quogue, including but not limited to regulation by the Trustee Blue Book. The Village also moves (014) for summary judgment in its favor on the first three causes of action in the complaint.

It is well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986] Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d [*8]595 [1980] Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923, citing to Zuckerman v City of New York, 49 NY2d at 562, 427 NYS2d 595).

Under the doctrine of collateral estoppel, a narrower form of res judicata, a party is precluded from relitigating an issue which has been previously decided against him in a prior proceeding where he had a full and fair opportunity to litigate such issue (see Luscher v Arrua, 21 AD3d 1005, 1007, 801 NYS2d 379 [2d Dept 2005] see also Buechel v Bain, 97 NY2d 295, 303-304, 740 NYS2d 252 [2001] Ryan v New York Tel. Co., 62 NY2d 494, 500, 478 NYS2d 823 [1984]). The two elements which must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue (see id.). The party seeking to invoke the doctrine of collateral estoppel "bears the burden of establishing that the identical issue was necessarily decided in the prior action, and the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination'" (Leung v Suffolk Plate Glass Co., Inc., 78 AD3d 663, 663-664, 911 NYS2d 376 [2d Dept 2010], quoting Mahler v Campagna, 60 AD3d 1009, 1011, 876 NYS2d 143 [2d Dept 2009]).

The Court notes that contrary to the assertions of the Village, the orders dated December 11, 2012 in both of the related actions declared that the Trustees do have the right to regulate activities to protect their easement area on ocean beaches south of the crest of the primary dune and north of the high water mark of the ocean (see The Trustees of the Freeholders and Commonalty of the Town of Southampton v Betts, 163 NY 454, 460; Knapp v Fasbender, 1 NY2d 212, 228, 151 NYS2d 668 [1956] Matter of Allen v Strough, 301 AD2d 11, 752 NYS2d 339 [2d Dept 2002] Matter of Poster v Strough, 299 AD2d 127, 752 NYS2d 326 [2d Dept 2002]). However, said orders in the prior related actions did not render a decision or declaration concerning the Trustees' right to regulate specifically within the boundaries of a village. Instead, the orders granted summary judgment to the defendants based on deficiencies in the pleadings. Therefore, the Village's motion (010) for summary judgment on its first and second causes of action based on collateral estoppel is denied.

Permits are required from the Trustees by Town Code and the Trustee Blue Book for certain projects, including the construction of a jetty, revetment, retaining wall, or the placement of artificial fill, in the "ocean beach area" (see Town Code, article VI, § 111-30 [A] Rules, article VII, § 1[A][3] Matter of Allen v Strough, 301 AD2d 11, 752 NYS2d 339; Matter of Poster v Strough, 299 AD2d 127, 752 NYS2d 326). Said local laws were enacted by the Trustees and the Town pursuant to the police powers delegated to the Town by the State (Matter [*9]of Poster v Strough, 299 AD2d 127, 139, 752 NYS2d 326). The Appellate Division, Second Department has held that "it was not improper for the Town Board, in passing Local Law 21, to incorporate the Trustees' Rules and Regulations [the Trustee Blue Book] by reference" (see Brookhaven Baymen's Assn., Inc. v Town of Southampton, 85 AD3d 1074, 1078, 926 NYS2d 594 [2d Dept 2011] Town Code, article VIII, § 111-37).

Municipal Home Rule Law § 11 (3) provides "[n]otwithstanding any provision of this chapter, any local law adopted by a town board shall be effective and operative only in that portion of such town outside of any village or villages therein except in a case where the power of such town board extends to and includes the area of the town within any such village or villages." Pursuant to Town Law § 132, "[a] rule, regulation or ordinance of a town shall be effective and operative only in that portion of such town outside of any incorporated village or city therein, except as otherwise specifically provided by statute."

Town Law § 261 provides:

For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by local law or ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city;

The Village argues that based upon the aforementioned statutes, the Trustees as an agency of the Town lack authority to regulate activities on ocean beaches within an incorporated village.

The Trustees are an entity of the Town, as evidenced by their being subject to Town Law § 64 entitled "Control of town finances." Thus, the rules and regulations of the Trustees are tantamount to Town rules and regulations. In view of the foregoing statutory authority, the Trustee Blue Book provisions are ineffective, and cannot operate, within the boundaries of an incorporated village except with respect to the management of the specific activities and uses reserved to the Town's inhabitants under the Laws of 1818, such as "taking seaweed from the shores of any of the common lands of the town, or carting or transporting to or from, or landing property on said shores, in the manner heretofore practiced" (Art. IV of the Laws of 1818). Notably, the issue of whether the Trustees have jurisdiction within an incorporated village was not addressed in either Matter of Allen v Strough, 301 AD2d 11, 752 NYS2d 339 (2d Dept 2002) or Matter of Poster v Strough, 299 AD2d 127, 752 NYS2d 326 (2d Dept 2002). Based on the foregoing, the Court grants summary judgment to the Village on its first three causes of action. [*10]

The Trustees move (013) to vacate the order dated January 12, 2012 in this action to the extent that said order denied their motion to dismiss the first three causes of action. The Trustees also cross-move (011) for an order pursuant to CPLR 3001 "declining" jurisdiction over the first three causes of action and dismissing them as moot. Both motions are based on the final determinations in the related actions entitled Semlear, et al. v Albert Marine Construction, Inc., et al. and Semlear, et al. v Incorporated Village of Quogue. Said motions are denied as moot for the reasons stated hereinabove. The Court also denies that portion of the Trustees' motion (013) seeking to vacate the order dated January 12, 2012 in this action to the extent that said order directed the joinder of the instant action with said related actions merely because the joinder is now rendered moot by the disposition of said related actions.

The Village also moves (014) for leave to renew the prior motion of the Trustees to dismiss the fourth and fifth causes of action as well as the CPLR article 78 proceeding, which was granted by order dated January 12, 2012, and then for summary judgment on said claims. The Village seeks renewal based on new evidence concerning the budgetary issues in the fourth and fifth causes of action and the CPLR article 78 proceeding which were raised in the related Suffolk County Supreme Court action entitled Gessin et al. v Throne-Holst et al. under Index No. 41686-2010. The Village's request for leave to renew is considered under CPLR 2221, and is granted. However, based on the Village's lack of standing to assert claims akin to a taxpayers' action on behalf of its citizens (see Incorporated Village of Northport v Town of Huntington, 199 AD2d 242, 604 NYS2d 587), the Village's request for summary judgment is denied.

In light of the foregoing, the Village is entitled to the entry of judgment declaring, pursuant to statutory law, that the Trustees have no lawful governmental or regulatory power to grant or deny permits in connection with (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance and use of structures and lands located anywhere within the Village's ocean beaches including management of any of the activities or uses reserved to the Town's inhabitants by Chapter 155 of the Laws of 1818 except management of the specific activities and uses reserved to the Town's inhabitants under the Laws of 1818, such as "taking seaweed from the shores of any of the common lands of the town, or carting or transporting to or from, or landing property on said shores, in the manner heretofore practiced" (Art. IV of the Laws of 1818), and, in addition, that any attempt by the Trustees to exercise or extend such power or authority over ocean beaches within the Village's boundaries, including enforcement of any provisions of the "Trustee Blue Book," a set of Rules and Regulations for the Management and Products of the Waters of the Town enacted by the Trustees, except in the management of the specific activities and uses reserved to the Town's inhabitants under the Laws of 1818, is unlawful, unenforceable and null and void. The Village is also entitled to entry of judgment declaring, pursuant to statutory law, that the Town and Town Board have no lawful governmental or regulatory power, duties or authority over (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance and use of structures and lands located anywhere within the Village's ocean beaches, and that the Town's purported extension of its municipal zoning powers and authority through its incorporation and enforcement of the "Trustee Blue Book" by adopting and enforcing Chapter 111 of the Town Code of the Town of Southampton [*11](Town Code), specifically Town Code §§ 111-30 (A) and 37, to areas of ocean beaches located wholly within the Village's boundaries, except in the management of the specific activities and uses reserved to the Town's inhabitants under the Laws of 1818, is unlawful, unenforceable and null and void.

Submit judgment.

Dated:

PETER H. MAYER, J.S.C.