2-4 Kieffer Lane LLC v. Ulster County IDA

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).
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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

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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
COUNTY OF ULSTER
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In The Matter of IndexNo. 1'7-aSo(j.._
RJINo .:
VERIFIED PETITION
Petitioner-Plaintiff, AND COMPLAINT
For a Judgment Pursuant to Article 78 of the Civil

Pursuant to Section 3001 of the Civil Practice Law FILED
And Rules,
-against-
----
3 H f i lM
2~

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.

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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,
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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
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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
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
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
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

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

(~

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
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

COUNTY OF ULSTER
----------------------------------------------------------------------------)(
In The Matter of Index No.
RJINo.:
Petitioner-Plaintiff,
AFFIRMATION IN SUPPORT
For a Judgment Pursuant to Article 78 of the Civil OF VERIFIED PETITION
Pursuant to Section 3001 of the Civil Practice Law
And Rules,
-against-

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 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 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

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

(\
\

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
845-419-5022
mcco lganlaw@,twcmet:robiz.com

2-4 Kieffer Lane LLC v. Ulster County IDA

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2-4 Kieffer Lane LLC v. Ulster County IDA

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SUPREME COURT OF THE STATE OF NEW YORK

THE COUNTY OF ULSTER and THE ULSTER COUNTY

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

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

consideration in the Verified Petition.

the aforesaid return date.

Respondents have its principal office.

Dated: September 18, 2017

For a Judgment Pursuant to Article 78 of the Civil

THE COUNTY OF ULSTER and THE ULSTER COUNTY

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

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

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

and substantial fairness.

Kingston, New York 12401.

Kingston, New York 12401.

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.

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

County of Ulster, State ofNew York.

of Ulster, State ofNew York.

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

uses within an area from New York City to Buffalo.

precast plank annually.

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

which is considered an excellent safety rating.

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

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

company in the City of New York.

24. Particularly active in obstruction and dissemination of defamatory and

Worker Justice (the "Alliance").

location in the County of Ulster.

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

began a series of ex parte communications with Respondents.

remarks annexed as Exhibit "R")

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

annexed as Exhibit "D").

the International Union of Operating Engineers.

Application annexed as Exhibit "F").

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

sixty eight dollars ($3,068).

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

General Municipal Law.

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

first public hearing and was time barred.

service and is therefore not currently available in Ulster County.

Expert Study annexed hereto as Exhibit "I").

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

Petitioner, "something had to give".

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

2017, annexed hereto as Exhibit "K").

business and personnel information at the public hearing.

rejected after Mr. Horodyski resigned as chairman.

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

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

plaintiffs which was settled favorably to Petitioner.

favorably to the Petitioner.

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

Thomas Auringer, was not a felon.

the public hearing.

own written policies.

had been closed.

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