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Decided on March 19, 2013
Supreme Court, Albany County
In the Matter of Protect the Adirondacks! Inc., SIERRA CLUB,
PHYLLIS THOMPSON, ROBERT HARRISON and LESLIE
HARRISON, Petitioners for a Judgment Pursuant to CPLR Article 78

against

Adirondack Park Agency, NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, PRESERVE ASSOCIATES,
LLC, BIG TUPPER, LLC, TUPPER LAKE BOAT CLUB, LLC,
OVAL WOOD DISH LIQUIDATING TRUST and NANCY HULL
GODSHALL, as Trustee of OVAL WOOD DISH LIQUIDATING
TRUST, Respondents.







1682-12
Caffry & Flower Attorneys for Petitioners (John W. Caffrey and Claudia K. Braymer, of counsel) 100 Bay Street Glens Falls, New York 12801 Eric T. Schneiderman, Attorney General Attorney for State Respondents (Lisa Burianek and Susan L. Taylor, of counsel) The Capitol Albany, New York 12224 Whiteman, Osterman & Hanna, LLP Attorneys for Non-State Respondents (Robert L. Sweeney, of counsel) One Commerce Plaza Albany, New York 12260 FitzGerald Morris Baker Firth P.C. Co-Counsel to Non-State Respondents (Thomas A. Ulasewicz, of counsel) 16 Pearl Street Glens Falls, New York 12801 Richard M. Platkin, J.
In this proceeding brought pursuant to CPLR article 78, petitioners move for the following relief: (a) an order pursuant to CPLR 408 granting disclosure with regard to the 28th cause of action alleging improper ex parte communications; (b) an order directing respondent Adirondack Park Agency ("APA") to prepare and file a transcript of the deliberations of its members regarding the project that is the subject of this proceeding; and (c) an order requiring the APA to produce the memorandum dated January 10, 2012 from agency counsel John Banta to the members for in camera inspection to test a claim of privilege. Respondents Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC, Oval Wood Dish Liquidating Trust and Nancy Hull Godshall, as Trustee of Oval Wood Dish Liquidating Trust (collectively "Non-State Respondents") oppose the motion and cross-move pursuant to CPLR 407 for an order severing the 28th cause of action in the event the Court grants petitioners leave for disclosure with respect thereto. Respondents New York State Department of Environmental Conservation ("DEC") and the APA (collectively "State Respondents") oppose petitioners' motion.

BACKGROUND
Petitioners commenced this proceeding seeking to annul the APA's approval of the Adirondack Club & Resort ("ACR") project in Tupper Lake, New York ("the Project"). On January 20, 2012, after nineteen days of public adjudicatory hearings and seven days of regular public meetings and deliberation, the APA approved Project Findings and Order No. 2005-100 (the "Order") and 14 separate permits. The Order was issued on January 31, 2012.
The 153-page amended petition ("Petition") alleges 29 causes of action, claiming substantive and procedural violations of the APA Act, the Freshwater Wetlands Act, APA regulations and the State Administrative Procedure Act ("SAPA"). The principal focus of this [*2]motion is the 28th cause of action, which alleges that the APA's approval of the Project should be annulled due to improper ex parte communications with and by the APA, in violation of SAPA

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