Matter of Citizens for St. Patrick's v City of Watervliet Zoning Bd. of Appeals

Matter of Citizens for St. Patrick's v City of Watervliet Zoning Bd. of Appeals 2015 NY Slip Op 06280 Decided on July 23, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 23, 2015
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[*1]In the Matter of CITIZENS FOR ST. PATRICK'S et al., Appellants,

v

CITY OF WATERVLIET ZONING BOARD OF APPEALS et al., Respondents.

Calendar Date: May 29, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

Rosemary Nichols, Watervliet, and McMahon, Kublick & Smith, PC, Syracuse (Jan S. Kublick of counsel), for appellants.

Goldman Attorneys PLLC, Albany (Paul J. Goldman of counsel), for City of Watervliet Zoning Board of Appeals and another, respondents.

Whiteman Osterman & Hanna, LLP, Albany (Robert L. Sweeney of counsel), for PCP Watervliet, LLC, respondent.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered July 17, 2014 in Albany County, which, among other things, in a proceeding pursuant to CPLR article 78, granted a motion by respondent PCP Watervliet, LLC for damages sustained as a result of a temporary restraining order.

In 2012, respondent PCP Watervliet, LLC (hereinafter respondent) purchased certain real property located in the City

of Watervliet, Albany County with the intention of demolishing the buildings contained thereon, including a church, school and rectory, and constructing a Price Chopper supermarket. Petitioners, a citizens advocacy group, thereafter commenced a declaratory judgment action seeking, among other things, to rescind the judicial authorization for the sale of the property. Petitioners' efforts in this regard proved to be unsuccessful (Citizens for St. Patrick's v Saint Patrick's Church of W. Troy, 117 AD3d 1213 [2014]), as was their challenge to the subsequent rezoning of the parcel (Citizens for St. Patrick's v City of Watervliet City Council, 126 AD3d 1159 [2015]).

Respondent City of Watervliet Building Inspector thereafter issued permits authorizing asbestos abatement and demolition of the subject buildings, prompting petitioners to seek administrative relief from respondent City of Watervliet Zoning Board of Appeals. Additionally, petitioners moved by order to show cause seeking, among other things, to suspend the relevant permits during the pendency of the administrative appeal. Supreme Court, among other things, denied petitioners' application for a preliminary injunction and granted respondent leave to apply for sanctions and costs, including reasonable counsel fees, pursuant to 22 NYCRR 130-1.1.

Petitioners appealed to this Court and, in conjunction therewith, moved for a temporary restraining order and a preliminary injunction pending appeal. Petitioners' request for a temporary restraining order was granted by a Justice of this Court upon the posting of a $10,000 bond. One week later, this Court denied petitioner's request for a preliminary injunction, and petitioners apparently did not perfect the subject appeal (Citizens for St. Patrick's v City of Watervliet City Council, 126 AD3d at 1160 n 3).

Demolition of the church ensued, and Supreme Court thereafter dismissed the underlying petition for failure to state a cause of action [FN1]. Supreme Court also denied respondent's request for sanctions and costs, finding that petitioners' litigation — although "somewhat disjointed" — was not frivolous. Respondent then moved by order to show cause for damages — in the form of counsel fees — incurred as a result of the issuance of the temporary restraining order, citing CPLR 6315. Supreme Court, among other things, granted respondent's application, prompting this appeal by petitioners.[FN2]

We affirm. Although an undertaking is required where a party is seeking a preliminary injunction (see CPLR 6312 [b]) and discretionary where a party is seeking a temporary restraining order (see CPLR 6313 [c]), the same general principles apply. Hence, once there is a final determination that the moving party was not entitled to injunctive relief, the moving party will be liable under the bond for all damages and costs that were incurred by reason thereof (see Marietta Corp. v Pacific Direct, Inc., 9 AD3d 815, 817 [2004]). Such damages, in turn, "may be ascertained upon motion on such notice to all interested persons as the court shall direct" (CPLR 6315).

Here, petitioners contend that CPLR 6315 does not contemplate the recovery of damages consisting solely of counsel fees. The record reflects, however, that petitioners failed to advance this argument in opposition to respondent's application for such fees under CPLR 6315; accordingly, this issue is unpreserved for our review (see Tverskoy v Ramaswami, 83 AD3d 1195, 1198 [2011]; Kamp v Fiumera, 69 AD3d 1168, 1170 [2010])[FN3]. Moreover, the case law [*2]makes clear that "attorneys' fees incurred in a successful effort to vacate a restraining order may be recoverable damages under CPLR 6315" (Shu Yiu Louie v David & Chiu Place Rest., 261 AD2d 150, 152 [1999]; see Marietta Corp. v Pacific Direct, Inc., 9 AD3d at 817; A & M Exports v Meridien Intl. Bank, 222 AD2d 378, 380 [1995]; Matter of Kaplan v Werlin, 215 AD2d 387, 388 [1995], appeal dismissed 86 NY2d 884 [1995], lv denied 87 NY2d 806 [1996]; Hanley v Fox, 90 AD2d 662, 662-663 [1982]). Hence, contrary to petitioners' assertion, Supreme Court did not err in granting respondent's application in this regard.

Petitioners' remaining arguments do not warrant extended discussion. To the extent that petitioners assert that respondent is not entitled to counsel fees under CPLR 6315 because Supreme Court previously denied respondent's request for costs and sanctions under 22 NYCRR 130-1.1, we need note only that respondent's respective applications in this regard were brought under separate statutory/regulatory provisions that, in turn, impose distinctly different burdens upon the party seeking an award of counsel fees thereunder. Accordingly, the mere fact that Supreme Court denied respondent relief under the frivolous litigation standard embodied in 22 NYCRR 130-1.1 in no way barred respondent's subsequent request for counsel fees under CPLR 6315. Finally, to the extent that petitioners' Civil Rights Law claim has been preserved for our review, we find it to be lacking in merit.

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

Footnotes

Footnote 1: Petitioners apparently did not appeal from the resulting judgment.

Footnote 2: Following a hearing, Supreme Court awarded respondent damages in the sum of $10,000 — the full amount of the bond previously posted.

Footnote 3: We reach a similar conclusion regarding petitioners' claim — raised for the first time at oral argument before this Court — that, inasmuch as it was this Court that granted the temporary restraining order, respondent erred in seeking counsel fees from Supreme Court in the first instance.