Choudary v Limandri

[*1] Choudary v Limandri 2012 NY Slip Op 52448(U) Decided on August 20, 2012 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 20, 2012
Supreme Court, New York County

Mohammad Choudary, Petitioner,

against

Robert L. Limandri, Commissioner, New York City Department of Buildings, Respondent.



106006/2011



For Petitioner

Mark S. Laifer Esq.

Friedland Laifer & Robbins, LLP

62 William Street, New York, NY 10005

For Respondent

Mary O'Sullivan, Assistant Corporation Counsel

100 Church Street, New York, NY 10007

Lucy Billings, J.

Petitioner commenced this special proceeding pursuant to C.P.L.R. Article 78 by an order to show cause signed May 24, 2011, seeking respondent's reinstatement of petitioner's rigger license, and seeking monetary damages for earnings lost as a result of respondent's suspension of the license and for alleged harassment by respondent's subordinates. Respondent reinstated petitioner's license June 28, 2011, as part of a stipulation entered in this court June 20, 2011. Respondent now moves to dismiss the petition on the ground that this proceeding is moot. C.P.L.R. §§ 3211(7), 7804(f), and 7806. The proceeding is not moot, however, because petitioner's claims for damages survive.

Petitioner may recover monetary damages in an Article 78 proceeding only if the damages are incidental to petitioner's primary relief of reinstatement of his rigger license. C.P.L.R. § 7806. Consequential damages from the unlawful denial, suspension, or revocation of a license are unavailable in an Article 78 proceeding. Gross v. Perales, 72 NY2d 231, 237 (1988). "Whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case." Id. at 236. Incidental damages are the "natural and proximate consequences, and not the remote consequences, of a wrongful act." Rose Lee Mfg. v. Chemical Bank, 186 AD2d 548, 551 (2d Dep't 1992). Monetary relief may be incidental to an Article 78 proceeding if the relief is contingent on the court's determination that action by an agency or its official was unlawful, and the damages flow directly from that action. Gross v. Perales, 72 NY2d at 236; Hughes Village Restaurant, Inc. v. Village of Castleton-on-Hudson, 46 AD3d 1044, 1047 (3d Dep't 2007).

Time and effort petitioner exerted prosecuting his rights are not incidental damages. Loftin v. New York City Dept. of Social Servs., 267 AD2d 78 (1st Dep't 1999). Harassment, moreover, even if by agency officials or employees relating directly to unlawful agency action, is [*2]not a cognizable civil claim, Jerulee Co. v. Sanchez, 43 AD3d 328, 329 (1st Dep't 2007); Hartman v. 536/540 E. 5th St. Equities, Inc., 19 AD3d 240 (1st Dep't 2005), except under specific statutory and regulatory provisions that plaintiff does not rely on and do not apply here. Jerulee Co. v. Sanchez, 43 AD3d at 329.

In Article 78 proceedings, lost earnings are ordinarily consequential rather than incidental damages. Oberoi v. Dennison, 55 AD3d 1033 (3d Dep't 2008); Murphy v. Capone, 191 AD2d 683, 684 (2d Dep't 1993). Here, however, petitioner seeks compensation not for speculative new business that petitioner might have obtained with the license, Lukas v. Ascher, 299 AD2d 262, 263 (1st Dep't 2002), but for lost income from his inability to complete specific projects that were in fact underway when respondent suspended petitioner's license. These claimed damages are akin to claimed incidental property damage to a building because the claimant was prevented from maintaining or improving it, Hughes Village Restaurant, Inc. v. Village of Castleton-on- Hudson, 46 AD3d at 1045, 1047, rather than a speculative lost earnings claim. Oberoi v. Dennison, 55 AD3d 1033; Murphy v. Capone, 191 AD2d at 684.

For these reasons, the court denies respondent's motion to dismiss the petition as moot. C.P.L.R. §§ 3211(a)(7), 7804(f). Respondent shall serve and deliver to the court at 71 Thomas Street, Room 204, any answer to the petition within 30 days after service of this order with notice of entry. See C.P.L.R. §§ 3012(a), 3211(f), 7804(c). Petitioner shall serve and likewise deliver any reply within 20 days after service of an answer. See C.P.L.R. §§ 3012(a), 7804(c) and (d). After expiration of the reply period, the court will schedule a further hearing on the petition to determine the extent of relief to be granted. C.P.L.R. §§ 7803(3), 7806.

DATED: August 20, 2012

_____________________________

LUCY BILLINGS, J.S.C.