159-MP Corp. v CAB Bedford, LLC

[*1] 159-MP Corp. v CAB Bedford, LLC 2017 NY Slip Op 50575(U) Decided on April 28, 2017 Supreme Court, Kings County Rothenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2017
Supreme Court, Kings County

159-MP Corp. d/b/a Food Town, Plaintiff,

against

CAB Bedford, LLC and the New York City Department of Buildings, Defendants.



509751/16



Counsel for Plaintiff:

Michael S. Farber, Esq.

Klein Slowik PLLC

90 Broad Street, Suite 602

New York, New York 10004

Counsel for Defendant CAB Bedford, LL" target="_blank">Zupa v Paradise Point Ass'n Inc., 22 AD3d 843, 843 [2005], citing Little Joseph Realthy v Town of Babylon, 41 NY2d 738 [1977]). "[T]o establish special damage it is necessary to show that there is some depreciation in the value of the premises as real property arising from . . . the forbidden use" (Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 218 [1967]). "[A]n allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury" (Zupa, 22 AD3d at 844). However, "[t]he status of neighbor does not . . . [*3]automatically provide the entitlement, or admission ticket, to judicial review in every instance" (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]). In this regard, the plaintiff must also "establish that the interest asserted is arguably within the zone of interests the statute protects" (Matter of CPD NY Energy Corp. v Town of Poughkeepsie Planning Bd., 139 AD3d 942, 944 [2016]).

Here, as noted above, plaintiff has alleged that it is located in close proximity to the retail center. Thus, it may be inferred that Bedford's alleged noncompliance with applicable Building Code and zoning provisions caused damages to plaintiff. Further, plaintiff's allegations are sufficient to establish that it is within the zone of interest the statute protects. In particular, the parking space requirement for a Type NB building protects the interests of existing businesses in the area, such as plaintiff's supermarket, against the reduction in available customer parking that would otherwise occur with the opening of the NB building. Accordingly, plaintiff has standing to commence this action.

Turning to plaintiff's individual causes of action, "[o]n a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail'" (Gawrych v Astoria Fed. Sav. & Loan, 148 AD3d 681 [2017], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Further, "the factual allegations in the pleading must be deemed true, and the petitioner must be afforded the benefit of every favorable inference" (Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1073 [2d Dept 2016]). "Nevertheless, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true" (Gawrych, 148 AD3d at 681[internal citations and quotation marks omitted]). "A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Anzora v 81 Saxon Ave. Corp., 146 AD3d 848, *2 [2d Dept 2017] [internal citations and quotation marks omitted]).

Initially, although Bedford's notice of motion indicates that it is moving to dismiss pursuant to CPLR 3211 (a)(1) based upon documentary evidence, its motion papers contain no documentary evidence or legal arguments which support the granting of such relief. Accordingly, Bedford's motion to dismiss pursuant to CPLR 3211 (a)(1) is denied.

Turning to plaintiff's first cause of action, which seeks special damages, there is no merit to Bedford's argument that this claim must be dismissed based upon plaintiff's failure to establish a depreciation in the value of its property. As previously noted, given plaintiff's proximity to the retail center, such damages may be inferred (Zupa, 22 AD3d at 844; Golden v Steam Heat, Inc., 216 AD2d 440, 441-442 [1995]). Accordingly, that branch of Bedford's motion which seeks to dismiss the first cause of action for failure to state a claim is denied.

With respect to plaintiff's second cause of action, contrary to Bedford's claim, the fact that plaintiff might have an adequate remedy at law does not mandate the dismissal of its declaratory judgment claim (Hudson Valley Oil Heat Council, Inc. v Town of Warwick, 7 AD3d 572, 574 [2004]). Rather, under CPLR 3001, the court may render a declaratory judgment as to the rights of the parties to a justiciable controversy (Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2010]). [*4]"To constitute a 'justiciable controversy,' there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" (id.).

Here, plaintiff has alleged that in applying for the permits for the construction project, Bedford represented that it would not remove any existing perimeter walls in order to receive DOB approval as an Alt-1 construction job. Plaintiff further alleges that Bedford did in fact remove perimeter walls from the existing structure and that the as-built retail center deviated materially from what Bedford represented to the DOB. Thus, contrary to Bedford's claim, there is a genuine legal controversy between the parties that exists outside of the administrative process before the DOB. Accordingly, that branch of Bedford's motion which seeks to dismiss plaintiff's declaratory judgment claim against it is denied.

Plaintiff's third cause of action seeks a mandatary injunction directing that Bedford remove and/or demolish all offending conditions from the retail center. "As a general rule, a mandatory injunction to remove or destroy a building is a drastic remedy which will only be granted if the benefit to the movant if the injunction were granted and the irreparable harm to the movant if the injunction were not granted substantially outweighs the injury to the party against whom the injunction is sought" (Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104 [2005]). Here, the complaint does not allege irreparable harm in the absence of an injunction, nor does it allege that the damages that plaintiff would sustain, in the absence of such an injunction, would substantially outweigh the damages that would be sustained by Bedford if the now completed retail center was demolished. Accordingly, plaintiff's third cause of action must be dismissed.

Plaintiff's fifth cause of action seeks a permanent injunction enjoining Bedford from occupying the retail center until it complies with all applicable rules, laws, and regulations. "A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction" (Swartz v Swartz, 145 AD3d 818, 828 [2016] [internal citations and quotations marks omitted]). Here, the complaint fails to adequately allege that plaintiff will sustain irreparable injury in the absence of an injunction or that monetary damages would be inadequate compensation (id., at 829). Accordingly, the fifth cause of action must be dismissed.

Plaintiff's sixth cause of action alleges that Bedford was negligent in failing to comply with Building Code §§ 27-363 and 27-257. Building Code § 27-363 sets forth certain minimum distances between exits. Assuming that the completed retail center was in violation of this provision, such violation may not form the basis of a negligence claim on plaintiff's part. In this regard, plaintiff's complaint fails to allege how it is impacted by such a violation or that its interests are within the zone interests protected by this provision. Building Code § 27-257 merely provides that "Occupancy Group F-3 shall include buildings and spaces in which the persons assembled are physically active and do not have a common center of attention."[FN2] This provision does not impose any specific duty upon Bedford and does not appear to have any applicability to the instant matter. Accordingly, plaintiff's sixth cause of action must be dismissed.

Summary

In summary, that branch of Bedford's motion which seeks to dismiss plaintiffs first and second causes of action is denied. That branch of Bedford's motion which seeks to dismiss plaintiff's third, fifth, and sixth causes of action is granted.

This constitutes the decision and order of the court.

Dated: April 28, 2017

Hon. Karen B. Rothenberg

J.S.C. Footnotes

Footnote 2:Occupancy Group F-3 consists of halls, galleries, gymnasiums, museums, passenger terminals, bowling allies, billiard parlors and skating rinks.