Molander v Pepperidge Lake Homeowners Assn.

[*1] Molander v Pepperidge Lake Homeowners Assn. 2009 NY Slip Op 52360(U) [25 Misc 3d 1231(A)] Decided on November 5, 2009 Supreme Court, Suffolk County Rebolini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009
Supreme Court, Suffolk County

Garth Molander and Kathleen Molander, Plaintiffs,

against

Pepperidge Lake Homeowners Association, Plhoa Board of Directors, Arthur Lorelli, Anna Mae Castatuta, John Weber, Sheila J. Nugent, Robert Beardslee in their capacity as directors, Robert L. and Shirley I. Hughes Family Trust, individually and as a necessary party, Carol Burston, individually and as a necessary party, Arthur Lorelli, individually and as a necessary party, Anna Mae Casatuta, individually and as a necessary party, Michael Casatua, individually and as a necessary party, John Weber, individually and as a necessary party, Jane Weber, individually and as a necessary party, Sheila J. Nugent, individually and as a necessary party, Kelly Westhoff, individually and as a necessary party, Colette Westhoff, individually and as a necessary party, Kathleen McLeod, individually and as a necessary party, Robert Beardslee, individually and as a necessary party, Christine Beardslee, individually and as a necessary party, Paul M. DeChance, Chairman, Terry J. Karl, Keri Peragine, Kevin McCarrick, James Wisdom, Diane Burke, and George Proios, individually and in the capacity of each as a Member of the Zoning Board of Appeals of the Town of Brookhaven, Town of Brookhaven, Town of Brookhaven Tax Assessor, The Board of Assessment Review of the Town of Brookhaven, Arthur Gerhauser, individually and in his capacity as the Chief Building Inspector of the Town of Brookhaven Building Division, John Weiss, individually and in his capacity as the Chief Zoning Inspector for the Town of Brookhaven, Karen Wilutis, Esq., individually and in her capacity as attorney for the Town of Brookhaven, James Burke, Esq., individually and in his capacity s attorney for the Town of Brookhaven, and any other unknown agents, assigns and/or employees of the Town of Brookhaven, individually and in the capacity of each as town employee, and "John Doe" and "Jane Doe", Defendants.



25082/2008



Attorney for Plaintiff

Kathleen Molander:

Garth Molander, Esq.

(Attorney/Plaintiff Pro Se)

4875 Sunrise Highway, Suite B

Bohemia, NY 11716

Attorney for Defendants PLHOA Board

of Directors and members individually:

Miranda Sokoloff Sambursky

Slone Verveniotis, LLP

The Esposito Building

240 Mineola Boulevard

Mineola, NY 11501

Attorney for Defendants Casatuta,

Hughes Family Trust, McLeod & Beardslee:

Cohen & Warren, P.C.

80 Maple Avenue, P.O. box 768

Smithtown, NY 11787

Attorney for Defendant Burston:

William A. Sheeckutz, Esq.

775 Wantagh Avenue

Wantagh, NY 11793

Attorney for Defendant Weber:

Zukowski & Zukowski

45 Research Way, Suite 203

East Setauket, NY 11733

Attorneys for Defendants Westoff:

Roe Taroff Taitz & Portman, LLP

31 Oak Street, Box 352

Patchogue, NY 11772

Attorney for Defendants Town of

Brookhaven and Municipal Defendants:

Karen M. Wilutis, Esq.

Brookhaven Town Attorney

Town of Brookhaven

One Independence Hill

Farmingville, NY 11738



William B. Rebolini, J.

The non-municipal defendants

In their prior motions to dismiss the complaint pursuant to CPLR §3211, the non-municipal defendants relied upon exhibits which were inadvertently omitted from the moving papers.[FN1] By order of this Court dated April 3, 2009 these prior motions were denied with leave to renew and the Court advised all parties that the motions would be construed pursuant to CPLR §3212. The exhibits have now been annexed to the moving papers, leave to renew is granted to the non-municipal defendants and the renewed motions are granted as limited below.

The plaintiffs are the owners of Unit No. 803 in the condominium complex known as Pepperidge Lakes, located in the Town of Brookhaven, New York (hereafter the Town). The community is governed by a homeowners association (hereafter the HOA) via its elected board of directors (hereafter the Board) pursuant to the declaration of covenants and restrictions, by-laws and house rules. The plaintiff, Garth Molander, is an attorney representing himself - pro se - and his wife, Kathleen (hereafter the plaintiff or plaintiffs). With respect to the non-municipal defendants, the dispute has its genesis in the plaintiffs' 2005 application to the HOA Board to renovate their home by adding a dormer for the third story. The application was initially granted in 2005 and then extended upon renewed application in 2006. Both approvals were subject to Town approval. Although the necessary Town and DEC permits were obtained in 2008, the plaintiffs' 2006 approval had expired and the plaintiffs did not seek renewal. When the plaintiffs proceeded to build the dormer without approval of the HOA Board in 2008, the Board, inter alia, imposed a fine and the instant action ensued. Based upon various theories the plaintiffs assert that the 2005 approval did not expire, that the Board was obligated to approve the construction, and that they have been subjected to selective, disparate and unfair treatment. Among plaintiffs' arguments is that a similar dormer expansion was approved for unit No. 904, more than 10 years prior to their 2005 application. It appears that the plaintiff Garth Molander has had an acrimonious relationship with the community and the HOA, although it also appears that he served as its president when fines were imposed against other homeowners for failure to comply with house rules, when the house rules were [*2]amended to provide that approvals for architectural changes would expire after one year and at the inception of the subject approval process for his dormer.

Claims against the HOA Board and its members (Mot. No. 010)

A brief synopsis of the sequence of events is as follows:

•On April 5, 2005, the Pepperidge Lake HOA Board approved the plaintiffs' application to construct a third-story dormer. The approval was subject to approval of the Town of Brookhaven and expired one year thereafter (as provided in the House Rules at I [A]).

•On April 4, 2006, the HOA Board approved the plaintiffs' renewed application to construct the dormer. The approval was again subject to the Town's approval and expired one year thereafter.

•On December 7, 2006 the plaintiffs' application for a building permit was rejected by the Brookhaven Building Department because a height variance was necessary. At the hearing before the Zoning Board of Appeals (ZBA) to obtain the variance, the plaintiff acknowledged that the HOA Board had granted approval of the dormer "and a one year extension of that approval."

•On February 28, 2007, the ZBA rejected the plaintiffs' variance application and on April 2, 2007, the plaintiffs commenced a CPLR Article 78 proceeding against the Town, its Building Department and its ZBA.

•By letter dated June 25, 2007, the HOA Board informed the plaintiffs that it had declined to renew the dormer approval, which expired April 30, 2007. It also stated that the plaintiffs had not sought renewal of the approval and reminded the plaintiffs that no dormer may be built without Board approval.

•By letter dated July 2, 2007, the plaintiff (Garth) advised the HOA that its letter of June 25th had no effect and, since he had sought a variance and was in litigation with the Town and in the event that he obtained the variance the HOA was bound to approve the dormer.

•By letter dated July 9, 2007, the HOA Board advised the plaintiff that he did not have permission for the dormer, that an approval for another owner's 3rd-story dormer, constructed 10 years ago, did not require that the Board approve the plaintiff's proposed dormer. The HOA Board stated that the plaintiff's application for a variance from the Town did not equal substantial performance and, in any event, should the plaintiff not prevail in the pending Article 78 proceeding, his application to HOA would be rendered moot.

•On November 5, 2007, the plaintiffs commenced a federal action against the Town.

[*3]

•On January 15, 2008, the plaintiffs and the Town entered into a stipulation of settlement resolving the Article 78 proceeding. The Town agreed to have its Building Department issue the necessary permits for the plaintiffs to construct a third story dormer "similar in size, construction, and design as exists at Unit 904," and the Article 78 proceeding was withdrawn with prejudice. The necessary DEC and wetland/waterway permits were obtained in February, 2008, and the plaintiff obtained the building permit from the Town on May 12, 2008.

•On June 21, 2008 the plaintiffs provided the Board with copies of the 2005 approval, the renewed 2006 approval, the plans, state and town permits, variance decision and the stipulation of settlement with the Town, and the plaintiffs stated that they would be commencing construction of the dormer.

•By letter dated June 26, 2008, the plaintiff submitted "a good faith" application to renew the previously granted approval to construct the attic dormer, without waiving an objection thereto, and stated that, since the current house rules were noticed to the community after the 2005 application had been granted, any renewal of the application was not applicable as against him. The plaintiff advised that, if a decision was not made by July 8, 2008, he would presume that the Board had approved the dormer and would commence construction as per the "original approval."

•By letter dated July 16, 2008, the HOA Board advised the plaintiffs that the dormer application would require:

1) copies of all permits and DEC approvals, full-sized copies of the plans which indicate the

dimensions, location and materials to be used for the proposed dormer, an indication that any water run off will not go onto neighboring properties and an indication that the dormer will not result in loss of privacy to neighbors;

2) execution of a hold harmless agreement;

3) a $300 fee for a water tapping' agreement;

4) a written agreement that all building materials will be stored on plaintiffs' lot, rather than the common areas;

5) a written agreement that any dumpster used in the construction will be located on the plaintiffs' lot, rather than the common areas and will remain no longer than two weeks;

6) a written agreement that all work will be performed between 8:30 a.m. and 4:30 p.m., and that no work will be performed on Sunday; and

7) an acknowledgment that the plaintiffs will comply with any and all rules regarding alterations. [*4]

•On August 3, 2008, the plaintiffs, without first obtaining HOA Board approval, commenced and subsequently completed construction of the dormer.

•By letter dated August 18, 2008, the HOA Board informed the plaintiffs that a fine of $2,500.00 would be imposed for construction of the dormer without first receiving HOA approval and without the submissions requested and that, despite these violations, the Board was still willing to consider the dormer application provided that the plaintiffs comply with the submissions sought and pay the $2,500.00 fine (as provided in the House Rules at section VI).

The plaintiffs' claims against the HOA Board and its members individually include allegations that the Board acted in bad faith and with animosity, and causes of action sounding in breach of contract, tortious interference with contractual relations, breach of the implied covenants of good faith and fair dealing, breach of fiduciary duty, selective enforcement, breach of covenants and restrictions, failure to enforce covenants and restrictions, discriminatory enforcement of covenants and restrictions, ultra vires actions and private nuisance. The plaintiffs also seek declarations rescinding (1) the $2,500.00 fine and "water-tapping" agreement, (2) the denial of tree removal at association expense, (3) the denial of a driveway request, (4) the removal of a tree, and (5) the directors' refusal to conduct a special meeting and provide financial statements.

The submissions establish that on June 26, 2008, the plaintiffs again sought approval for the dormer; that the plaintiffs thereafter erected the dormer without Board approval and that on August 18, 2008, the Board informed the plaintiffs that, despite their disregard of the Board approval process, it would still consider an application which was accompanied by copies of the State and Town permits and payment of a $2,500.00 fine (House Rules at section VI). The Board, in fact, never denied approval of the dormer; the plaintiffs chose not to submit to the approval process, or to address the other building and hold harmless concerns of the Board. Among the multitude of claims made by the plaintiffs is their argument that they did not need to seek 2008 approval of the Board because the 2005 approval never expired. However, the plaintiffs' own actions and statements contradict this argument. The provisions for architectural committee approval and house rules, including the imposition of fines for violations thereof, are within the powers of the HOA (Section 5 entitled "Powers," include the power "to make reasonable rules and regulations and to amend the same from time to time" at paragraph No. 6 of the By-Laws)[FN2] and do not conflict with the declaration of covenants or the by-laws (see, Real Property Law §§ 339-j, 339-n, 339-v [h]; Horwitz v. 1025 Fifth Ave., 7 AD3d 461 [1st Dept., 2004]). Moreover, the decision of the Board that it would [*5]entertain post-construction approval of the dormer application, despite the plaintiffs' disregard of the approval process, upon the requested submissions and payment, is subject to review under the business judgment rule (see, Renauto v. Board of Directors of Valimar Homeowners Assn., 23 AD3d 564 [2nd Dept., 2005]; Captain's Walk Homeowners Assn. v. Penney, 17 AD3d 617 [2nd Dept., 2005]; Forest Hills Gardens Corp. v. Evan, 12 AD3d 563 [2nd Dept., 2004]), which requires that such decision must be sustained if it was authorized and was taken in good faith and in furtherance of the legitimate interests of the homeowners association (see, 40 W. 67th St. v. Pullman, 100 NY2d 147 [2003]; Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]; Meadow Lane Equities Corp. v. Hill, 63 AD3d 701 [2nd Dept., 2009]; Aguilera del Puerto v. Port Royal Owner's Corp., 54 AD3d 977 [2nd Dept., 2008]; Walden Woods Homeowners' Assn. v. Friedman, 36 AD3d 691[2nd Dept., 2007] (which rescinded a prior approval); LoRusso v. Brookside Homeowner's Assn., Inc., 17 AD3d 323 [2nd Dept., 2005]; Breezy Point Coop., Inc. v. Young, 16 Misc 3d 101 [App Term, 2d Dept. 2007]). The decision at issue here satisfied these standards and the plaintiffs' conclusory allegations to the contrary are insufficient to withstand these defendants' motion for summary judgment. Accordingly, all claims regarding the HOA Board's decision against the HOA Board and its members individually, including the claim of selective enforcement and ultra vires action, are dismissed (see, Pelton v. 77 Park Ave. Condominium, 38 AD3d 1 [1st Dept., 2006]; Captain's Walk Homeowners Assn. v. Penney, 17 AD3d 617 [2nd Dept., 2005]; W.O.R.C. Realty Corp. v. Carr, 207 AD2d 781 [2nd Dept., 1994]).

As to the breach of contract claims, the thrust of plaintiffs' argument is that the Board acted without authority and in bad faith when it informed them that Board approval was still necessary, after the conclusion of the municipal litigation. The plaintiffs assert that this decision breached a 2002 agreement between the plaintiff and the Board,[FN3] settling an unrelated disagreement between the parties, which provided that the Board would act without animosity towards the plaintiffs on future matters and the 2005 approval itself. Even assuming that the facts here are relevant to the 2002 agreement, the Court has determined that the 2006 renewed approval expired one year after it was granted and that the actions of the Board are subject to the business judgment rule and are sustainable thereunder, as set forth above. Therefore, the defendants are also entitled to summary judgment dismissing the plaintiff's breach of contract claim. Since the claims for breach of the implied covenants of good faith and fair dealing are duplicative of the unavailing breach of contract claims (see, Parker East 67th Assoc. v. Minister, Elders & Deacons of Refm, Prot. Dutch Church of City of NY, 301 AD2d 453 [1st Dept., 2003], lv denied, 100 NY2d 502 [2003]), they are also unsustainable. The breach of fiduciary duty claims are also duplicative (see, Brasseur v. Speranza, 21 AD3d 297 [1st Dept., 2005]). Further, movants have shown that plaintiffs cannot establish, and have not alleged, the elements of a claim for the tortious interference with a business relationship (see, Carvel Corp. v. Noonan, 3 NY3d 182 [2004]), or nuisance (see, Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564 [1977]), or an action against these defendants based upon the alleged code violation of their neighbors (see, Santulli v. Drybka, 196 AD2d 862 [2nd Dept., 1993]). Therefore, these claims are also dismissed. Accordingly, summary judgment dismissing the [*6]plaintiffs' complaint is granted to Pepperidge Lake Homeowners Association, Inc., PLHOA Board of Directors, Arthur Lorelli, Anna Mae Casatuta, John Weber, Sheila J. Nugent, and Robert Beardslee, individually (see, Pelton v. 77 Park Ave. Condominium, 38 AD3d 1 [1st Dept., 2006]) and as members of the Board. To the extent that the plaintiffs assert claims against the individual Board members based upon the attic conversions of their individual units (without dormers) or removal of trees, these claims are also dismissed for the reasons set forth below.

Nevertheless, the Board has not addressed the plaintiffs' request for a declaration which rescinds the Board's decisions regarding (1) the "water-tapping" agreement, (2) the denial of tree removal at association expense, (3) the denial of a driveway request, (4) the removal of a tree, and (5) the directors refusal to conduct a special meeting and provide financial statements. Since the Board has not met its initial burden as to these claims for declaratory relief, summary judgment dismissing them cannot be granted (see, generally, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Further, as to these non-municipal defendants, the plaintiffs have not established that facts essential to justify opposition to their motion may exist upon further discovery sufficient to withstand the defendants' prima facie showing (see, CPLR §3212 [f]; Auerbach v. Bennett, 47 NY2d 619 [1979]; Weintraub v Levine, 22 AD3d 664 [2nd Dept., 2005]; Lewis v. Safety Disposal Sys. of Pa., Inc., 12 AD3d 324 [1st Dept., 2004]; Odorizzi v. Ostego N. Catskills Bd. of Coop. Educ. Servs., 307 AD2d 490 [3rd Dept., 2003]) and have not established any recognizable claim for attorneys fees (see, TAG 380, LLC v. ComMet 380, 10 NY3d 507 [2008]; Hooper Assoc. v. AGS Computers, 74 NY2d 487 [1989]). Accordingly, the plaintiffs' cross motion (Mot. # 013) for summary judgment rescinding the fine and awarding them attorneys' fees, and for relief pursuant to CPLR §3212 (f), is denied.

The Court makes the following declaration: the $2,500 fine is not rescinded.

Claims against Kelly (Eugene) Westhoff and Colette Westhoff (Mot. # 011)

The Westhoff defendants are the owners of unit No. 302 in the condominium complex. The plaintiffs' claims against them, sounding in private nuisance and breach of covenants and restrictions, relate to habitable space in the Westhoff's third-floor attic. The Westhoffs purchased their unit in 2002, when it was approximately 16 years old, at which time the attic was finished. The third floor does not contain a dormer. The plaintiffs allege that the finished attic, which does not contain fire sprinklers, is a private nuisance because it violates the New York State Fire Code mandating such sprinklers and violates the HOA covenants and restrictions. By decision dated November 14, 2007, the Westhoffs were granted a variance to the fire and building code by the New York Deptartment of State as to the finished attic, allowing them to install a limited sprinkler system; the Town of Brookhaven has given them until July 31, 2010 to obtain a building permit and to install the limited system. To the extent that the plaintiffs allege that the finished attic creates a private nuisance, they have not alleged and cannot establish that the finished attic intentionally and unreasonably interfered with the use and enjoyment of their own property (see, Sharp v. Norwood, 89 NY2d 1086 [1997]; [*7]Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564 [1977]). Further, the Westhoffs are not members of the Board and have no authority to enforce any of the community's covenants and restrictions and have no authority as to violations of any Town code or State code (see, Santulli v. Drybka, 196 AD2d 862 [2nd Dept., 1993]) nor does any alleged violation of the by-laws give rise to a private cause of action (see, Golub v. Simon, 28 AD3d 359 [1st Dept. 2006]; Di Lorenzo, New York Condominium and Cooperative Law § 3:5 [2009-2010 Supplement at page 61]). Accordingly, summary judgment dismissing the complaint insofar as asserted against them is granted to the Westhoffs.

Claims against Robert L. and Shirley I. Hughes Family Trust, Michael Casatuta, Kathleen McLeod

and Christine Beardslee (Mot. Seq. # 012)

Robert L. and Shirley I. Hughes Family Trust

The Robert L. and Shirley I. Hughes Family Trust is the owner of unit No. 904. The plaintiffs' claims against the Trust, sounding in private nuisance and breach of covenants and restrictions, relate to a third-story dormer constructed in 1995. Although the requisite building permits were obtained and a certificate of occupancy was issued for the dormer, the plaintiffs allege that it does not contain a sprinkler system, as mandated by the New York State Fire Code and, therefore, violates both the fire code and Article XI (d) and (e) of the covenants and restrictions.

Article XI, entitled "Use of Property," provides at subsection (d) that "no nuisance shall be allowed upon the property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents" and provides at subsection (e) that "no improper, offensive or unlawful use shall be made of the property nor any part thereof and all valid laws, zoning ordinances, the regulations of all governmental bodies having jurisdiction thereof, shall be observed." However, any alleged fire code violation does not give rise to a private cause of action by one unit owner against another unit owner (see, Golub v. Simon, 28 AD3d 359 [1st Dept. 2006]); New York Condominium and Cooperative Law § 3:5, [2009-2010 Supplement at page 61]) nor have the plaintiffs alleged that the legally constructed dormer intentionally and unreasonably interfered with the use and enjoyment of their own property, necessary for a nuisance claim (Sharp v. Norwood, 89 NY2d 1086 [1997]; Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564 [1977]). Accordingly, the motion by the Robert L. and Shirley I. Hughes Family Trust is granted, and the complaint is dismissed against it.

Michael Casatuta

Mr. Casatuta is one of the owners of unit No. 201. The plaintiffs' claims against Mr. Casatuta sound in private nuisance, breach of covenants and restrictions, prima facie tort and tortious interference with business relations. The claims for private nuisance and breach of covenants and restrictions relate to habitable space in the third-floor attic. As stated above, the plaintiffs' claims [*8]for private nuisance or breach of covenants and restrictions are not sustainable against a fellow unit owner (see, Golub v. Simon, 28 AD3d 359 [1st Dept., 2006]; Sharp v. Norwood, 89 NY2d 1086 [1997]; Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564 [1977]). The claims for prima facie tort and tortious interference with business relations allege that Mr. Casatuta aided and abetted and conspired with others relative to the decisions of the Board, various plumbing vendors and Town of Brookhaven employees. The plaintiffs do not dispute that Mr. Casatuta has never been a member of the Board nor its employee or agent (cf., Caprer v. Nussbaum, 36 AD3d 176 [2nd Dept., 2006]). The requisite elements for a cause of action sounding in a prima facie tort include (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal (see, Curiano v. Suozzi, 63 NY2d 113 [1984]; Drago v. Buonagurio, 46 NY2d 778 [1978]). An element of the cause of action is that the complaining party suffered specific and measurable loss, which requires an allegation of special damages (see, Freihofer v. Hearst Corp., 65 NY2d 135 [1985]; Curiano v. Suozzi,63 NY2d 113 [1984]). Here, the plaintiffs failed to allege special damages beyond the costs associated with prosecuting the lawsuit (see, Engel v. CBS, Inc., 93 NY2d 195 [1999]; Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314 [1983]; Del Vecchio v. Nelson, 300 AD2d 277 [2nd Dept., 2002]). Further, plaintiffs have not alleged the elements of a claim for the tortious interference with a business relationship (see, Carvel Corp. v. Noonan, 3 NY3d 182 [2004]). Accordingly, the motion by Robert Casatuta is granted and the complaint is dismissed as against him.

Kathleen McCleod

Ms. McCleod is the owner of unit No. 601. The plaintiffs' claims against Ms. McCleod sound in private nuisance, breach of covenants and restrictions, prima facie tort and tortious interference with business relations. The claims for private nuisance and breach of covenants and restrictions relate to the construction of habitable space in the defendant's garage, allegedly without complying with state and town building or fire codes. The claims for prima facie tort and tortious interference with business relations are claimed to relate to aiding and abetting other Board members in electing certain owners to the Board and campaigning to ensure that plaintiff was not re-elected to the Board, interfering with plumbing vendors and Town employees and causing unreasonable delay in the approval process. For the same reasons stated above as to these identical claims asserted against Mr. Casatuta, the plaintiffs' claims against Ms. McCleod cannot withstand her motion to dismiss. Accordingly, Ms. McCleod's motion to dismiss is granted and the complaint is dismissed insofar as asserted against her.

Christine Beardslee

Ms. Beardslee is one of the owners of unit No. 704 and is a former member of the Board. The plaintiffs' claims against Ms. Beardslee sound in breach of covenants and restrictions, prima facie tort and tortious interference with business relations. It appears that the plaintiffs allege that Ms. Beardslee removed trees located within 100 feet of freshwater wetlands without obtaining an [*9]applicable permit from the State, that she aided and abetted other Board members in the alleged misdeeds of the Board directed against plaintiffs and that she aided and abetted other members in giving false testimony at the plaintiffs' ZBA hearing. These allegations are insufficient as to the elements of a claim for the tortious interference with a business relationship (see, Carvel Corp. v. Noonan,3 NY3d 182 [2004]), prima facie tort (see, Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314 [1983]; Del Vecchio v. Nelson, 300 AD2d 277 [2nd Dept., 2002]), or breach of covenants and restrictions (see, Santulli v. Drybka, 196 AD2d 862 [2nd Dept., 1993]; Golub v. Simon, 28 AD3d 359 [1st Dept. 2006]). Accordingly, Ms. Beardslee's motion to dismiss is granted and the complaint is dismissed insofar as asserted against her.

The municipal defendants (Mot. # 008)

The relevant sequence of events as to the municipal defendants is as follows:

•By decision dated November 30, 2006, the plaintiffs' petition to the New York State Southern Region Board of Review for a variance from compliance with 19 NYCRR 1220, Section R817.3 for the proposed dormer was granted conditioned upon, inter alia, the installation of a limited area automatic sprinkler system in compliance with NFPA 13D.[FN4]

•On December 7, 2006 the plaintiffs' application for a building permit was rejected by the Brookhaven Building Department because a height variance was necessary.

•On February 28, 2007, the Zoning Board of Appeals rejected the plaintiffs' variance application and on April 2, 2007, the plaintiffs commenced a CPLR Article 78 proceeding against the Town of Brookhaven and its ZBA.

•By stipulation of settlement dated January 7, 2008 the Article 78 proceeding was resolved by providing, in relevant part, that the Town's building department would issue said permit to construct a dormer, "similar in size, construction and design as exists in the third story of Unit 904 . . .".

The gravamen of the plaintiffs' claims against the municipal defendants is that, because in 1995 the owners of unit 904 were granted a permit and then a certificate of occupancy for their dormer without requiring a sprinkler system,[FN5] the defendants are obligated by the 2008 stipulation of settlement to issue a permit and certificate of occupancy for plaintiffs' dormer, also without requiring a sprinkler system. The plaintiffs assert claims, inter alia, for breach of contract, breach of implied covenants of good faith and fair dealing, contempt pursuant to Judiciary Law Section 773, [*10]and violations of their rights to equal protection and due process pursuant to 42 USC Section 1983 and the New York State Constitution; they demand judgment declaring that the Town must enforce its building, fire and tax codes against unit 904 pursuant to Town Law § 268 (2). The plaintiffs argue that the municipal acts were both discretionary and ministerial.

Initially, there are no allegations that the individual municipal defendants acted in any way other than in their official or employment capacity. It is well settled that when the action of a government official involves the conscious exercise of discretion of a judicial or quasi-judicial nature it is entitled to absolute immunity. This entitlement is based on "sound reasons of public policy" in allowing government officials to execute their duties free from fear of vindictive or retaliatory damage suits (Haddock v. City of New York, 75 NY2d 478 [1990]; see, Tango v. Tulevech, 61 NY2d 34 [1983]; Kelleher v. Town of Southampton, 306 AD2d 247 [2nd Dept., 2003]; Rottkamp v. Young, 21 AD2d 373 [2nd Dept., 1964], affd 15 NY2d 831 [1965]). Further, it is well settled that the decision whether to issue a permit is a discretionary determination and the actions of the government in such instances are immune from lawsuits based on such decisions (see, City of New York v. 17 Vista Assoc., 84 NY2d 299 [1994]; Matter of Parkview Assoc. v. City of New York, 71 NY2d 274 [1988]; F.A.S.A. Constr. Corp. v. Village of Monroe, 14 AD3d 532 [2nd Dept., 2005]).

When the action of a government official is exclusively ministerial the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command but only in circumstances where the plaintiff can show "a duty running directly to the injured person" (McLean v. City of New York, 12 NY3d 194 [2009], citing Lauer v. City of New York, 95 NY2d 95 [2000]). Even where an act is ministerial "[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally" (McLean v. City of New York, 12 NY3d 194 [2009]; Lauer v. City of New York, 95 NY2d 95 [2000]). Such "duty to exercise reasonable care toward the plaintiff" is "born of a special relationship between the plaintiff and the governmental agency" (McLean v. City of New York, 12 NY3d 194 [2009], citing Pelaez v. Seide, 2 NY3d 186 [2004]).

To form a special relationship through breach of a statutory duty (allegedly the fire code), the governing statute must authorize a private right of action. To form a special relationship by voluntarily assuming a duty to an injured person, plaintiff must demonstrate (1) an assumption by the municipality through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (see, McLean v. City of New York, 12 NY3d 194 [2009]). Here, the fire code relied upon by plaintiffs does not provide for governmental tort liability, nor did the defendants voluntarily assume a duty to plaintiff. Plaintiffs cannot argue that they relied upon the affirmative actions of the defendants in that their complaint alleges that the defendants failed to enforce the building, fire and tax codes against unit 904. Further, there is no showing that the defendants affirmatively placed the plaintiffs in harms way, since the basis of their claim is the defendants' failure to act against unit 904 (see, Abraham v. City of New York, 39 AD3d 21 [2nd Dept., 2007]; Davis v. County of Onondaga, 31 AD3d 1156 [4th Dept., 2006]) and the plaintiffs' mere hope that they will uncover evidence in their favor is insufficient to withstand [*11]the Town's motion for summary judgment (see, Tomasso v. County of Nassau, 2009 NY Slip Op 51601U [Sup. Ct. Nassau Co., 2009]). Accordingly, these claims do not lie and are dismissed, and plaintiffs' request for relief pursuant to CPLR §3212 (f) correspondingly is denied.

The plaintiffs' claims for breach of contract and breach of covenants of good faith and fair dealing relate to the stipulation of settlement entered into with the Town of Brookhaven resolving their CPLR Article 78 proceeding, which provided that the building department would issue the requisite permits to construct the dormer "similar in size, construction and design, as exists in Unit 904." It appears that the building inspector required plans for a sprinkler system pursuant to the applicable fire code (plaintiffs aver both that a building permit was issued and that a building permit was denied) and that plaintiffs argue that the stipulation exempts them from compliance with the fire code requiring a sprinkler system because the dormer for Unit 904 does not contain such a system, notwithstanding the conditioned variance granted to them by the New York State Southern Region Board of Review on November 30, 2006, which required instillation of a limited area automatic sprinkler system.

Among defendants' arguments to dismiss the contract claims is that the plaintiffs have not timely filed a notice of claim with the Town Clerk pursuant to New York Town Law § 65 (3) (see, Hassett-Belfer Senior Hous. v. Town of N. Hempstead, 270 AD2d 307 [2nd Dept., 2000]). Since the filing of a notice of claim is a condition precedent to maintaining an action against the defendant Town, the plaintiffs' failure to plead and prove compliance with the requirements of Town Law § 65 (3) requires dismissal of the claims based upon breach of contract (see, Matter of Sterngass v. Town Bd. of Town of Clarkstown, 10 AD3d 402 [2nd Dept., 2004]; Walter H. Poppe Gen. Contr. v. Town of Ramapo, 280 AD2d 667 [2nd Dept., 2001]). Further, leave to file a late notice of claim for contract claims is unavailable. "In contrast to other notice statutes, Town Law § 65 (3) contains no provision allowing the court to excuse noncompliance with its requirements" (Mohl v. Town of Riverhead, 62 AD3d 969 [2nd Dept., 2009]; see, ADC Contr. & Constr., Inc. v. Town of Southampton, 45 AD3d 614 [2nd Dept., 2007]; Perritano v. Town of Mamaroneck, 170 AD2d 443 [2nd Dept., 1991]). Accordingly, summary judgment dismissing the claims for breach of contract and breach of covenants of good faith and fair dealing is granted.

With regard to their constitutional and federal claims, even according plaintiffs the benefit of every possible favorable inference, the Court finds that they have failed to establish a viable cause of action pursuant to 42 USC § 1983. The plaintiffs do not allege that the Town maintained an official policy or custom which subjected the plaintiffs to denial of a constitutional right. It is well settled that "42 USC § 1983 is not simply an additional vehicle for judicial review of land-use determinations" (Bower Assoc. v. Town of Pleasant Val., 2 NY3d 617 [2004]). The "similarly situated" inquiry asks "whether a prudent person, looking objectively at the incidents, would think them roughly equivalent" (Penlyn Development Corp. v. The Incorporated Village of Lloyd Harbor, 51 F. Supp. 2d 255, 264 [ED NY, 1999]). Moreover, even different treatment of persons similarly situated, without more, does not establish a claim. What matters is impermissible motive: proof of action with intent to injurethat is, proof that the applicant was singled out with an "evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar [*12]circumstances" (Masi Mgt. v. Town of Ogden [appeal No. 3], 273 AD2d 837 [4th Dept., 2000], quoting Matter of 303 W. 42nd St. Corp. v. Klein, 46 NY2d 686 [1979]). Here, the plaintiffs' vague assertion that there may be some ulterior motive is insufficient to withstand the defendants' motion and is not supported by the undisputed facts. Further, to the extent that the plaintiffs seek to assert a violation of their substantive due process or equal protection rights, they have failed to allege facts demonstrating that the defendants actions were "wholly without legal justification" or that were taken with an "impermissible motive not related to legitimate governmental objectives" (Bower Assoc. v. Town of Pleasant Val., 2 NY3d 617 [2004]; see, Sonne v. Board of Trustees of Vill. of Suffern, __ AD3d __, 2009 NY Slip Op 6828 [2nd Dept., May 30, 2009]). Accordingly, summary judgment dismissing these claims is granted.

The defendants have also established their entitlement to summary judgment dismissing the plaintiffs' claim for "a contempt proceeding pursuant to Judiciary Law Section 773," and the plaintiffs have not opposed this relief. Accordingly, summary judgment is granted dismissing this claim as well.

Further, the plaintiffs have also failed to satisfy the requirement that a proceeding pursuant to Town Law § 268 (2) be commenced by "any three taxpayers of the town" (Romano v. Damiano, 242 AD2d 267 [2nd Dept., 1997]). Accordingly, summary judgment dismissing the claim for relief pursuant to Town Law § 268 (2) is granted.

Lastly, the plaintiffs request for leave to reargue their prior motion is denied in that the Court finds that the moving papers fail to demonstrate that the Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law in reaching its determination (see, Saccomagno v. City of New York, 29 AD3d 979 [2nd Dept., 2006]; McGill v. Goldman, 261 AD2d 593 [2nd Dept., 1999]). Moreover, to the extent that the plaintiffs seek leave to serve an amended complaint asserting a claim for estoppel, such claim is not available against a governmental agency in the exercise of its governmental function (see, Matter of Parkview Assoc. v. City of New York, 71 NY2d 274 [1988]; F.A.S.A. Constr. Corp. v Village of Monroe, 14 AD3d 532 [2nd Dept., 2005]) and, since the claims against the municipal defendants are dismissed herein, any claim for leave to file a late note of issue and the defendants' request to sever the claims against them, have been rendered academic.

The claims dismissed herein are severed and the plaintiff's remaining claims shall continue.

Accordingly, it is

ORDERED that these motions are consolidated for the purpose of this determination; and it is further

ORDERED that the motion (#008) by Paul M. DeChance, Terry J. Karl, Keri Peragine, Kevin McCarrick, James Wisdom, Diane Burke, George Proios, individually and as members of the [*13]Zoning Board of Appeals of the Town of Brookhaven; Town of Brookhaven; Town of Brookhaven Tax Assessor; The Board of Assessment Review of the Town of Brookhaven; Arthur Gerhauser, John Weiss, Karen Wilutis, Esq., James Burke, Esq., individually and in their respective capacities as employees of the Town of Brookhaven; and "John Doe" and "Jane Doe" Town employees, (collectively, the Municipal defendants) for an order pursuant to CPLR §3212 (e) granting summary judgment dismissing the complaint as against them individually and as municipal employees or, alternatively, an order pursuant to CPLR §§603, 1002 (c) and 1003 severing any remaining claims against them from those claims asserted against the non-municipal defendants, is granted to the extent that the complaint is dismissed as against them; and it is further

ORDERED that the cross motion (#009) by the plaintiffs which seeks leave to renew or reargue their prior motion which sought leave to amend their complaint by asserting a claim based upon the doctrine of promissory estoppel and sought leave to file a late notice of claim pursuant to General Municipal Law §50-e (5), and also seeks a continuance pursuant to CPLR §3212 (f), is denied; and it is further

ORDERED that the renewed motion (#010) by defendants Pepperidge Lake Homeowners Association, Inc., PLHOA Board of Directors, Arthur Lorelli, Anna Mae Casatuta, John Weber, Shelia J. Nugent, and Robert Beardslee, for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint as against them, is denied as to the plaintiffs' request for a declaration vacating (1) the "water-tapping" agreement, (2) the denial of tree removal at association expense, (3) the denial of a driveway request, (4) the removal of a tree, (5) the directors refusal to conduct a special meeting and provide financial statements, and is otherwise granted; and it is further

ORDERED that the renewed motion (#011) by defendants Kelly Westhoff and Collette Westhoff for an order pursuant to CPLR §3212 granting summary judgment dismissing the complaint as against them, is granted; and it is further

ORDERED that the renewed motion (#012) by defendants Michael Casatuta, Robert L. and Shirley I. Hughes Family Trust, Kathleen McLeod, and Christine Beardslee, for an order pursuant to CPLR §3211 dismissing the complaint as against them, is granted; and it is further

ORDERED that the cross motion (#013) by plaintiffs for an order granting the plaintiffs partial summary judgment to the extent of rescinding the defendant Board's $2,500.00 fine, granting them attorneys' fees in the amount of $32,390.00, and granting relief pursuant to CPLR §3212 (f), is denied.

Dated:November, 2009

HON. WILLIAM B. REBOLINI, J.S.C.

Footnotes

Footnote 1: In light of the plaintiffs' voluminous 106-page complaint and the documents offered in support and opposition, the parties have relied upon copies of the pleadings provided by the plaintiffs, the Board defendants, and the municipal defendants.

Footnote 2: The House Rules, effective April 30, 2005, provide at section I., paragraph A., entitled "Exterior Changes," that approvals are effective for a period of one year from the granting thereof. Therefore, when the plaintiffs sought and were granted a renewal on April 4, 2006, they waived any objection that the amendment was not applicable and was not mailed to all members (see, Pierre v. Psathas, 293 AD2d 364 [1st Dept., 2002]; Shumofsky, Union Hosp. Assn. of Bronx v. Carty, 185 AD2d 787 [1st Dept., 1992]). Further, plaintiffs concede in their letter of June 26, 2008 that the amendment was noticed to the community after the April 5, 2005 approval. The House Rules also provide at section V for fines not to exceed $2,500.00, for noncompliance with the By-Laws or House Rules (see, Real Property Law § 339-j, "Compliance with by-laws and rules and regulations"; see, also, § 339-v.1 subsection (h), "Method of adopting and of amending administrative rules").

Footnote 3: The 2002 agreement also provided that the plaintiffs would pay an applicable fine. There is no dispute that the plaintiffs paid the fine.

Footnote 4: It appears that this is similar to the variance granted to the Westhoff defendants on November 14, 2007.

Footnote 5: No proof that the dormer for Unit 904 lacks a sprinkler system has been offered, nor has this assertion been challenged.