New York & Atlantic Railway Co. v Town of Babylon

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New York & Atlantic Railway Co. v Town of Babylon 2013 NY Slip Op 31796(U) August 2, 2013 Sup Ct, Suffolk County Docket Number: 10-692 Judge: Daniel Martin Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 10-692 S I 10117 FORM ORDER . SUPREME COURT - STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESENT: Hon. DANIEL MARTIN . iistice of the Supreme Court I MOTION DATE 9-1 8-12 2-26- 13 AD]. DATE -___ Mot. Seq. # 002 - M D # 003 - M D GLYNN MERCEP and PURCELL, LLP Attorney for Plaintiff NY & Atlantic Railway 57 North Country Road Stony Brook, New York 11790-0712 NEW YORK & ATLANTIC RAILWAY COMPANY, THE LONG ISLAND RAIL ROAD COMPANY and COASTAL DISTRIBUTION, LLC, JAY SAFAR, ESQ. Attorney for Plaintiff Long Island Railroad 267 Carleton Avenue., Suite 30 1 Central Islip, New Ycrk 11722 Plaintiffs. - aga.inst - LAZER APTHEKER, ROSELLA & YEDID, P.C. Attorney for Plaintiff Coastal Distribution 225 Old Country Road Melville, New York 1 1747 THE TOWN OF BABYLON, Defendant. JAMES P. CLARK, P.C. Attorney for Defendants Town of Babylon and Town of Babylon Board of Zoning 256 Main Street, Suite 202 Northport, New YorE; 1 1768 - and - T I 11 TOWU 01 BABYLON BOARD OF 1 ZONING and PINELA WN CEMETERY. MARK A. CUTHBERTSON, ESQ. Attorney for Defendant Pinelawn Cemetery 434 New York Avenue Huntington. New York 1 1743 Additional Defendants. K IJpon the follo%ing papers numbered I to 3 read on these motions to dismiss ; Notice of Motion/ Order to Show 7 Answering Affidavits and Cause and supporting papers. 1 - 8, I O - 14 ; Notice of Cross Motion and supporting papers -; supporting papers I7 - 18, 2 I - 22 ; Replying Affidavits and supporting papers 26 - 28, 3 1 - 37 ; Other memoranda of law 9, 1 5 - 16, 1 9 - 2 0 , 2 3 , 2 4 . - 2 5 . 2 . 9 - 3 0 ; > ( b t.ten) it is, [* 2] New York &: Atlantic Railway Company v Town of Babylon Index No. 10-0692 Page 2 ORDERED that these motions are hereby consolidated for purposes of thi!; determination; and it is further ORDERED that the motion by the defendant Town of Babylon and additional defendant Town of Babylon Board of Zoning for an order pursuant to CPLR 32 1 1 (a) (1) and (7) dismissing the first, second and third causes of action in the complaint is denied; and it is further ORDERED that the motion by the additional defendant Pinelawn Cemetery for an order pursuant to CI LK 321 1 (a) ( 1 ) and (7) dismissing the complaint is denied; and it is further ORDERED that the plaintiffs fourth cause of action is hereby severed and the remaining causes of action shall continue (:seeCPLR 3212 [e] [ 11); and it is further ORDERED that the plaintiffs fourth cause of action is hereby converted into a CPLR article 78 proceeding. with the summons deemed the notice of petition and the complaint deemed the petition (see CPLR 103 [c]); and it is further ORDERED that pursuant to CPLR 7804 (Q, party may notice this matter for hearing upon any appropriate notice. In this putative hybrid CPLR article 78 proceeding and action for declaratory relief, the plaintiffs seek a judgment 1) declaring that the defendant Town of Babylon (Town) has no zoning jurisdiction over a certain transportation facility pursuant to Public Authorities Law 1266 [8], 2) declaring that two sections of the Town of Babylon Code (Town Code) conflict with the Public Authorities Law (PAL) and are not applicable to said transportation facility, 3) declaring that the Town is equitably estopped from enforcing a stop work order issued against said facility, and 4) pursuant to CPLR article 78, reversing, vacating, and annulling the April 22,2005 determination of the additional defendant Town of Babylon Board of Zoning Appeals sued herein as Town of Babylon Board of Zoning (BZP,) denying the appeal from said stop work order. The plaintifl The Long Island Rail Road Company (LIRR) is in possession of two parcels of property located within the Town (the property) pursuant to leases it entered into with the owner, the additional defendant Pinelawn Cemetery (Pinelawn), in 1904 and 1905. LIRR entered into a Transfer Agreement with the plaintiff New York & Atlantic Railway (NYAR) on or about Vovember 1996. Said agreement transferred LIRR s freight operations to NYAR, including use of the property. On or about February 2002, NYAK entered into a contract with the plaintiff Coastal Distribution, LLC (Coastal) to operate a transloading facility on the property. Transloading is the practice of transferring a shipment from one mode of transportation to another, for example, from trucks to rail cars. Thereafter, Coastal commenced construction of a 22,000 square foot building (the transloading building) on the property. On March 29, 2004. the Town issued a stop work order directing that all work on the transloading building cease. as Coastal had not obtained a building permit for the construction. Coastal appealed the issuance of the stop work order to the BZA, which denied the appeal in a written decision on April 22, 2005. [* 3] New York & Atlantic Railway Company v Town of Babylon Index No. 10-0692 Page 3 Coastal and NYAR then commenced a timely action in the United States District Court, Eastern District of New York seeking to enjoin enforcement of the stop work order on the ground that the Town lacked authority to enforce its zoning laws based on federal law, which grants an exemption to rail roads and generally preempts local laws. Said action also included a pendant cause of action alleging that the BZA s denial of the appeal was arbitrary and capricious. After years of litigation, including a referral to the Surface Transportation Board (STB) for a determination whether Coastal was entitled to protection under federal law, the United States Court of Appeals for the Second Circuit affirmed the STB s finding that Coastal is not a rail carrier and that the Town s zoning jurisdiction was not preempted by federal regulations governing transportation by a rail carrier. However, the Second Circuit held that there is no question that the activity in issue constitutes transportation within the meaning of the [federal] statute. The Town now moves for an order dismissing the first, second and third causes of action pursuant to CPLR 32 1 1 (a) (1) and (7). The Town contends, among other things, i.hat the plaintiffs first and second causes of action are barred by the doctrines ofres judicata and collateral estoppel. Pursuant to CI LK 321 1 (a) ( I), a cause of action will be dismissed when documentary evidence submitted in support of the motion conclusively resolves all factual issues and establishes a defense as a matter of law (Goshen v Mutual Life Ins. Co. of N. Y., 98 NY2d 3 14, 746 NYS2d 858 [2002]; Leon v Martinez, 84 NY2d 83, 614 NYS2d 9 72 [1994]; Vifarelle v Vitcrrelle,65 AD3d 1034, 885 NYS2d 320 [2009]; Peter Williams Enterprises, Inc. v New York State Urban Dev. Corp., 90 AD3d 1007, 935 NYS2d 624 [2d Dept 201 I]; Francis v Vornado Realty TrusUKings Plaza Mall, 89 AD3d 680,931 NYS2d 888 [2d Dept 201 I]). In support of its motion, the Town submits, among other things, the complaint, the STB decision dated January 3 1, 2008, the decision of the Second Circuit, and the BZA decision dated April 21. 2005. The doctrine of res judicata applies to quasi-judicial determinations of administrative agencies, including boards of zoning appeals, and precludes relitigation of claims which previously were litigated on the merits or might have been so litigated at the time (see Calapai v Zoning Bcl. of Appeals of Vil. of Babjdon, 57 AD3d 987, 871 NYS2d 288 [2d Dept 20081). Pursuant to the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (O Brien v City o L!$racuse, 54 NY2d 353, 357, 445 NYS2d 687 [1981]; see Incorporated Vil. of f Laurel Hollow v Nichols, 260 AD2d 439, 440, 688 NYS2d 581 [2d Dept 19991; ,!Scltwartzreicliv E.P.C. Carting Co., 246 AD2d 439, 668 NYS2d 370 [Ist Dept 19981; Cornwall Warehousing v Town o New Windsor. 238 AD2d 370, 656 NYS2d 329 [2d Dept 19971). A municipal agency s decision has f not been brought to a final conclusion where a CPLR article 78 proceeding is commenced (see generally Parker v Blcruvelt Vol. Fire Co., 93 NY2d 343, 690 NYS2d 478 [1999]; Matter of Carter v Walt Whitman N. Y. City Hous. Autli., 98 AD3d 11 13, 951 NYS2d 210 [2d Dept 20121). Collatcral estoppel. a corollary to the doctrine of res judicata, precludes ;I party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Ryan v New York Tel. CCL, NY2d 494, 500, 478 NYS2d 823 [ 19841). The two basic: requirements of the 62 [* 4] New York & Atlantic Railway Company v Town of Babylon Index No. 10-0692 Page 4 doctrine are that the party seeking to invoke collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action, and that the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior determination (D Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664, 563 NYS2d 24 [1990]; Matter o f New York State Site Dev. Corp. v New York State Dept. o Envtl. Conservation, ;!17 AD2d 699,630 f NYS2d 335 12d Dept 19951). Here, the documentary evidence does not conclusively resolve the question whether the issue before the BZA has been brought to a final conclusion considering the plaintiffs challenge to its decision on the ground that it is arbitrary and capricious. If the plaintiffs are in the process of litigating the issues, then they have not yet had a full and fair opportunity to contest the matter. Accordingly, that branch of the Town s motion which seeks to dismiss the first and second cause of action pursuant to CPLR 321 1 (a) (1) is denied. The second branch of the Town s motion seeks to dismiss the petition for hilure to state a cause of action. Pursuant to CPLR 321 1 (a) (7), pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs (Leon v Martinez, 84 NY2d 8 3 , 6 I4 NYS2d 972 [ 19941). On such a motion, the Court is limited to examining 1he pleading to determine whether it states a cause of action (Guggenlzeimer v Ginzburg, 43 NY2d 268,401 NYS2d 1 82 [ 19771). In examining the sufficiency of the pleading, the Court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff (Paci,ficCarlton Development Corp. v 752 Pacipc, LLC, 62 AD3d 677,878 NYS2d 421 [2d Dept 20091; Gjonlekaj v Sot, 308 AD2d 471. 764 NYS2d 278 [2d Dept 20031). On such a motion, the Court s sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint (Leon v Martinez, supra; Thomas v Lasalle B h k N. A., 79 AD3d 1015, 1017,913 NYS2d 742 [2d Dept 20101; Scoyni v Clzabowski, 72 AD3d 792,793,898 NYS2d 482 [2d Dept 20101; Lucia v Goldmnn, 68 AD3d 1064, 1066, 893 NYS2d 90 [2d Dept 20091; International Oil FieldSupplv Services Corp. v Fadeyi, 35 AD3d 372, 825 NYS2d 730 [2d Dept 20061). Upon a motion to dismiss. a pleading will be liberally construed and such motion will not be granted unless the moving papers conclusively establish that no cause of action exists (Chan Ming v Chui Pak Hoi et a/, I63 AD2d 268, 5 5 8 NYS2d 546 [lst Dept 19901). Here, the plaintiffs allege that they challenged the BZA s determination based upon CPLR article 78 standards in their federal court action. The Town does not dispute that allegation, and it does not contend in its submission that the instant hybrid action is untimely. Accepting the alleged facts as true, the Court finds that the plaintiffs have plead cognizable causes of action for declaratory judgment on the ground that thc BZA s decision has not been brought to a final conclusion, and that first and second causes of action are not barred by the doctrines ofres judicata or collateral estoppel. In addition, it appears that said causes of action seek relief which is logically included within the ambit of the CPLR article 78 proceeding, and may well be included in any relief afforded to the plaintiffs should they be successful in voiding the BZA determination. Accordingly, that branch of the Town s motion which seeks to dismiss the first and second cause of action pursuant to CPLR 321 1 (a) (7) is denied. ? The Town further contends that the third cause of action for equitable estoppel fails because the I own is immune from such a claim. Generally, a municipality cannot be estopped from asserting its ? [* 5] New York 22 Atlantic Railway Company v Town of Babylon Index No. 10-0692 Page 5 governmental power as to acts within its governmental capacity, or to prevent it from discharging its statutory duties or correcting an administrative error (Matter of Daleview Nursing Honze v Axelrod, 62 NY2d 30, 475 NYS2d 8#26[ 19841; Matter of Palm Mgt. Corp. v Goldstein, 29 AD3d 801, 815 NYS2d 670 [2d Dept 20061; McGannon v Board of Trusteesfor the Vil. of Pomona, 2351 AD2d 392,657 NYS2d 745 [2d Dept 19971). Indeed, a municipality will not be estopped from enforcing its zoning code through the issuance of a stop work order after it erroneously issued a building permit (Matter of Palm Mgt. Corp. v Goldstein, s i q ~ c iMcGannon v Board of Trusteesf o r the Vil. of Palmona, supra). ; Moreover, it has been held that the doctrine of equitable estoppel does not apply to preclude municipal action where the applicaint could have readily discovered that it had received erroneous advice from a municipal worker by reviewing the applicable zoning ordinance (Matter of Twin Town Little League v Town of Poestenkill, 24 9AD2d 81 1, 671 NYS2d 83 1 [3d Dept 19981). However, the Court of Appeals has held that the rule is not absolute. We have held many times that estoppel is not available against a governmental agency in the exercise of its governmental functions [citations omitted]). The rare exception to this general rule requires an unusual factual situation (Pless v Town of Royalton, 8 1 NY2d 1047, 601 NYS2d 455 [ 19931 quoting Matter of Daleview Nursing Home v Axelrod, 62 NY2d at 33,475 NYS2d at 827; see generally Matter of Hamptons Hosp. & Med. Ctr. 11 Moore, 52 NY2d 88, 436 NYS2d 239 [1981]). In their complaint, the plaintiffs allege that the Town s Commissioner of Planning and Development issued a letter advising their architects that the Town did not have jurisdiction over the IJRR property, and that they commenced construction of the transloading building, and were near completion, when the Town issued its stop work order. In addition, the plaintiffs allege that Coastal invested millions of dollars in making substantial improvements to the site, and that the transloading building became and remains the property of the LIRR. Here, the complaint sets forth a cognizable cause of action for equitable estoppel, and the Town has not conclusively established that this is not an unusual fact situation, and that no such cause of action exists here. Accordingly, 1.hat branch of the Town s motion which seeks to dismiss the third cause of action is denied, and the motion is denied in its entirety. Pinelawn now moves for relief identical to that requested by the Town in its motion, except that Pinelawn also seeks to dismiss the CPLR article 78 proceeding set forth in the plaintiffs fourth cause of action. In support of its motion, Pinelawn submits the affirmation of its attorney, the complaint, and the first amended and supplemental complaint served herein. In considering a motion to dismiss a CPLR all article 78 proceeding pursuant to CPLR 321 l(a) (7) and 7804 (0, of the allegations in the petition are deenied to be true and are afforded the benefit of every favorable inference (see Matter of Eastern Oaks Dev., LLC v Toton of Clinton, 76 AD3d 676, 906 NYS2d 61 1 [2d Dept 20101; Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 871 NYS2d 644 [2d Dept 20091). The motion must be determined solely on the allegations contained in the petition (see Matter of East End Resources, LLC v Town of Soutliolcl Planning Bd., 8 1 AD3d 947, 9 17 NYS2d 3 15 [2d Dept 20 1 11; Matter ofMcComb v f Reasoner, 29 AD3d 795, 815 NYS2d 665 [2d Dept 20061; Matter o Long Is. Contrs. Assn. v Town of Riverliead, I7 AD3d 590, 793 NYS2d 494 [2d Dept 20051). The court must also accept as true all factual submissions made in opposition to the dismissal motion (see Wolzlgemutlt v Lnng Consir., LLC, 18 AD3d 650,795 NYS2d 634 [2d Dept 20051). [* 6] New York & Atlantic Railway Company v Town of Babylon Index No. 10-0692 Page 6 In its submission, Pinelawn does not set forth any facts which would alter the findings of the Court in its discussion of the Town s motion regarding the allegations in the complaint, and the Court finds that the plaintiffs have pled a cognizable claim for CPLR article 78 relief. In addition, for the reasons set forth above, those branches of Pinelawn s motion which seek to dismiss the plaintiffs first, second and third causes of action are denied. Accordingly, Pinelawn s motion is denied in its entirety. The Court s tinding that the plaintiffs have pled a cognizable claim for CPLR article 78 relief does not obviate the fact that the plaintiffs failed to serve a pleading containing bo1.h a notice of petition and petition and a summons and complaint (see also CPLR 304 [a]). Thus, the fourth cause of action in the complaint was not noticed for a hearing and it was not issued a motion sequence number by the Clerk of the Court. However, the parties have treated said cause of action as one fix CPLR article 78 relief; and the Town has served an answer and a certified return in this matter. Therefore, the Court tinds that the plaintiffs fourth cause of action should be converted to a special proceeding pursuant to CPLR 103 (c), and that the parties should have the opportunity to notice the proceeding for a hearing pursuant to CPLR article 78. Upon the service and filing of such notice, the party serving said notice shall also serve upon the Clerk a copy of this order, and the Clerk, upon receipt, shall assign this motion a motion sequence number. J. S.C- \ / - FINAL DISPOSITION x NON-FINALD ~ O S I T I O ~ ~ I he Town s answer is addressed to the plaintiffs fourth cause of action only, and Pinelawn has not yet served its atwver to the complaint. Thus, both motions to dismiss the first three causes of action herein are deemed to be pre-answer tnotions pursuant to CPLR 32 1 1 (e).

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