Matter of Margaret Cardy, LLC v Del Col
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Matter of Margaret Cardy, LLC v Del Col 2013 NY Slip Op 32810(U) October 23, 2013 Sup Ct, Suffolk County Docket Number: 45527/10 Judge: Joseph C. Pastoressa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] I i I COPY !Index No. 45527110 SUPREME COURT O:[{ THE STATE OF NEJ YORK IAS/ TRIAL PART 34- SUFFOLK cou1T PRESENT: HON. JOSEPH C. PASTORESSA JUSTICE OF THE SUPREME COURT Motion Se~: #001-MG r x IN THE MATTER OF THE APPLICATION OF MARGARET CARDY, LLC, ATTYS FO PETITIONER(S): SCHEYER JELLENIK, ESQ. 110 LAKE VE. SO., STE. 46 NESCONS r, NY 11 767 Petitioner( s), ATTY FOR SPONDENTS(S): CINDY ELA -MANGANO TOWN ATT RNEY, TOWN OF HUNTINGT N BY: THELM - NEIRA, ESQ. DEPUTY TO ATTORNEY 100 MAIN S 'REET HUNTINGT N, NY 11743 -- againstPAT DEL COL, AS DIRECTOR OF THE DEPARTMENT OF THE ENGINEERING SERVICES, HUGH HA VENER LOWERY, IN THE CAPACITY OF DEPUTY DIRECTOR OF THE DEPARTMENT OF ENGINEERING SERVICES, AND THE DEPARTMENT OF ENGINEERING SERVICES, AND THE DEPARTMENT OF ENGINEERING SERVICES OF THE TOWN OF HUNTINGTON, THE BUILDING DEPARTMENT OF THE TOWN OF HUNTfKGTON, AND THE TOWN OF HUNTINGTON, Respondent(s). __ _ ___________________________________x [* 2] Pages Numbered , Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed_~/---+------Opposing Affidavits (Affirmations) __ .·~-;-~__1 _ _ _ _ _ _ _ _- - + - - - - - L-+-"- ..._f Reply Affidavits (Affirmations)__,~_ _ _ _ _ _ _ _ _ _ _ _ _~----!. Affidavit (AffirmaJion) . J . ., _ Other Papers ~ { /r~c~;,,.:,(u7-' I f ,/,,,--A,, Upon the foregoing papers, the petitioner moves for an order purs iant to CPLR Article 78 seeking the following relief: a writ of mandamus directing the respondent t) issue a building permit for the construction of a one family home on Manchester Road in Green! wn, New York; declare that Section 280-a of the Town Law does not apply in cases that have road frontage on a filed map; declare that the Town cannot enforce unwritten rules and conditions for an administrative act of issuing permits; that the respondent Town of Huntington violated 42 U.S C. 1983, the Fourteenth Amendment to the United States Constitution Equal Protection clause, a the Fifth Amendment to the United States Constitution; award petitioner damages for actual lo sand punitive damages; award petitioner costs and disbursements and granting petitioner such oth rand further relief as to the Court may seem just and proper. The petitioner seeks to compel the issuance of a building permit to rect a two story dwelling with attached garage and front covered porch for the real property locat d on Manchester Road, Greenlawn, New York (hereinafter "subject property"). The petitioner'· predecessor in interest obtained approval from the Town of Huntington Zoning Board of Appeal (hereinafter "ZBA") for various area variances in connection with the subject property dated eptember 25, 2008 and November 20, 2008 respectively. The petitioner upon obtaining variance , for the subject property applied for a building permit; however, the Town of Huntington buildi g department would not accept the application on the alleged basis that the road was not pave in front of the subject property. 1 The owner subsequently applied to the ZBA for an interpretat on from the Board as to 1 The petitioner previously filed an Article 78 proceeding against the respondent Town (index number 10-08089) and the respondent Town cross-moved to dism ss the proceeding which resulted in a stipulation dated June 11, 2010 withdrawing the actio 1. In support of the cross-motion and in opposition to the instant proceeding the respondent [own submits an affidavit of (former) Deputy Director of the Department of Engineering ervices, Hugh Havender Lowery, whereby he states the following: [p ]etitioner has not been issued a bui !ding permit for the subject property because of its failure to make improvements to Man hester Road as a prerequisite to the issuance of a building permit as required by New Yor State Town Law Section 280-a." 2 [* 3] whether or not this lot on an existing road on a filed map needs relief from Town Law 280-a. 2 The ZBA in a determination dated October 7, 2010 stated the following: " [a ]fte hearing all the evidence and examining the exhibits, the Board has determined that no 280-a varianc is needed and reaffirms the granting of this application as per ZBA # 19540." The petitioner so ght to obtain a building permit following the ZBA' s interpretation dated October 7, 20 IO; however the petitioner avers that the respondent Town would not issue the building permit on the basis t at a prerequisite to the issuance of a building permit is a pre-construction meeting with the build ng department. In fact, the respondent in opposition to the instant action concedes that the sole asis for not issuing the building permit is that the petitioner has not arranged and conducted a pre-c nstruction meeting with the respondent. The respondent in opposition submits the affidavit of Ma ia Jennosa employed by the respondent as a Building Permits Examiner in the Department ofEngin ering Services whereby she states the following: "[s]till outstanding is the pre-construction meeti g for the project which would address road, street and lighting improvements as is necessary i accordance with town standards. It is important to point out, that whil e the Zoning Board appro ed a variance from the mandates of Town Law 280-a which requires road improvements to be made before a building permit is issued by our department, the applicant will still be required to i prove: the street in front of his property before a certificate of occupancy for the building will be re le sed. The Zoning Board variance only relieves the applicant from improving the road at an earlier p ase of construction, but does not release the developer from making road improvements. I to the expeditor for the applicant that no permit would be issued until a pre-construction meeting is eld with the applicant." " A proceeding pursuant to CPLR article 78 is the proper vehicle by hich to compel officials to perform a mandatory duty" (Bonanno v Town Bd. of Babylon, 148 AD2 532,532). Mandamus to compel the performance of an official duty may only be granted wh re the act sought to be compelled is ministerial in nature and involves no exercise of discretion, an where the applicant has demonstrated a clear legal right thereto (see, Savastano v Prevost, 6 NY2d 47; Matter of Klostermann v Cuomo, 61 NY2d 525; Jordan's Partners v Goehringer, 2 4 AD2d 453 ; Cahalan v Caputo, 94 AD2d 742). Conduct that requires adherence to a govemi rule or standard with compulsory results is considered to be a ministerial act (Tan o v Tulevic , 61 1\JY2d 34, 41 ; see, Garrett v Holiday Inns, 58 NY2d 253). Mandamus is not available to com el performance of an act which involves the exercise of judgment or discretion by an administrativ agency or officer (see, Matter of Brusco v Braun, 84 NY2d 674; Matter of Klostermann v Cuom , supra). Here, under the circumstances presented regarding the building permit for a proposed si gle family dwelling the court find s that the respondent does not have discretion to deny the buildin permit on the basis that the applicant is required to have a pre-construction meeting prior to the ssuance of the building 2 Town Law 280-a. 1. states: No permit for the erection of any b ilding shall be issued unless a street or highway giving access to such proposed structure has be -n duly placed on a official map or plan, or if there be no official map or plan, unless such str et or highway is (a) an existing state. county or town highway, or (b) a :;treet shown upon a plat proved by the planning board as provided in sections two hundred seventy-six and two undred seventy-seven of thi s arti cle. as in effect at the time such plat was approved, or (c) a stre t on a plat duly fi led and recorded in the office of the county clerk or registered prior to the ap ointment of such planning board and the grant to such board of the power to approve plats.' 3 i I I I ! [* 4] permit (see, Charter Land Dev. Corp. v Hartmanrl, 170 AD2d 600; cf. Pius 'Bletsch, 70 NY2d 920) and relief in the nature of mandamus is appropriate. The respondent T )Wn fails to cite to any statutory authority in the Town Code or statutory scheme or promulg ted regulations for the requirement that the applicant attend a pre-construction meeting before t e issuance of a building permit other than that it is an unwritten policy of the building department see, Rendely v Town of Huntington, 44 AD3d 864). The court notes that the building department as the authority to have a meeting with the applicable officials employed by the Town in connection vi th the subject building permit application absent the applicant and prior to the issuance of the building permit. 3 Accordingly, the respondent Town is directed to issue the building permit ·ought by the petitioner. The allegations in the petition are insufficient to state a claim again.st the respondent pursuant to 42 USC 1983. To state a claim pursuant to 42 USC 1983, a p aintiff must allege, at a minimum, conduct by a person acting under color oflaw which deprived th' injured party of a right or interest secured by the Constitution or the law of the United States (DiP Ima v Phelan, 81 NY2d 754). 42 USC 1983 protects against municipal actions that violate owners r ghts under the Fifth and Fourteenth Amendments of the United States Constitution to due process, qual protection oflaws, and just compensation for the taking of property (Bower Assocs. v Town of Pleasant Val., 2 NY3d 617; Town of Orangetown v Magee, 88 NY2d 41, 49). "With respect to land use, 42 USC 1983 protects a landowner's rights to (1) equal protection of the laws guara teed by the Fourteenth Amendment, (2) just compensation for the taking of property guaranteed b , the Fifth Amendment, and (3) due process of law guaranteed by both th~ Fifth and Fourteenth A endments. A violation of equal protection arises if a person was selectively treated compared with )thers similarly situated and such selective treatment was based on impermissible considerations s ch as race, religion, an intent to inhibit or punish the exercise of constitutional rights, or a malici us or bad faith intent to injure a person" (Bower Assocs. v Town of Pleasant Valley, 2 NY3d at 631 . A complaint alleging a violation of 42 USC 1983 must specify the sub~;tantive constitutional rig t upon which the claim is based and aver facts in support of the claimed constitutional deprivatio (see, Incorporated Vil. Of Ocean Beach v Maker Water Taxi, 201AD2d704). Here, the court finds hatthe unsubstantiated and conclusory allegations in the petition are insufficient to state an equa protection claim (see, Gagliardi v Village of Pawling, 18 F3d 188; ;Huntin ton Yacht Club · Incorporated Vil. Of Huntington Bay, 1 AD3d 480; Bower Assocs. v Town of Pleasant Val., 30 AD2d 259; Matter of Sour Mountain Realty v New York State Dept. Of Envtl. Conservation, 26 ) AD2d 920; Matter of Vito v Jorling, 197 AD2d 822). Moreover, the claim that the respondent To vn violated petitioner's federal constitutional right to just compensation is not ripe for review in ight of the petitioner's failure to show that it sought to obtain just compensation through State Proc <lures (see, Williamson County Regional Planning Commn. v Hamilton Bank of Johnson City, supr ; Dougherty v Town of N. Hempstead Bd. Of Zoning Appeals, supra; Staats bur Water Co. v Dute ess County, 291 AD2d 552). "[D]enial of a permit-even an arbitrary denial redressable by an arti le 78 or other state law proceeding-is not tantamount to a constitutional violation under 42 USC 1 )83; significantly more Contrary to the respondent's contention, the court is not bound t apply Local Law No.:9-2013 which codified in the Town Code the procedure ofrequiring a re-construction meeting in light of the fact that Local Law 9-2013 did not show a clear ex ression that it should be applied retroactively (see, Matter of Mulligan v Murphy, 14 NY2d 223, 226). 4 [* 5] is required'' (Bower Assocs. v Town of Pleasant Val., supra at 627). Ac rdingly, the portion of the petition alleging violations of petitioner's constitutional rights is de ied. The portion of the petition seeking punitive damages, costs, and disbursements is denied as ell as remainder of the petition. This shall constitute the decision and judgment of the coud;J::: ,<;:>' /, DATED: October 23, 2013 FINAL DISPOSITION ,"/- NON-,FINAL DISPOSITION H:\\Art1cle78.Cardy.8JO. 11 5
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