Village of Scottsville v McIntosh

[*1] Village of Scottsville v McIntosh 2015 NY Slip Op 52027(U) Decided on September 10, 2015 Supreme Court, Monroe County Minarik, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2015
Supreme Court, Monroe County

Village of Scottsville, Plaintiff,

against

John McIntosh, CANDACE MCINTOSH, and JOHN MCINTOSH, JR., Defendants.



14/3523



Peter K. Skivington, Esq., for Plaintiff; Candace R. McIntosh, Esq., for Defendant.
Renee Forgensi Minarik, J.

Plaintiff, Village of Scottsville (Village) commenced an action against Defendants John McIntosh and Candace McIntosh, husband and wife, property owners, (Defendants) and their son, "John McIntosh Jr"[FN1] , by service of summons and complaint asking the Court for a permanent injunction enjoining the Defendants from permitting residential occupancy in the rear building of their property at 60 Main Street, Scottsville, New York (accessory building). The Village also requests the Court issue a permanent injunction specifically enjoining "John McIntosh Jr." from occupying the accessory building.

Defendants joined issue with a Verified Answer and Counterclaim. Defendants plead 9 affirmative defenses summarized as follows:

1. Lack of jurisdiction over "John McIntosh Jr." because no such person exists;

2. Lack of authority in the Village Code for a permanent injunction;

3. Lack of subject matter jurisdiction as the Village Code does not govern who personally uses property, only what the property may be used for;

4. Selective enforcement;

5. Unconstitutional and illegal attempt to prohibit Defendants from disposing of their real property by lease or deed;

6. Res Ipsa Loquiter;

7. The expiration of the Adjournment in Contemplation of Dismissal for the 2004 enforcement proceeding;

8. The accessory building possessed a Building Permit to convert it to residential use; and

9. Village actions constitute an unconstitutional taking.

In addition, Defendants have several counterclaims. They are:

1. Recovery of $3,000.00 for sewer taxes paid for the accessory building;

2. Malicious prosecution;

3. Repayment of all fees associated with the failed application for a Special Use Permit;

4. Recovery of lost rent in the amount of $72,000.00 due to the inability to rent the accessory building;

5. Court ordered building permit and impartial building inspector;

6. An injunction to prevent the Village from harassing Defendants; and

7. Wrongful taking of their property.

The Village's answer contains the following affirmative offenses:

1. Fails to state a cause of action;

2. Defendants are barred from obtaining the relief requested because they failed to initiate an Article 78 proceeding;

3. Fails to join the necessary parties;

4. The claims regarding the actions of the Zoning Board of Appeals (ZBA) and the Planning Board (PB) are untimely and barred by the Statute of Limitations; and

5. The claims against the Village are untimely and barred by the Statute of Limitations.

This matter came before me by way of Defendant's Motion to Compel Discovery. Plaintiff responded with a cross-motion pursuant to CPLR 2214(b) for summary judgment, permanent injunction and dismissal of the Counterclaim. I heard oral argument on May 13, 2015 and counsel submitted post-argument memoranda of law.In making this decision, I have relied on the following documents, as well as oral argument:

1. Notice of Motion by Defendants to dismiss the action against "John McIntosh, Jr." and to compel discovery filed March 3, 2015 in the MCCO, with attached affidavit of Candace R. McIntosh, Esq sworn to on February 24, 2015.

2. Attorney Affidavit of Candace R. McIntosh, Esq., plus attachments, dated February 25, 2015.

3. Plaintiff's Cross Notice of Motion dated April 1, 2015 requesting and order granting summary judgment for a permanent injunction, dismissal of Defendants' Counterclaim and such other relief that is proper.

4. Affidavits attached to the Cross Notice of Motion: Peter K. Skivington, Esq., sworn to April 1, 2015; Affidavit of Steven Farrell sworn to March 23, 2015, Affidavit of Terry Rech sworn to March 23, 2015, with exhibits.

5. Defendants Reply to Plaintiff's Cross-Motion with Affidavit of Candace R. McIntosh sworn to May 4, 2015 and Affidavit of Constance S. Barefoot sworn to June 1, 2015.

6. Plaintiff's Memorandum of Law.

7. Defendants' Memorandum of Law.

[*2]

FACTS

Defendants own property located at 60 Main Street in the Village of Scottsville. The property is zoned Village Central Business District (CBD). A one story frame building faces Main Street. Defendants operate their business out of this building. The accessory building is a one story framed building located behind it, accessible by driveway off Main Street, that runs between 60 Main Street and 62 Main Street. The accessory building faces that driveway and a prior owner used it as a garage.

The accessory building is now improved with utilities and appears to have been renovated by another prior owner, in 1996, who contemplated a commercial use. The Village did not issue a certificate of occupancy at that time, nor has it ever issued a certificate of occupancy for the accessory building, for any type of use, despite Defendants' efforts to obtain one.

Defendants have a history with the Village, the ZBA and the PB. It appears that successive applications for variances and use permits have been denied over the years. Significantly, Defendants did not challenge any denial of any of their prior applications by an Article 78 proceeding.

It is also undisputed that Defendants' son, John, has for periods of time "occupied" the accessory building. The Village's initial concern was that son John was residing in the accessory building, and there are allegations that he works in the accessory building, typically in the night time, sporadically. Son John is an adult who lives elsewhere, but stays periodically with Defendants.

SUMMARY JUDGMENT

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959], appeal dismissed 11 AD2d 660 [1st Dept 1960]). "Bald, conclusory assertions" (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]) and the "shadowy semblance of an issue" cannot, by themselves, defeat a motion for summary judgment (Di Sabato at 300).

Plaintiff is entitled to judgment as a matter of law on their action for a permanent injunction if Plaintiff can demonstrate that Defendants violated local law. Village of Fayettevillev Shaheen, 38 AD3d 1251 [4th Dept 2007]. There is prima facie entitlement where the village can show a specific code provision that has been violated supported by facts of the violation in affidavit form. NY Village Law 7-714 (2013 Commentary); Incorporated Vil. of Sea Cliff v Larrea, 106 AD3d 876, 877 [2d Dept 2013].

Plaintiff alleges Defendants have violated Village Code Section 63-18 "Certificate of occupancy required; issuance." Specifically, subdivision A which states "No building hereafter erected shall be used or occupied in whole or in part until a certificate of occupancy shall have been duly issued by the Building Inspector." Terry Rech, Code Enforcement Officer for Plaintiff, states "The rear building of the property does not have a Certificate of Occupancy, nor has the [*3]building ever been issued a Certificate of Occupancy for residential use, or any other use, by the Village of Scottsville." Affidavit of Terry Rech, para. 5. He also posted a notice on the door of the accessory building that it was not to be occupied. Rech Affidavit, Exh. A. However, Steven Farrell, who resides at 62 Main Street, across the driveway from the accessory building, states that someone, specifically, "John McIntosh, Jr." has been occupying the accessory building overnight intermittently and most recently from November 2014 through March 2015. Affidavit of Steven Farrell, para. 11 - 12. Plaintiff has established by submission of evidentiary proof in admissible form that they are entitled to summary judgment.

In opposition, Defendants painstakingly detail their interactions with the Village's various agents and boards. They also provide background on their personal challenges as small business owners, Village residents and as a family. Their story is compelling, however, it does not raise a triable issue of fact. Plaintiff's motion for summary judgment on the cause of action for a permanent injunction is granted.[FN2]

WRONGFUL TAKING

Did the Village deprive Defendants of the use of their property when it failed to issue the Certificate of Occupancy? A takings claim under the New York State constitution requires that the economic value of the property be entirely dissolved. See Matter of Gazza v New York State Dept. of Envtl. Conservation, 89 NY2d 603, 618€"619 (1997), cert. den., 522 US 813 (1997). Here, Defendants admit they use the accessory building as storage space to support their business operated out of the building fronting on Main Street. The accessory building is part of the whole and may not be segregated for purposes of this analysis. DC3, LLC v Town of Geneva, 783 F Supp 2d 418, 423 (WD NY 2011) citing Penn Cent. Transp. Co. v City of New York, 438 US 104, 130€"131 (1978). Inasmuch as the property as a whole continues to operate as a going business, Defendants have failed to show that the lack of a certificate of occupancy has diminished the value of the property. This cause of action in Defendants' Counterclaim is dismissed, as well as the affirmative defense of wrongful taking.

CERTIORARI, MANDAMUS, PROHIBITION

Defendants have submitted a lengthy and detailed history of their interactions with the Village, ZBA and PB from the time they negotiated the purchase of their property through the various court and board proceedings up to the present. The affirmative defenses and counterclaims not addressed above involve the review of determinations by parties not named in this lawsuit which were made longer than four months prior to the commencement of this case. Defendants seek to challenge, and have this Court review, governmental action. The proper vehicle for the relief sought by Defendants is an Article 78 proceeding. CPLR 7801, 7803. The time to bring such a proceeding was within four months of the acting board's decision becoming [*4]final. CPLR 217. Defendants' Counterclaims numbered 1 through 6 are dismissed and Affirmative Defenses numbered 4, 5, 7 and 8 are stricken.

PERSONAL JURISDICTION The action against "John McIntosh Jr." is dismissed without prejudice.

SUBJECT MATTER JURISDICTION

Defendants' Affirmative Defenses numbered 2 and 3, that the Village Code does not authorize the Village to seek an injunction, are stricken. The Village has authority pursuant to Sections 63-24, 63-18 and 63-23 of the Code.

RES IPSA LOQUITER

Defendants' Affirmative Defense of res ipsa loquiter is stricken inasmuch as Defendants have failed to plead or prove the instrument that allegedly caused the injury.

REMAINING CONTENTIONS

Any claims or defenses not heretofore determined are deemed dismissed, stricken or denied.

Plaintiff shall submit the order.

Dated: September 10, 2015______________________________

Renée Forgensi Minarik

Acting Supreme Court Justice

Footnotes

Footnote 1:His name is actually John A. McIntosh.

Footnote 2:The summary judgment motion was in response to Defendants' motion to compel discovery. No discovery has taken place in this case at this time, but Plaintiff's motion is not premature as " there is some evidentiary basis to believe that further discovery would [not] produce relevant evidence or that facts essential to justify opposition to the motion are exclusively within the knowledge and control of the other party (citations omitted)." Cueva v 373 Wythe Realty, Inc., 111 AD3d 876, 877 [2d Dept 2013]. There is no dispute that the accessory building does not have a certificate of occupancy.