Opinion
No. 6101–14.
10-30-2014
In the Matter of the Application of BONEFISH GRILL, LLC, Petitioner, v. The ZONING BOARD OF APPEALS OF THE VILLAGE OF ROCKVILLE CENTRE, Respondent.
Davidoff, Hutcher & Citron LLP, Garden City, for Petitioner. Cullen & Dykman, LLP, Garden City, for Respondent.
Davidoff, Hutcher & Citron LLP, Garden City, for Petitioner.
Cullen & Dykman, LLP, Garden City, for Respondent.
Opinion
STEVEN M. JAEGER, J.
The following papers read on this motion:
Notice of Verified Petition and Verified PetitionX
Notice of Motion, Affidavit, and ExhibitsX
Respondent's Reply Memorandum of Law in Support of Motion to DismissX
Memorandum of Law in Opposition to Respondent's Motion to DismissX
Respondent's Memorandum of Law in Support of Motion to DismissX
Memorandum of Law (Petitioner)X
Affirmation in Opposition and ExhibitsX
Motion (seq. no. 1) by the attorneys for the petitioner for a judgment vacating and setting aside the conditions imposed in the decision of the respondent Zoning Board of Appeals under its Case No. 16–2014, 17–2014 and the Substantial Occupancy Permit that granted the application of the petitioner for an area variance and Substantial Use Permit to allow the restaurant already built to open but imposed conditions not previously provided and directing the Zoning Board of Appeals to grant the requested variance and Substantial Occupancy Permit without conditions; and cross-motion (seq. no. 2) by the attorney for the respondent for an order pursuant to CPLR 7804(f) dismissing the petition as a matter of law on the grounds that petitioner has failed to state a cause of action and reassigning this matter to a different justice of this Court is determined as hereinafter set forth.
In motion (seq. no. 2) respondent seeks recusal of this Court. Since recusal, if granted, would result in reassignment of the remaining applications, this issue will be addressed first. By letter dated July 9, 2014, Cullen & Dykman, LLP, the attorney for respondent by Thomas B. Wassel, requested the Court recuse itself “from presiding over this matter and that the case be assigned to a different Justice of this Court.” The basis for the request is the fact that Michael Zapson, an attorney for petitioner, is listed on the letterhead of the Court's re-election campaign as one of nine individuals named as “Honorary Chairs”. One use of such letterhead is to solicit funds for the re-election committee. Thus, the solicitation and Mr. Zapson's honorary position is a matter of public record. By letter dated July 14, 2014, Mr. Zapson objected to the recusal application.Counsel for respondent was directed to make a formal motion regarding the recusal issue. In arguing for recusal, the attorney for the respondent does not question “the integrity or impartiality of the Court.” However, respondent's attorney opines that the Court's “standing for re-election in a few months and counsel for petitioner actively campaigning and seeking funds on Your Honor's behalf, it is, in all parties' best interest to avoid even the appearance of partiality.” Section 14 of the New York Judiciary Law provides in part that, “[a] judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.”NY Jud. Law § 14 (McKinney 2003). Both Mr. Wassel and Mr. Zapson acknowledge in their submissions that the relationship between petitioner's counsel and this Court does not warrant mandatory recusal.
Judge Bellacosa, for a unanimous Court of Appeals, in People v. Moreno, 70 N.Y.2d 403, 405, stated that “[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal.” The Second Department, in Schwartzberg v. Kingsbridge Heights Care Center, Inc., 28 AD3d 465, 466, held that “[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience.” In Poli v. Gara, 117 A.D.2d 786, 788–789, the Court stated that “[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court” (internal citations omitted).
Mr. Wassel also asserts that if an attorney in his firm was involved in a particular judge's re-election campaign, he would not expect that judge to preside over the firm's cases. However, it is not suggested by respondent that the Court has done anything impermissible or outside of public scrutiny or the public record. Judges in this State are elected by the people by way of the political process yet are required at the same time to remain fair and impartial and to abide by rules limiting their political activity, except in support of their own candidacies.The Court has reviewed the decisions of the Advisory Committee on Judicial Ethics, and while not binding, these opinions do not support Respondent's position. A judge running for re-election should exercise recusal when attorneys “actively ” engaged in fundraising or other conduct in support of the judge's candidacy appear before the judge. Advisory Committee on Judicial Ethics, Opinion 07–26. However, only “active” conduct in support of a campaign requires recusal.
Typically, such active conduct involves a leadership role in the candidate's committee, such as “campaign manager, campaign coordinator, finance chair or treasurer”.
Advisory Committee on Judicial Ethics, Opinions 08–152 and 13–64.
Where an attorney does not have a formal leadership role in a campaign and does not engage in fundraising during the campaign, recusal is not required if the judge believes he or she can be impartial. Advisory Committee on Judicial Ethics, Opinion 09–245. Petitioner's counsel's role is by definition “honorary” and by itself presents no grounds for recusal herein.
This Court does not have a direct or indirect personal, substantial or pecuniary interest in reaching a particular conclusion in the within proceeding (see People v. Alomar, 93 N.Y.2d 239 ). Further, the Court believes it can and will preside impartially over these proceedings without fear or favor towards any party or attorney. As Justice Palmieri of this Court stated in Galasso v. Liotti, 20 Misc.3d 1143(A), “... a recusal here would amount to little more than a shirking of the Court's responsibility to fairly decide matters that come before it ...” Therefore, Respondent's motion for recusal is denied.
Bonefish Grill, LLC petitioner, is the lessee of 340 Sunrise Highway, Village of Rockville Centre, New York (subject premises) located on the southwest corner of Sunrise Highway and Morris Avenue pursuant to a lease dated March 5, 2013. The premises at the time of the lease was a vacant 700 seat movie theater which had no parking. Part of the lease is a License Agreement that provided petitioner with limited parking. Prior to signing the lease, petitioner made application to the Village of Rockville Centre (Village) for a building permit. On February 21, 2013, the Village denied a building permit. The denial was based on the issue of a rear and side yard setback variances. Petitioner applied for the variances, which came before the Village Zoning Board of Appeals (BZA) on March 6, 2013. On March 22, 2013, the BZA granted the variance with conditions. The movie theater was demolished and a building permit procured. The building permit dated October 11, 2013 expired October 11, 2014. Work started in a timely manner.
By March 2014, the restaurant was substantially completed.On March 3, 2014, the Village enacted an ordinance requiring a Substantial Occupancy Permit (SOP). In March 2014, the Village advised petitioner it would not issue a Certificate of Occupancy on the grounds that (1) the building had not been completed timely; (2) a parking variance was now needed which the Village had previously believed not to be to necessary; and (3) a new Village ordinance enacted March 3, 2014 required a Substantial Occupancy Permit (SOP) for restaurants with occupancy of 50 or more. The Village advised petitioner that it would not allow Bonefish to open without (1) extending the front yard variance the Village alleged to have expired; (2) obtaining a parking variance which had not previously been required; and (3) obtaining a Substantial Occupancy Permit (SOP). Petitioner immediately filed for relief from the BZA.
The matter came on for a hearing on April 23, 2014 before the BZA. All three matters were heard at one time. The extension of time variance was assigned Case No. 16–2014. The parking variance application, not previously required, was assigned Case. No. 17–2014. The Substantial Occupancy Permit request pursuant to the Ordinance that became effective March 3,2014 was not assigned a number. After petitioner presented its arguments, and after the heated opposition from local restauranteurs, petitioner concluded its case. The case was then adjourned to May 7, 2014. On May 7, 2014 the parties were given the opportunity to speak. Again. local restaurants spoke against this restaurant opening.
Petitioner further states the BZA granted the variances and the Substantial Occupancy Permit with extensive conditions. The seven (7) conditions are set forth in detail in paragraph 12, pgs. 3–5 of the Verified Petition. The original variance was issued on March 27, 2013, the building permit on October 11, 2013 and the building substantially completed by March 2014 at a cost of over one million dollars. ($1,000,000).
In accordance with the BZA decision, the Village issued a Temporary Certificate of Occupancy on May 23, 2014. On May 23, 2014 the BZA amended its findings by allowing Bonefish to open at 10:00 a .m. on weekends. The Petition alleges the conditions imposed in the parking variance and the SOP findings are unreasonable, onerous, contradictory to each other and arbitrary and capricious. For example, petition asserts there is no reason to demand all employees purchase employee parking permits at a cost of $250 each.
CPLR 7804(f) provides that “The respondent may raise an objection in point of law by setting forth in his answer, or by a motion to dismiss the petition....” Where as here “objections in point of law” are raised by a CPLR 7804(f) motion, the court should judge the legal sufficiency solely on the face of the petition's allegations, and any factual issues are beyond the scope of the motion (Matter of Garcia v. Rhea, 85 AD3d 549 ). Therefore, a proper motion to dismiss an Article 78 proceeding must be based solely on a point of law, and may not dispute any of the facts alleged by the petitioner (Matter of 108 Realty LLC v. Department of Hous. Preserve. & Dev. of the City of NY, 83 AD3d 556, 557 ).
The attorney for the respondent raises a number of factual issues that preclude the granting of the motion to dismiss pursuant to CPLR 3211(a)(7). The Memorandum in Support of Motion to Dismiss (pg.5) states: Petitioner's property and the improvements therein are not “essentially valueless.” Whether the action of the Board renders the “property valueless” is a question of fact raised by the respondent in response to the petition. The petition alleges “A restaurant that is not allowed to serve lunch is not a restaurant and is certainly impacted” (Petition, ¶ 18). The petition alleges that the conditions imposed in the parking variance and the Substantial Occupancy Permit are unreasonable and “contradictory to each other. There is no reason to limit the hours of operation if valet parking is required at all times.” (Petition, ¶ 19).
Respondent's attorney acknowledges that “The documents before this Court clearly show that the decision was grounded in the facts ... (emphasis added) (Respondent's Reply Memorandum of Law in Support of Motion to Dismiss, pgs. 3–4). Affidavits submitted by respondent in a motion to dismiss (CPLR 3211[a] [7] ) do not constitute documentary evidence upon which a proponent of dismissal can rely (see Crepin v. Fogarty, 59 AD3d 837 ).
Judging the petition solely on its face, deeming the allegations true, and according the petitioner the benefit of every possible inference, the Court finds the allegations that the Village's decision was arbitrary and capricious by imposing conditions for parking that were contradictory and onerous constitute a cognizable legal claim (Georgia v. Malone & Co. v. Rieder, 19 NY3d 511 ; Anderson v. Town of Clarence, 275 A.D.2d 930 ; Matter of Ostrowski v. County of Erie, 245 A.D.2d 1091 ).
Respondent's motion (seq. no. 2) to dismiss the petition is denied. This Court having denied the pre-answer motion to dismiss, must allow the respondent an opportunity to submit an answer (CPLR 7804[f] ; Matter of Bethelite Community Church, Great Tomorrows Elementary School v. Department of Envtl. Protection of City of NY, 8 NY3d 1001, 1002. No disposition on the petition may be made until after the answer is served (Matter of Camacho v. Kelly, 57 AD3d 297, 298. CPLR 7804(f) states that such answer shall be served and filed within five days after service of the order with notice of entry and the petitioner may re-notice the matter for hearing upon two days' notice, or the respondent may re-notice the matter for hearing upon service of the answer upon seven days' notice. Respondent shall file with the answer a certified transcript of the record of the proceedings unless a transcript has already been filed with the Clerk of the Court (CPLR 7804[e] ).
The foregoing constitutes the Decision and Order of the Court.