Opinion
2006-35225.
Decided December 19, 2007.
Downing Peck, PC, New York, New York, Ciarelli Dempsey, Esqs, Attorneys for Plaintiff.
ORDERED, that the application of Defendants is hereby granted to the extent set forth herein below; and the application of Plaintiff is hereby denied in all respects.
Defendants move this Court for an Order:
1.Pursuant to CPLR 3212, granting Defendants summary judgment in their favor, dismissing all 11 Causes of Action comprising Plaintiff's Amended Complaint as against Defendants;
2.Pursuant to 22 NYCRR § 130-1.1(c), granting Defendants their reasonable attorney fees, plus all disbursements, in this action as and for sanctions based on the frivolous nature of the claims asserted by Plaintiff herein.
Plaintiff cross-moves this Court for an Order, pursuant to CPLR 3212, granting summary judgment in favor of Plaintiff, directing that the subject building be removed, or, in the alternative, striking the Affirmative Defenses and Counterclaim, and pursuant to CPLR 3212(c), directing an immediate trial for assessment of damages of Plaintiff herein.
Plaintiff is the owner of a parcel of property adjacent to the parcel owned by Defendants, upon which Defendants built a two-story structure, the ground floor of which is a two car garage, and the upper floor of which is an accessory apartment, said structure being located 25 feet from Plaintiff's property line. Plaintiff has alleged 11 Causes of Action in his Amended Complaint against Defendants, adeptly summarized by Counsel for Defendants, as follows:
1.Violation of Southampton Town Code § 330, based on alleged zoning violations;
2.Misrepresentations in Defendants' December 2002 building permit application;
3.Violation of alleged covenants and restrictions intended to benefit Plaintiff's property;
4.Creation of a purported private nuisance because the garage is allegedly unsightly, dilapidated, and unreasonably close to Plaintiff's property;
5.Violation of Southampton Town Code § 330-168 for, among other reasons, allegedly diminishing the character, historical interest and general welfare of the neighborhood and Town;
6.Violation of Southampton Town Code § 330-170, because the building application was allegedly not approved or referred to the Town's Architectural Review Board or Planning Board;
7.Violation of Southampton Town Code § 330-171, because the structure allegedly diminishes and detracts from the character of the Town;
8.Violation of Southampton Town Code § 330-175, because allegedly no permit was issued for the building indicating it was designed and intended to conform in all respects to the provisions of Town Code § 330;
9.Violation of Southampton Town Code § 123-9, because of the alleged inaccurate or incomplete building permit application;
10.Violation of Southampton "Pyramid Law";
11.Requesting a permanent injunction and removal of the building, based on its allegedly substantial interference with Plaintiff's use and enjoyment of his property.
In answer thereto, Defendants have alleged 9 Affirmative Defenses, as follows:
1.Complaint fails to state a cause of action upon which relief can be granted;
2.Plaintiff's claims were not commenced within applicable statutes of limitations;
3.Plaintiff failed to appeal the issuance of the building permits for the structure in question to the Zoning Board of Appeals within the applicable statutory thirty-day period;
4.Plaintiff failed to commence a proceeding under CPLR Article 78 within the applicable statutory period, in order to challenge the permits and certificates issued for the structures in question;
5.Plaintiff's causes of action must be dismissed as a result of Plaintiff's laches;
6.Plaintiff has no standing to maintain this action;
7.Plaintiff has no standing to commence or maintain this action under Town Law § 268;
8.Plaintiff has failed to exhaust his administrative remedies;
9.The allegations of Plaintiff's Complaint are false and known to be false by Plaintiff;
And one Counterclaim, as follows:
1.Costs, reasonable attorney fees and sanctions to be paid by Plaintiff to Defendants.
First, this Court looks to Town Law § 268, attached to Plaintiff's Cross-Motion. Subsection 2 thereof clearly states that, ". . . upon the failure or refusal of the proper local official, board or body of the town to institute any such appropriate action or proceeding for a period of ten days after written request by a resident taxpayer of the town so to proceed, any THREE taxpayers of the town residing in the district wherein such violation exists, who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do." (Emphasis added). This clearly speaks to the 1st, 2nd, 5th, 6th, 7th, 8th, 9th and 10th Causes of Action of Plaintiff's Complaint.
It is clear that there are not three Plaintiffs herein, as required by the statute, only Plaintiff DOWNING. Therefore, said Plaintiff lacks standing, as pointed out by Defendants, to commence or maintain this action under Town Law § 268, ". . . to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use or division of land, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure, or land or to prevent any illegal act, conduct, business or use in or about such premises. . .". Plaintiff, instead, chose to stand alone in this action against the violations he alleges, so even if the Court deemed his allegations true, he would still lack standing to commence and maintain the action herein. Therefore, this Court has determined that Plaintiff's 1st, 2nd, 5th, 6th, 7th, 8th, 9th and 10th Causes of Action must be dismissed.
In Point I of their Reply Memorandum of Law, Defendants argue that Plaintiff's Causes of Action are untimely. The Court views this as a rebuttal specifically to the 1st, 2nd, 5th, 6th, 7th, 8th, 9th and 10th Causes of Action of Plaintiff's Complaint. As adeptly pointed out by Defendant's Counsel, Town Law § 267(3), and § 69-25 of the Code of the Town of Southampton, delegates exclusive authority to the Zoning Board of Appeals to ". . . review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance. . .". There is nothing in the record herein demonstrating that Plaintiff made such an application to the Town of Southampton Zoning Board of Appeals. In Engert v Phillips , 150 AD2d 752 [2 Dept 1989], a matter similar to the instant case before this Court, neighbors sued for an injunction of alleged violations, seeking revocation of building permits and demolition of the structure. The Court therein dismissed the action, finding that the matter was governed by a four-month statute of limitations. In that case, the neighbors had also never sought administrative review of the Building Department's determination, and the Court declared that the neighbors could not then challenge same before the Court, as they had failed to exhaust their administrative remedies ( See: Radano v Town of Huntington , 281 AD 682 94 [1952]; White v Plandome Manor , 190 AD2d 854 [2 Dept 1993]). Therefore, this Court has determined that Plaintiff's 1st, 2nd, 5th, 6th, 7th, 8th, 9th and 10th Causes of Action must be dismissed.
In reference to Plaintiff's 2nd Cause of Action, wherein Plaintiff alleges that Defendants made misrepresentations in their building permit application, the Court further notes that Defendants have set forth a history of the application which demonstrates that same was amended, and that the Town of Southampton in fact issued an Amended Building Permit, which specifically identified the second floor of the proposed structure as an accessory apartment, further reflected in the Town's tax records, which notes the 576 sq ft of living space within the garage structure. Therefore, this Court has determined that Plaintiff's 2nd Cause of Action must be dismissed.
In Point II of their Reply Memorandum of Law, Defendants argue, in response to the 3rd Cause of Action of Plaintiff's Complaint, that the cited Covenants and Restrictions do not apply to the subject premises. Defendants set forth facts demonstrating that, while their deed derives from Joseph T Kennedy Sr and Lillian M Kennedy, whose title derives from Bertha Torstenson, Plaintiff's deed also derives from Joseph Kennedy and Lillian Kennedy, but their deed to said premises derives from John J Crawley, not Bertha Torstenson, and the Covenants and Restrictions recited in the Crawley deed and that chain of title have nothing to do with the Torstenson deed and that parallel chain of title, even though the Kennedys appear in the two separate chains of title. The lot owned by Defendants were not formed by the same subdivision which formed Plaintiff's lot, and therefore Plaintiff's lot is not entitled to claim a benefit from, or enforce covenants and restrictions against the unrelated lots of Defendants ( See: Realis Development v Newberger , 6 AD3d 599 [2 Dept 2004]). Therefore, this Court has determined that Plaintiff's 3rd Cause of Action must be dismissed.
In Point III of their Reply Memorandum of Law, Defendants argue, in response to the 4th Cause of Action of Plaintiff's Complaint, that Plaintiff's claim for nuisance is unsupported and untimely. Leaving the timeliness issue behind, Defendants' Counsel adeptly points out that this Cause of Action is based on allegations (Amended Complaint, Paragraph 84: unreasonable and excessive noise; Amended Complaint, Paragraph 88: offensive and noxious conduct; and unsightly and dilapidated structure), none of which are supported by proof or specific instances, times and dates. A nuisance claim requires a showing of intentional interference with the right to use and enjoyment of property ( See: Weinberg v Lombardi , 217 AD2d 579). Furthermore, the Court notes that: all of the conduct complained of are not unusual emanating from a garage (set forth in Plaintiff's Cross-Motion as "all of the noise, door-shuttings, smoking, garbage disposal, radio playing, car parking, waste systems" and further reference to the starting of a motorcycle); the set-back of the garage from the property line has less of an impact on its proximity to the house on Plaintiff's property than the non-conforming set-back of the house from its own property line (due to the undersized area of Plaintiff's lot); and Plaintiff has presented no proof that there has been any depreciation in the value of his property over the past 4 years, let alone the relationship of any depreciation to the alleged conduct complained of.
While Plaintiff puts great reliance on his interpretation of Zupa v Paradise Point , 22 AD3d 843 [2 Dept 2005], the Court looks to Ruscito v Swaine Inc , 17 AD3d 560 [2 Dept 2005], wherein the Appellate Division asserted a strongly worded opinion that seems directly on point herein, stating:
"The Supreme Court properly determined that the plaintiffs failed to adduce legally sufficient evidence that might have justified a verdict in their favor and against any of the defendants on a theory of private nuisance or otherwise. "Here, there was no indication that plaintiffs were prohibited from using or enjoying their property or that defendants exercised unreasonable control over the property. In addition, as the defendants' fence did not interfere with plaintiffs' right to light or air, such allegations did not form a sufficient basis for a private nuisance claim" ( Christenson v Gutman , 249 AD2d 805 . . . [1998]; see RPAPL 843, 841; Kolodziej v Martin , 249 AD2d 941 . . . [1998]; cf. Saperstein v Berman , 119 Misc 205 . . . [1922]).
There is no merit to the plaintiffs' argument to the extent that it rests on the premise that the mere presence, on the adjoining property, of unsightly dumpsters, an abandoned icebox, "automobile hulks," or a "hideous rampart of dirt," without more, would give rise to a valid cause of action on a theory of private nuisance ( see Dugway, Ltd v Fizzinoglia , 166 AD2d 836 . . . [1990]; 81 NY Jur 2d, Nuisances § 33). "[T]hings merely disagreeable, however, which simply displease the eye . . . no matter how irritating or unpleasant, are not nuisances" ( Dugway, Ltd v Fizzinoglia , supra at 837, quoting 81 NY Jur 2d § 17; see Valley Cts v Newton , 47 Misc 2d 1028 . . . [1965]; Metropolitan Life Ins Co v Moldoff , 187 Misc 458 . . . [1946], aff'd 272 App Div 1039 . . . [1947], see also Demarest v Hardham , 34 NJ Eq 469). There is similarly no merit to the plaintiffs' argument that a cause of action alleging private nuisance may be asserted merely because the presence of certain structures on their neighbors' property might render their own property less conspicuous from the roadway ( see generally Acme Theatres v State of New York , 26 NY2d 385 . . . [1970])."
Therefore, this Court has determined that Plaintiff's 4th Cause of Action must be dismissed.
In Point IV of their Reply Memorandum of Law, Defendants argue, in response to the 11th Cause of Action of Plaintiff's Complaint, that Plaintiff's claim for a permanent injunction is without merit. While Counsel for Defendants accurately points out that a permanent injunction is a drastic remedy, which may be granted only where the moving party demonstrates they will suffer irreparable harm absent such relief ( See: Icy Splash Food Beverage, Inc v Henchel , 14 AD3d 595 [2 Dept 2005]; Kane v Walsh , 295 NY 198), the Court further notes that, with the dismissal of Plaintiff's other 10 Causes of Action herein above, including that for private nuisance, wherein Plaintiff's claim of loss of use and enjoyment of his property was dismissed for lack of any proof having been alleged thereof, which claim is at the foundation of the request for the injunction herein, there are no longer any allegations upon which this Court could grant said injunction. Therefore, this Court has determined that Plaintiff's 11th Cause of Action must be dismissed, and all 11 Causes of Action of Plaintiff's Complaint having been dismissed, said Complaint must be dismissed and this action disposed.
Defendants' application herein also requests relief granting them reimbursement for reasonable attorney fees and all disbursements in this action, as well as sanctions based on the frivolous nature of the claims asserted by Plaintiff herein. While Defendants stress the point that Plaintiff as an attorney was not caused to expend any monies in commencing and maintaining this action, while Defendants were caused to make such expenses in responding thereto, the Court does not see equity in punishing Plaintiff for the ability to represent himself, and does not find his conduct to merit punishment in the form of sanctions nor reimbursements, at this point.
As to Plaintiff's Cross-Motion, in light of the above decision of this Court, and there no longer being an action pending herein, this application is hereby dismissed as moot.
For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,
ORDERED, that the application of Defendants for an Order is hereby decided as follows:
1.As to their request for summary judgment in their favor, dismissing all 11 Causes of Action comprising Plaintiff's Amended Complaint as against Defendants, same is hereby granted in all respects;
2.As to their request for reasonable attorney fees, disbursements and sanctions against Plaintiff herein, same is hereby denied in all respects;
and the Complaint herein is hereby dismissed and the action disposed; and it is further
ORDERED, that the application of Plaintiff for an Order granting summary judgment in his favor, directing that the subject building be removed, or in the alternative, striking Defendants' Affirmative Defenses and Counterclaim, and directing an immediate trial for assessment of damages, is hereby dismissed as moot in light of the above decision of this Court herein.