Opinion
8215-04.
Decided April 18, 2007.
Maney, McConville Liccardi, P.C., Attorneys for Plaintiff, (Edward P. McConville, Esq., of Counsel), East Greenbush, New York.
Oliver Oliver, Attorneys for Defendants, (Lewis B. Oliver, Jr., Esq., of Counsel), Albany, New York.
Defendants Faith Slovak a/k/a Edith Slovak, Donald Slovak, Schodack Farm, Inc. and Slovak Auto Transport Incorporated move to renew and reargue pursuant to CPLR 2221(d) and (e) and to vacate so much of the Court's decision of March 6, 2006 as granted summary judgment dismissing defendants' eighth affirmative defense of selective enforcement. Plaintiff Town of Kinderhook cross-moves to impose sanctions against defendants. Defendants cross-move for summary judgment dismissing the complaint.
Defendants' selective enforcement defense, which was previously dismissed and is the object of defendants' present motion to renew and reargue, was derived from the constitutional right to equal protection of the law. The essence of the constitutional guarantee of equal protection is that all persons similarly situated are to be treated alike ( Bower Associates v Town of Pleasant Valley , 2 NY3d 617 , 630-631). To successfully assert an equal protection violation, defendants must show that plaintiff acted against defendants "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances" ( Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693). The Court previously determined that defendants failed to meet their burden of showing that they were either singled out for enforcement or that the enforcement resulted from a malicious intent by plaintiff or to punish defendants for exercising their First Amendment rights.
A motion to renew must be based upon facts not offered on the prior motion or upon a demonstration that there has been a change in the law that would change the prior determination (CPLR 2221[e][2]; Spa Realty Associates v Springs Associates, 213 AD2d 781, 783; Grassel v Albany Medical Center, 223 AD2d 803, 804; Wagman v Village of Catskill, 213 AD2d 775, 775-776; Matter of Estate of Saxton v Manufacturers and Traders Trust Co., 245 AD2d 733, 734). To meet their burden of showing that the prior determination would be changed, defendants must provide evidence and argument that the Court was incorrect both in concluding that defendants had failed to present evidence that they were singled out for enforcement and in concluding that defendants had failed to present evidence that the enforcement resulted from a malicious intent by plaintiff or to punish defendants for exercising their First Amendment rights. To succeed on this motion, defendants would need to overturn both findings. As defendants' motion is directed solely against the first finding and does not address the second, defendants have failed to meet their burden of showing that the new evidence would change the prior determination, and their motion to renew and reargue is denied.
Plaintiff's motion to impose sanctions against defendants pursuant to CPLR § 3103 for allegedly frivolous conduct is also denied. CPLR § 3103 does not provide for the granting of sanctions. Plaintiff has failed to address the issue of how defendants' allegedly frivolous conduct rises to the level warranting sanctions pursuant to any other provision.
In addition, defendants' motion for summary judgment dismissing the complaint is denied. The Court's Discovery Stipulation and Order dated April 13, 2006 required that all motions for summary judgment be filed on or before August 28, 2006. Defendants did not file their motion until September 5, 2006.
Even assuming for the purposes of the argument that defendants' motion was timely, defendants fail to meet the requirements for summary judgment. Plaintiff asserts in the complaint that the zoning requirements were in effect on December 21, 1972 and that the earliest that any defendant operated a automobile transport business on the property was 1976, when they purchased the property. Defendants base their motion for summary judgment on their affirmative defense that their nonconforming use as a automobile transport business is a preexisting nonconforming use and therefore grandfathered.
As movant for summary judgment, defendants bear the initial burden to establish a prima facie showing of entitlement to judgment dismissing the causes of action as a matter of law, and to tender sufficient evidence to eliminate any material issues of fact from the case ( Zuckerman v City of NY, 49 NY2d 557, 562). One odd aspect of defendants' arguments for being grandfathered is their reversal of chronological order and series of illogical and/or insufficient arguments that they were recently grandfathered until they work their way back to the 1970's and finally present some relevant evidence that the automobile transport business may have commenced prior to 1972.
Defendants' initial arguments are illogical and improper and are therefore an inadequate basis for the conclusion defendants draw from them to further their claim for being grandfathered. Each illogical argument is a nullity. The defendants' first argument is that their use is grandfathered because Kinderhook's current zoning code was enacted December 21, 2001 and their use predates it. That argument is confusing to the extent that defendants appear to give the impression that there was no zoning law that applied prior to December 21, 2001. Once that confusion is overcome, the argument remains illogical because it begs the question by assuming that the automobile transport business was conforming prior to that date without presenting any support for the assumption.
Defendants next argue that "plaintiff has failed to plead and prove that defendants' automobile transport business for hire was not a legal nonconforming use under the former zoning code effective in the years prior to December 31, 2001, and therefore defendant is entitled to summary judgment." Defendants are clearly incorrect in asserting that plaintiff failed to plead that the automobile transport business was nonconforming. Defendants' argument is also improper because plaintiff is not required to prove anything at this stage of the litigation. Summary judgment motions are not opportunities for the Court to speculate about whether plaintiff will be able to prove its case at trial. To meet the initial burden, defendants must affirmatively demonstrate the absence of any merit in plaintiff's case and the merit of their own claims, and/or defenses against plaintiff's causes of action ( Holly v Morgan , 2 AD3d 1170 ; Mennerich v Esposito , 4 AD3d 399 , 401-402). Defendants have not met their burden on this argument.
Defendants' first illogical argument is that they are grandfathered under the zoning law as it existed in 1976. Once again they have begged the question by assuming the fact that they are grandfathered without presenting evidence to support their assumption. Instead of demonstrating that the zoning law as it then existed did not require that defendants file a site plan as part of commencing their automobile transport business, defendants present evidence that purports to show that shortly after purchasing the property Joseph Slovak obtained zoning approval for an application to construct a facility for the sale of his agricultural products without being required to file a site plan. An instance in which some requirement was waived does not establish that the requirement did not exist or demonstrate an entitlement to further waivers.
Finally, defendants present a series of affidavits that purport to demonstrate that Joseph Slovak was operating the automobile transport business on the premises prior to purchasing the property in 1976. Despite being very short on factual details upon which a determination could be made, the affidavits are arguably sufficient to meet defendants' initial burden on their motion for summary judgment and shift the burden of raising triable issues to plaintiff. Even assuming that defendants' affidavits are sufficient, plaintiff's opposition raises triable issues with affidavits demonstrating that the automobile transport business commenced after 1976. Plaintiff meets its burden of showing facts sufficient to require a trial on an issue of fact ( Zuckerman v City of NY, 49 NY2d 557, 562).
Defendants' reply introduces new arguments. New arguments that were not included in the original motion should not be interposed in reply, especially in cases such as this where the new arguments or allegations in support of the motion could and should have been raised initially ( Potter v Blue Shield of Northeastern New York, 216 AD2d 773, 775; Matter of Crawmer v Mills, 239 AD2d 844, 845; Ritt v Lenox, 182 AD2d 560, 562).
Accordingly, defendants' motions for renewal and reargument and for summary judgment are denied without costs, and plaintiff's motion for sanctions is denied without costs. Plaintiff is directed to file the Note of Issue, and a conference will be held on May 10, 2007 at 9:45 a.m. at my chambers in the Columbia County Courthouse for the purpose of picking a trial date.
This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
SO ORDERED!