Posted by: Patricia Salkin | July 16, 2014

NY Appellate Court Holds that Res Judicata Barred Zoning Amended Complaint Arising From Prior Variance Decisions

The petitioners/plaintiffs, Belair Building, LLC, and its sole owner, Sinclair Haberman, owned real property located on Shore Road. In 1985, Haberman’s father, obtained a variance from the Zoning Board of Appeals of the City of Long Beach (hereinafter the ZBA), later amended in 1989 and again in 1992, for construction of a four-tower cooperative/condominium project known as the Sea Pointe Towers Project. The appellant, the respondent/defendant Xander Corp. (hereinafter Xander), owns the only building of the proposed complex to have been constructed. In September 2003, Xander filed a petition with the ZBA, seeking to revoke a building permit that had been issued to the developers in August 2003 to begin construction on the second tower at 350 Shore Road. Xander Corp. appealed from an order of the trial court, entered June 14, 2012, as denied that branch of its motion which was for leave to serve and file an amended answer to the third amended petition/complaint.

However, the court discussed that “[U]nder New York’s transactional analysis approach to res judicata, ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’ (Matter of Hunter, 4 NY3d 260, 269, quoting O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357).” The court found that the proposed counterclaims arose out of the same series of transactions as those giving rise to the related proceeding, including the 1985 variance and a 1989 stipulation of settlement and amended variance, relating to the Sea Pointe Towers Project and the Xander Building residents’ alleged right to the parking spaces on 350 Shore Road. Since these two claims sought essentially the same relief, this court held that the trial court properly denied that branch of Xander’s motion which was for leave to serve and file an amended answer to the third amended petition/complaint.

Haberman v Zoning Board of Appeals of Long Beach, 2014 WL 3446833 (NYAD 2 Dept. 7/16/2014)

The opinion can be accessed at:

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