Posted by: Patricia Salkin | February 1, 2016

NY Appellate Court Finds Standing as Plaintiffs’ Property was Sufficiently Close Enough to be in Zone of Interest and that Allege Injury was Different from the Community in General

In an action to permanently enjoin alleged violations of the Zoning Resolution of the City of New York, the defendant Robert Cunningham appealed from an order of the Supreme Court, Kings County, which, granted the motion of nonparty Stuart A. Klein and his law firm to be relieved as the plaintiffs’ counsel. Additionally, Cunningham also appealed from an order of the same court, which denied his motion to dismiss the complaint for lack of standing and lack of personal jurisdiction.

The court noted that to establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that due to the defendant’s activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected’ by the statute or ordinance at issue”. Here, the court found that the record indicated the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests were within the zone of interest to be protected by the zoning ordinances alleged to be violated. Because Cunningham failed to rebut this evidence, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3).

Similarly, the court found that the state Supreme Court properly denied the appellant’s motion pursuant to dismiss the complaint for lack of personal jurisdiction, since the appellant failed to submit a sworn denial of receipt of process to rebut the presumption of proper service. The court therefore affirmed the determination of the trial court to dismiss Cunningham’s motions.

Gershon v Cunningham, 2016 WL 229867 (NYAD 2 Dept. 1/20/2016)

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