Posted by: Patricia Salkin | March 4, 2016

NY Appellate Court Grants Motion to Dismiss in Residential Construction Case Pursuant to Laches Doctrine Finding Petitioner Failed to Timing Request a Preliminary Injunction

The Zoning Board of Appeals of the Village of East Hampton, in two determinations dated September 28, 2012, and October 12, 2012, respectively, granted the application of Sheri Kersch–Schultz Residence Trust No. 1 and Howard D. Schultz Residence Trust No. 1 to construct an addition to a residence on certain real property. In this case, the petitioner appeals from an order and judgment of the trial which granted the motion of Sheri Kersch–Schultz Residence Trust No. 1 and Howard D. Schultz Residence Trust No. 1 and the cross motion of the Zoning Board of Appeals of the Village of East Hampton, to dismiss the petition pursuant to CPLR 3211(a) and CPLR 7804(f) on the ground of collateral estoppel.

The court found that the petitioner failed to timely move in the lower court for a preliminary injunction to preserve the status quo during the pendency of this litigation. Due to this, it failed to preserve its rights pending judicial review of the determinations at issue. Since it was undisputed that the subject construction had been completed, the appeal was dismissed.

Lilly Pad, LLC v Zoning Board of Appeals of Village of East Hampton, 24 N.Y.S.3d 910 (2/10/2016)

 


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