NY Appellate Court Finds Failure to Demonstrate a Reasonable Excuse for Default over Building Permit Matter

This Article 78 proceeding was brought to review a determination of the Zoning Board of Appeals of the City of Long Beach, which revoked a building permit previously issued to the petitioners. The Zoning Board of Appeals of the City of Long Beach, Rocco Morelli, Lenny Torres, Marcel Weber, Michael Fina, Stuart Banschick, Lorraine Divone, and Michael Leonetti appeal, and the City of Long Beach and Scott Kemins, as Commissioner of the Department of Buildings of the City of Long Beach separately appealed, as limited by their respective briefs, from an order, which granted the petitioners/plaintiffs’ motion for leave to enter a default judgment against them and denied their respective cross motions for leave to file amended answers to the third amended petition/complaint.

The appellants moved pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss the first, second, fifth, and sixth causes of action of the third amended complaint as asserted against them. The Supreme Court granted that branch of the motion, but the appellate court reversed that portion of the order and denied the motion. The petitioners then served a written demand that an answer be served within 10 days. The court found that by establishing that the appellants failed to comply with that demand, the petitioners established the appellants’ default. Accordingly, the court held that the petitioners were not required to provide proof of entry of the appellate order with the clerk of the original court. Since the appellants failed to demonstrate a reasonable excuse for their default, the court affirmed the holding in favor of the petitioners.

Haberman ZBA of Long Beach, 2017 WL 3045109 (NYAD 2Dept.7/19/2017)