Posted by: Patricia Salkin | July 20, 2017

NY Appellate Court Reverses Dismissal of Claims against Individual Parties in Building Permit Matter

This CPLR article 78 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/plaintiffs. Petitioners also sought a judgment declaring that they were entitled to the building permit. In this case the petitioners appealed from a September 2010 order of the Supreme Court, Nassau County, which granted that branch of the motion of the defendants to dismiss the sixth cause of action as asserted against them. In making this determination, the court found that the petitioners did not allege sufficient facts to support their claim that the defendants’ alleged actions effected a deprivation of their constitutional rights, and that the individual defendants, who were members of the Zoning Board of Appeals of the City of Long Beach, were immune from suit for monetary damages.

The plaintiffs took a limited appeal from the September 2010 order, in which they challenged the court’s ruling with respect to the sixth cause of action. The Supreme Court stated that it was “unclear” as to whether the court’s determination of the appeal from the September 2010 order “impacted” the Supreme Court’s finding in that order that the individual defendants had qualified immunity from claims seeking damages under 42 USC § 1983. In light of its uncertainty about our disposition of the appeal from the September 2010 order, the court granted the individual defendants leave to move to “be let out of the case” as to the fourth and sixth causes of action.
On appeal, the court found that the plaintiffs’ notice of appeal from the September 2010 order specifically encompassed that part of the order which “granted Defendants’ motion to dismiss Count … Six.” As such, the September 2010 order to dismiss the sixth cause of action insofar as asserted against the individual defendants was properly before the court on the plaintiffs’ appeal from that order. The court further found that its decision and order on the appeal from the September 2010 order clearly reversed the order granting the defendants’ motion to dismiss the sixth cause of action insofar as asserted against all of the defendants. Accordingly, the court held that the reversal of the September 2010 order necessarily rejected the individual defendants’ claims of qualified immunity. The order dismissing the sixth cause of action against the individual defendants was therefore reversed.

Haberman v ZBA of Long Beach, 2017 WL 3044986 (NYAD 2 Dept. 7/19/2017)

 


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