Posted by: Patricia Salkin | July 22, 2018

NY Appellate Court Affirms Denial of Preliminary Injunction in Residential Construction Case and Holds Plaintiffs Lacked Standing

This post was authored by Matthew Loeser, Esq.

The plaintiffs brought an action pursuant to Town Law § 268(2) and General Municipal Law § 51 to enjoin the defendants Michael DeFalco and William Matthews from commencing construction on residential real property the individual defendants owned in the Town of Brookhaven, and to enjoin the defendants Town of Brookhaven, Town Board–Town of Brookhaven, and Arthur Gerhauser, in his capacity as Chief Building Inspector for the Town of Brookhaven, from issuing any certificates of occupancy for the property. The Supreme Court, Suffolk County, denied the plaintiffs’ motion for a preliminary injunction and granted the defendants’ cross motion to dismiss.

At the outset, the court found that defendants had established that the construction on the subject property was not in violation of the zoning code. Here, the plaintiffs’ dissatisfaction with the decision of the Town of Brookhaven to grant a variance and building permit to the individual defendants did not render the plaintiffs jointly or severally aggrieved as required in order to have standing to assert a cause of action pursuant to Town Law § 268(2).

The court next addressed plaintiff’s General Municipal Law § 51 claim, which was premised on the allegation that the decision of the Town of Brookhaven to issue a building permit for the construction on the subject property was illegal. However, the plaintiffs did not plead any fraud or corruption in connection with the issuance of the building permit; nor did they allege that any public funds were expended in connection with the issuance of the building permit. As such, the complaint failed to state a cause of action pursuant to General Municipal Law § 51.

Lastly, the court held plaintiffs’ allegations of interference with their right to use and enjoy their property were theoretical, conclusory, and insufficient to state a cause of action alleging common law nuisance. Accordingly, the court held plaintiff’s motion for a preliminary injunction was properly denied.

Scholssberg v Defalco, 2018 WL 3447707 (NYAD 2 Dept. 7/18/2018)


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