Posted by: Patricia Salkin | October 24, 2018

NY Appellate Court Reverses Dismissal of Complaint in Enforcement Matter Involving a Secondhand Retail Operation

This post was authored by Matthew Loeser, Esq.

Defendant owned real property in the Village of Sharon Springs, Schoharie County. Plaintiff became aware that defendant was operating a secondhand retail operation on the property in violation of the Village of Sharon Springs Zoning Law and that conditions on the property violated the property maintenance provisions of the New York State Uniform Fire Prevention and Building Code. After Defendant failed to remedy these violations, plaintiff commenced this action seeking injunctive relief directing defendant to correct the problems, as well as the assessment of civil penalties, costs and disbursements against him. Plaintiff moved for summary judgment, and despite receiving no opposition to its motion, the Supreme Court of New York denied the motion and dismissed the complaint, finding it “impossible” to discern a cause of action in that pleading.

On appeal, the court found that plaintiff established the material facts through an affidavit by its Code and Zoning Enforcement Officer, who detailed the zoning and building code violations found on defendant’s property and averred that defendant had not remedied them after being served with orders to do so. The statements in the affidavit were corroborated by documentary and photographic evidence, and defendant submitted no opposition that might have raised material questions of fact. Thus, the evidence in the record substantiated plaintiff’s entitlement to the relief sought, which was narrowed in its notice of motion for summary judgment and there was no indication that defendant was prejudiced by the failure to identify the statutes authorizing it sooner. Accordingly, the court granted plaintiff’s motion for summary judgment and remitted the case so that Supreme Court could fashion an appropriate remedial order.

Village of Sharon Springs v Barr, 2018 WL 5046723 (NYAD 3 Dept. 10/18/2018)

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