Posted by: Patricia Salkin | June 24, 2019

NY Appellate Court Finds Challenge to Issuance of Building Permit was Barred By the Doctrine of Laches

This post was authored by Matthew Loeser, Esq.

Plaintiff Eugene Kverel owned and resided at 16 Southway Drive in the Town of Southampton. In 2010, the defendant entered into a residential contract of sale with nonparty Nicolette Property Associates to purchase an adjacent undeveloped property, located at 24 Southway Drive. The defendant retained an architect, Eric Woodward, to prepare building plans for the construction of a dwelling on the subject property. In 2012, the defendant applied for a building permit to construct a “single family residence with attached 2–car garage, 2nd floor deck, swimming pool and spa, pool house with attached screened porch, garage roof terrace and outdoor shower” on the subject property. After a building permit was issued for the defendant ‘s proposed construction, Kverel filed an administrative appeal with the Town Zoning Board of Appeals challenging the issuance of the building permit on the ground that the dwelling “contains 3 stories in violation of the maximum 2 story limitation set forth in section 330– 11 and 330–5 of the Southampton Town Code.”

The court found that the defendant demonstrated that the action was barred by the doctrine of laches. The record reflected that the plaintiffs commenced this action nearly three years after the building permit was first issued and after Kverel withdrew his administrative appeal, two years after the parties entered into the stipulation, and more than six months after construction purportedly commenced. Moreover, although the building permit was amended several times thereafter, the record demonstrated that the plaintiffs were aware as early as July 2012, when the subject property remained undeveloped and before the defendant purchased the subject property, of their claim that the defendant’s construction was in violation of the Town Code. The court also found that, contrary to the plaintiffs’ contention, the defendant established that he would be prejudiced by their undue delay in challenging the construction. The court therefore held that the Supreme Court should have granted the defendant’s cross motion pursuant to CPLR 3211(a) to dismiss the amended complaint and denied the plaintiffs’ motion for a preliminary injunction.

Kverel v Silverman, 2019 WL 2275097 (NYAD 2 Dept. 5/29/2019)

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