Posted by: Patricia Salkin | March 13, 2020

NY Appellate Court Holds Trial Court Erred in Sua Sponte Reaching the Issue of Standing Regarding Right of Entry to Primary and Accessory Structure

This summary was authored by Matthew Loescher, Esq.

Petitioners commenced this CPLR article 78 proceeding and declaratory judgment action seeking the enforcement of a 2014 decision of the Village of LeRoy Zoning Board of Appeals (“ZBA”) and certain provisions of the Village of LeRoy Zoning Law, which allegedly prohibited respondents-defendants Peter McQuillen and Judith McQuillen from accessing their Robbins Road property via a driveway on property owned by respondent-defendant Circular Hill, Inc. located on Fillmore Street. The 2014 decision set forth that the McQuillens’ “right of entry to the primary and accessory structure will be accessed through Robbins Road, LeRoy, New York only ” After the McQuillens allegedly continued to access their Robbins Road property via the Circular Hill driveway, respondent Village of LeRoy filed an information charging Peter McQuillen with violating the December 2016 decision. That information was dismissed by Hon. Michelle Krzemien (the Town Justice), and the Village did not appeal. Following that dismissal, petitioners commenced this proceeding-action. The Supreme Court denied petitioners’ motion, granted the motion of the Town Justice and the cross motion of the McQuillen respondents, and dismissed the petition.
The record reflected that Town Justice’s motion and the McQuillen respondents’ cross motion addressed standing only insofar as it concerned the CPLR article 78 cause of action; the issue of standing was not raised with respect to the second and third causes of action. In granting the cross motion and dismissing the petition in its entirety, the court effectively dismissed the second and third causes of action based on its determination that petitioners lacked standing to pursue the first cause of action. Thus, the court held that the trial court erred in sua sponte reaching the issue of standing with respect to the second and third causes of action.
Barbeau v. Village of Leroy, 2020 WL 1224186 (NYAD 4 Dept. 3/13/2020)


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