Posted by: Patricia Salkin | December 10, 2020

NY Appellate Court Concluded Landowner had Constructive Notice of a Restaurant and Application to Revoke Permit was Untimely, and Dismissed Lawsuit

This post was authored by Olena Botshteyn, Esq.

The Appellate Division of the Supreme Court affirms the decision of the trial court, concluding that landowner’s application to rescind the decision of ZBA and revoke a building permit issued to a neighboring landowner was untimely.

The plaintiff, Jane H. Concannon Revocable Trust, owns a property located in Montauk (Town of East Hampton). The respondent, Breakers Motel (“Breakers”), owns an adjacent property. Historically, the respondent operated as a motel. There is also a restaurant in the east wing of the motel, which was fully equipped, but remained unused until 2005, when Breakers applied for a certificate of occupancy in anticipation of re-opening the restaurant. The public hearing notice described the plans to construct a “staircase and deck addition to a multi-unit motel building on a lot containing a restaurant, motel and resort uses.” The plaintiff attended the public hearing. In 2010, Breakers submitted the new site plans for review and received the Planning Board approval. In 2015, Breakers applied for and received a building permit to renovate the existing restaurant and kitchen. The plaintiff further filed an application with the Town Zoning Board of Appeals (“ZBA”), asking to rescind the 2005 certificate of occupancy and revoke the building permit, granted to the respondent. ZBA determined that the plaintiff had constructive notice of the presence of the restaurant use on the Breakers’ property. The plaintiff sought preliminary injunction to prevent Breakers from taking further action on the property and asked the court to determine that the inclusion of the restaurant use on the 2005 certificate of occupancy and the issuance of the building permit were erroneous in the absence of a special permit. The Supreme Court denied the motion and dismissed the action, and the plaintiff appealed.

First, the court concluded that the ZBA’s determination that the plaintiff had constructive notice of the restaurant use on the Breakers’ property was rational and not erroneous. The court further explained that since the building permit was predicated on the 2005 certificate of occupancy, plaintiff’s challenge of both was untimely. Further, the court concluded that due to untimeliness of its first claim, the plaintiff was unlikely to succeed on the merits of the second claim, stating that the inclusion of the restaurant use on the certificate of occupancy and the issuance of the building permit were improper in the absence of a special permit.

Jane H. Concannon Revocable Trust v Building Department of the Town of East Hampton et al., 189 A.D. 3d 804 (NYAD 2 Dept. 12/2/2020)


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