| Matter of Citizens for St. Patrick's v City of Watervliet ZoningBd. of Appeals |
| 2015 NY Slip Op 06280 [130 AD3d 1338] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Citizens for St. Patrick's et al.,Appellants, v City of Watervliet Zoning Board of Appeals et al.,Respondents. |
Rosemary Nichols, Watervliet, and McMahon, Kublick & Smith, PC, Syracuse(Jan S. Kublick of counsel), for appellants.
Goldman Attorneys PLLC, Albany (Paul J. Goldman of counsel), for City ofWatervliet Zoning Board of Appeals and another, respondents.
Whiteman Osterman & Hanna, LLP, Albany (Robert L. Sweeney of counsel),for PCP Watervliet, LLC, respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (O'Connor, J.), enteredJuly 17, 2014 in Albany County, which, among other things, in a proceeding pursuant toCPLR article 78, granted a motion by respondent PCP Watervliet, LLC for damagessustained as a result of a temporary restraining order.
In 2012, respondent PCP Watervliet, LLC (hereinafter respondent) purchased certainreal property located in the City of Watervliet, Albany County with the intention ofdemolishing the buildings contained thereon, including a church, school and rectory, andconstructing a Price Chopper supermarket. Petitioners, a citizens advocacy group,thereafter commenced a declaratory judgment action seeking, among other things, torescind the judicial authorization for the sale of the property. Petitioners' efforts in thisregard proved to be unsuccessful (Citizens for St. Patrick's v Saint Patrick's Church of W. Troy,117 AD3d 1213 [2014]), as was their challenge to the subsequent rezoning of theparcel (Citizens for St. Patrick'sv City of Watervliet City Council, 126 AD3d 1159 [2015]).
[*2] Respondent City of Watervliet Building Inspectorthereafter issued permits authorizing asbestos abatement and demolition of the subjectbuildings, prompting petitioners to seek administrative relief from respondent City ofWatervliet Zoning Board of Appeals. Additionally, petitioners moved by order to showcause seeking, among other things, to suspend the relevant permits during the pendencyof the administrative appeal. Supreme Court, among other things, denied petitioners'application for a preliminary injunction and granted respondent leave to apply forsanctions and costs, including reasonable counsel fees, pursuant to 22 NYCRR130-1.1.
Petitioners appealed to this Court and, in conjunction therewith, moved for atemporary restraining order and a preliminary injunction pending appeal. Petitioners'request for a temporary restraining order was granted by a Justice of this Court upon theposting of a $10,000 bond. One week later, this Court denied petitioner's request for apreliminary injunction, and petitioners apparently did not perfect the subject appeal(Citizens for St. Patrick's v City of Watervliet City Council, 126 AD3d at 1160 n3).
Demolition of the church ensued, and Supreme Court thereafter dismissed theunderlying petition for failure to state a cause of action.[FN1] Supreme Court also deniedrespondent's request for sanctions and costs, finding that petitioners'litigation—although "somewhat disjointed"—was not frivolous.Respondent then moved by order to show cause for damages—in the form ofcounsel fees—incurred as a result of the issuance of the temporary restrainingorder, citing CPLR 6315. Supreme Court, among other things, granted respondent'sapplication, prompting this appeal by petitioners.[FN2]
We affirm. Although an undertaking is required where a party is seeking apreliminary injunction (see CPLR 6312 [b]) and discretionary where a party isseeking a temporary restraining order (see CPLR 6313 [c]), the same generalprinciples apply. Hence, once there is a final determination that the moving party was notentitled to injunctive relief, the moving party will be liable under the bond for alldamages and costs that were incurred by reason thereof (see Marietta Corp. v Pacific Direct,Inc., 9 AD3d 815, 817 [2004]). Such damages, in turn, "may be ascertainedupon motion on such notice to all interested persons as the court shall direct" (CPLR6315).
Here, petitioners contend that CPLR 6315 does not contemplate the recovery ofdamages consisting solely of counsel fees. The record reflects, however, that petitionersfailed to advance this argument in opposition to respondent's application for such feesunder CPLR 6315; accordingly, this issue is unpreserved for our review (see Tverskoy v Ramaswami,83 AD3d 1195, 1198 [2011]; Kamp v Fiumera, 69 AD3d 1168, 1170 [2010]).[FN3] Moreover, the case law[*3]makes clear that "attorneys' fees incurred in asuccessful effort to vacate a restraining order may be recoverable damages under CPLR6315" (Shu Yiu Louie v David & Chiu Place Rest., 261 AD2d 150, 152[1999]; see Marietta Corp. v Pacific Direct, Inc., 9 AD3d at 817; A & MExports v Meridien Intl. Bank, 222 AD2d 378, 380 [1995]; Matter of Kaplan vWerlin, 215 AD2d 387, 388 [1995], appeal dismissed 86 NY2d 884 [1995],lv denied 87 NY2d 806 [1996]; Hanley v Fox, 90 AD2d 662, 662-663[1982]). Hence, contrary to petitioners' assertion, Supreme Court did not err in grantingrespondent's application in this regard.
Petitioners' remaining arguments do not warrant extended discussion. To the extentthat petitioners assert that respondent is not entitled to counsel fees under CPLR 6315because Supreme Court previously denied respondent's request for costs and sanctionsunder 22 NYCRR 130-1.1, we need note only that respondent's respective applications inthis regard were brought under separate statutory/regulatory provisions that, in turn,impose distinctly different burdens upon the party seeking an award of counsel feesthereunder. Accordingly, the mere fact that Supreme Court denied respondent reliefunder the frivolous litigation standard embodied in 22 NYCRR 130-1.1 in no way barredrespondent's subsequent request for counsel fees under CPLR 6315. Finally, to the extentthat petitioners' Civil Rights Law claim has been preserved for our review, we find it tobe lacking in merit.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1:Petitioners apparentlydid not appeal from the resulting judgment.
Footnote 2:Following a hearing,Supreme Court awarded respondent damages in the sum of $10,000—the fullamount of the bond previously posted.
Footnote 3:We reach a similarconclusion regarding petitioners' claim—raised for the first time at oral argumentbefore this Court—that, inasmuch as it was this Court that granted the temporaryrestraining order, respondent erred in seeking counsel fees from Supreme Court in thefirst instance.