| Montano v City of Watervliet |
| 2008 NY Slip Op 00325 [47 AD3d 1106] |
| January 17, 2008 |
| Appellate Division, Third Department |
| Charles Montano, Appellant, v City of Watervliet et al.,Respondents, et al., Defendants. |
—[*1] Burke, Scolamiero, Mortati & Hurd, Albany (Terese P. Burke of counsel), for City ofWatervliet, respondent.
Spain, J. Appeal from an order of the Supreme Court (McCarthy, J.), entered October 16,2006 in Albany County, which granted a motion by defendants City of Watervliet, City ofWatervliet Board of Appeals and Mark R. Gilchrist for summary judgment dismissing thecomplaint against them.
Plaintiff is the owner of a large commercial building located in the City of Watervliet,Albany County, in a manufacturing zone. In early 2000, defendant Starfire Systems, Inc., abusiness engaged in the manufacturing of ceramic and ceramic composites, and its president,defendant Walter Sherwood, entered into negotiations to lease the building from plaintiff, whowas then under contract to purchase it. Sherwood hired defendant William Bradley, president ofdefendant Brunswick Research, Inc., to advise him on the feasability of a relocation to this siteand with respect to the process of obtaining any permits. In June 2000, apparently due to the factthat the subject property was located within 200 feet of a residential district, plaintiff and Starfirejointly applied to defendant City of Watervliet Board of Appeals (hereinafter the Board) for a usevariance to use the building for polymer synthesis and manufacturing of ceramics and itscomposites, processes which reportedly produce hazardous chemicals requiring storage and [*2]removal. After a hearing, the Board granted the variance, subject tospecified conditions relating to compliance with fire, building code and city ordinancesrequirements and related inspections.
Thereafter, plaintiff purchased the property, made extensive improvements, and entered intoa five-year lease with Starfire, contingent upon Starfire obtaining necessary governmentalapproval and giving both parties the right to terminate the lease if such approval were not timelyobtained. As later amended, the rent commencement date under the lease was January 2001.Starfire paid a security deposit and a few monthly lease payments, but never occupied thebuilding and instead continued to pursue alternative sites with Bradley's assistance, ultimatelydetermining that this site was not feasible.
In April 2001, Bradley and Starfire's staff arranged a meeting with city officials, includingdefendant Mark R. Gilchrist, the City's zoning officer and fire inspector, and an emergencyresponse team leader and an engineer. Bradley, who had from the outset viewed the subjectproperty as unsuitable for Starfire's business, presented more detailed information regarding thescope of Starfire's intended use of chemicals and the dangers of hypothetical chemical spills andfires, and other "worst case scenarios" were considered with regard to the nearby residentialneighborhood. Thereafter, Gilchrist sent Starfire a letter dated May 10, 2001 indicating that thepreconstruction planning meeting with Bradley and others had brought to the City's attention "theexact nature of the proposed occupancy [and] [d]ue to health, safety and welfare issues for theresidents living in the area around [the subject building], the Building Department willnot issue a permit for renovations. Even with all the proposed safeguards and planning,an accident at this site could very well be disastrous to the resident population." Notably, therewas no pending permit or certificate of occupancy application; the record does not reflect thatany form of building permit was sought or that any administrative appeal from Gilchrist'sdecision was pursued. Starfire thereafter ceased paying rent under the lease and relocated itsbusiness to another county, and plaintiff, after several unsuccessful attempts, ultimately obtaineda variance allowing it to lease the premises to another entity.
Plaintiff commenced this action and filed an amended verified complaint alleging, asrelevant to this appeal, various claims against the City, the Board and Gilchrist (hereinaftercollectively referred to as the city defendants), for tortious interference with its contract, as wellas violations of plaintiff's constitutional rights, illegal spot zoning, and diminution in its propertyvalue. Supreme Court granted the city defendants' motion for summary judgment dismissing thecomplaint against them. Plaintiff reportedly settled all claims—including breach ofcontract, fraud and tortious interference—against defendants Starfire, Sherwood,Brunswick Research and Bradley, which are not before us.
On plaintiff's appeal, we affirm Supreme Court's award of summary judgment to the citydefendants largely for the reasons stated in the court's written decision. With regard to plaintiff'sclaim of tortious interference against the City and Gilchrist, under settled law, this cause ofaction sounds in tort (see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281[1978]. As against the City, this claim is subject to notice of claim requirements (seeGeneral Municipal Law § 50-e [1] [a]; § 50-i [1]; see also Brown v City of NewYork, 95 NY2d 389, 392-393 [2000]). Given plaintiff's failure to file a notice of claim (or torequest permission to file a late notice), plaintiff is precluded from recovery against the City forthis cause of action (see Smith v Townof Long Lake, 40 AD3d 1381, 1384 [2007]; Hallett v City of Ithaca, 8 AD3d 870, 871 [2004], lv denied3 NY3d 608 [2004]).[*3]
Plaintiff's tortious interference claim against Gilchristwas properly dismissed because, even viewing the evidence most favorably to plaintiff, thenonmoving party, and giving him the benefit of every favorable inference (see Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218, 1219 [2007]), there is no reasonable view of the evidence thatGilchrist intentionally and unjustifiably—as opposed to merelynegligently—procured the breach of the plaintiff-Starfire lease (see Lama Holding Co.v Smith Barney, 88 NY2d 413, 424-425 [1996]; Harris v Town of Fort Ann, 35 AD3d 928, 929 [2006]; Bradbury v Cope-Schwarz, 20 AD3d657, 659-660 [2005]), i.e., that Gilchrist's conduct was "solely malicious" (Rosario-Suarzv Wormuth Bros. Foundry, 233 AD2d 575, 577 [1996] [internal quotation marks omitted];see Williams Oil Co. v Randy Luce E-Z Mart One, 302 AD2d 736, 738-739 [2003];see also Murray v SYSCO Corp., 273 AD2d 760, 761-762 [2000]). Further, the proofcould not support a finding that "the contract would not have been breached but for [Gilchrist's]conduct" (Lana & Samer vGoldfine, 7 AD3d 300, 301 [2004]; see Northeast Wine Dev., LLC v Service-Universal Distribs., Inc., 23AD3d 890, 893 [2005], affd 7 NY3d 871 [2006]). Plaintiff failed to offer proof thatGilchrist's conduct was not in furtherance of his official duties and not motivated by genuinemunicipal/public health and safety concerns (regardless of their merit), or was "motivated bymalice, personal gain or a desire to injure plaintiff" in any respect or to unjustifiably procureStarfire's breach of its contract with plaintiff (Rosario-Suarz v Wormuth Bros. Foundry,233 AD2d at 577). Also, the record clearly reflects that Bradley and Sherwood had determinedthat the site was not suitable prior to the arranged meeting with Gilchrist, and plaintiffdid not submit proof capable of establishing that "but for" Gilchrist's subsequent action, Starfirewould not have breached its contract with plaintiff. Thus, the tortious interference cause of actionwas correctly dismissed as against the City and Gilchrist.
Next, we agree with Supreme Court's conclusion that plaintiff's sixth cause of action againstthe City—for diminution in property value—to the extent it is evencognizable—"clearly sounds in tort, as it alleges a breach of a duty of care. It thus fallssquarely within the ambit of General Municipal Law § 50-i. The lack of a notice of claimis therefore fatal to plaintiff's case." Further, Gilchrist's prospective, discretionary determinationas building inspector that no building permit would be issued if requested, even if erroneous, isentitled to immunity (see Emmerling vTown of Richmond, 13 AD3d 1150, 1151 [2004], citing City of New York v 17Vista Assoc., 84 NY2d 299, 307 [1994]; see also 154 E. Park Ave. Corp. v City of LongBeach, 52 NY2d 991, 993 [1981], cert denied 454 US 858 [1981]; Matter ofMassa v City of Kingston, 235 AD2d 947, 950 [1997], lv dismissed and denied 89NY2d 1065 [1997]). With regard to the Board, plaintiff makes no allegations against it whichcould support this cause of action. Thus, the court properly granted summary judgmentdismissing the sixth claim in its entirety.
Plaintiff is correct that compliance with notice of claim requirements of General MunicipalLaw §§ 50-e and 50-i is not necessary to recover for municipal actions that allegedlyviolated his federal civil and constitutional rights under 42 USC § 1983 (see Felder vCasey, 487 US 131, 138-141 [1988]; Rapoli v Village of Red Hook, 41 AD3d 456, 457 [2007]; see also Bower Assoc. v Town of PleasantVal., 2 NY3d 617, 626-627 [2004]). Also, exhaustion of administrative remedies is nota predicate to an action under section 1983 (see 423 S. Salina St. v City of Syracuse, 68NY2d 474, 485 [1986], appeal dismissed and cert denied 481 US 1008 [1987]; STSMgt. Dev. v New York State Dept. of Taxation & Fin., 237 AD2d 510, 510 [1997]). Thus,plaintiff's constitutional claims premised upon section 1983 as asserted in his second and seventhcauses of action should not have been dismissed on either of these grounds.
Nonetheless, the city defendants were properly awarded summary judgment dismissing [*4]plaintiff's second and seventh claims. To be sure, 42 USC §1983, in the land use context, protects against municipal actions, such as plaintiff alleges, thatviolate procedural and substantive due process, takings without just compensation and equalprotection rights (see Bower Assoc. v Town of Pleasant Val., 2 NY3d at 626; Townof Orangetown v Magee, 88 NY2d 41, 49 [1996]). However, plaintiff's civil rights claims arenot justiciable given that, as plaintiff concedes, no application for a permit was submitted orpending and, thus, it cannot be said that a "final decision" was rendered by the city defendantswhich is ripe for judicial review (Town of Orangetown v Magee, 88 NY2d at 50-52;see Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998]). Further, dismissal isrequired because plaintiff failed to plead or prove the existence of an official policy or custom, aprecondition to a section 1983 action (see Moore v Melesky, 14 AD3d 757, 760 [2005]; Ellsworth vCity of Gloversville, 269 AD2d 654, 657 [2000]; see also Monell v New York City Dept.of Social Servs., 436 US 658, 690-691 [1978]).
Plaintiff's fifth claim for illegal "spot zoning"—if even a cause of action in a plenaryaction—is not premised upon constitutional violations or 42 USC § 1983. Therefore,as against the City, it is dismissible based upon plaintiff's failure to satisfy the notice of claim andexhaustion of administrative remedies requirements. Moreover, plaintiff's allegations are that thecity defendants' actions were detrimental to him, a property owner who obtained a usevariance, whereas spot zoning is, by definition, "the process of singling out a small parcel of landfor a use classification totally different from that of the surrounding area for the benefit of theowner . . . to the detriment of other owners" (Boyles v Town Bd. of Townof Bethlehem, 278 AD2d 688, 690 [2000] [emphasis added; internal quotation marks andcitations omitted]; see Matter of Yellow Lantern Kampground v Town of Cortlandville,279 AD2d 6, 9 [2000]). Indeed, on these facts, plaintiff is not the victim of spot zoning. Thus,plaintiff's fifth claim against the city defendants was also properly dismissed.
Plaintiff's remaining arguments have been considered and found to be without merit.
Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the order isaffirmed, without costs.