| John P. Krupski & Bros., Inc. v Town Bd. of Town ofSouthold |
| 2008 NY Slip Op 07089 [54 AD3d 899] |
| September 23, 2008 |
| Appellate Division, Second Department |
| John P. Krupski & Bros., Inc., Appellant, v Town Board ofTown of Southold, Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Anthony B. Corleto ofcounsel), for respondent.
In an action, inter alia, for a judgment declaring that Local Law No. 35 (1999) of the Town ofSouthold, which rezoned the plaintiff's real property, is null and void, the plaintiff appeals froman order of the Supreme Court, Suffolk County (Boyle, J.), dated January 31, 2007, which deniedits motion for summary judgment on the first cause of action declaring that Local Law No. 35(1999) of the Town of Southold is null and void for failure to provide proper notice of the publichearing and granted the defendant's motion for summary judgment on the declaratory judgmentcauses of action and to dismiss the remaining cause of action.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe defendant's motion for summary judgment and substituting therefor a provision denying themotion as untimely, and (2) by adding a provision thereto that, upon denying the plaintiff'smotion for summary judgment on the first cause of action, and, upon searching the record, thedefendant is awarded summary judgment declaring that Local Law No. 35 (1999) of the Town ofSouthold is not null and void for failure to provide proper notice of the public hearing; as somodified, the order is affirmed, without costs or disbursements, and the matter is remitted to theSupreme Court, Suffolk County, for further proceedings on the second, third, and fourth causesof action and thereafter for the entry of a judgment, inter alia, declaring that Local Law No. 35(1999) of the Town of Southold is not null and void for failure to provide proper notice of thepublic hearing.
After imposing a moratorium on land development and conducting a land use study, thedefendant Town Board of the Town of Southold (hereinafter the Town Board) passed Local LawNo. 35 (1999) of the Town of Southold rezoning the plaintiff's property from a business districtto a [*2]limited business district. The plaintiff subsequentlycommenced this action against the Town Board alleging, in its first cause of action, that theTown did not provide proper notice of the public hearing at which the rezoning was considered.The plaintiff thereafter timely moved for summary judgment on its first cause of action,contending that Local Law No. 35 should be declared null and void because the Town Board hadfailed to provide proper notice of the public hearing. After the time for making a cross motionexpired (see CPLR 2215), and after the 120-day period for submitting a summaryjudgment motion lapsed (see CPLR 3212 [a]), the Town Board separately moved forsummary judgment on the declaratory judgment causes of action and to dismiss the remainingcause of action.
The Supreme Court improvidently exercised its discretion in considering the Town Board'suntimely motion for summary judgment in view of its failure to demonstrate good cause for notserving the motion within 120 days of the filing of the note of issue as required by CPLR 3212(a) (see Brill v City of New York, 2NY3d 648 [2004]). In the absence of such a good cause showing, the court has no discretionto entertain even a meritorious, nonprejudicial motion for summary judgment (id. at 652).Thus, the Town Board's motion should have been denied as untimely.
The Supreme Court properly denied the plaintiff's motion for summary judgment on its firstcause of action. Southold Town Code § 100-290 explicitly provided that the Town Boardmust cause notice of a public hearing on its own proposal to change zoning to be made pursuantto the provisions of the Town Law. The Town Board interpreted this provision as requiring thatnotice be published as required by Town Law §§ 264 and 265, and its interpretationof the provision was neither arbitrary, capricious, nor contrary to law (see Matter ofRockbottom Stores v Zoning Bd. of Appeals of Town of Clarkstown, 237 AD2d 611[1997]). In any event, the plaintiff's receipt of actual notice of, and its appearance at, the publichearing constituted a waiver of the requirement that notice be given in strict accordance with theSouthold Town Code (see Woodside Estates Civic Assn. v Town of Brookhaven, 105AD2d 744 [1984]). Accordingly, as there are no triable issues of fact with regard to the plaintiff'sclaim that the notice of the public hearing was inadequate, it is appropriate to search the recordand award the defendant summary judgment declaring that Local Law No. 35 is not null and voidfor failure to provide proper notice of the public hearing (see CPLR 3212 [b]; cf. Grande v Peteroy, 39 AD3d590 [2007]), despite the untimeliness of the defendant's summary judgment motion seeking,inter alia, the same relief.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, inter alia, for entry of an appropriate judgment (see Lanza vWagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]). Mastro, J.P., Florio, Dickerson and Belen, JJ., concur.