| Town of Riverhead v Gezari |
| 2009 NY Slip Op 05320 [63 AD3d 1042] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Town of Riverhead, Respondent, v Walter Gezari et al.,Appellants. |
—[*1] Dawn C. Thomas, Town Attorney, Riverhead, N.Y. (Daniel P. McCormick of counsel), forrespondent.
In an action, inter alia, for injunctive relief, the defendants appeal from an order of theSupreme Court, Suffolk County (Farneti, J.), dated July 11, 2008, which granted the plaintiff'smotion to preliminarily enjoin them from using two parcels of real property for the takeoff andlanding of aircraft and denied their cross motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
The plaintiff, Town of Riverhead, commenced this action to permanently enjoin thedefendants from using, without a special permit, two of their properties for the landing andtakeoff of aircraft, namely a helicopter, allegedly in contravention of Code of the Town ofRiverhead (hereinafter Town Code) §§ 108-62 and 108-22. In the order appealedfrom, the Supreme Court granted the Town's motion for a preliminary injunction and denied thedefendants' cross motion for summary judgment dismissing the complaint. We affirm.
" 'To obtain preliminary injunctive relief based on a violation of its zoning ordinances, atown need only show that it has a likelihood of success on the merits and that the equities arebalanced in its favor' " (Town of Riverhead v Silverman, 54 AD3d 1024, 1024 [2008],quoting Town of Dover Town Bd. v Cascino, 41 AD3d 834, 834 [2007]; seeTown Law § 268 [2]).
Town Code § 108-3 (B) defines "airport" as "[a]ny landing area used regularly byaircraft for receiving or discharging passengers or cargo or for the landing and takeoff of aircraftbeing used for personal or training purposes." The defendants argued that the use of theirproperty did not fall within the definition of "airport" since they used the helicopter for personaltransportation purposes and because the landings and takeoffs did not occur on a "regular" basis.The Town argued that the term "used regularly" only modified the first clause of the definition,and thus, only applied to the use of a landing area "for receiving or discharging passengers orcargo," and not the second clause of the definition regarding the "landing and takeoff of aircraftbeing used for personal or training purposes" (Town Code § 108-3 [B]).
The definition of "airport," as set forth in the Town Code, is ambiguous. "Since zoningregulations are in derogation of the common law, they must be strictly construed against themunicipality which has enacted and seeks to enforce them" (Matter of Allen v Adami, 39NY2d 275, 277 [1976]; see also Incorporated Vil. of Saltaire v Feustel, 40 AD3d 586,587 [2007]). Therefore, any ambiguity in the language [*2]mustbe resolved in favor of the defendants as the property owners (see Matter of Allen v Adami,39 NY2d at 277).
However, the defendant Walter Gezari acknowledged that he purchased one of the twoparcels in issue "purposely . . . to facilitate my landing and takeoff," and that parcelis apparently used for no other purpose. He further stated that his actions are "tantamount to ahomeowner driving his vehicle to and from his property." Therefore, the defendants' use of theproperties for landings and takeoff of the helicopter bears some indicia of regularity.
Thus, the Town demonstrated a likelihood of success on the merits of its claim that thedefendants' use of the properties for helicopter landings and takeoffs violates zoning regulations.Furthermore, the balance of the equities favors the Town, as the Town demonstrated that thedefendants' use of their properties to take off and land a helicopter posed safety hazards andnoise concerns. The defendants did not show any hardship associated with the loss of the use oftheir land for such purposes. Thus, the Supreme Court providently exercised its discretion ingranting the Town's motion to preliminarily enjoin the defendants from using their properties forthe landing or takeoff of aircraft (cf. First Franklin Sq. Assoc., LLC v Franklin Sq. Prop.Account, 15 AD3d 529, 533 [2005]).
The defendants, in support of their cross motion for summary judgment dismissing thecomplaint, failed to establish their prima facie entitlement to judgment as a matter of law (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]). This failure required denial ofthe cross motion, "regardless of the sufficiency of the opposing papers" (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Thus, the defendants' cross motion for summaryjudgment was properly denied by the Supreme Court.
The parties' remaining contentions are without merit or need not be addressed in light of ourdetermination. Spolzino, J.P., Angiolillo, Chambers and Hall, JJ., concur. [See 2008 NYSlip Op 32117(U).]