| Town of Riverhead v County of Suffolk |
| 2009 NY Slip Op 07829 [66 AD3d 1004] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Town of Riverhead, Appellant, v County of Suffolk,Respondent. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (John R. Petrowski of counsel), forrespondent.
In an action, inter alia, to permanently enjoin the defendant from constructing and utilizing afueling facility in the Town of Riverhead, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Suffolk County (Molia, J.), dated December 22, 2008, asdenied its motion for summary judgment on the complaint as premature.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, Town of Riverhead, commenced this action to permanently enjoin thedefendant, County of Suffolk, from constructing and using a new fueling facility on propertylocated inside the Indian Island County Park, which is situated in the Town. The new facility wasintended to replace an older one, which also was located in the park. Among other things, asrelevant here, the Town alleged that the County violated the public trust doctrine by divertingpublic parkland to be used for nonpark purposes without prior State legislative approval (seeFriends of Van Cortlandt Park v City of New York, 95 NY2d 623 [2001]), that the Countywas subject to local zoning requirements, and that the County had violated a number of them.
In a previous round of motion practice, the Town moved to preliminarily enjoin constructionand use of the new facility during the pendency of the action, and the County cross-moved todismiss the complaint, inter alia, for failure to state a cause of action, and as academic, sinceconstruction of the new facility was substantially complete at the time the action wascommenced. The Supreme Court denied the Town's motion and granted the County's crossmotion, concluding that the action had been rendered academic. In addition, the court dismissedthe Town's causes of action on the merits.
On the Town's prior appeal, we modified the order appealed from and reinstated the causesof action alleging unauthorized alienation of public parkland and violation of the Town Code (see Town of Riverhead v County ofSuffolk, 39 AD3d 537 [2007]). Among other things, we observed that, given theconflicting evidence in the record relevant to the issue, the Supreme Court should not havedismissed [*2]the action as academic. We further found that theTown had stated a cause of action alleging unauthorized alienation of public parkland and,therefore, that cause of action had to be reinstated. We also reinstated the cause of actionalleging violations of the Town Code, despite the County's argument that it was immune fromlocal zoning regulation. The conflict in the parties' positions on this latter issue had to beresolved according to the "balancing of public interests test" of Matter of County ofMonroe (City of Rochester) (72 NY2d 338 [1988]), and based on the conflictingevidence in the record, it could not be established that the County was entitled to construct andoperate the new fueling facility.
Thereafter, the County answered the complaint. The parties engaged in some documentarydisclosure. The County noticed the depositions of 10 Town witnesses. Furthermore, immediatelyfollowing this Court's decision and order in the prior appeal, the Town conducted a publichearing to assess the factors of the balancing test of Matter of County of Monroe. As aresult, by resolution No. 449, dated May 10, 2007, the Town resolved that the new fuelingfacility must comply with the Town Code.
Thereafter, prior to any depositions, the Town moved for summary judgment on thecomplaint. The County opposed the motion. The Supreme Court determined that the Town addedno material additional proof to what was previously considered by this Court on the prior appeal.Accordingly, in the order appealed from, the court denied the motion as premature sincediscovery was not yet complete. We affirm the order insofar as appealed from.
We agree that the record now before us does not support an award of summary judgment inthe Town's favor. At this stage, summary judgment would be premature absent depositions of theparties (see Yerushalmi & Assoc., LLPv Westland Overseas Corp., 21 AD3d 1098, 1099 [2005]).
To the extent that the Town argues that its resolution No. 449 entitled it to summaryjudgment on its cause of action alleging the County's violation of the Town Code, we reject thatcontention. Whether the County is subject to the Town's zoning provisions in this case isultimately a judicial determination that must be made pursuant to the balancing of publicinterests test of Matter of County of Monroe. Under the circumstances presented, a morecomplete record, including the depositions of the witnesses with knowledge of the facts relevantto that test, must be developed in order to inform that inquiry.
The Town's remaining contentions are without merit. Mastro, J.P., Fisher, Angiolillo andLeventhal, JJ., concur.