| Summit at Pomona, Ltd. v Village of Pomona |
| 2010 NY Slip Op 03108 [72 AD3d 797] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Summit at Pomona, Ltd., et al., Respondents, v Village ofPomona, et al., Appellants. |
—[*1] Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains, N.Y. (Peter N. Freibergof counsel), for respondents.
In an action, inter alia, to recover damages pursuant to 42 USC § 1983, for allegedviolations of constitutional rights to due process and the taking of property without justcompensation, the defendants appeal from so much of an order of the Supreme Court, RocklandCounty (Berliner, J.), dated February 17, 2009, as denied their motion for summary judgmentdismissing the complaint and for leave to amend their answer.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing thecauses of action predicated on New York State law insofar as asserted against the defendantsHerbert Marshall, Alvin Appel, Nick Anderson, Buff Blass, Ian Banks, and P. Joseph Corless,and all causes of action insofar as asserted against the defendants Michael R. Zrelak, Jr., MelvinH. Klingher, and Norman Becker, and substituting therefor provisions granting those branches ofthe defendants' motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
In 1968 the plaintiffs obtained permission to subdivide real property located in what wasthen an unincorporated area of the Town of Haverstraw, and which later became the Village ofPomona. In 1999, after construction of a certain access roadway was underway, the Villageissued a stop work order based on Local Law No. 8 (1997) of the Village of Pomona, whichrequires a permit for grading, filling, and clearing operations. That prompted the plaintiffs tocommence this action in 2000, contending that Local Law No. 8 (Code of Village of Pomona§ 130-18 [H]; hereinafter Local Law No. 8) was unconstitutional on its face and asapplied. The complaint further contended that, in order to hinder the plaintiffs' development ofthe property, the Village made repeated demands of the plaintiffs for money in lieu of parkland,which were improper since the plaintiffs had dedicated parkland to the Town at the time of theoriginal subdivision. In 2001 the parties entered into a "Stipulation of Partial Settlement WithoutPrejudice," pursuant to which the Village agreed not to demand money in lieu of parkland for thesubdivision, and to allow the plaintiffs to complete the construction of the access roadway withcertain conditions.[*2]
The defendants appeal from so much of an order asdenied their motion for summary judgment dismissing the complaint and for leave to amend theiranswer. We note that in the opposition to the motion before the Supreme Court and in therespondents' brief on appeal, the plaintiffs failed to respond to the defendants' contentions thatthere is no viable cause of action against them arising out of the Village's issuance of the stopwork order based on Local Law No. 8. Under these circumstances, the plaintiffs failed to raise atriable issue of fact regarding the stop work order and Local Law No. 8. The issue extant then, iswhether the plaintiffs have viable causes of action against the defendants based on the allegedlyimproper demands for money in lieu of parkland.
We reject the defendants' contentions that they should have been granted leave to amendtheir answer to assert the affirmative defense of the statute of limitations, and that some of theplaintiffs' claims pursuant to 42 USC § 1983 should have been dismissed as time-barred.The plaintiffs established that the defendants' alleged violations of their constitutional rights ofrepeated, unjustified demands for money in lieu of parkland, were linked together andcontinuing, such that the statute of limitations for the 42 USC § 1983 claim was tolled upuntil the last violation, which occurred within the three-year limitations period (seeDeepwells Estates Inc. v Incorporated Vil. of Head of Harbor, 973 F Supp 338, 345-347[1997]). Accordingly, the defendants' proposed amendment was patently devoid of merit and, assuch, the Supreme Court properly denied that branch of the defendants' motion which was forleave to amend the answer
We also reject the defendants' contention that the state law claims premised upon thedemands for money in lieu of parkland must be summarily dismissed insofar as asserted againstthe Village on the ground that those claims were not included in the notice of claim. A defect oromission in a notice of claim which does not pertain to the time or manner of its service may "atany stage of the action" be corrected or disregarded provided that the municipality was notprejudiced by the error or omission (see Shea v Incorporated Vil. of Head of Harbor, 180AD2d 675, 676 [1992], quoting General Municipal Law § 50-e [6]). Contrary to thedefendants' assertion, there was testimony at the hearing pursuant to General Municipal Law§ 50-h concerning the claims arising from the Village's demands for money in lieu ofparkland, which we consider to have supplemented the notice of claim (see Lord v New YorkCity Hous. Auth., 184 AD2d 406 [1992]). Moreover, we discern no prejudice to thedefendants' defense of the action due to deficiencies in the notice of claim.
Concerning the merits of the 42 USC § 1983 claim based on alleged violations of theright to substantive due process, we find that the defendants failed to establish that there were notriable issues of fact concerning whether the plaintiffs had a constitutionally protected propertyinterest, and whether the defendants' conduct was arbitrary and irrational in the constitutionalsense (see Bower Assoc. v Town ofPleasant Val., 2 NY3d 617 [2004]). Nor are we persuaded that the defendantseliminated all triable issues of fact as to whether the plaintiffs sustained a concrete injury as aresult of the alleged violations (see Town of Orangetown v Magee, 88 NY2d 41 [1996]).The defendants also failed to establish, prima facie, that the plaintiffs do not have a viable 42USC § 1983 cause of action based upon a regulatory taking (see Lingle v Chevron U.S. A. Inc., 544 US 528, 538-539 [2005]).
We further reject the defendants' contention that they established, prima facie, that theVillage cannot be held liable for the alleged violations. There are triable issues of fact as towhether the complained-of actions were made, or at least ratified by, "those whose edicts or actsmay fairly be said to represent official policy" (Monell v New York City Dept. of SocialServs., 436 US 658, 694 [1978]).
However, the defendants established that some of the individual defendants are entitled toimmunity. Specifically, the plaintiffs do not dispute that the defendants Michael R. Zrelak, Jr.,Melvin H. Klingher, and Norman Becker are entitled to qualified immunity on the federal lawclaims, and governmental immunity for discretionary acts on the state law claims. While wereject the defendants' contention that they established that the remaining individual defendantswere entitled to qualified immunity on the federal law claims (see Warren v Keane, 196F3d 330, 332 [1999]), we agree that they established that all of the individual defendants wereentitled to governmental immunity for discretionary acts on the state law claims (Tango vTulevech, 61 NY2d 34, 40 [1983]). Skelos, J.P., Santucci, Lott and Sgroi, JJ., concur.