| Matter of Haberman v Zoning Bd. of Appeals of City of LongBeach |
| 2010 NY Slip Op 08573 [78 AD3d 945] |
| November 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of Sinclair Haberman et al.,Appellants, v Zoning Board of Appeals of City of Long Beach et al.,Respondents. |
—[*1] Corey E. Klein, Long Beach, N.Y., for respondents.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the City of Long Beach dated December 29, 2003, which revoked a buildingpermit previously issued to the petitioners/plaintiffs on August 12, 2003, and action, inter alia,for a judgment declaring that the petitioners/plaintiffs are entitled to the building permit, thepetitioners/plaintiffs appeal from so much of an order of the Supreme Court, Nassau County(Marber, J.), dated April 20, 2009, as denied that branch of their motion which was for leave toamend the complaint to add a sixth cause of action against the City of Long Beach and theZoning Board of Appeals of the City of Long Beach to recover damages for a temporary taking.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellants' motion which was toamend the complaint to add a sixth cause of action against the City of Long Beach and theZoning Board of Appeals of the City of Long Beach to recover damages for a temporary taking.Although leave to amend a pleading should be freely granted (see CPLR 3025 [b]), itmay be denied where the proposed amendment is palpably insufficient or patently devoid ofmerit (see Smiley Realty of Brooklyn,LLC v Excello Film Pak, Inc., 67 AD3d 891, 892 [2009]; Moyse v Wagner, 66 AD3d 976[2009]; Rosenblum v Frankl, 57AD3d 960 [2008]; Tornheim v Blue& White Food Prods. Corp., 56 AD3d 761 [2008]). "Accordingly, in considering amotion for leave to amend, it is incumbent upon the court to examine the sufficiency and meritsof the proposed amendment" (Moyse v Wagner, 66 AD3d at 977; see Hill v 2016 Realty Assoc., 42AD3d 432, 433 [2007]). Contrary to the appellants' contention, their proposed sixth cause ofaction, which seeks to recover damages, inter alia, for the temporary deprivation of the mostbeneficial use of their property arising from the allegedly wrongful revocation of their buildingpermit, is palpably insufficient to [*2]state a cause of action undereither a regulatory taking theory (see Matter of Gazza v New York State Dept. of Envtl.Conservation, 89 NY2d 603, 618 [1997], cert denied 522 US 813 [1997]; de St.Aubin v Flacke, 68 NY2d 66, 76-77 [1986]; Putnam County Natl. Bank v City of New York, 37 AD3d 575, 577[2007]), or a substantive due process theory (see Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d1450, 1452-1453 [2010]; Bower Assoc. v Town of Pleasant Val., 304 AD2d 259[2003], affd 2 NY3d 617 [2004]; cf. Town of Orangetown v Magee, 88 NY2d 41[1996]). Mastro, J.P., Balkin, Eng and Hall, JJ., concur.