| Town of Kirkwood v Ritter |
| 2011 NY Slip Op 00135 [80 AD3d 944] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Town of Kirkwood, Respondent, v Douglas Ritter et al.,Appellants. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Oliver N. Blaise III of counsel), forrespondent.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Rumsey, J.), entered July 17,2009 in Broome County, which, among other things, partially granted plaintiff's motion forsummary judgment, and (2) from an order of said court, entered November 23, 2009 in BroomeCounty, which denied defendants' motion for reconsideration.
Following a 2006 flood, plaintiff notified defendants that a structure on their property in theTown of Kirkwood, Broome County had been substantially damaged, meaning the cost of repairwould equal or exceed 50% of the preflood value of the home. As such, and due to the structure'slocation in a flood plain, defendants were required to comply with certain permit and buildingrequirements under plaintiff's Local Law No. 11 (2003). Nearly a year later, after plaintiff hadagain notified defendants of this information, plaintiff served defendants with an order to remedytheir violation of Local Law No. 11. When they did not comply, plaintiff commenced this action,moved for summary judgment and sought injunctive relief against defendants to prevent theircontinued use of the property. Defendants failed to respond to the motion. Supreme Court deniedplaintiff summary judgment on most causes of action and, in fact, awarded summary judgment todefendants dismissing two of plaintiff's claims, but granted the part of plaintiff's motion relatingto Local Law No. 11 and issued an order permanently enjoining defendants from using theirproperty in violation of that law.
Subsequently, defendants moved to renew based upon an appraisal of the property that [*2]they obtained after plaintiff's summary judgment motion was fullysubmitted. Supreme Court denied defendants' motion. Defendants appeal from both the orderpartially granting plaintiff summary judgment and the order denying the motion forreconsideration.
Supreme Court did not err in partially granting plaintiff summary judgment. Where themoving party makes a prima facie showing of entitlement to summary judgment, the burdenshifts to the nonmoving party to raise any triable issues of material fact (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 560, 562 [1980]; Thomas v Laustrup, 21 AD3d 688,690 [2005]). Because defendants did not respond to plaintiff's motion, plaintiff could prevail bymerely presenting a prima facie showing of its entitlement to judgment as a matter of law.
Plaintiff's Local Law No. 11 was enacted in accordance with the National Flood InsuranceProgram (hereinafter NFIP), as implemented by the Federal Emergency Management Agency(hereinafter FEMA), which rewards local communities for adopting flood plain managementmeasures by providing affordable insurance to existing homes located in flood zones (see42 USC § 4001 [d], [e]; § 4011 [a]; Adolph v Federal Emergency Mgt. Agencyof the U.S., 854 F2d 732, 734 [5th Cir 1988]; Garcia v Omaha Prop. & Cas. Ins. Co.,933 F Supp 1064, 1066-1067 [SD Fla 1995], affd 95 F3d 58 [11th Cir 1996]). Within anarea of special flood hazard, Local Law No. 11 requires, among other things, that propertyowners obtain a flood plain development permit prior to making any "substantial improvement"to a structure, that such improvements meet specified construction standards and that the ownersreceive a certificate of compliance before the structure is reoccupied (see Local Law No.11 [2003] of Town of Kirkwood §§ 4.2, 5.3).
It is undisputed that defendants made improvements to a structure on their property followingthe 2006 flood, this property is located in an area of special flood hazard, defendants did notobtain a flood plain development permit, the work completed by defendants did not comply withthe construction standards in Local Law No. 11, and no certificate of compliance was issuedprior to reoccupation of the structure. The only question is whether the work performed bydefendants constitutes a "substantial improvement" that would require defendants to comply withLocal Law No. 11.
"Substantial improvement" is defined by the NFIP regulations as "any . . .improvement of a structure, the cost of which equals or exceeds 50 percent of the market value ofthe structure before the 'start of construction' of the improvement. This term includes structureswhich have incurred 'substantial damage', regardless of the actual repair work performed" (44CFR 59.1). A structure has incurred "substantial damage" when the cost of restoring the structureto its predamage condition equals or exceeds 50 percent of its predamage market value(see 44 CFR 59.1). To determine whether defendants made a "substantial improvement"to the structure on their property, thereby requiring compliance with Local Law No. 11, plaintiffused a current tax assessment to calculate the market value of the structure. Defendants disputethis method of calculation based upon their misinterpretation of the federal regulations asrequiring the use of an independent professional appraisal to ascertain market value. Thepertinent NFIP regulation, however, makes no such requirement and is, in fact, silent as to howmarket value is to be determined (see generally 44 CFR 59.1). FEMA's written guidelinesaddress market value calculation and list permissible methods, including both the use ofprofessional appraisals and current tax assessments (see Federal Emergency ManagementAgency, Federal Insurance Administration, Answers to Questions About SubstantiallyDamaged Buildings, at 16[*3] [Mar. 1991], available at U.S.Department of Homeland Security, FEMA Library,http://www.fema.gov/library/viewRecord.do?id=1636 [accessed Nov. 10, 2010] [hereinafterFEMA Guidelines]). Although plaintiff could have used a professional appraisal, that method ofvaluation was not required by any federal regulation, and use of a current tax assessment was apermissible method under the FEMA Guidelines. Defendants could have obtained their ownappraisal to determine the market value of the structure. Plaintiff even advised defendants in itsinitial notification letter that it would consider making a redetermination of the applicability ofLocal Law No. 11 if defendants could provide a recent appraisal showing a higher market value.Defendants, however, failed to submit any alternate property appraisal in response to plaintiff'sinvitation nor did they timely submit anything to Supreme Court in response to plaintiff's motion.Therefore, the only evidence in the record as to the fair market value of the structure is theundisputed amount of the 2006 tax assessment, which, after taking into consideration theequalization rate, valued the structure at $5,102.
Having ascertained the market value of the structure, the next step is to determine whetherthe structure has either been substantially damaged or improved in an amount equal to orexceeding 50% of its predamage market value (see 44 CFR 59.1). Defendants submittedan itemized list of improvements made to the structure following the 2006 flood, which cost atotal of $5,313.54, but argue that, even if plaintiff's market value assessment is accurate, theimprovements to the structure were not "substantial." Defendants' argument, however, lacksmerit because it is based upon an inaccurate interpretation of the definition of "substantialimprovement." They argue that the definition includes only those portions of repairs that arespecifically attributable to remedying the damages caused by the flood and the cost of suchrepairs amount to no more than $2,000, which is less than 50% of the value of the property. Thedefinition, however, includes improvements made to repair damages attributable to flooding aswell as all other improvements made to the structure (see 44 CFR 59.1). Accordingly, thecost of the improvements, $5,313.54, exceeds the only evidence on record of its market value,$5,102, thus constituting a "substantial improvement" requiring compliance with Local Law No.11. It is undisputed that defendants did not obtain a flood plain development permit and the workcompleted by defendants did not comply with the requirements of Local Law No. 11. Plaintiffhas, therefore, sufficiently established a prima facie case, entitling plaintiff to summary judgmentas a matter of law.
Supreme Court also properly denied defendants' motion for reconsideration. A motion torenew must be based upon facts not offered, but in existence, at the time of the prior motion andcontain a reasonable justification for the failure to present such facts on the prior motion(see CPLR 2221 [e]; JPMorganChase Bank, N.A. v Malarkey, 65 AD3d 718, 719-720 [2009]). Defendants' motion torenew was based upon an independent professional appraisal that was not obtained by defendantsuntil after plaintiff's motion for summary judgment had been submitted. Because defendantsfailed to provide a reasonable justification for not presenting an appraisal to the court at the timeof the original motion, the court properly denied their motion to renew.
Defendants' remaining contentions have been considered but are either not preserved forreview or lack merit.
Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.