| Matter of Kings Point Holdings, LLC v Kings Point Vil. JusticeCt. |
| 2011 NY Slip Op 02882 [83 AD3d 714] |
| April 5, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kings Point Holdings, LLC,Appellant, v Kings Point Village Justice Court et al.,Respondents. |
—[*1] Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (Todd HarrisHesekiel and Benjamin Seth Kaplan of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to prohibit the respondents from prosecuting sixsummonses and issuing any additional summonses for alleged violations of Kings Point VillageCode § 161-50.2 (A) on the ground that any such actions are barred by a previousprosecution, the petitioner appeals from a judgment of the Supreme Court, Nassau County(Adams, J.), dated November 4, 2009, which, in effect, denied the petition and dismissed theproceeding.
Ordered that the judgment is affirmed, with costs.
Kings Point Holdings, LLC (hereinafter KPH), is the owner of residential property located onKings Point Road in the Village of Kings Point. In May 2008, after receiving approval from theArmy Corps of Engineers and a permit from the New York State Department of EnvironmentalConservation (hereinafter the DEC), KPH performed certain alterations to an existing dockadjacent to the subject premises.
On June 9, 2008, after complaints were received and an inspection was conducted, KPH wasissued a summons for violating Kings Point Village Code § 161-50.2 (A), which prohibitsthe construction of a dock without a permit issued by the Kings Point Building Department.Subsequently, in August 2008, KPH commenced certain work necessary to bring the dock intocompliance with the permit previously issued by the DEC. KPH, after receiving and rejecting a"Stop Work Order" from the Building Inspector, was then, on six separate occasions betweenAugust 11, 2008, and September 4, 2008, issued summonses for additional violations of KingsPoint Village Code § 161-50.2 (A). KPH, which entered a plea and paid a fine insatisfaction of the summons issued on June 9, 2008, commenced the instant proceeding pursuantto CPLR article 78 to prohibit the respondents from prosecuting any of the six outstandingsummonses and from issuing any additional summonses on the ground that any such actionsviolate the prohibition against double jeopardy. KPH also alleged that it was the victim ofselective and discriminatory prosecution due to personal animus against its principal, AdamKatz.
Contrary to KPH's contentions, the Supreme Court properly concluded that there was nostatutory double jeopardy violation (see generally People v Dean, 56 AD2d 242, 246[1977], affd 45 [*2]NY2d 651 [1978]). The outstandingsummonses are not based upon the same act as that for which the summons dated June 9, 2008,was issued, and additional prosecutions for separate and distinct violations of law do not violateKPH's rights as prescribed in CPL 40.20 (see Matter of Kessler v Sherman, 51 AD2d 52[1975], affd 41 NY2d 851 [1977]). Moreover, CPL 40.40, which prohibits separateprosecution of jointly prosecutable offenses, "applies only if the defendant has requestedconsolidation thereof for trial purposes and the request is denied" (People v Dean, 56AD2d at 246; see People v Madden,49 AD3d 1264, 1265 [2008]; Weiner v New York State Dept. of Motor Vehs., 79AD2d 1022 [1981]). Here, KPH did not move to consolidate the outstanding summonses withthe summons issued June 9, 2008.
Finally, while intentional or purposeful discrimination in the administration of an otherwisenondiscriminatory law violates equal protection (see Yick Wo v Hopkins, 118 US 356[1886]; People v Goodman, 31 NY2d 262, 268 [1972]), KPH failed to meet its " 'heavyburden' " of showing " 'conscious, intentional discrimination' " (People v Goodman, 31NY2d at 268, quoting People v Utica Daw's Drug Co., 16 AD2d 12, 19 [1962]) or a"consciously practiced pattern of discrimination" (People v Goodman, 31 NY2d at 268,citing People v Friedman, 302 NY 75 [1950]; see People v Acme Mkts., 37NY2d 326, 330 [1975]; People v Rodriguez, 192 AD2d 683 [1993]). KPH did not submitevidence establishing that the law was not applied to others similarly situated, or that the "'selective application . . . was deliberately based upon an impermissible standardsuch as race, religion or some other arbitrary classification' " (People v Rodriguez, 192AD2d at 683, quoting Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693[1979]).
Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed theproceeding. Covello, J.P., Dickerson, Belen and Lott, JJ., concur.