| Goldman v A&E Club Props., LLC |
| 2011 NY Slip Op 07809 [89 AD3d 681] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Lloyd Goldman et al., Respondents, v A&E ClubProperties, LLC, et al., Appellants. |
—[*1] Lazer, Aptheker, Rosella & Yedid, P.C., Melville, N.Y. (David Lazer and Zachary Murdockof counsel), for respondents.
In an action, inter alia, to enjoin the defendants from maintaining and operating a beach andtennis club on certain real property in violation of certain conditions of a special use permit, thedefendants appeal, as limited by their brief, from stated portions of an order of the SupremeCourt, Suffolk County (Molia, J.), dated December 28, 2009, which, inter alia, denied thosebranches of their motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (4)and, in effect, pursuant to CPLR 3211 (a) (3), or, alternatively, for summary judgment dismissingthe complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant A&E Club Properties, LLC (hereinafter A&E), is the owner of a parcel ofland, approximately 12 acres in size, situated at the end of a private roadway in the Town ofSouthampton. A&E leases the property to the defendant Bridgehampton Tennis & Surf Club, Inc.(hereinafter Bridgehampton), which operates a beach and tennis club on the property pursuant toa special use permit that was issued in 1961. The plaintiffs are four resident taxpayers andhomeowners whose properties abut the private roadway leading to and from the defendants'property. Alleging that the roadway had fallen into disrepair, the plaintiffs commenced thisaction, inter alia, to enjoin the defendants from operating the beach and tennis club in violation ofvarious conditions of the special use permit, including one condition that allegedly required thedefendants to construct and maintain the private roadway. The complaint asserted, among otherthings, causes of action for an injunction pursuant to Town Law § 268 (2) and the commonlaw. The defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (4)and, in effect, pursuant to CPLR 3211 (a) (3), or, alternatively, for summary judgment dismissingthe complaint. The Supreme Court, among other things, denied those branches of the defendants'motion. We affirm the order insofar as appealed from.
In support of that branch of the defendants' motion which was to dismiss the complaint, ineffect, pursuant to CPLR 3211 (a) (3), the defendants failed to demonstrate that the plaintiffslacked the legal capacity to sue on the ground that they were not aggrieved by the allegedviolations of the special use permit (see Town Law § 268 [2]; Matter ofSun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406,413-414 [1987]; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, 5-6 n 2 [1974];Korcz v Elhage, 1 AD3d 903[2003]), or that the plaintiffs lacked [*2]standing to maintain acommon-law action to enjoin a violation of the special use permit (see Cord Meyer Dev. Co.v Bell Bay Drugs, 20 NY2d 211, 217 [1967]; Zupa v Paradise Point Assn., Inc., 22 AD3d 843 [2005]).Accordingly, the Supreme Court properly denied that branch of the defendants' motion whichwas to dismiss the complaint, in effect, pursuant to CPLR 3211 (a) (3).
In support of that branch of their motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (4), the defendants failed to demonstrate that the relief sought in an alleged priorpending action was the same or substantially the same such that dismissal of this action wasappropriate (see CPLR 3211 [a] [4]; Kent Dev. Co. v Liccione, 37 NY2d 899[1975]; Jin Sheng He v Sing HueiChang, 83 AD3d 788, 790 [2011]; Wharry v Lindenhurst Union Free School Dist., 65 AD3d 1035[2009]; cf. DAIJ, Inc. v Roth, 85AD3d 959 [2011]; Cherico, Cherico& Assoc. v Midollo, 67 AD3d 622 [2009]). Accordingly, the Supreme Court properlydenied that branch of the defendants' motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (4).
The defendants failed to demonstrate their prima facie entitlement to summary judgmentdismissing the complaint on the ground that they did not commit any of the alleged violations ofthe conditions of the special use permit (see Zuckerman v City of New York, 49 NY2d557, 562 [1980]). Since the defendants failed to meet their initial burden, we need not considerthe sufficiency of the papers submitted by the plaintiffs in opposition (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court properlydenied that branch of the defendants' motion which was for summary judgment dismissing thecomplaint.
We do not consider the defendants' contention that the complaint should be dismissed basedon the doctrine of res judicata since it was improperly raised for the first time in their replypapers before the Supreme Court (seeKearns v Thilburg, 76 AD3d 705, 708 [2010]; Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys.,Inc., 62 AD3d 825 [2009]).
The defendants' remaining contentions are without merit. Mastro, J.P., Angiolillo, Belen andLott, JJ., concur.