| One Monroe, LLC v City of New York |
| 2011 NY Slip Op 08129 [89 AD3d 812] |
| November 9, 2011 |
| Appellate Division, Second Department |
| One Monroe, LLC, Appellant, v City of New York et al.,Respondents, et al., Respondents. |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, MichelleGoldberg-Cahn, and Alan G. Krams of counsel), fordefendants/respondents-respondents.
In a hybrid action, inter alia, to recover damages for injury to property, and proceedingpursuant to CPLR article 78, inter alia, to review a determination of the New York CityDepartment of Buildings to demolish a building on the subject property, the plaintiff/petitionerappeals from an order of the Supreme Court, Kings County (R. Miller, J.), dated April 1, 2010,which granted the motion of the defendants/respondents City of New York, the New York CityDepartment of Buildings, Robert LiMandri, Bryan Winter, the New York City LandmarksPreservation Commission, Robert B. Tierney, the Department of Housing Preservation andDevelopment of the City of New York, and Rafael E. Cestero to dismiss the complaint/petitioninsofar as asserted against them pursuant to CPLR 3211.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted that branch of the motion of the defendants/respondents City of New York, the NewYork City Department of Buildings, Robert LiMandri, Bryan Winter, the New York CityLandmarks Preservation Commission, Robert B. Tierney, the Department of HousingPreservation and Development of the City of New York, and Rafael E. Cestero which was todismiss the petition insofar as asserted against them pursuant to CPLR 3211 is deemed to be anapplication for leave to appeal from that portion of the order, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.[*2]
On May 24, 2008, in response to a complaint, aninspector from the New York City Department of Buildings (hereinafter the DOB) inspected abuilding owned by the plaintiff/petitioner (hereinafter the plaintiff). Upon inspection, the DOBissued a 24-hour order to vacate the premises to all tenants/occupants of the building, and theCity of New York commenced demolition of the building. The plaintiff subsequentlycommenced this hybrid action, inter alia, to recover damages for injury to property, andproceeding pursuant to CPLR article 78, inter alia, to review the determination of the DOB todemolish the building. The City, the DOB, Robert LiMandri, as Commissioner of the DOB,Bryan Winter, as Brooklyn Deputy Borough Commissioner of the DOB, the New York CityLandmarks Preservation Commission (hereinafter the LPC), Robert B. Tierney, asChair/Commissioner of the LPC, the Department of Housing Preservation and Development ofthe City of New York (hereinafter the DHPD), and Rafael E. Cestero, as Commissioner of theDHPD (hereinafter collectively the city defendants) moved to dismiss the complaint/petitioninsofar as asserted against them pursuant to CPLR 3211. The Supreme Court granted the motion.We affirm.
Initially, contrary to the plaintiff's contention, although the city defendants' motion was madepursuant to CPLR 3211, the parties made it " 'unequivocally clear' that they were 'laying baretheir proof' and 'deliberately charting a summary judgment course' " by submitting extensivedocumentary evidence, factual affidavits, and expert affidavits in support of their respectivepositions (Sokol v Leader, 74 AD3d1180, 1183 [2010], quoting Four Seasons Hotels v Vinnik 127 AD2d 310, 320[1987]; see Hopper v McCollum, 65AD3d 669, 670 [2009]; Hamlet atWillow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 99 [2009]; Harris v Hallberg, 36 AD3d 857,858 [2007]). Thus, application of a summary judgment standard is appropriate (see Hopper vMcCollum, 65 AD3d at 670; Harris v Hallberg, 36 AD3d at 858).
"In the exercise of its police powers [a] municipality may demolish a building withoutproviding notice and an opportunity to be heard if there are exigent circumstances which requireimmediate demolition of the building to protect the public from imminent danger" (Rapps v City of New York, 54 AD3d923, 923 [2008] [internal quotation marks omitted]). Here, the city defendants submittedevidence establishing, prima facie, the existence of such exigent circumstances (see Merino vCity of Middletown, 272 AD2d 454, 454-455 [2000]; Marigin v City of New York,215 AD2d 539, 539-540 [1995]; Starik v City of New York, 68 AD2d 936 [1979]). Theevidence submitted by the plaintiff in opposition failed to raise a triable issue of fact with respectto the condition of the premises at the time the demolition was commenced (see Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Balkin, Chambers andLott, JJ., concur.