| Rocky Point Drive-In, L.P. v Town of Brookhaven |
| 2012 NY Slip Op 01665 [93 AD3d 653] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Rocky Point Drive-In, L.P., Respondent-Appellant, v Townof Brookhaven et al., Appellants-Respondents. |
—[*1] Bracken Margolin Besunder, LLP, Islandia, N.Y. (Linda U. Margolin and Kristen L. Ryan ofcounsel), for respondent-appellant.
In an action, inter alia, for a judgment declaring that the plaintiff is entitled to have its siteplan application reviewed in accordance with the zoning designation that was in effect on the daythe plaintiff's site plan application was filed, the defendants appeal, as limited by their brief, fromso much of a judgment of the Supreme Court, Suffolk County (Sweeney, J.), entered January 22,2010, as, upon a decision of the same court dated June 5, 2009, as modified by a decision of thesame court dated November 9, 2009, made after a nonjury trial, is in favor of the plaintiff andagainst them declaring that their intentional bad faith delay in reviewing and processing theplaintiff's site plan application constitutes "special facts" which entitle the plaintiff to have its siteplan application reviewed in accordance with the zoning designation that was in effect on the daythat the plaintiff's site plan application was filed, and that the plaintiff is not required to apply foror obtain a variance, and the plaintiff cross-appeals, as limited by its brief, from so much of thesame judgment as failed to declare that the use set forth in its site plan was an as-of-right use inthe J-2 zoning district.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, withcosts, and it is declared that the plaintiff is not entitled to have its site plan application reviewedin accordance with the zoning designation that was in effect on the day that the plaintiff's siteplan application was filed; and it is further,
Ordered that the cross appeal is dismissed as academic, in light of the determination of theappeal; and it is further,
Ordered that one bill of costs is awarded to the defendants.
In reviewing a trial court's findings of fact following a nonjury trial, this Court's "authority isas broad as that of the trial court" and includes the power to "render the judgment it findswarranted by the facts, taking into account in a close case the fact that the trial judge had theadvantage of seeing the witnesses" (Northern Westchester Professional Park Assoc. v Townof Bedford, 60 NY2d 492, 499 [1983] [citations and internal quotation marks omitted]; see Man Choi Chiu [*2]v Chiu, 38 AD3d 619 [2007]; Hall v Sinclaire, 35 AD3d 660[2006]; Matter of Fasano v State of New York, 113 AD2d 885, 888 [1985]).
The Supreme Court's determinations that the defendants intentionally and in bad faithdelayed processing the plaintiff's site plan application, and selectively enforced the prohibitionagainst commercial centers in a J-2 zoning district against the plaintiff, were not warranted by thefacts adduced at trial. The record does not support the determinations of undue delay and badfaith on the part of the defendants (see Matter of Home Depot U.S.A. v Village of RockvilleCtr., 295 AD2d 426, 429 [2002]), or that the defendants selectively enforced the prohibitionagainst commercial centers in J-2 zoning districts, targeting the plaintiff's application withanimus (see Bower Assoc. v Town ofPleasant Val., 2 NY3d 617, 631 [2004]). As such, the judgment must be reversed insofaras appealed from. Angiolillo, J.P., Leventhal, Austin and Roman, JJ., concur.
Motion by the defendants to strike stated portions of the plaintiff's reply brief on an appealand cross appeal from a judgment of the Supreme Court, Suffolk County, entered January 22,2010, on the ground, inter alia, that it improperly raises arguments for the first time in reply. Bydecision and order on motion of this Court dated December 5, 2011, the motion was held inabeyance and referred to the panel of Justices hearing the appeal and cross appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeal and cross appeal, it is,
Ordered that the motion is granted, and the material in the plaintiff's reply brief beginningwith the words on page four stating "The Town's brief attempts to distinguish" and ending withthe words on page seven stating "whether or not W.F. Shirley is determined to have issuepreclusion effect," is stricken and has not been considered on the appeal and cross appeal.Angiolillo, J.P., Leventhal, Austin and Roman, JJ., concur.