| Matter of Haberman v Zoning Bd. of Appeals of City of LongBeach |
| 2012 NY Slip Op 02876 [94 AD3d 997] |
| April 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Sinclair Haberman et al.,Appellants, v Zoning Board of Appeals of City of Long Beach et al., Respondents, et al.,Respondent. |
—[*1] Corey E. Klein, Corporation Counsel, Long Beach, N.Y., forrespondents/defendants-respondents.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the City of Long Beach dated December 29, 2003, which revoked a buildingpermit previously issued to the petitioners/plaintiffs on August 12, 2003, and action, inter alia,for a judgment declaring that the petitioners/plaintiffs are entitled to the building permit, thepetitioners/plaintiffs appeal from so much of an order of the Supreme Court, Nassau County(Marber, J.), dated September 13, 2010, as granted the motion of the respondents/defendantsZoning Board of Appeals of the City of Long Beach, Rocco Morelli, Lenny Torres, MarcelWeber, Michael Fina, Stuart Banschick, Lorraine Divone, Michael Leonetti, the City of LongBeach, and Scott Kemins, as Commissioner of the Department of Buildings of the City of LongBeach pursuant to CPLR 3211 (a) (7) and 7804 (f) to dismiss the first and second causes ofaction in the third amended petition/complaint, and pursuant to CPLR 3211 (a) (7) to dismiss thefifth and sixth causes of action in the third amended petition/complaint insofar as asserted againstthem.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted those branches of the motion which were pursuant to CPLR 3211 (a) (7) and 7804 (f) todismiss the first and second causes of action in the third amended petition/complaint insofar asasserted against the respondents/defendants Zoning Board of Appeals of the City of Long Beach,Rocco Morelli, Lenny Torres, Marcel Weber, Michael Fina, Stuart Banschick, Lorraine Divone,Michael Leonetti, the City of Long Beach, and Scott Kemins, as Commissioner of theDepartment of Buildings of the City of Long Beach, is deemed to be an application for leave toappeal 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 reversed insofar as appealed from, on the law, and the [*2]motion of the respondents/defendants Zoning Board of Appeals ofthe City of Long Beach, Rocco Morelli, Lenny Torres, Marcel Weber, Michael Fina, StuartBanschick, Lorraine Divone, Michael Leonetti, the City of Long Beach, and Scott Kemins, asCommissioner of the Department of Buildings of the City of Long Beach, pursuant to CPLR3211 (a) (7) and 7804 (f) to dismiss the first and second causes of action in the third amendedpetition/complaint, and pursuant to CPLR 3211 (a) (7) to dismiss the fifth and sixth causes ofaction in the third amended petition/complaint insofar as asserted against them is denied; and it isfurther,
Ordered that one bill of costs is awarded to the appellants.
In this hybrid CPLR article 78 proceeding and declaratory judgment action, thepetitioners/plaintiffs (hereinafter the plaintiffs), among other things, challenge a determination ofthe Zoning Board of Appeals of the City of Long Beach (hereinafter the ZBA) dated December29, 2003, which revoked a building permit issued on August 12, 2003, permitting theconstruction of a 10-story residential building, the second of four such buildings planned for abeachfront apartment complex for which a variance had been obtained in 1985. The permit wasmodified in 1989 by a stipulation between the parties (hereinafter the stipulation), and furtherrevised in 1992 pursuant to an agreement (hereinafter the 1992 agreement). The building permitwas revoked, inter alia, based on the ZBA's finding that the 1992 agreement extending the termsof the variances was unenforceable, because it had not been brought before the ZBA forratification. The petition to revoke was filed by the respondent/defendant Xander Corp.(hereinafter Xander), the entity which now owns the only building of the proposed complex thatwas actually constructed.
In an order dated May 17, 2004 (hereinafter the 2004 order), the Supreme Court denied theseparate motions of the City, the ZBA, the ZBA's members, and the Commissioner of the City'sDepartment of Buildings (hereinafter collectively the City defendants), and Xander to dismiss thepetition/complaint insofar as asserted against each of them. In that order, the Supreme Court alsogranted the petition, annulled the ZBA's determination revoking the permit, and remitted thematter to the ZBA for further findings regarding the issue of whether the 1992 agreementextending the variances was enforceable. In a decision and order on motion dated December 5,2006, made upon reargument, we reversed the 2004 order and denied the petition, concludingthat the ZBA had a rational basis for concluding that the 1992 agreement was unenforceable (see Matter of Haberman v Zoning Bd. ofAppeals of City of Long Beach, 35 AD3d 465, 467 [2006]). At that time, thatdetermination was dispositive with regard to all of the causes of action, except for that allegingbreach of contract (id.). The Court of Appeals subsequently reversed, concluding that the1992 agreement was enforceable, and that the ZBA was bound thereby, and remitted the matterto this Court "for consideration of issues raised but not determined" in the decision and order onmotion that it had reversed (Matter ofHaberman v Zoning Bd. of Appeals of City of Long Beach, 9 NY3d 269, 276 [2007]).Upon remittitur, this Court modified the 2004 order, granting only those branches of the motionswhich were to dismiss the cause of action alleging fraud and misrepresentation, and remitting thematter to the Supreme Court, Nassau County, rather than to the ZBA, to permit the defendants tointerpose an answer to the petition/complaint. We otherwise affirmed the 2004 order, includingthe denial of those branches of the motions which were to dismiss the remaining causes of action(see Matter of Haberman v Zoning Bd.of Appeals of City of Long Beach, 53 AD3d 490, 493 [2008]).
Upon remittal to the Supreme Court, the plaintiffs were granted leave to amend thepetition/complaint. In the first, fifth, and sixth causes of action, the third amendedpetition/complaint (hereinafter the third amended complaint), asserted the same claims that hadsurvived the motion to dismiss the prior petition/complaint, and added one new cause of action,designated as the second cause of action, which sought to annul the ZBA's determination basedon an alleged conflict of interest on the part of the ZBA Chairman, Rocco Morelli. The Citydefendants moved pursuant to CPLR 3211 (a) (7) and 7804 (f) to dismiss the first and secondcauses of action, and pursuant to CPLR 3211 (a) (7) to dismiss the fifth and sixth causes ofaction of the third amended complaint insofar as asserted against them.
"An appellate court's resolution of an issue on a prior appeal constitutes the law of the caseand is binding on the Supreme Court, as well as on the appellate court" (J-Mar Serv. Ctr., Inc. v Mahoney, Connor& Hussey, 45 AD3d 809, 809 [2007]; see Quinn v Hillside Dev. Corp., 21AD3d [*3]406, 407 [2005]; Matter of Oak St. Mgt., Inc., 20 AD3d 571 [2005]; Johnson vIncorporated Vil. of Freeport, 288 AD2d 269 [2001]). The law of the case doctrine "'operates to foreclose re-examination of [the] question absent a showing of subsequent evidenceor change of law' " (J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d at809, quoting Matter of Yeampierre v Gutman, 57 AD2d 898, 899 [1977]; see Wells Fargo Bank Minn., N.A. vPerez, 70 AD3d 817 [2010], cert denied 562 US —, 131 S Ct 648 [2010];Frankson v Brown & WilliamsonTobacco Corp., 67 AD3d 213, 217-218 [2009]; EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 63 AD3d665, 666 [2009]).
Contrary to the contention of the City defendants, in the decision and order on remittitur onthe prior appeal (see Matter ofHaberman v Zoning Bd. of Appeals of City of Long Beach, 53 AD3d 490 [2008]), thisCourt did consider, and reject, their arguments challenging the viability of the plaintiffs' dueprocess and breach of contract causes of action. Since this Court's decision and order on the priorappeal (id.) constituted the law of the case, and there has been no "showing of subsequentevidence or change of law," reexamination of the viability of those same causes of action, whichare asserted in the first, fifth, and sixth causes of action, is foreclosed (see Wells Fargo BankMinn., N.A. v Perez, 70 AD3d at 817; Frankson v Brown & Williamson TobaccoCorp., 67 AD3d at 217-218; EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp.Ctr., 63 AD3d at 666; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3dat 809). Accordingly, the Supreme Court erred in granting those branches of the motion whichwere to dismiss those causes of action insofar as asserted against the City defendants.
The second cause of action, asserted for the first time in the third amended complaint,alleged that ZBA Chairman Rocco Morelli had a conflict of interest and, because of the conflict,conducted the public hearing held on the petition to revoke the building permit in a prejudicialmanner. The alleged conflict was that, at the time of the public hearing and at the time the ZBAconsidered and granted Xander's petition to revoke the building permit, Morelli "was a rentaltenant in the Xander Cooperative building and had an interest in seeing that the adjoiningbuilding was not erected." Thus, the second cause of action sought to annul the ZBA'sdetermination on that ground.
In determining a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure tostate a cause of action, "the court must afford the pleadings a liberal construction, take theallegations of the complaint as true and provide plaintiff the benefit of every possible inference"(EBC I, Inc. v Goldman, Sachs &Co., 5 NY3d 11, 19 [2005]; see Goshen v Mutual Life Ins. Co. of N.Y., 98NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83 [1994]). "Whether a plaintiff canultimately establish its allegations is not part of the calculus in determining a motion to dismiss"(EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d at 19).
If Morelli was, as alleged, a tenant of Xander and, therefore, had a personal interest in thefate of the building permit to the extent that he would benefit from its revocation, the secondcause of action sufficiently alleged that he should have disclosed this interest (seeGeneral Municipal Law § 809; Charter of City of Long Beach, art 2, § 18;Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 278AD2d 421, 423 [2000], revd on other grounds 97 NY2d 86 [2001]), that his alleged bias,as demonstrated in his questioning at the hearing, may have improperly influenced the ZBA, andthat the ZBA's determination should, thus, have been annulled on that ground (see CPLR7803 [3]; Matter of Harris v New York State Div. of Parole, 211 AD2d 205, 206-207[1995]), and therefore stated a cause of action. Whether the plaintiffs can ultimately establish theconflict of interest allegations should not have been "part of the calculus in determining [the]motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d at 19).
Accordingly, the Supreme Court erred in granting that branch of the motion which was todismiss the second cause of action in the third amended complaint insofar as asserted against theCity defendants. Rivera, J.P., Chambers, Austin and Roman, JJ., concur.