| 17 Fortune Corp. v Town of Babylon |
| 2012 NY Slip Op 04990 [96 AD3d 929] |
| June 20, 2012 |
| Appellate Division, Second Department |
| 17 Fortune Corp., Respondent, v Town of Babylon,Appellant. |
—[*1] Edward L. Wolf, P.C., Hauppauge, N.Y. (Barry J. Casper of counsel), forrespondent.
In an action to permanently enjoin the defendant from interfering with the plaintiff's use andoccupancy of its business, the defendant appeals from an order of the Supreme Court, SuffolkCounty (Spinner, J.), dated August 1, 2011, which granted the plaintiff's motion for a preliminaryinjunction.
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
In or around 1980, the plaintiff acquired the business at issue, which is located inLindenhurst. The business is a cabaret which features topless female adult entertainment and,since that acquisition, it has been operated without a certificate of occupancy or a buildingpermit. Notably, this business is located in a business district in which adult entertainment is notenumerated as a permitted use (see Code of Town of Babylon § 213-129).
In October 2010, the defendant Town of Babylon conducted an investigation, resulting in theissuance of notices of violation to the plaintiff charging it with violating various provisions of theCode of the Town of Babylon, specifically, that use of the premises for adult entertainment wasnot permitted. On that basis, the Town also closed down the business, chained the doors of thepremises, and posted placards at the premises informing the plaintiff and the public that thebusiness had been shuttered. Thereafter, rather than seeking any administrative remedy tolegalize its business operations, the plaintiff commenced this action to permanently enjoin theTown from interfering with its use and occupancy of the premises, contending that the businesswas a legal, preexisting nonconforming use. The plaintiff moved for a preliminary injunctionenjoining the Town from engaging in such interference during the pendency of the action. Themotion was granted by the Supreme Court. The Town appeals, and we reverse.
Generally, a party who " 'objects to the act of an administrative agency must exhaustavailable administrative remedies before being permitted to litigate in a court of law' " (Town of Oyster Bay v Kirkland, 81AD3d 812, 815 [2011], lv granted 17 NY3d 716 [2011], quoting Watergate IIApts. v [*2]Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). "'[A]bsent extraordinary circumstances, courts are constrained not to interject themselves intoongoing administrative proceedings until final resolution of those proceedings before the agency'" (Matter of Tahmisyan v Stony BrookUniv., 74 AD3d 829, 830-831 [2010], quoting Galin v Chassin, 217 AD2d 446,447 [1995]). One exception to the exhaustion doctrine is where the agency's action would causeirreparable injury (see Town of Oyster Bay v Kirkland, 81 AD3d at 815). Here, however,any irreparable harm that the plaintiff allegedly may suffer has been brought on by its ownactions, as it could have applied for a certificate of occupancy permitting it to operate an adultcabaret. It also could have applied for recognition of its use as a legal, preexisting nonconforminguse pursuant to Code of Town of Babylon § 213-380. The plaintiff chose neither course.Thus, the plaintiff has administrative remedies available to it which it has not pursued (seeShapiro v Central Gen. Hosp., 173 AD2d 601, 603 [1991]).
Moreover, the plaintiff has not demonstrated that the exhaustion of its administrativeremedies would be futile absent judicial intervention or that the Town's actions were eitherunconstitutional or wholly beyond its grant of power (see Town of Oyster Bay vKirkland, 81 AD3d at 815).
Accordingly, the order must be reversed and the plaintiff's motion for a preliminaryinjunction denied.
The parties' remaining contentions need not be addressed in light of our determination.Angiolillo, J.P., Florio, Belen and Chambers, JJ., concur.