| Matter of 24 Franklin Ave. R.E. Corp. v Heaship |
| 2012 NY Slip Op 08753 [101 AD3d 1034] |
| December 19, 2012 |
| Appellate Division, Second Department |
| In the Matter of 24 Franklin Ave. R.E. Corp. et al.,Respondents, v Thomas Heaship et al., Appellants. |
—[*1] Joseph C. Messina, Mamaroneck, N.Y., for respondents.
In a hybrid proceeding pursuant to CPLR article 78 and action for a judgment, inter alia,declaring invalid Local Law No. 4 (2007) of the Town/Village of Harrison, therespondents/defendants appeal, as limited by their brief, from so much of an order of theSupreme Court, Westchester County (Lefkowitz, J.), entered February 24, 2011, as granted thatbranch of the petitioners/plaintiffs' motion which, in effect, sought to vacate the eighth demandcontained in their demand for a verified bill of particulars.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the petitioners/plaintiffs' motion which, in effect, sought to vacate the eighth demandcontained in the respondents/defendants' demand for a verified bill of particulars is denied, andthe matter is remitted to the Supreme Court, Westchester County, for further proceedingsconsistent herewith.
Marc Castaldi and 24 Franklin Ave. R.E. Corp. (hereinafter together the property owners)commenced this hybrid proceeding pursuant to CPLR article 78 and action for a judgmentagainst Thomas Heaship, Alice Aurutick, Anthony Spano, Raymond A. Kraus, Nonie Reich,Marshall Donat, Mark Rinaldi, Stephen Malfitano, Joseph Cannella, Robert Paladino, ThomasScappaticci, Pat Vetere, Stephen Malfitano, and Robert W. Fitzsimmons (hereinafter collectivelythe appellants), inter alia, declaring invalid Local Law No. 4 (2007) of the Town/Village ofHarrison (hereinafter LL No. 4). Thereafter, the Supreme Court utilized a summary procedure todetermine the merits of the causes of action which sought a judgment declaring that LL No. 4was not adopted in accordance with the relevant comprehensive plan, that it was not adopted inaccordance with the State Environmental Quality Review Act (ECL article 8; hereinafterSEQRA), that it was not adopted in accordance with the requirements of General Municipal Law§ 239-m, and that it was not adopted in accordance with the notice requirements of TownLaw § 264.
The Supreme Court awarded the property owners judgment, in effect, declaring that LL No. 4is invalid on the grounds that it constitutes impermissible spot zoning and was not adopted inaccordance with the relevant comprehensive plan. The judgment also, inter alia, dismissed theCPLR article 78 petition on the ground that the property owners failed to exhaust theiradministrative [*2]remedies and because the determination ofwhich they sought review was advisory and therefore not subject to article 78 review.
The appellants appealed from so much of the judgment as, in effect, declared that LL No. 4 isinvalid on the grounds that it constitutes impermissible spot zoning and was not adopted inaccordance with the relevant comprehensive plan. The appellants' appeal was limited, as they didnot seek review of those portions of the judgment which dismissed the CPLR article 78 petition.
This Court reversed the judgment insofar as appealed from, concluding that "the causes ofaction seeking a judgment declaring that LL No. 4 is invalid are properly deemed causes ofaction for a declaratory judgment, rather than for relief pursuant to CPLR article 78" and that "theSupreme Court erred in issuing a judgment declaring that LL No. 4 is invalid by using a summaryprocedure that pertains only to CPLR article 78 proceedings" (Matter of 24 Franklin Ave. R.E. Corp. vHeaship, 74 AD3d 980, 980-981 [2010]). Accordingly, this Court remitted the matter tothe Supreme Court, Westchester County, "for further proceedings on the causes of action for adeclaratory judgment, in which those causes of action shall be treated as if they had been assertedin a plenary action" (id. at 981). That decision and order remitted to the Supreme Courtall of the property owners' declaratory judgment causes of action which had been determined onthe merits by the Supreme Court utilizing the improper summary procedure, to wit, the causes ofaction which sought a judgment declaring that LL No. 4 was not adopted in accordance with therelevant comprehensive plan, was not adopted in accordance with SEQRA, was not adopted inaccordance with the requirements of General Municipal Law § 239-m, and was notadopted in accordance with the notice requirements of Town Law § 264.
On remittal, the Supreme Court erred in granting that branch of the property owners' motionwhich, in effect, sought to vacate the eighth demand of the appellants' demand for a verified billof particulars which pertained to the property owners' cause of action for a judgment declaringinvalid LL No. 4 on the grounds that it was not adopted in accordance with SEQRA. Since thisCourt reversed the judgment insofar as appealed from and remitted to the Supreme Court thecauses of action which sought a judgment declaring that LL No. 4 was not adopted in accordancewith the relevant comprehensive plan, was not adopted in accordance with SEQRA, was notadopted in accordance with the requirements of General Municipal Law § 239-m, and wasnot adopted in accordance with the notice requirements of Town Law § 264, the SupremeCourt erred in finding that the appellants were not entitled to particulars as to the propertyowners' cause of action for a judgment declaring LL No. 4 invalid based on the appellants'alleged failure to comply with SEQRA requirements (see CPLR 3101 [a]).
Furthermore, an "appellate court's resolution of an issue on a prior appeal constitutes the lawof the case and 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., 21 AD3d 406, 407 [2005]; Matter of Oak St. Mgt., Inc., 20 AD3d571 [2005]; Johnson v Incorporated Vil. of Freeport, 288 AD2d 269 [2001]). Thelaw of the case doctrine forecloses re-examination of a question previously determined by anappellate court in the same action, " 'absent a showing of subsequent evidence or change of law' "(J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d at 809, quotingMatter of Yeampierre v Gutman, 57 AD2d 898, 899 [1977]; see Matter of Haberman v Zoning Bd. ofAppeals of City of Long Beach, 94 AD3d 997 [2012]), or "extraordinary circumstances. . . warrant[ing] a departure from the law of the case" (Carole A. v City of NewYork, 169 AD2d 800, 801 [1991]; see Quinn v Hillside Dev. Corp., 21 AD3d at407). Here, the property owners did not show that such circumstances exist. Florio, J.P., Balkin,Hall and Miller, JJ., concur.