| Capruso v Village of Kings Point |
| 2013 NY Slip Op 00447 [102 AD3d 902] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Daniel Capruso et al., Respondents, v Village ofKings Point et al., Appellants. (Action No. 1.) State of New York, Respondent, v Villageof Kings Point, Appellant. (Action No. 2.) |
—[*1] Albert K. Butzel, New York, N.Y., and Super Law Group, LLC, New York, N.Y.(Reed W. Super, Alexandra I. Hankovszky, and Edan Rotenberg of counsel), forrespondents in action No. 1) (one brief filed). Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing, Ann P.Zybert, Norman Spiegel, and Kathryn M. Liberatore of counsel), for respondent in actionNo. 2.
In two related actions for certain declaratory and injunctive relief, which were joinedfor trial, (1) the defendants in action No. 1 appeal, as limited by the joint brief, from somuch of an order and interlocutory judgment (one paper) of the Supreme Court, NassauCounty (Feinman, J.), entered June 14, 2011, as granted the plaintiffs' motion forsummary judgment on the complaint and dismissing the defendants' affirmative defenses,and, thereupon, permanently enjoined the defendants from denying or obstructingexisting access to a certain park, unless and until explicit and specific approval isobtained from the State Legislature, directed the defendants to remove from a certainportion of the subject park all materials, equipment, and physical alterations, includingbuildings and other structures, under the control of the defendant Village of Kings Point,and directed the defendants to pay the plaintiffs' reasonable attorney's fees and otherexpenses in an amount to be determined, and (2) the defendant in action No. 2 jointlyappeals, as limited by the joint brief, from so much of the same order and interlocutoryjudgment as granted the plaintiff's motion for summary judgment on the complaint andcertain related declaratory and injunctive relief, and, thereupon, permanently enjoined thedefendant from denying or obstructing existing access to the subject park, unless anduntil explicit and specific approval is obtained from the State Legislature, and directedthe defendant to remove from a certain portion of the subject park all materials,equipment, and physical alterations, including buildings and other structures, under thecontrol of the defendant.[*2]
Ordered that the order and interlocutoryjudgment is modified, on the facts and in the exercise of discretion, by deleting theprovision thereof directing the defendants in action No. 1 to pay the plaintiffs' reasonableattorney's fees and other expenses in that action in an amount to be determined; as somodified, the order and interlocutory judgment is affirmed insofar as appealed from,without costs or disbursements.
In the order and interlocutory judgment appealed from, the Supreme Court failed tostate the basis for its award of reasonable attorney's fees to the plaintiffs in action No. 1(see e.g. 22 NYCRR 130-1.2). However, the only ground of which thedefendants in action No. 1 were given notice in the plaintiffs' motion papers and anopportunity to be heard (see Matter of Gordon v Marrone, 202 AD2d 104, 111[1994]; Pace v Perk, 81 AD2d 444, 456-457 [1981]; cf. Matter of Kantor vPavelchak, 134 AD2d 352, 352 [1987]), and thus the only potentially proper groundfor the award under the circumstances (see 22 NYCRR 130-1.1 [d]), was thatcertain conduct on their part was frivolous within the meaning of 22 NYCRR 130-1.1 (c)(1). Contrary to the plaintiffs' contention, the subject conduct of the defendants was notfrivolous within the meaning of 22 NYCRR 130-1.1 (c) (1) (see South Point, Inc. vRedman, 94 AD3d 1086, 1087 [2012]; Finkelman v SBRE, LLC, 71 AD3d 1081, 1082 [2010]).Accordingly, an award of reasonable attorney's fees was not warranted.
Contrary to the contention of the defendants in both actions, the challenged decretalprovisions of the order and interlocutory judgment were not beyond the scope of therelief requested in the respective complaints (see CPLR 3017 [a]) and/orotherwise overly broad (see Friends of Van Cortlandt Park v City of New York,95 NY2d 623, 630, 632 [2001]; Williams v Gallatin, 229 NY 248, 253-254[1920]). Eng, P.J., Angiolillo, Sgroi and Hinds-Radix, JJ., concur.