| Hertzel v Town of Putnam Val. |
| 2014 NYSlipOp 06558 [121 AD3d 641] |
| October 1, 2014 |
| Appellate Division, Second Department |
[*1]
| George Hertzel et al., Appellants, v Town ofPutnam Valley, Respondent. |
[Recalled and vacated, see 131 AD3d 921.]
Jonathan Lovett, White Plains, N.Y., for appellants.
The Baynes Law Firm, PLLC (Congdon, Flaherty, O'Callaghan, Reid, Donlon,Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino and Kathleen D. Foley],of counsel), for respondent.
In a hybrid action, inter alia, to recover damages for injury to property, and, in effect,proceeding pursuant to CPLR article 78 to review a determination of the Town Board ofthe Town of Putnam Valley dated May 21, 2008, directing the repair or demolition of anunsafe building and retaining wall on certain real property, the plaintiffs/petitionersappeal from an order of the Supreme Court, Putnam County (Lubell, J.), entered August1, 2012, which granted the defendant/respondent's motion for summary judgmentdismissing the complaint/petition.
Ordered that the notice of appeal from so much of the order as granted thosebranches of the defendant/respondent's motion which were for summary judgmentdismissing the causes of action asserted, in effect, pursuant to CPLR article 78 is deemedto be an application for leave to appeal from those portions of the order, and leave toappeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the defendant/respondent's motion which were for summaryjudgment dismissing the first, second, third, and eighth causes of action, and substitutingtherefor provisions denying those branches of the motion; as so modified, the order isaffirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs/petitioners.
In April 2007, the Peekskill Hollow Brook flooded and damaged a retaining wall anda garage building (hereinafter the subject property) in the defendant/respondent, Town ofPutnam Valley. The garage building, the rear of which bordered the brook, was occupiedby an automotive repair business, the plaintiff/petitioner Kappel's Garage, Inc., doingbusiness as George's Super Service (hereinafter Kappel's Garage). The subject propertywas owned by the plaintiff/petitioner Valley Corners Realty, Inc. (hereinafter ValleyCorners), and both Valley Corners and Kappel's Garage were owned by theplaintiff/petitioner George Hertzel (hereinafter collectively the plaintiffs).
[*2] After the April 2007 flooding, the Town inspected thesubject property, determined that the retaining wall and the rear portion of the garagebuilding were unsafe, and directed Valley Corners and Hertzel to make repairs. Hertzelshored up the slab of the garage building, which had been undermined, but did not repaireither the building's foundation or the retaining wall, despite the Town's repeateddemands that he do so.
On May 21, 2008, the Town Board of the Town of Putnam Valley (hereinafter theTown Board), acting pursuant to the Code of the Town of Putnam Valley§ 66-11 (hereinafter section 66-11), adopted a resolution (hereinafter theResolution) finding that the garage building and retaining wall were unsafe and posed adanger to the public. The Town Board based that finding, in part, on the fact that toxicsubstances were stored on the property, both above ground and in underground storagetanks, and that further flooding could cause the retaining wall and the garage building tocollapse into the brook. The Town Board further concluded that, if a collapse occurred,toxic substances could be introduced into the brook, which served as part of the drinkingwater supply for the nearby City of Peekskill. The Town deemed the situation to be anemergency, based in part upon the fact that, pursuant to regulations of the New YorkState Department of Environmental Conservation, no work along the brook could beperformed between October 1 and April 30 in any year, and the concern that, if work wasnot completed before October 1, 2008, flooding in the spring of 2009 could cause acollapse of the garage building and retaining wall and contaminate the water supply.Accordingly, in the Resolution, the Town Board directed the emergency repair ordemolition of the retaining wall and the undermined portion of the garage building.Although the Resolution authorized immediate action, Town officials gave ValleyCorners and Hertzel until August 4, 2008, to effect repairs themselves.
Valley Corners and Hertzel failed to commence repairs by August 4, 2008, and, onAugust 5, 2008, the Town put the job out to bid. In September 2008, a contractoremployed by the Town demolished the retaining wall and the rear portion of the garagebuilding, rebuilt the retaining wall, and erected a fence and planted arbor vitae along therear of the property adjacent to the retaining wall. Pursuant to section 66-11, the Townadded the cost of these repairs to Valley Corners' tax bill as a special assessment.
In August 2009, the plaintiffs commenced this hybrid action, inter alia, to recoverdamages for injury to the subject property and, in effect, proceeding pursuant to CPLRarticle 78 to review the Town Board's adoption of the Resolution and the determinationto undertake and charge for the work performed pursuant to the Resolution. The Townmoved for summary judgment dismissing the complaint/petition, contending, amongother things, that the action/proceeding was time-barred. The Supreme Court determinedthat the complaint/petition was, in essence, a CPLR article 78 petition, notwithstandingthe fact that some causes of action sought money damages. The court granted the Town'smotion in its entirety, and directed the dismissal of the complaint/petition as time-barred.The plaintiffs appeal.
In the fourth, fifth, sixth, and seventh causes of action, the plaintiffs sought, in effect,to annul the tax assessment referable to the cost of demolition of the retaining wall andrear wall of the building and the rebuilding of the retaining wall and, by implication,sought to annul the Resolution authorizing the demolition and the assessment against theproperty. They likewise contended that the Town failed to give them proper notice andan opportunity to be heard, as required by section 66-11. Since the substance of thesecauses of action was a challenge to administrative decisions and a special tax assessment,the court properly concluded that these causes of action constituted requests for reliefpursuant CPLR article 78, regardless of the form in which they were pleaded (see California Suites, Inc. v RussoDemolition Inc., 98 AD3d 144, 153 [2012]). As such, the court correctlydetermined that the four-month statute of limitations applicable to CPLR article 78proceedings (see CPLR 217) applied to the fourth, fifth, sixth, and seventh causesof action. Accordingly, the Supreme Court properly directed the dismissal of these causesof action as time-barred, since the plaintiffs commenced this hybrid action/proceedingmore than four months after the adoption of the Resolution and the imposition of thespecial tax assessment (see California Suites, Inc. v Russo Demolition Inc., 98AD3d at 154).
[*3] The court erred, however,in granting those branches of the Town's motion which were for summary judgmentdismissing the first, second, third, and eighth causes of action. These causes of actionassert claims, inter alia, for damages resulting from the destruction of a portion of thegarage building and the interruption of the plaintiffs' business. Pursuant to CPLR 7806,where a CPLR article 78 petitioner seeks damages as well as the annulment of agovernmental determination, "[a]ny restitution or damages granted to the petitioner mustbe incidental to the primary relief sought by the petitioner, and must be such as he [orshe] might otherwise recover on the same set of facts in a separate action or proceedingsuable in the supreme court against the same body or officer in its or his officialcapacity" (CPLR 7806). "[W]here the thrust of the lawsuit is the review of an adverse. . . agency determination, with the monetary relief incidental, [the] SupremeCourt may entertain the entire case under CPLR article 78" (Matter of Gross vPerales, 72 NY2d 231, 234 [1988]). "Whether the essential nature of the claim is torecover money, or whether the monetary relief is incidental to the primary claim, isdependent upon the facts and issues presented in a particular case" (id. at 236;see Murphy v Capone, 191 AD2d 683, 684 [1993]). Contrary to the SupremeCourt's determination, the claims asserted in the first, second, third, and eighth causes ofaction, in which the plaintiffs sought money damages, were not incidental to theplaintiffs' CPLR article 78 challenges to the Resolution and the special tax assessment(see generally MetropolitanTaxicab Bd. of Trade v New York City Taxi & Limousine Commn., 115 AD3d521, 522 [2014]; cf. ABC Radio Network v State of New York Dept. ofTaxation & Fin., 294 AD2d 213, 214 [2002]; Matter of Passaro v LakeGeorge Park Commn., 288 AD2d 678, 679 n [2001]; Matter of Adams vWelch, 272 AD2d 642, 643-644 [2000]; Murphy v Capone, 191 AD2d at684-685; Matter of Golomb v Board of Educ., 92 AD2d 256, 260-261 [1983]).Therefore, these causes of action were not asserted in connection with the CPLR article78 portion of this hybrid action/proceeding, and were not barred by the four-monthstatute of limitations applicable to CPLR article 78 proceedings (see CPLR 217).Accordingly, the Supreme Court erred in granting those branches of the Town's motionwhich were for summary judgment dismissing the first, second, third, and eighth causesof action.
In light of our determination, we need not address the plaintiffs' remainingcontentions. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.