| Hertzel v Town of Putnam Val. |
| 2015 NY Slip Op 06708 [131 AD3d 921] |
| September 2, 2015 |
| Appellate Division, Second Department |
[*1]
| George Hertzel et al., Appellants, v Town ofPutnam Valley, Respondent. |
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.
Motion by the respondent, inter alia, for leave to reargue stated portions of an appealfrom an order of the Supreme Court, Putnam County, entered August 1, 2012, which wasdetermined by decision and order of this Court dated October 1, 2014.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, it is
Ordered that the motion is granted to the extent that reargument is granted and, uponreargument, the decision and order of this Court dated October 1, 2014 (Hertzel v Town of PutnamVal., 121 AD3d 641 [2014]), is recalled and vacated, and the following decisionand order is substituted therefor, and the motion is otherwise denied:
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, and eighth causes of action, and substitutingtherefor provisions denying those branches of the motion; as so modified, the order isaffirmed; and it is further,
[*2] Ordered thatone bill of costs is awarded to the plaintiffs/petitioners.
In April 2007, the Peekskill Hollow Brook (hereinafter the brook) flooded anddamaged a retaining wall and a garage building (hereinafter the subject property) in thedefendant/respondent, Town of Putnam Valley. The garage building, the rear of whichbordered the brook, was occupied by an automotive repair business, theplaintiff/petitioner Kappel's Garage, Inc., doing business as George's Super Service(hereinafter Kappel's Garage). The subject property was owned by the plaintiff/petitionerValley Corners Realty, Inc. (hereinafter Valley Corners), and both Valley Corners andKappel's Garage were owned by the plaintiff/petitioner George Hertzel (hereinaftercollectively the plaintiffs).
After the April 2007 flooding, the Town inspected the subject property, determinedthat the retaining wall and the rear portion of the garage building were unsafe, anddirected Valley Corners and Hertzel to make repairs. Hertzel shored up the slab of thegarage building, which had been undermined, but did not repair either the building'sfoundation or the retaining wall, despite the Town's repeated demands 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 subject property, both above ground and in undergroundstorage tanks, and that further flooding could cause the retaining wall and the garagebuilding to collapse into the brook. The Town Board further concluded that, if a collapseoccurred, toxic substances could be introduced into the brook, which served as part ofthe drinking water supply for the nearby City of Peekskill. The Town deemed thesituation to be an emergency, based in part upon the fact that, pursuant to regulations ofthe New York State Department of Environmental Conservation, no work along thebrook could be performed between October 1 and April 30 in any year, and the concernthat, if work was not completed before October 1, 2008, flooding in the spring of 2009could cause a collapse of the garage building and retaining wall and contaminate thewater supply. Accordingly, in the Resolution, the Town Board directed the emergencyrepair or demolition of the retaining wall and the undermined portion of the garagebuilding. Although the Resolution authorized immediate action, town officials gaveValley Corners 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 third, fourth, fifth, sixth, and seventh causes of action, the plaintiffs sought, ineffect, to annul the tax assessment referable to the cost of demolition of the retaining walland rear 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 thesubject property. They likewise contended that the Town failed to give them propernotice and an opportunity to be heard, [*3]as required bysection 66-11. Since the substance of these causes of action was a challenge toadministrative decisions and a special tax assessment, the Supreme Court properlyconcluded that these causes of action constituted requests for relief pursuant CPLRarticle 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 third, fourth, fifth, sixth, and seventhcauses of action. Accordingly, the court properly directed the dismissal of these causes ofaction as time-barred, since the plaintiffs commenced this hybrid action/proceeding morethan four months after the adoption of the Resolution and the imposition of the specialtax assessment (see California Suites, Inc. v Russo Demolition Inc., 98 AD3d at154).
The Supreme Court erred, however, in granting those branches of the Town's motionwhich were for summary judgment dismissing the first, second, and eighth causes ofaction. These causes of action assert claims, inter alia, for damages resulting from thedestruction of a portion of the garage building and the interruption of the plaintiffs'business. Pursuant to CPLR 7806, where a CPLR article 78 petitioner seeks damages aswell as the annulment of a governmental determination, "[a]ny restitution or damagesgranted to the petitioner must be incidental to the primary relief sought by the petitioner,and must be such as he [or she] might otherwise recover on the same set of facts in aseparate action or proceeding suable in the supreme court against the same body orofficer in its or his official capacity" (CPLR 7806). "[W]here the thrust of the lawsuit isthe review of an adverse . . . agency determination, with the monetary reliefincidental, [the] Supreme Court may entertain the entire case under CPLR article 78"(Matter of Gross v Perales, 72 NY2d 231, 234 [1988]). "Whether the essentialnature of the claim is to recover money, or whether the monetary relief is incidental to theprimary claim, is dependent upon the facts and issues presented in a particular case"(id. at 236; see Murphy v Capone, 191 AD2d 683, 684 [1993]). Contraryto the Supreme Court's determination, the claims asserted in the first, second, and eighthcauses of action were not incidental to the plaintiffs' CPLR article 78 challenges to theResolution and the special tax assessment (see generally Metropolitan Taxicab Bd. of Trade v New York CityTaxi & Limousine Commn., 115 AD3d 521, 522 [2014]; cf. ABCRadio Network v State of New York Dept. of Taxation & Fin., 294 AD2d 213,214 [2002]; Matter of Passaro v Lake George Park Commn., 288 AD2d 678, 679n [2001]; Matter of Adams v Welch, 272 AD2d 642, 643-644 [2000];Murphy v Capone, 191 AD2d at 684-685; Matter of Golomb v Board ofEduc., 92 AD2d 256, 260-261 [1983]). Therefore, these causes of action were notasserted in connection with the CPLR article 78 portion of this hybrid action/proceeding,and were not barred by the four-month statute of limitations applicable to CPLR article78 proceedings (see CPLR 217). Accordingly, the Supreme Court erred ingranting those branches of the Town's motion which were for summary judgmentdismissing the first, second, and eighth causes of action.
In light of our determination, we need not address the plaintiffs' remainingcontentions. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.