| Matter of S&R Dev. Estates, LLC v Feiner |
| 2015 NY Slip Op 07512 [132 AD3d 772] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of S&R Development Estates, LLC,Respondent, v Pauline J. Feiner et al., Appellants. |
Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (James M. Woolsey IIIand Jerry A. Cuomo of counsel), for appellants.
Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (William P. Harrington,James W. Glatthaar, and Justin M. Gardner of counsel), for respondent.
In a proceeding pursuant to CPLR article 78, inter alia, to review so much of adetermination of the Town of Greenburgh dated September 12, 2012, as amended theTown's Official Zoning Map to rezone the petitioner's property, the appeal is from ajudgment of the Supreme Court, Westchester County (Cacace, J.), entered August 13,2013, which granted the petition.
Ordered that the judgment is affirmed, with costs.
In 2006, the petitioner purchased property located in Scarsdale (hereinafter theproperty), in the Town of Greenburgh, which was then zoned in a multifamily district. In2007, the petitioner submitted a site plan application to build a multifamily developmenton the property. Thereafter, the Commissioner of Planning for the Town's Department ofCommunity Development and Conservation issued a memorandum directing the TownEngineer to alter the Official Zoning Map to reflect that the property was in asingle-family district. The Commissioner advised the Town's Zoning Board of Appeals(hereinafter ZBA) that the property had been placed in a multi-family district in error.The ZBA denied the petitioner's appeal from the Commissioner's determination, afterwhich the petitioner commenced a proceeding pursuant to CPLR article 78 to review theZBA's determination (hereinafter proceeding I). In a judgment entered January 11, 2012, the Supreme Court granted thepetition, determining that the official zoning map had been amended without notice and a hearing as required underTown Law §§ 264 (1) and 265 (1) and that the ZBA's finding that anerror in an earlier zoning map had been carried forward to the current map was arbitraryand capricious and based on community pressure and bad faith. The Supreme Courtdeclared that the property was located in the "CA-I" multifamily zone. Shortly thereafter,the petitioner submitted another site plan application. While the site plan application wasunder review, the Town Board passed resolutions that, among other things,rezoned various properties, including the petitioner's. As a result, the property wasrezoned to the "R-20" single-family district. The petitioner commenced the instantproceeding pursuant to CPLR article 78, among other things, to annul so much of theresolution as amended the official zoning map and changed the property's zoning from multifamily to single family.The Supreme Court granted the petition.
"Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in asubsequent action or proceeding an issue clearly raised in a prior action or proceedingand decided against that party [or those in privity], whether or not the tribunals or causesof action are the same' " (Parker v Blauvelt Volunteer Fire Co., 93 NY2d343, 349 [1999], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984];see 47 Thames Realty, LLC vRusconie, 85 AD3d 853 [2011]). "This doctrine applies only 'if the issue in thesecond action is identical to an issue which was raised, necessarily decided and materialin the first action, and the [party to be bound] had a full and fair opportunity to litigatethe issue in the earlier action' " (City of New York v Welsbach Elec. Corp., 9 NY3d 124,128 [2007], quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349; see Maybaum v Maybaum, 89AD3d 692, 695 [2011]).
Here, the doctrine of collateral estoppel precluded the Town from relitigating theissue raised and decided in proceeding I. The Town argued in proceeding I that the 1997 official zoning map showing that the property was zoned as multifamily was the result ofan error, and the Supreme Court expressly determined that the ZBA's finding that the official zoning map had carried forward an error from the previous map was arbitrary andcapricious and based on community pressure and bad faith. The instant proceedingconcerns the Town's amendment of the official zoning map to correct an error and show that the property was properly zoned ina single-family district, the same issue that was decided in proceeding I. Moreover, theTown had a full and fair opportunity to litigate the issue in proceeding I. Accordingly,the Supreme Court properly granted the petition.
In view of our determination, we need not address the parties' remaining contentions.Mastro, J.P., Cohen, Maltese and Barros, JJ., concur.