Opinion
106513/2006.
Decided May 5, 2010.
Mitchell Silberberg Knupp, New York, New York, Attorney for the Plaintiff.
Reppert Kelly, LLC, Basking Ridge, New Jersey, Attorney for the Defendant.
This is an action by plaintiff Neil Diamond ("plaintiff") for a mandatory injunction directing defendants Marianne Nestor and Peggy Nestor (collectively "defendants"), the owners of a building located adjacent to plaintiff's co-operative apartment, to remove a rooftop structure from their building on the basis that the structure violates the height limitations of the zoning laws. The parties have not completed discovery and a Note of Issue has not been filed. Plaintiff now moves for summary judgment, pursuant to CPLR 3212, granting an injunction directing defendants to remove the structure. Defendants oppose the motion and cross-move for summary judgment dismissing the complaint or, alternatively, compelling plaintiff to comply with discovery demands pursuant to CPLR 3124.
BACKGROUND
In support of his motion for summary judgment, plaintiff submits, inter alia, the complaint and first amended answer; photographs depicting the location of the structure; a Notice of Violation and Hearing from the New York City Department of Buildings ("DOB"); a decision of the New York City Environmental Control Board ("ECB"); a letter from the ECB denying an administrative appeal; and a document from the DOB approving renovations to plaintiff's own apartment. In opposition and in support of their cross-motion for summary judgment, defendants submit, inter alia, notices for plaintiff's deposition and for permission to inspect plaintiff's apartment; a letter from plaintiff's counsel dated August 8, 2008; and the affidavits of Robert B. Pauls, Joseph Trivisonno and Joseph Sultana, Jr. The undisputed facts are as follows.
Defendants are the owners of a building located at 15 East 63rd Street, New York, New York ("the Nestor Building"). Plaintiff owns a co-operative apartment on the top floor of an adjacent building at 17 East 63rd Street. Plaintiff's proprietary lease gives him the exclusive right to the use and enjoyment of his apartment and the rooftop of his building.
In 2005, plaintiff renovated his apartment and rooftop. During the course of the renovations, it was observed that defendants had commenced construction of a mezzanine structure on the roof of their building that directly overlooked plaintiff's apartment. Plaintiff alleges that the structure violates the height limitations of Section 23-633 of the New York City Zoning Resolution ("Zoning Resolution") because it increased the height of the Nestor Building to more than 85 feet, and the Zoning Resolution limits the height of buildings in a R8B zoning district to a maximum of 75 feet.
On June 8, 2005, the DOB issued a Notice of Violation and Hearing charging defendants with failure to comply with the height regulations of the Zoning Resolution by illegally extending the building vertically by 10 feet. Defendants were directed to conform to the zoning height regulations forthwith. On September 27, 2006, following an evidentiary hearing attended by plaintiff's counsel as a citizen-complainant observer, the ECB issued a decision upholding the DOB's determination that defendants' construction violated the Zoning Resolution. The ECB determined that the structure increased the height of the Nestor Building to more than 85 feet, and that the Zoning Resolution limited buildings in a R8B zoning district to 75 feet. On June 19, 2008, the ECB denied defendants' request for an administrative appeal. Defendants did not thereafter bring an Article 78 proceeding to challenge the DOB and ECB administrative determinations.
Plaintiff commenced the present action on March 12, 2006, alleging in the complaint that the structure has caused the value of his apartment to substantially diminish, and that the use and enjoyment of his apartment and rooftop has been irreparably damaged and cannot be compensated in money damages. He also submits documentation from the DOB indicating that renovations to his own apartment and rooftop were in compliance with zoning laws and approved by the DOB in 2006.
This action was stayed on October 5, 2006, pending the proceedings before the ECB. This Court lifted the stay on May 29, 2008.
Defendants do not dispute the administrative findings of a zoning violation. Rather, they submit an affidavit of a real estate consultant, Robert B. Pauls, concluding that the structure has had no negative impact on the value of plaintiff's apartment. They also submit an affidavit of architect Joseph Sultana, Jr. regarding the physical and structural impact on the Nestor Building and adjacent buildings if the Court were to order the demolition and removal of the structure. Sultana concludes that removing any portion of the rooftop structure would be highly detrimental to the Nestor Building and the adjacent buildings at 17 East 63rd Street and 13 East 63rd Street. Defendants additionally claim that plaintiff himself violated the zoning laws, and they submit an affidavit from architect Joseph Trivisonno concluding that the renovations to plaintiff's apartment and rooftop exceeded zoning height limitations and that plaintiff did not obtain a zoning variance.
Defendants served discovery requests for plaintiff's deposition on August 15, 2008, and for an inspection of plaintiff's apartment on September 17, 2009. On August 8, 2009, plaintiff's counsel gave written notice that plaintiff would not appear for the deposition. Although plaintiff has served responses to defendants' written discovery requests, he has refused to appear for a deposition or to permit counsel to enter his apartment for an inspection and to take photographs of the premises.
DISCUSSION
Plaintiff argues that he is entitled to summary judgment granting a mandatory injunction directing defendants to remove the structure from the roof of the Nestor Building because there has been a final administrative determination that the structure violates the Zoning Resolution that is binding as a matter of law. In opposition and in support of their cross-motion for summary judgment, defendants argue that plaintiff, as a private citizen, lacks standing to bring an action to enforce the Zoning Resolution. Defendants also assert that plaintiff has unclean hands to seek equitable relief since the renovations to his own apartment allegedly violate zoning laws. On the merits, defendants claim that plaintiff is not entitled to an injunction, as a matter of law, since he submits no affidavits addressing how the structure has affected the value of his apartment, and, further, removal of the structure may irreparably harm other properties. Alternatively, defendants request the Court to deny plaintiff's motion as premature and to compel plaintiff to comply with their discovery requests. The Court will address these arguments in turn.
A. Summary Judgment Standards
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Andre v Pomeroy, 35 NY2d 361, 364). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; CPLR 3212 [b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see Smalls v AJI Indus., Inc. , 10 NY3d 733 , 735). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v Citibank Corp., 100 NY2d 72, 81; see also Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212 [b]).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues ( see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence ( see Negri v Stop Shop, Inc., 65 NY2d 625, 626). If there is any doubt as to the existence of a triable issue, summary judgment should be denied ( see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231).
B. Standing
Plaintiff maintains that he has standing to bring an action to enforce the zoning laws, as a private citizen, since his apartment is located in close proximity to the Nestor Building which permits an inference of special damages, and because the Zoning Resolution is intended to protect against the loss of property value resulting from a zoning violation. Defendants argue that plaintiff lacks standing as he has submitted no specific, detailed evidence establishing that the value of his apartment or the character of the neighborhood has been affected by the structure, and because the alleged harm does not fall within the zone of interests protected by the Zoning Resolution.
To maintain a private action to enjoin a zoning violation, a plaintiff is required to establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant's activities ( see Little Joseph Realty, Inc. v Town of Babylon, 41 NY2d 738, 741-42; Zupa v Paradise Point Ass'n, Inc. , 22 AD3d 843 , 843 [2d Dept 2005] [to establish special damages it is necessary to show that there is some depreciation in the value of the premises due to the zoning violation).
It is well established, however, that a "property holder in nearby proximity to premises that are the subject of a zoning determination may have standing to seek judicial review without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity" ( Sun-Brite Car Wash, Inc. v Bd. of Zoning Appeals of Town of N. Hempstead, 69 NY2d 406, 409-10; see also Williams v Hertzwig, 251 AD2d 655, 656 [2d Dept 1998] ["An allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury"]; Center Square Ass'n, Inc. v City of Albany Bd. of Zoning Appeals , 9 AD3d 651 , 652 [3d Dept 2004]). Moreover, the plaintiff "must also satisfy the other half of the test for standing to seek judicial review of administrative action — that the interest asserted is arguably within the zone of interest to be protected by the statute'" ( Sun-Brite, 69 NY2d at 414, quoting Matter of Dairylea Coop. v. Walkley, 38 NY2d 6, 9; see also Zupa, 22 AD3d at 844).
Here, plaintiff clearly meets the first half of the test for standing as it is undisputed that his apartment is located directly adjacent to the structure. Thus, since plaintiff has prima facie established that his property is in "close proximity" to the claimed zoning violation, his damages for standing purposes may be inferred ( see John John, LLC v Planning Bd. of Town of Brookhaven , 15 AD3d 486 , 487 [2d Dept 2005] [where it was undisputed that the petitioner's property and the subject property were adjacent to each other, the proximity allegations in the amended petition were sufficient to establish standing prima facie] ; Williams, 251 AD2d at 656 [same]).
Since "close proximity alone is insufficient to confer standing" ( see Zupa, 22 AD3d at 844), plaintiff must also demonstrate that his interest is within the "zone of interest" protected by the Zoning Resolution. Zoning laws are enacted to "protect the health, safety, and welfare of the community" ( id.). Plaintiff's allegations that the zoning height violations substantially diminish the value of his apartment and interfere with the use and enjoyment of his apartment and rooftop fall within the zone of interests protected by the Zoning Resolution ( see Sun-Brite, 69 NY2d at 412 [zoning laws protect against "diminution in the value of the property by nonpermitted uses"]; Oefelein v Town of Thompson Planning Bd. , 9 AD3d 556 , 557-58 [3d Dept 2004] [contention that property value would be diminished by authorization of a nonpermitted use in a restricted zone fell within zone of interests of zoning regulations]; Center Square, 9 AD3d at 653 [concern that increased density on block would reduce property value fell within zone of interests protected by zoning laws]; Friedhaber v Town Bd. of Town of Sheldon, 2007 WL 2727794, *3 [NY Sup. Ct. Wyoming Co. 2007] [alleged harms that met zone of interests test included potential decreases in property value and ability to peacefully and quietly enjoy property], aff'd, 59 AD3d 1006 [4th Dept 2009]; cf. Cleaners v Zoning Bd. of Appeals of Vil. of Irvington , 57 AD3d 683 , 684 [2d Dept 2008] [fear of increased business competition was not an interest within the zone of interests protected by the relevant zoning regulations]).
The Court therefore concludes that plaintiff has standing to bring this action ( see J M Harriman Holding Corp. v. Zoning Bd. of Appeals of Vil. of Harriman , 62 AD3d 705, 706 [2d Dept 2009] [holding that trial court erred in dismissing petition for lack of standing where petitioner established that its property was in close proximity to the subject property, that the installation of a fence would change the character of the neighborhood, and that the value of its property would be affected]).
C. The Doctrine of Unclean Hands
Defendants also claim that plaintiff has unclean hands to seek equitable relief since the renovations to his own apartment allegedly violate the zoning laws. Plaintiff responds that the doctrine of unclean hands provides no defense to this action and, in any event, his renovations were in fact approved by the DOB.
The Court disagrees with defendants' assertion that plaintiff cannot maintain this action because he has unclean hands. "Reliance upon the doctrine of unclean hands is applicable only when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct'" ( Citibank, N.A. v American Banana Co., Inc. , 50 AD3d 593 , 594 [1st Dept 2008], quoting Mehlman v Avrech, 146 AD2d 753, 754 [2d Dept. 1989]). In order to "charge a party with unclean hands, it must be shown that said party was guilty of immoral or unconscionable conduct directly related to the subject matter'" ( id., quoting Frymer v Bell, 99 AD2d 91, 96 [1st Dept 1984]). Here, there is no allegation that defendants have been injured in any way by the completely separate renovations to plaintiff's property, nor is there any evidence that plaintiff engaged in immoral or unconscionable conduct relating to the subject matter of the present litigation. Thus, defendants' reliance upon the doctrine of unclean hands is misplaced.
C. Entitlement To A Mandatory Injunction
With regard to the merits, plaintiff argues that he is entitled to a mandatory injunction directing defendants to remove the structure because the administrative findings that defendants violated the height limitations of the Zoning Resolution — which is the same zoning enforcement issue raised in this action — are final and binding as a matter of law.
Defendants argue that plaintiff is not entitled to such drastic relief because he submits no affidavits establishing how and to what extent the structure has affected the value of his apartment or diminished its use and enjoyment. Defendants also contend that the balance of equities tips in favor of denying an injunction because the affidavits of their architects indicate that the structure has had no impact on value, and the demolition and removal of the structure, if ordered, could cause substantial damage to the Nestor Building and neighboring properties.
It is well-settled that an "action for injunctive relief is the appropriate remedy of an aggrieved property owner who seeks to bar the erection of a structure on adjoining or nearby premises in violation of express zoning regulations" ( Lesron Junior, Inc. v Feinberg, 13 AD2d 90, 95 [1st Dept 1961]; see also Little Joseph, 41 NY2d at 744; Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 216-27).
"As a general rule, a mandatory injunction to remove or destroy a building is a drastic remedy which will only be granted if the benefit to the movant if the injunction were granted and the irreparable harm to the movant if the injunction were not granted substantially outweighs the injury to the party against whom the injunction is sought" ( Angiolillo v Town of Greenburgh , 21 AD3d 1101 , 1104 [2d Dept 2005]; see also Forstmann v Joray Holding Co., Inc., 244 NY 22, 29-30 [1926]; Sunrise Plaza Assoc., L.P. v International Summit Equities Corp., 288 AD2d 300, 301 [2d Dept 2001]; Medvin v Grauer, 46 AD2d 912, 912 [2d Dept 1974]). The courts will "generally exercise caution in granting such relief, and will generally not do so unless there is a substantial benefit to be gained by the plaintiff" ( Sunrise Plaza, 288 AD2d at 301).
Plaintiff has failed to establish grounds for a mandatory injunction directing defendants to remove the structure from the rooftop of the Nestor Building ( see Angiolillo, 21 AD3d at 1104). Though plaintiff alleges that the structure has harmed the value of his apartment and interfered with its use and enjoyment, he fails to present any evidence demonstrating the type or extent of the harm allegedly resulting from the claimed zoning violation. His submission of photographs and reliance on the administrative decisions, standing alone, is insufficient to justify the Court's directing the extraordinary relief plaintiff seeks ( see Sunrise-Plaza, 288 AD2d at 301 [court properly refused to order removal of structure that violated easement agreement because the record was "devoid of any evidence of the type of harm or damage to the plaintiff, or indeed, whether it even sustained any harm or damage, to justify the court directing the drastic relief the plaintiff requested"]; Hoffman Investors Corp. v Yuval, 33 AD3d 511, 511 [1st Dept 2006]). Moreover, defendants have submitted evidence indicating that removal of the structure could cause substantial harm to the Nestor Building and neighboring properties.
Therefore, upon weighing the relative circumstances, the Court concludes that there is "no evidentiary support for a finding that plaintiff would suffer irreparable harm substantially outweighing injury the injunction would cause [to defendants]" ( Hoffman, 33 AD3d at 511). Accordingly, plaintiff's motion for summary judgment ordering the structure removed is denied.
D. Defendants' Cross-Motion For Summary Judgment
Defendants cross-move for summary judgment dismissing the complaint on the grounds that the structure has had no impact that would result in a diminution in value to plaintiff's apartment or damage to its use and enjoyment. In the alternative, they request an order compelling plaintiff to comply with their discovery demands for plaintiff to appear for a deposition and to allow an inspection of his apartment. Plaintiff has offered no explanation for his refusal to comply with the discovery demands.
Summary judgment dismissing the complaint is denied as material issues of fact remain in dispute ( see Winegrad, 64 NY2d at 853). Defendants' cross-motion to compel discovery is granted to the extent that the parties are ordered to appear for a status conference in this Court on May 12, 2010.
For these reasons and upon the foregoing papers, it is,
ORDERED that plaintiff's motion for summary judgment is denied; and it is further,
ORDERED that defendants' cross-motion for summary judgment dismissing the complaint is denied; and it is further,
ORDERED that defendants' cross-motion for summary judgment compelling discovery is granted to the extent that the parties are directed to appear at a status conference on May 12, 2010, at 9:30 a.m., in Part 7, at 80 Centre Street; and it is further,
ORDERED that defendants shall serve a copy of this order, with notice of entry, upon plaintiff.
This constitutes the Decision and Order of the Court.