Opinion
Index No.: 034875/2019
09-03-2020
API INDUSTRIES, INC. d/b/a ALUF PLASTICS, Petitioner, v. THE TOWN OF ORANGETOWN, THE ZONING BOARD OF APPEALS OF THE TOWN OF ORANGETOWN, and THE OFFICE OF BUILDING, ZONING, PLANNING, ADMINISTRATION AND ENFORCEMENT OF THE TOWN OF ORANGETOWN, Respondents.
NYSCEF DOC. NO. 93 To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. HON. PAUL I. MARX, J.S.C.
DECISION AND ORDER
Motion Sequence ## 2
Motion Date: July 1, 2020
The following papers numbered 1 through 8 were read on Respondents' motion to dismiss pursuant to CPLR §§ 3211(a)(1), (5) and (7), and 7804(f):
On July 1, 2020, Petitioner submitted correspondence to the Court requesting permission to submit a proposed Sur-Reply which was attached to the correspondence. Neither the CPLR nor the Part Rules allow for sur-reply papers. Therefore, the proposed Sur-Reply submitted by Petitioner was not considered by the Court.
| Notice of Motion/Affirmation of Judson K. Siebert, Esq. in Support/Exhibits 1-7/Respondents' Memorandum of Law in Support | 1-4 |
| Affirmation of John Patrick Curran, Esq. in Opposition/Exhibit A/Petitioner'sMemorandum of Law in Opposition | 5-6 |
| Reply Affirmation of Judson K. Siebert, Esq. in Further Support/Exhibits 1-2/Memorandum of Law in Reply | 7-8 |
Upon reading the foregoing papers, it is ORDERED that the motion is disposed as follows. BACKGROUND
Petitioner is an industrial plastics manufacturer with a facility located at 2 Glenshaw Street, Orangetown, New York ("the Facility"). According to Petitioner, the Facility is located in an "industrial corridor" along a small highway among a number of other commercial facilities and emissions-producing manufacturing plants. Petitioner manufactures a variety of plastics products at the Facility using two different types of manufacturing processes, both of which produce air emissions regulated by the New York State Department of Environmental Conservation ("NYSDEC").
On December 13, 2016, NYSDEC cited Petitioner for certain deficiencies in its air emissions control equipment. To resolve these deficiencies, Petitioner agreed to conduct an engineering review of the Facility for potential sources of odor emissions and to implement upgrades to the control equipment. Upon the recommendation of its engineering firm, Petitioner submitted plans to NYSDEC to upgrade the ventilation system ("the Upgrade").
In March 2017, after the Upgrade was approved by NYSDEC, Petitioner submitted the Upgrade to Respondent Town of Orangetown Zoning Board of Appeals ("ZBA") pursuant to Chapter 43, Section 10,334 of the Orangetown Town Code ("the Town Code") for approval. Petitioner needed a determination from ZBA that the Upgrade conformed to the performance standards set forth in Chapter 43, Section 4.1 of the Town Code before it could implement the Upgrade. Thereafter, Petitioner could apply for a building permit from Respondent Office of Building, Zoning, Planning, Administration and Enforcement of the Town of Orangetown ("OBZP") to proceed with the Upgrade.
The ZBA conducted two public hearings on Petitioner's application on May 3, 2017 and May 11, 2017. The ZBA issued a decision dated May 11, 2017 ("the ZBA Performance Standards Decision") approving Petitioner's application, subject to a number of specific conditions. First, ZBA required that Petitioner comply with the requirements set forth by the Town of Orangetown's ("Town") Department of Environment Management and Engineering ("DEME") and the Bureau of Fire Prevention ("BFP") in reports submitted to ZBA dated May 3, 2017 and May 1, 2017, respectively. Second, ZBA required continued compliance with the performance standards set forth in the Town Code for obtaining a building permit or certificate of occupancy. ZBA specified that (a) Petitioner must complete all installations within 8 weeks of obtaining a building permit, (b) the installations would be subject to inspections and/or on-site testing by OBZP, DEME and/or Town-retained expert consultants, (c) Petitioner must update the Town's Performance Standards form to include the NYSDEC's Permit Number, and (d) Petitioner must take remedial action to address stack air testing which matched the NYSDEC's requirements. Third, ZBA required that DEME and/or OBZP investigate any alleged violation of performance standards by Petitioner. Further to that, ZBA would investigate any violation found by DEME or OBZP and conduct public hearings on notice to Petitioner. ZBA reserved its right to revoke and rescind its approval and Petitioner's building permit or certificate of occupancy, along with any other legal remedies to which the Town was entitled.
Respondents' attorney asserted that the ZBA Performance Standards Decision was never challenged by an Article 78 proceeding and "the statute of limitations to do so has elapsed." Affirmation of Judson K. Siebert, Esq. in Support, ¶ 25. Although not directly argued in their papers, Respondents suggest that Petitioner failed to exhaust its administrative remedies by failing to challenge the ZBA Performance Standards Decision. That argument is rejected. Petitioner was not adversely affected by the ZBA Performance Standards Decision at the time it was issued. Therefore, any Article 78 proceeding commenced at that time would not have been justiciable.
On June 14, 2017, OBZP issued a building permit ("the Building Permit") to Petitioner for the Upgrade, authorizing the "[i]nstallation of 10 roof mounted units for make-up air and 2 filtered exhaust units as per dec [sic] approval." Amended Verified Petition and Complaint, Exhibit C. The Building Permit stated that it would expire exactly two years from the date of issuance.
In December 2017, Michael Manzare ("Manzare"), a Building Inspector for OBZP, inspected the Facility after allegedly receiving odor complaints from members of the community.
On February 16, 2018, Jane Slavin ("Slavin"), Director of OBZP, issued a report ("the Slavin Report") to ZBA recounting Manzare's personal observations of Petitioner's alleged non-compliance with Specific Condition # 4 of the ZBA Performance Standards Decision ("Specific Condition # 4"), which required Petitioner to abide by the performance standards set forth in the Town Code. At the conclusion of the Slavin Report, OBZP determined that it had grounds to support a finding that Petitioner violated Specific Condition # 4.
On March 8, 2018, based upon the Slavin Report, ZBA posted a Notice of Public Hearing for March 21, 2018 to investigate whether Petitioner had violated Specific Condition # 4. The hearing date was later adjourned to March 26, 2018. Petitioner alleged that it did not receive a copy of the Slavin Report until March 20, 2018.
ZBA held a total of four hearings on this issue (collectively "the ZBA Hearings"). The first hearing took place on March 26, 2018 ("the March 26 Hearing"). Petitioner alleged that it was prevented from addressing the concerns set forth in the Slavin Report at the hearing. ZBA determined that it did not have sufficient evidence to make a determination regarding Petitioner's alleged violations. ZBA decided to hire various expert consultants recommended by Slavin to report on the circumstances at the Facility,
At the second ZBA hearing on April 4, 2018 ("the April 4 Hearing"), ZBA adopted Slavin's recommendation to hire a private expert engineer to review the Upgrade and determine whether Petitioner violated Specific Condition # 4.
ZBA held its third hearing on September 5, 2018 ("the September 5 Hearing") at which ZBA indicated that it would recommend Fellenzer Engineering ("Fellenzer"), a private consulting firm, to be hired by the Town Board to test the Facility for illegal emissions. The Town Board subsequently approved the hiring of Fellenzer, and a report from Fellenzer ("the Fellenzer Report") was submitted to the Town Board on January 23, 2019 and later to ZBA.
The final ZBA Hearing was held on June 19, 2019 ("the June 19 Hearing"). At the June 19 Hearing, ZBA rendered its Decision ("the ZBA Non-Compliance Decision") finding that Petitioner violated Specific Condition # 4. The ZBA Non-Compliance Decision revoked and rescinded both the ZBA Performance Standards Decision granting approval, and the Building Permit issued to Petitioner.
On July 26, 2019, Petitioner filed the instant Petition alleging Article 78 and 42 U.S.C. § 1983 claims against Respondents. Petitioners primarily sought a declaratory judgment from the Court reversing the ZBA Non-Compliance Decision and restoring the Building Permit.
On August 29, 2019, a criminal trial was commenced against Petitioner in the Town Justice Court ("the Justice Court"). Petitioner was charged with five separate counts of violating Section 4.182 of the Town Code ("Section 4.182"), which prohibits objectionable odorous emissions from being produced.
The criminal trial commenced on August 29, 2019 was the second time Petitioner faced criminal charges in the Justice Court. Sometime in October 2017, a separate criminal action was commenced against Petitioner arising from five alleged separate violations of Section 10.221 of the Town Code. The prosecution argued that the Building Permit was not valid because Petitioner did not complete work on the Upgrade within eight weeks of its issuance as required by the ZBA Performance Standards Decision. The Justice Court found Petitioner not guilty on all counts because ZBA had not properly invoked its right to investigate violations or revoke the Building Permit without notice to Petitioner.
On October 29, 2019, the parties herein stipulated to allow Petitioner to file an Amended Petition and Complaint by November 8, 2019, which was later extended to November 13, 2019.
On November 8, 2019, Petitioner's counsel filed an Affirmation of Agreement Extending Time to File Amended Pleading, which extended the deadline to file amended pleadings from November 8, 2019 to November 13, 2019.
On October 31, 2019, the Justice Court issued a Decision, Order and Verdict ("the Justice Court Decision") against Petitioner in the criminal proceeding, finding Petitioner guilty on four out of five counts of violating Section 4.182.
On November 8, 2019, OBZP sent a Violation Notice ("the Violation Notice") to Petitioner, advising that the Building Permit had been revoked and rescinded by the ZBA. The Violation Notice explained that revocation of the Building Permit resulted in Petitioner being in violation of Chapter 6, Section 6-14(B) of the Town Code, which required Petitioner to obtain a Certificate of Occupancy based upon the alterations to the building. The Violation Notice informed Petitioner that it had to apply for a new building permit within ten business days of the date of the notice, and that failure to do so could result in additional enforcement actions being brought against it.
On November 13, 2019, Petitioner filed its Amended Petition, which clarified its claims against Respondents and included an updated factual recitation which discussed the Violation Notice.
On February 10, 2020, Respondents filed the instant Motion to Dismiss seeking dismissal of (1) the Amended Petition pursuant to the doctrines of collateral estoppel/res judicata based upon the Justice Court Decision, and (2) Petitioner's claims against OBZP. In the alternative, Respondents requested that the instant action be stayed pending disposition of the appeal of the Justice Court Decision. DISCUSSION
Collateral Estoppel/Res Judicata
Respondents argued that the Justice Court Decision precluded Petitioner from bringing the instant action against ZBA because Petitioner had already been found guilty of violating Section 4.182 after the issue was fully litigated and decided on the merits. For this reason, Respondents argued that Petitioner's claims should be dismissed pursuant to the doctrine of collateral estoppel, which it argues is "a narrower species of res judicata". Respondents' Memorandum of Law in Support, 6.
Respondents argued that the Justice Court Decision fully adjudicated the issue of whether Petitioner complied with Section 4.182, and Petitioner had a full and fair opportunity to litigate that issue during the Justice Court proceedings. Respondents claimed that the Justice Court Decision made factual findings of guilt under a higher burden of proof than would be required in a civil proceeding. Respondents contended that the Justice Court Decision ultimately confirmed the ZBA Non-Compliance Decision and offered conclusive proof that Petitioner had violated the specific conditions of the ZBA Performance Standards Decision.
Petitioner contended that Respondents have not met their burden of proof in establishing the identicality of the issues litigated in the Justice Court proceeding to those being litigated in the instant action. Petitioner noted that the Justice Court proceeding merely litigated Petitioner's violation of Section 4.182, while the instant action seeks to litigate a variety of issues against Respondents, none of which were previously determined by the Justice Court. More specifically, Petitioner clarified that this action is challenging procedural irregularities in administrative proceedings against it and Respondents' authority in issuing administrative determinations against it.
Additionally, Petitioner maintained that collateral estoppel cannot be applicable in the instant matter because ZBA did not base its determination upon the same grounds on which the Justice Court reached its guilty verdict. Petitioner argued that the Justice Court Decision was issued after the ZBA Non-Compliance Decision issued on June 19, 2019. Further, Petitioner contended that the dates on which the Justice Court found Petitioner guilty of violating Section 4.182 were not the same dates used by ZBA in reaching its decision.
Petitioner argued that Respondents' reliance on collateral estoppel is misguided because the Justice Court Decision acknowledged that a different procedural process applies to challenges to a ZBA proceeding than those in a criminal enforcement proceeding under the Town Code. Petitioner's Memorandum of Law in Opposition, p. 12. Petitioner also stated that it was appealing the Justice Court Decision on the grounds that the Performance Standards listed in Section 4.182 were revised in the summer of 2018, and it was unclear which set of performance standards the Justice Court applied.
Respondents, in their reply, reiterated that the issue of whether Petitioner violated Section 4.182 is a determinative issue in the instant proceeding. Respondents contended that the later revisions to the Town's performance standards and any acknowledgement by the Justice Court of the later revisions to the Town Code do not prevent the doctrine of collateral estoppel from being applied in these circumstances.
The doctrine of res judicata precludes reconsideration of all claims which could or should have been litigated in the prior proceedings against the same party. Clark v Deutsche Bank Nat'l Trust Co, 182 AD3d 574, 575-76 [2nd Dept 2020] quoting Breslin Realty Dev Corp v Shaw, 72 AD3d 258, 263 [2nd Dept 2010]. The doctrine of collateral estoppel applies where an issue has been necessarily decided in a prior action, where the prior decision is determinative of the issues in the present action, and where there was a full and fair opportunity to contest the decision. Clark, 182 AD3d at 576 citing Breslin, 72 AD3d at 263. "[W]ith respect to administrative determinations, the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in a prior action or proceeding." Ryan v New York Tel. Co. 62 NY2d 494, 501 [1984].
The doctrines of res judicata and collateral estoppel are not applicable in the instant circumstances. Respondents' argument turns the doctrines on their head. Underlying applicability of the doctrines is the requirement of a prior proceeding during which the same issues were litigated between the same parties and a determination was made which bars re-litigation in a subsequent action. Here, the instant proceeding was filed on July 26, 2019, prior to the trial in Justice Court being commenced on August 29, 2019. Further, the disposition of the trial and the issues therein did not occur until October 31, 2019, long after this proceeding began. Therefore, the fundamental temporal predicates for applying res judicata and/or collateral estoppel are not met.
The other predicates for applying res judicata and/or collateral estoppel are similarly not met.
First, while Petitioner was a party to the criminal proceeding before the Justice Court, Respondents were not parties in that action. Thus, Petitioner could not have had a full and fair opportunity for judicial review of the ZBA Non-Compliance Decision in the criminal proceeding.
Second, the issues in the criminal action were different. Despite Respondents' arguments to the contrary, the Justice Court Decision determining Petitioner's guilt does not conclusively prove, as a matter of law, the fairness or correctness of the ZBA Non-Compliance Decision. The recommendation of the Slavin Report, which is what initiated ZBA's investigation and, ultimately, the ZBA Non-Compliance Decision, was based upon site inspections completed on December 8, 2017 and February 1, 2018. The Justice Court did not reach a determination as to whether Petitioner was in violation of the Town Code on either of those dates. It is unclear whether ZBA and the Justice Court considered any of the same evidence. Further, issues before this Court as to whether the ZBA Non-Compliance Decision was arbitrary and capricious, or whether Petitioner's due process rights were violated during the ZBA Hearings were not before the Justice Court. Therefore, while the Justice Court Decision may support or justify the ZBA's position, it cannot preclude Petitioner from obtaining review of the ZBA Non-Compliance Decision in this Court.
Third, most of the issues that Petitioner seeks to remedy in the instant proceeding can only be remedied in Supreme Court. Pursuant to Chapter 43, Section 10A.6 of the Town Code and CPLR § 7804(b), the Justice Court has no jurisdiction to resolve Petitioner's Article 78 challenge to the ZBA Non-Compliance Decision or issue the declaratory judgment that Petitioner seeks. Therefore, Petitioner could not have litigated its claims in the Justice Court proceeding.
It should also be noted that, in an Article 78 proceeding, the court's review is limited to the administrative record, namely those "facts and records adduced before the agency when the determination was made". Celestial Food Corp. of Coram, Inc v New York State Liq. Auth., 99 AD2d 25, 26-27 [2nd Dept 1984] [citations omitted]; See also Molloy v New York City Police Dept., 50 AD3d 98, 100 [1st Dept 2008]; Featherstone v Franco, 95 NY2d 550 [2000]. Neither the Justice Court Decision nor the evidence behind it are part of the administrative record under review.
Accordingly, the portion of Respondents' motion seeking to dismiss Petitioner's claims on the grounds of collateral estoppel or res judicata is denied.
Stay Pending Appeal of the Justice Court Decision
Respondents argued that, should the Court find that Petitioner's claims are not barred by collateral estoppel, then it should stay the instant proceedings pending the appeal of the Justice Court Decision. Respondents claimed that the concurrent litigation involving the issue of whether Petitioner is abiding by the required performance standards could result in conflicting decisions by the courts.
As stated above, the Justice Court Decision may involve different violations than those considered by ZBA in reaching the ZBA Non-Compliance Determination. Even if the Justice Court Decision is successfully appealed, the outcome will have no bearing on any of the issues presented in the instant proceeding for the same reasons that the instant action is not precluded by collateral estoppel or res judicata.
Accordingly, the portion of Respondents' motion seeking to stay the instant matter pending the appeal of the Justice Court Decision is denied.
Failure to State Cognizable Claims against OBZP
Article 78
Respondents argued that the Article 78 claims against OBZP should be dismissed because OBZP did not issue a final determination against Petitioner that can be challenged in an Article 78 proceeding. Respondents noted that OBZP did not issue the ZBA Non-Compliance Decision being challenged by Petitioner, and any notices issued by OBZP were not final determinations and, in any event, are not being challenged in the instant proceeding.
Further, Respondents contended that Petitioner did not exhaust its administrative remedies because it failed to challenge the Slavin Report within 30 days of its issuance by the OBZP pursuant to Chapter 43, Section 10.322(E) of the Town Code. Respondents characterized the Slavin Report as "a notice issued by [OBZP] alleging violations by [Petitioner] of the odor performance standards", and later as "a zoning determination by [OBZP]". Respondents' Memorandum of Law in Support, 3, 16. Respondents claimed that because Petitioner did not appeal the Slavin Report to ZBA within 30 days of its issuance, the Article 78 claims against OBZP must be dismissed.
Finally, Respondents claimed that Petitioner failed to state an Article 78 claim against OBZP because Petitioner improperly asserted that OBZP failed to timely "close out" the Building Permit. Respondents argued that OBZP could not have closed out the Building Permit until Petitioner's violations of the Town Code were resolved. Respondents asserted that, since the Justice Court already determined that Petitioner failed to comply with the Town Code, OBZP did not fail to act, and its actions cannot be arbitrary or capricious, as a matter of law.
Petitioner asserted that OBZP is a proper party to the proceeding because it seeks to compel OBZP to reinstate the Building Permit. Petitioner cited D.B.C.G., Inc. v Town of Ramapo, which provides that "a proceeding pursuant to CPLR article 78 to compel a body or officer to perform a duty imposed upon him by law must be brought against the body or officer whose performance is sought." 97 AD2d 533 [2nd Dept 1983]. Petitioner argued that, pursuant to Chapter 6, Section 6-5 and Chapter 6A, Section 6A-3 of the Town Code, OBZP is the only agency with the authority to issue and/or revoke the Building Permit. For this reason, Petitioner contended that OBZP must remain in the case so that the Court can direct it to act in accordance with its decision in this matter.
Petitioner interpreted Respondent's motion papers to state that Respondent criticized Petitioner for not appealing the Violation Notice to ZBA, instead of the Slavin Report. Petitioner cited East End Resources, LLC v Town of Southold Planning Bd for the proposition that, in an Article 78 proceeding, a final determination on the issue being challenged is not required where an appeal to the appropriate administrative entity would be futile. 135 AD3d 899, 901 [2nd Dept 2016]. Petitioner also pointed out that "an exception to the finality requirement exists where the municipal entity uses 'repetitive and unfair procedures in order to avoid a final decision'". Id. at 901 quoting Sherman v Town of Chester, 752 F3d 554, 561 [2nd Cir 2014]. Petitioner argued that appealing the Violation Notice to ZBA would have been futile because ZBA's position on the issue was already made clear.
In reply, Respondent pointed out that Petitioner misinterpreted Respondent's moving papers with regard to what "notice" Respondent believed should have been appealed. Respondent repeated its assertion that Petitioner should have appealed the Slavin Report and contended that Petitioner cannot claim "as an after-thought" that appeal of the Slavin Report to ZBA would have been futile. Memorandum of Law in Reply, 18.
The Court disagrees with Respondents' characterization of the Slavin Report as "notice" to Petitioner of a zoning determination by OBZP. A review of the Slavin Report indicates that it was addressed solely to ZBA, not to Petitioner, Nowhere in the Slavin Report does it indicate that an original or copy of the Report was forwarded to Petitioner at any time. Additionally, Petitioner alleged in the Amended Petition that it was unaware of the Slavin Report until March 8, 2020 and was unable to obtain a copy of the Slavin Report until March 20, 2020, more than 30 days after it had been issued. Without being properly notified, Petitioner could not have timely initiated an appeal to ZBA.
Furthermore, Specific Condition # 4 of the ZBA Performance Standards Decision required OBZP to investigate any alleged violation. If it believed a violation existed, OBZP was required to notify ZBA so that ZBA could conduct its own investigation and hold public hearings on the alleged violation. Based upon the language of the specific conditions, the Slavin Report cannot be construed as a final determination which Petitioner could have appealed to the ZBA. By its own earlier decision, ZBA was already charged with reaching the final determination as to whether Petitioner had violated the Performance Standards on the basis of OBZP's report.
Pursuant to the Town Code as cited by Petitioner, OBZP is the agency with authority to issue, revoke and/or reinstate building permits in Orangetown. To the extent that Petitioner seeks to have the Building Permit reinstated, it is appropriate that they are a named party in the action. Further, although OBZP did not issue the final determination being challenged in this action, the facts as alleged in the Amended Petition indicate that OBZP may have used "repetitive and unfair procedures in order to avoid a final decision" on "closing out" the Building Permit. East End Resources, 135 AD3d at 901. Additionally, the Violation Notice that OBZP issued preventing the continued operation of the Upgrade at the Facility did not need to be appealed to ZBA because ZBA had already "dug in its heels and made clear" its position, making any appeal futile. Id. At this stage, Petitioner has met its prima facie burden to establish Article 78 claims against OBZP. For these reasons, OBZP is not an improper party to the Article 78 claims.
Accordingly, the portion of Respondents' motion seeking to dismiss the Article 78 claims against OBZP is denied.
42 U.S.C. § 1983Respondents argued that the 42 U.S.C. § 1983 claims against OBZP should be dismissed because it is an administrative agency that is neither a "person" nor a "body" subject to civil rights claims pursued through this federal statute. Respondents contended that, since it is merely an administrative arm of a municipality, no claims can lie against it separate and apart from those against the municipality itself. Respondents' Memorandum of Law in Support, 17 citing Warner v Village of Goshen Police Dept, 256 FSupp2d 171 [SDNY 2003]; Fuller v. Davy, 2019 WL 3323524 [NDNY 2019]; DiBlanca v Town of Marlborough, 2014 WL 2866341 [NDNY 2014].
Petitioner asserted that "state courts allow a party to maintain a claim brought under 42 U.S.C. § 1983 against a department of a town (rather than only the town) in a hybrid Article 78 and 42 U.S.C. § 1983 proceeding." Petitioner's Memorandum of Law in Opposition, 15. Petitioner criticized Respondents' citations to federal caselaw because none of the cases involve Article 78 actions. Petitioner, again, cited to East End Resources, where the Second Department denied a motion for summary judgment on an equal protection claim in a hybrid Article 78 action. 135 AD3d at 900. Petitioner also cited to Greenfield v Town of Babylon Dep't of Assessment, where the Second Department held that the Village of Babylon was not a necessary party to the hybrid proceeding involving a 42 U.S.C. § 1983 claim. 76 AD3d 1071, 1074 [2nd Dept 2010]. The court found that the petitioner sought no relief from the village and no evidence was submitted showing that the village had a stake in the outcome of the proceeding. Id.
In reply, Respondents argued that, in 42 U.S.C. § 1983 actions, claims against administrative agencies are "redundant" of the claims against the entities they serve. Memorandum of Law in Reply, 17 citing Baker v Willett, 42 FSupp2d 192 [NDNY 1999].
It is well settled that "[u]nder New York law, departments which are merely administrative arms of a municipality, do not have a legal identity separate and apart from the municipality and cannot sue or be sued." Hall v City of White Plains, 185 FSupp2d 293, 303 [SDNY 2002]; See also Smith v Westchester County, 769 FSupp2d 448, 455, n 1 [2011]. "Accordingly, where both the municipality and the municipal agency have been named as defendants, courts have dismissed the claims against the agency." Smith, 769 FSupp2d at 455, n 1 citing Hall, 185 FSupp2d at 303.
East End Resources is not applicable to the issue of whether the 42 U.S.C. § 1983 claims should be dismissed as to OBZP. It does not appear that the respondents in East End Resources raised the issue of whether the administrative agency involved was a proper party for the 42 U.S.C. § 1983 claims.
Further, Greenfield is not applicable because the petitioner only sought a declaratory judgment from the court annulling the administrative decision issued by the Town's Department of Assessment, declaring its actions unconstitutional and enjoining it from taking similar future actions against other properties. In the instant action, Petitioner seeks damages under the 42 U.S.C. § 1983 claims resulting from the loss of the ability to operate its business without a valid building permit or certificate of occupancy. The Town of Orangetown is already a party to the instant action, which would be responsible for any monetary judgment issued against OBZP. Therefore, in order to avoid redundancy, the 42 U.S.C. § 1983 claims against OBZP must be dismissed.
Accordingly, the portion of Respondents' motion seeking to dismiss the 42 U.S.C. § 1983 claims against OBZP is granted. SUMMARY
It is hereby ORDERED that the portion of Respondents' motion seeking to dismiss Petitioner's claims on the grounds of collateral estoppel/res judicata is denied; and it is further
ORDERED that the portion of Respondents' motion seeking to stay the instant matter pending the appeal of the Justice Court Decision is denied; and it is further
ORDERED that the portion of Respondents' motion seeking to dismiss the Article 78 claims against OBZP is denied; and it is further
ORDERED that the portion of Respondents' motion seeking to dismiss the 42 U.S.C. § 1983 claims against OBZP is granted; and it is further
ORDERED that the parties shall appear before the Court for a preliminary conference on October 23, 2020. The parties will be informed of the time for a virtual conference by the Part Clerk. Counsel must provide the Clerk with contact information (emails/phone numbers) by no later than October 16, 2020.
The foregoing constitutes the Decision and Order of the Court. Dated: September 3, 2020
New City, New York
ENTER
/s/_________
HON. PAUL I. MARX, J.S.C.