Opinion
No. 924 CA 22-00808
02-03-2023
IN THE MATTER OF CAYUGA NATION, GORDON BURGESS AND JOAN BURGESS, PETITIONERS-PLAINTIFFS-APPELLANTS, v. TOWN OF SENECA FALLS, RESPONDENT-DEFENDANT-RESPONDENT, ET AL., RESPONDENTS-DEFENDANTS.
BARCLAY DAMON LLP, SYRACUSE (LEE ALCOTT OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS.
BARCLAY DAMON LLP, SYRACUSE (LEE ALCOTT OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Seneca County (Daniel J. Doyle, J.), entered March 1, 2022 in a proceeding pursuant to CPLR article 78 and declaratory judgment action. The judgment, insofar as appealed from, granted that part of the motion of respondent-defendant Town of Seneca Falls seeking to dismiss the second cause of action.
It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in part and the second cause of action is reinstated.
Memorandum: Petitioners-plaintiffs (petitioners) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a declaration that certain provisions of the Town of Seneca Falls Zoning Local Law (zoning code), prohibit respondent-defendant Carlin Seneca-John, doing business as Gramma Approved Sovereign Trades, from operating a commercial enterprise out of his residence. Despite petitioners' objections to the operation of Seneca-John's business on the ground that it was not a permitted use (see Town of Seneca Falls Zoning Local Law § 300-14 [A]), respondent-defendant Town of Seneca Falls (Town) allegedly failed to enforce the zoning code, thereby allowing Seneca-John to continue to operate his business as a nonconforming use on the premises. The Town moved to dismiss the petition-complaint against it, and Supreme Court granted the motion. As limited by their brief, petitioners appeal from the ensuing judgment to the extent that it granted the motion with respect to the second cause of action, seeking a declaratory judgment, on the ground that they lacked standing. We reverse the judgment insofar as appealed from.
We agree with petitioners that the court erred in granting the motion with respect to the second cause of action. "Standing 'is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation'" (Matter of Barbeau v Village of LeRoy, 181 A.D.3d 1155, 1157 [4th Dept 2020], quoting Society of Plastics Indus. v County of Suffolk, 77 N.Y.2d 761, 769 [1991]). Nonetheless, "a party's lack of standing does not constitute a jurisdictional defect" (Consumer Solutions, LLC v Charles, 137 A.D.3d 952, 953 [2d Dept 2016]; see HSBC Bank, USA, N.A. v Taher, 104 A.D.3d 815, 817 [2d Dept 2013]; U.S. Bank, N.A. v Emmanuel, 83 A.D.3d 1047, 1048-1049 [2d Dept 2011]), and therefore a challenge to a party's standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss (see U.S. Bank N.A. v Nelson, 169 A.D.3d 110, 114 [2d Dept 2019], affd 36 N.Y.3d 998 [2020]; Matter of Fossella v Dinkins, 66 N.Y.2d 162, 167 [1985]; GMAC Mtge., LLC v Coombs, 191 A.D.3d 37, 44-45 [2d Dept 2020]). Here, the Town's motion with respect to the second cause of action was not based on petitioners' alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action (see Barbeau, 181 A.D.3d at 1157; Matter of Associated Gen. Contrs. of NYS, LLC v New York State Thruway Auth., 159 A.D.3d 1560, 1560 [4th Dept 2018]).