Opinion
11470-11471 Index 159303/18
05-07-2020
In re CUCS HOUSING DEVELOPMENT FUND CORPORATION IV, et al., Petitioners–Respondents, v. Clifford S. AYMES, Respondent–Appellant.
Clifford S. Aymes, appellant pro se. Tuttle Yick LLP, New York (Gregory O. Tuttle of counsel), Henry H. Korn, PLLC, New York (Henry H. Korn of counsel) and Klein Slowik PLLC, New York (Christopher M. Slowik of counsel), for respondents.
Clifford S. Aymes, appellant pro se.
Tuttle Yick LLP, New York (Gregory O. Tuttle of counsel), Henry H. Korn, PLLC, New York (Henry H. Korn of counsel) and Klein Slowik PLLC, New York (Christopher M. Slowik of counsel), for respondents.
Acosta, P.J., Renwick, Richter, Gonza´lez, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about February 27, 2019, which, insofar as appealed from, denied respondent's motion for a default judgment or summary judgment on his counterclaim to enjoin construction on petitioners' property, unanimously affirmed, without costs. Order, same court and Justice, entered August 26, 2019, which denied respondent's motion to vacate an order, same court and Justice, entered July 23, 2019, directing him to allow petitioners access to his property to install overhead protection, and denied his cross motions to dismiss the petition and for summary judgment on his counterclaim to enjoin construction, unanimously affirmed, without costs.
Petitioners commenced this special proceeding pursuant to RPAPL 881 seeking a license to access and protect respondent's property from damage during construction on petitioners' adjoining property. In this instance, where the Department of Buildings rejected respondent's challenge to petitioners' plan and no Article 78 proceeding was filed, we take no position on the merits.
"[A]n 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 v. Feinberg, 13 A.D.2d 90, 95, 213 N.Y.S.2d 602 [1st Dept. 1961] ; accord Matter of Sun–Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead , 69 N.Y.2d 406, 412, 515 N.Y.S.2d 418, 508 N.E.2d 130 [1987] ). Viewed in this light, respondent was not entitled to dismissal of the petition or summary judgment on his counterclaim to enjoin construction. Respondent's motions and arguments were repetitive of his previous summary judgment motions ( Brown Harris Stevens Westhampton LLC v. Gerber , 107 A.D.3d 526, 527, 968 N.Y.S.2d 32 [1st Dept. 2013] ). Additionally, Supreme Court providently exercised its discretion in denying respondent's motion for a default judgment. He waived any objection to the timeliness of petitioners' reply by failing to object thereto within 15 days ( CPLR 2101[f] ; Ligotti v. Wilson , 287 A.D.2d 550, 551, 731 N.Y.S.2d 473 [2d Dept. 2001] ). Moreover, petitioners demonstrated a justifiable excuse for default in that it was not necessarily clear that respondent's pro se "addendum" to his answer with counterclaims constituted a counterclaim, as well as a potentially meritorious defense ( New Media Holding Co. LLC v. Kagalovsky , 97 A.D.3d 463, 465–466, 949 N.Y.S.2d 22 [1st Dept. 2012] ).
We have considered the parties' remaining contentions and find them unavailing.