Opinion
July 9, 1990
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the order and judgment is affirmed, with costs.
The plaintiff alleged that he caused certain improvements to be made on his property in reliance on assurances by the defendants Town of East Hampton and Larry Penny that he would thereafter be granted a variance. Despite such representations, the variance was never granted. The plaintiff did not bring a proceeding pursuant to CPLR article 78 to review the determination of the Town Board of Zoning Appeals. Instead he commenced this action seeking to recover damages for fraudulent misrepresentation, and breach of implied contract, as well as under the theory of quasi contract. We agree with the Supreme Court that the complaint must be dismissed for failure to state a cause of action.
It is fundamental that a municipality can only contract for an authorized purpose and then only in the manner provided by statute (see, Corning v. Village of Laurel Hollow, 48 N.Y.2d 348; New York Tel. Co. v. Town of N. Hempstead, 41 N.Y.2d 691; Parone v. Rivers, 84 A.D.2d 686; Gardner v. Town of Cameron, 155 App. Div. 750, affd 215 N.Y. 682). Even where municipalities have accepted benefits, they will not be held liable under unauthorized agreements (see, Parsa v. State of New York, 64 N.Y.2d 143, 147; Seif v. City of Long Beach, 286 N.Y. 382; Albany Supply Equip. Co. v. City of Cohoes, 25 A.D.2d 700; Lutzken v. City of Rochester, 7 A.D.2d 498, 501). In the present case, it is undisputed that a contract was never approved by the Town Board and never executed by the Town Supervisor, as required by Town Law § 64 (6). Moreover, even if a contract had been entered into with all the requisite formalities, it is doubtful that a town could validly contract away its authority to make future zoning determinations (see, Atlantic Beach Prop. Owners Assn. v. Town of Hempstead, 3 N.Y.2d 434, 438; Matter of Andgar Assocs. v. Board of Zoning Appeals, 30 A.D.2d 672; Matter of New York City Hous. Auth. v. Foley, 32 Misc.2d 41; cf., Matter of E.F.S. Ventures v Foster, 71 N.Y.2d 359, 369). Accordingly, the plaintiff failed to allege that an enforceable contract existed between him and the town.
The plaintiff has failed to allege facts entitling him to recover under a theory of quasi contract. Quasi contract is an equitable concept which essentially stands for the proposition that a party should not be entitled to enrich himself unjustly at the expense of another (see, Parsa v. State of New York, supra; Bradkin v. Leverton, 26 N.Y.2d 192, 196-197; Stanford Hgts. Fire Dist. v. Town of Niskayuna, 120 A.D.2d 878; Ptachewich v Ptachewich, 96 A.D.2d 582). In the instant case, none of the alleged facts indicate that the town has unfairly enriched itself at the plaintiff's expense.
Nor can the plaintiff recover under the causes of action sounding in tort. It is well settled that zoning decisions are discretionary acts for which an official and a municipality cannot be held liable (Tango v. Tulevech, 61 N.Y.2d 34, 40; Ilson v. Incorporated Vil. of Ocean Beach, 79 A.D.2d 697; Rottkamp v Young, 21 A.D.2d 373, affd 15 N.Y.2d 831). Thus, the court properly dismissed the tort causes of action.
The plaintiff has failed to allege facts entitling him to recover under the theory of equitable estoppel or under the theory that he has acquired vested rights (see, Matter of E.F.S. Ventures v. Foster, 71 N.Y.2d 359, supra; Matter of Jayne Estates v. Raynor, 22 N.Y.2d 417; Matter of Lefrak Forest Hills Corp. v Galvin, 40 A.D.2d 211, 218; Adgar Assocs. v. Board of Zoning Appeals, supra; Town of Lloyd v. Kart Wheelers Raceway, 28 A.D.2d 1015; Reichenbach v. Windward at Southampton, 80 Misc.2d 1031, 1034).
The court properly denied the plaintiff's motion to amend the complaint, since even as amended, the complaint still fails to state a cause of action. In light of the foregoing conclusions, it is unnecessary to consider the arguments regarding the late notice of claim. Brown, J.P., Lawrence, Kooper and O'Brien, JJ., concur.