Opinion
238 CA 17–01759
06-15-2018
In the Matter of Seth M. OLNEY, doing business as the Olney Place, Petitioner–Plaintiff–Respondent, v. TOWN OF BARRINGTON, Town of Barrington Zoning Board of Appeals, Respondents–Defendants–Appellants, Donald Banzhaf and Jane C. Banzhaf, Intervenors–Respondents–Defendants–Appellants.
HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–APPELLANTS. KNAUF SHAW LLP, ROCHESTER (JONATHAN R. TANTILLO OF COUNSEL), FOR INTERVENORS–RESPONDENTS–DEFENDANTS–APPELLANTS.
HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–APPELLANTS.
KNAUF SHAW LLP, ROCHESTER (JONATHAN R. TANTILLO OF COUNSEL), FOR INTERVENORS–RESPONDENTS–DEFENDANTS–APPELLANTS.
JESSICA L. BRYANT, GENEVA, AND THOMAS G. SMITH, ROCHESTER, FOR PETITIONER–PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously vacated and the appeals are dismissed without costs.
Memorandum: Respondents-defendants and intervenors-respondents-defendants (collectively, defendants) appeal from a judgment that purports to declare the rights of the parties in a longstanding zoning dispute regarding the right of petitioner-plaintiff (plaintiff) to serve alcohol in his store. Defendants' appeals appear to be premised upon their misconception that the judgment declared that respondent-defendant Town of Barrington (Town) "could not seek to enforce the use restrictions in the 2013 Special Use Permit in a way that prohibited [plaintiff] from serving food or beverages on the enclosed porch" and "that the [Alcoholic Beverage Control] Law wholly preempted local zoning laws and precluded the Town from enforcing the terms and conditions of [plaintiff's] 2013 Special Use Permit." The judgment made no such declarations, however. Rather, the judgment declared, inter alia, that the New York State Liquor Authority has exclusive jurisdiction to "grant" liquor licenses, a power that defendants have conceded throughout this litigation is not possessed by the Town. The remaining declarations in the judgment are entirely favorable to defendants.
Thus, we conclude that defendants are not aggrieved by the judgment, and their appeals must be dismissed (see CPLR 5511 ; Insurance Co. of State of Pa. v. Adessie Imports, Ltd. , 24 A.D.3d 230, 231, 806 N.Y.S.2d 486 [1st Dept. 2005] ; 308 W. 30th St. v. Cogan , 289 A.D.2d 93, 93, 734 N.Y.S.2d 155 [1st Dept. 2001] ; see generally Matter of Freck v. Town of Porter, 158 A.D.3d 1163, 1164, 71 N.Y.S.3d 252 [4th Dept. 2018] ). The fact that the judgment " ‘may remotely or contingently affect interests which [defendants] represent[ ] does not give [them] a right to appeal’ " ( Matter of DeLong , 89 A.D.2d 368, 370, 455 N.Y.S.2d 896 [4th Dept. 1982], lv denied 58 N.Y.2d 606, 460 N.Y.S.2d 1025, 447 N.E.2d 85 [1983], quoting Ross v. Wigg , 100 N.Y. 243, 246, 3 N.E. 180 [1885] ). Likewise, the fact that the judgment "may contain language or reasoning which [defendants] deem adverse to their interests does not furnish them with a basis ... to take an appeal" ( Pennsylvania Gen. Ins. Co. v. Austin Powder Co. , 68 N.Y.2d 465, 472–473, 510 N.Y.S.2d 67, 502 N.E.2d 982 [1986] ).
Finally, we note that the justiciable components of the underlying petition/complaint were fully adjudicated by a prior order from which no appeal was taken. The judgment on appeal is thus an "inappropriately rendered advisory opinion" ( Cohen v. Anne C. , 301 A.D.2d 446, 447, 753 N.Y.S.2d 500 [1st Dept. 2003] ; see Sunrise Nursing Home, Inc. v. Ferris, 111 A.D.3d 1441, 1442, 976 N.Y.S.2d 340 [4th Dept. 2013] ; Cheng v. Oxford Health Plans, Inc. , 15 A.D.3d 207, 208, 790 N.Y.S.2d 4 [1st Dept. 2005] ; County of Oneida v. Estate of Kennedy , 300 A.D.2d 1091, 1092, 751 N.Y.S.2d 807 [4th Dept. 2002] ; see generally Cuomo v. Long Is. Light. Co. , 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546 [1988] ). We therefore vacate the judgment in order to prevent it from " ‘spawning any legal consequences or precedent’ " ( Matter of Thrall v. CNY Centro, Inc. , 89 A.D.3d 1449, 1451, 932 N.Y.S.2d 295 [4th Dept. 2011], lv dismissed 19 N.Y.3d 898, 949 N.Y.S.2d 341, 972 N.E.2d 507 [2012], quoting Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 718, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ; see Cheng, 15 A.D.3d at 208, 790 N.Y.S.2d 4 ; Cohen , 301 A.D.2d at 447, 753 N.Y.S.2d 500 ; see generally Funderburke v. New York State Dept. of Civ. Serv. , 49 A.D.3d 809, 811, 854 N.Y.S.2d 466 [2d Dept. 2008] ; Matter of Ruskin v. Safir , 257 A.D.2d 268, 271, 692 N.Y.S.2d 356 [1st Dept. 1999] ).