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holding that "[i]t cannot be determined on the instant record that the individual defendants were acting exclusively in a legislative capacity, which is required for immunity to attach"
Summary of this case from Kuritz v. New YorkOpinion
June 12, 1995
Appeal from the Supreme Court, Suffolk County (Werner, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the defendants' motion which was to dismiss the plaintiffs' fourth cause of action, and substituting therefor a provision granting that branch of the defendants' motion; as so modified, the order is affirmed, without costs or disbursements.
We agree with the Supreme Court's conclusions sustaining the majority of the plaintiffs' causes of action since they generally state cognizable claims for relief stemming from the rezoning of the plaintiffs' property from business to residential (see, e.g., Detmer v. Acampora, 207 A.D.2d 477). However, we agree with the defendants that the fourth cause of action is defective since it purports to allege a violation of the Sherman Anti-Trust Act ( 15 U.S.C. § 1 et seq.). Even assuming that the rezoning was intended to promote established businesses by limiting competition from new shopping centers, such would not give rise to claims cognizable under the Sherman Anti-Trust Act (see, City of Columbia v. Omni Outdoor Adv., 499 U.S. 365). Insofar as the plaintiffs attempt to challenge the rezoning upon grounds that the defendants violated the provisions of Environmental Conservation Law article 8 (SEQRA), these claims should have been brought in a proceeding pursuant to CPLR article 78, which is now time barred (see, Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193; Detmer v. Acampora, supra).
We reject the contention of the individual defendants that the plaintiffs' causes of action to recover damages pursuant to 42 U.S.C. § 1983 against them in their individual capacities are barred by the doctrine of legislative immunity. This issue was never raised before the Supreme Court, and it cannot be determined on the instant record that the individual defendants were acting exclusively in a legislative capacity, which is required for immunity to attach (see, Detmer v. Acampora, 207 A.D.2d 475, 476, supra; see also, Donivan v. Dallastown Borough, 835 F.2d 486, cert denied sub nom. McKinsey v. Donivan, 485 U.S. 1035). Rosenblatt, J.P., Miller, Santucci and Florio, JJ., concur.