Objecting Neighbor Failed To Preserve Its Rights – Petition Dismissed As Academic

Land Use

A recent decision of the Appellate Division highlights the importance of seeking injunctive relief to maintain the status quo and safeguard a party’s interests during the pendency of litigation.  The result of failing to do so can be the forfeiture of a party’s right to seek relief before the Court.  Matter of Papert v. Zoning Bd. of Appeals of the Inc. Vil. of Quogue, 2012 NY Slip. Op. 05925.

In Matter of Papert, the Respondent is the owner of an oceanfront property located within a coastal erosion hazard area (the “Premises”).  Id. at 1.  Respondent filed for a coastal erosion management permit allowing it to reconstruct the existing house on the Premises, which permit was granted by the Village Building Inspector. Id. Petitioner, a neighboring owner, objected to the issuance of the permit to the Respondent and filed an appeal to the Zoning Board of Appeals (“ZBA”) seeking a review of the Building Inspector’s determination to issue the permit.  Id. The ZBA affirmed the Building Inspector’s decision and the Petitioner commenced a proceeding under CPLR Article 78 to review the ZBA’s decision.  Id.

Thereafter, the Respondent moved to dismiss the petition as academic in light of the substantial completion of the reconstruction project.  Id. Once the project was complete and a certificate of occupancy was issued, the Supreme Court granted Respondent’s motion and dismissed the proceeding.  Petitioner appealed the dismissal to the Appellate Division, Second Department.  Id. at 2.

On appeal, the Court upheld the dismissal, holding that “[s]ince the petitioner failed to move in the Supreme Court for a preliminary injunction to preserve the status quo during the pendency of this litigation, he did not timely do all he could have done to safeguard his interests, and thus, he failed to preserve his rights pending judicial review of the Board’s determination.”  Id. at 2.

Accordingly, if a party objects to an ongoing construction project, the objecting party must seek an injunction to stop the project and maintain the status quo during the pendency of litigation.  ”A preliminary injunction may be granted under CPLR article 63 when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor [citation omitted]”  Doe v. Axelrod, 73 N.Y.2d 748, 750 (N.Y.,1988).  In addition, pursuant to CPLR 6312, the Court may also require a party seeking an injunction to post an undertaking to compensate the enjoined party for any damages sustained as a result of the injunction, should the party seeking the injunction ultimately fail to prove its claims in the litigation.

The Court’s decision in Matter of Papert v. Zoning Bd. of Appeals of the Inc. Vil. of Quogue is available on the Second Department’s website and can be accessed by clicking here.


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