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February 28, 2002


The opinion of the court was delivered by: McMAHON, District Judge.


Hi Pockets, Inc. ("HPI") brings this action against The Music Conservatory of Westchester, Inc. and Laura Calzolari (collectively, the "Conservatory defendants"), the City of White Plains, Michel Gismondi, individually and as Commissioner of Buildings of the City of White Plains, Zoning Board of Appeals of the City of White Plains, and Edward Dunphy, Corporation Counsel of the City of White Plains (collectively, the "White Plains defendants"). HPI alleges that defendants illegally issued or caused to be issued a building permit for the new Conservatory site in White Plains, New York. HPI alleges fifteen causes of action against the various defendants, two of which are Section 1983 claims against the municipality that give this Court jurisdiction over the pendant state claims. The Conservatory defendants move for summary judgment pursuant to Fed.R.Civ.P. 56 on all of the claims asserted against it — the First, Second, Third, Eighth, Ninth, Tenth, Eleventh, Twelfth and Thirteenth Causes of Action — along with any other further relief the Court deems just and proper. The White Plains defendants move for a judgment on the pleadings in its favor pursuant to Fed.R.Civ.P. 12(c).

I find in favor of both the Conservatory defendants and the White Plains defendants. This case is dismissed in its entirety.


A. Local Rule 56.1(c)

Plaintiff has failed to file a statement of facts pursuant to Local Civil Rule 56.1(b). This failure means that the material facts in the Conservatory defendants' Local Civil Rule 56.1(a) statement are deemed admitted as a matter of law. See Local Rule 56.1(c); see also Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998) (court "accept[ed] as true the material facts contained in defendants' Local Rule 3(g) statement because plaintiff failed to file a response"); Dusanenko v. Maloney, 726 F.2d 82, 84 (1984) (affirming district court's dismissal of action based on the uncontroverted facts adduced by defendants in its unopposed Rule 3(g) statement). I will, therefore, accept all of the Conservatory defendants' proposed facts as true for purposes of this motion.

B. Pertinent Facts

1. Lease Documents

On or about March 30, 1999, the Conservatory purchased certain property consisting of two buildings and a parking lot located at 214 and 216 Central Park Avenue in White Plains, New York from CAFCO, L.P. [Conservatory Defendants' Rule 56.1 Statement, ¶ 1.] Prior to purchasing the property, the Conservatory received the Lease and Joint Use Parking Agreement governing HPI's use of the property as tenant, and was provided with an Estoppel Certificate from HPI on which it relied in purchasing the property. Id. at ¶ 2.

Previously, on or about February 20, 1997, the City of White Plains Planning Board had approved a site development plan for plaintiff HPI as the anticipated tenant at 214 Central Park Avenue (the "Resolution"). As part of HPI's application to the Planning Board, two "Parking Tables" were submitted entitled "Parking Requirements Zoning" and "Temporal Parking Allocation — Assuming Maximum Parking Per Assignment Requirement." These tables were prepared by HPI's own expert, Adler Consulting, Inc., in connection with HPI's application. Id. at ¶ 3. Pursuant to the Resolution, HPI was required to secure the right to use up to a maximum of 40 parking spaces. Of the 40 spaces, 28 were deemed "joint use parking spaces" to be shared with the tenants of 216 Central Park Avenue. Use was based upon the day, time of day and the demands of other tenants at 214 and 216 Central Park Avenue. Id. at ¶ 4.

On May 1, 1997, an Agreement of Lease ("Lease") was entered into between the Conservatory's predecessor in title, CAFCO, L.P., as landlord and HPI as tenant with respect to a portion of the premises consisting of a stand-alone building at 214 Central Park Avenue, White Plains, New York. Id. at ¶ 5. Pursuant to Article 6 of the Lease, HPI agreed to use the parking spaces allocated to it and those spaces were to be jointly used as outlined in the parking plan approved by the City of White Plains Planning Board. Id. at ¶ 6. On October 9, 1997, a Joint Use Parking Agreement ("JUPA") was executed among CAFCO, L.P., HPI, and Caiati of Westchester, Inc. Id. at ¶ 7.

The terms of the JUPA provided that HPI had "the right to use the spaces required by the February 20, 1997 Resolution of the Planning Board of the City of White Plains," namely, that "the Parking Lot shall contain a minimum of eighty (80) parking spaces of which twenty-eight (28) parking spaces were approved for joint use by: (a) Hi-Pockets and the office tenant at 214 Central Park Avenue; and (b) Caiati at 216 Central Park Avenue." Id. at ¶ 8. The JUPA annexed a December 30, 1996 letter from HPI's attorney, the two Parking Tables referenced above, and a May 1, 1997 letter from the Commissioner of Traffic. Id. at I 9. It was further agreed in the JUPA that no other use would be made of the parking spaces without the prior approval of the designated board and as evidenced by express written approval adopted in accordance to the Zoning Ordinance of the City of White Plains. Id. at ¶ 10. Pursuant to Article 4 of the JUPA, no change or amendment to the JUPA could be effected unless the change or amendment is "set forth in writing and signed by the parties hereto (or their duly authorized successors or assigns), following review and approval by the Corporation Counsel of the City of White Plains as to form and content." Id. at ¶ 11.

It is undisputed that there has been no written amendment or changes to the JUPA, signed by the parties or their successors or assigns and approved by the Corporation Counsel of the City of White Plains as to form and content. Id. at ¶ 12.

On or about February 8, 1999, HPI signed an Estoppel Certificate to the Conservatory, certifying that the Lease, including the JUPA and a Stipulation of Settlement dated December 21, 1998 between Landlord and Tenant, had not been modified or amended. Id. at ¶ 13. HPI further represented in the Estoppel Certificate that "each of the Lease Documents is in full force and effect and no defaults or breaches on the part of the Landlord or Tenant exists thereunder." HPI further certified that it did not have any counterclaims, offsets or defenses under any of the Lease Documents. Id. at ¶ 14. The final paragraph of the Estoppel Certificate states that HPI "acknowledges that the [Conservatory] is relying upon the accuracy of the statements herein contained." Id. at ¶ 15. The Conservatory did rely upon the Estoppel Certificate and the terms of the JUPA prior to purchasing the premises located at 214 and 216 Central Park Avenue, White Plains, New York on or about March 30, 1999. Id. at ¶ 16.

2. Westchester County Supreme Court Special Proceeding, Index No. 18991-00

On April 10, 2000, the respondent Commissioner of Buildings of the City of White Plains granted a building permit to the Conservatory. On or about November 30, 2000, HPI commenced a special proceeding pursuant to Article 78 of the CPLR in New York State Supreme Court, for the County of Westchester, Index No. 1889100, by the filing of the Notice of Petition and Petition returnable on December 21, 2000. The Petition sought an order reversing and annulling the Commissioner's April 10 determination. The petition also sought to prevent the issuance of a Certificate of Occupancy to the Conservatory and an order requiring the City of White Plains Zoning Board of Appeals ("ZBA") to hear the appeal of HPI. Id. at ¶ 17.

3. The HPI Appeal to the ZBA

Pursuant to the Order of the Court, HPI's appeal to the ZBA was placed on the agenda on February 7, 2001 for presentation and thereafter adjourned to the March 7, 2001 ZBA meeting to afford HPI the opportunity to make any further arguments on behalf of its appeal. Id. at ¶ 21.

Following the March meeting, the Board found that: (1) it lacked jurisdiction over HPI's appeal; (2) assuming that it did have jurisdiction over the appeal, HPI lacked standing to bring the appeal; (3) assuming HPI had standing to bring the appeal, the appeal was untimely by reason of the applicable statute of limitations; and (4) assuming all of the above to have been proper, dismissed the appeal on the merits. Id. at ¶ 22. As to the merits of HPI's appeal, the ZBA found that the Building Commissioner's determination and interpretation that the Conservatory is a permitted principal use in its Zoning District was rational and supported by the record. The ZBA found that the Commissioner of Buildings was the proper approving agency for the site plan application for the Conservatory, and found that the Commissioner of Buildings' determination to approve the site plan was reached after careful consideration. The ZBA found that the application was a change from one permitted principal use to another permitted principal use, and that, based upon consultation with other City staff, the parking requirements for the new use was four (4) less than the former use as a furniture store. Id. at ¶ 23. The ZBA Resolution was filed on or about April 6, 2001.

HPI did not file an Article 78 Proceeding to overturn the ZBA's determination within 30 days from the filing of the above-referenced Resolution of the ZBA, as required by General City Law § 82. Id. at ¶ 24.

4. Westchester County Supreme Court Action, Index No. 16399-00

On or about October 20, 2000, HPI, which had received a Notice of Default and Notice of Cancellation of Lease from the Conservatory, commenced an action against the Conservatory over a dispute regarding obligations under the Lease and claimed parking rights. The Complaint and Order to Show Cause sought an injunction in the nature of a Yellowstone injunction preventing the Conservatory from terminating the Lease until such time as the dispute was resolved. The complaint also sought injunctive relief with respect to parking rights under the JUPA and that "the defendant-landlord be required to have the proper number of parking spaces for school before any certificate of occupancy is issued." Thereafter, the Conservatory withdrew its Notice of Default and Notice of Cancellation by reason of a notice issue. Id. at ¶ 25.

By Order to Show Cause dated January 12, 2001, the Conservatory moved for an injunction preventing HPI from interfering with the rights of the Conservatory with respect to the use of the parking lot under the terms of the JUPA and requiring HPI to comply with the terms of the JUPA and an attached parking space allocation. Said application was opposed by HPI wherein it contended that it was again entitled to more parking spaces than set forth in the JUPA. Id. at ¶ 26. On January 12, 2001, a Temporary Restraining Order was issued by Judge Coppola against HPI. On that same day, the Conservatory served a new Notice of Default under the Lease.

On February 13, 2001, HPI filed an Order to Show Cause by reason of the Conservatory's service of the notice under the Lease, and again sought a Yellowstone injunction and leave to serve an Amended Complaint. That application was opposed in part by the Conservatory. Id. at ¶ 27.

By Order to Show Cause dated February 16, 2001, the Conservatory moved for an Order of Contempt by reason of HPI's violation of the prior Temporary Restraining Order issued by Judge Coppola on January 12, 2001. The Conservatory's contempt motion was opposed by HPI at which time HPI again asserted its position with respect to the JUPA and its alleged entitlement to additional parking spaces. Id. at ¶ 28. By decision dated February 16, 2001, the Honorable Matthew F. Coppola stated that until all of the evidence was reviewed and the motions decided, "the parties are directed to abide by the provisions of the [JUPA] as signed by the parties on October 9, 1997." Id. at ¶ 29.

By Order to Show Cause dated June 19, 2001, HPI moved for an Order of Contempt against the Conservatory and further sought an Order pending the hearing and determination of the application restraining the Conservatory from using the parking lot at various times during the week; restraining the Conservatory from interfering with HPI's right to use the parking lot; and restraining the Conservatory from removing any parking spaces or changing the parking "unless all provisions of the [JUPA] and resolutions from the planning board are complied with." The temporary relief was denied following argument on June 19, 2001. Id. at ¶ 30.

Pursuant to Judge Coppola's directive, the parties were required to provide their respective positions regarding the ultimate issue which was to be determined by the Court, to wit: whether the JUPA had ever been amended in accordance with its terms. Id. at ¶ 31. The Conservatory opposed the HPI motion and followed the Court's direction, setting forth facts and law with respect to the ultimate issue. Id. HPI submitted reply papers and argued that the previously-submitted January 14, 1998 Resolution of the Planning Board and August 14, 1998 Certificate of Occupancy served to modify the terms of the JUPA. Id. at ¶ 32.

On or about July 3, 2001, Judge Coppola issued a Decision and order based upon the respective contentions of the parties with respect to the JUPA. Id. at ¶ 33. The Court stated in pertinent part as follows:

By order to show cause returnable on January 29, 2001, defendant [the Conservatory] sought to restrain plaintiff [HPI] from blocking the entrance way into the parking lot and to require plaintiff to abide by the ...

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