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Downing v. Charos

Other Lower Courts

December 19, 2007

John M. Downing Jr., Plaintiff,
v.
Peter Charos and Eileen Charos, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Downing Peck, PC Attorneys for Plaintiff Ciarelli Dempsey, Esqs

OPINION

Jeffrey Arlen Spinner, J.

ORDERED, that the application of Defendants is hereby granted to the extent set forth herein below; and the application of Plaintiff is hereby denied in all respects.

Defendants move this Court for an Order:

1.Pursuant to CPLR 3212, granting Defendants summary judgment in their favor, dismissing all 11 Causes of Action comprising Plaintiff's Amended Complaint as against Defendants;

2.Pursuant to 22 NYCRR 130-1.1(c), granting Defendants their reasonable attorney fees, plus all disbursements, in this action as and for sanctions based on the frivolous nature of the claims asserted by Plaintiff herein.

Plaintiff cross-moves this Court for an Order, pursuant to CPLR 3212, granting summary judgment in favor of Plaintiff, directing that the subject building be removed, or, in the alternative, striking the Affirmative Defenses and Counterclaim, and pursuant to CPLR 3212(c), directing an immediate trial for assessment of damages of Plaintiff herein.

Plaintiff is the owner of a parcel of property adjacent to the parcel owned by Defendants, upon which Defendants built a two-story structure, the ground floor of which is a two car garage, and the upper floor of which is an accessory apartment, said structure being located 25 feet from Plaintiff's property line. Plaintiff has alleged 11 Causes of Action in his Amended Complaint against Defendants, adeptly summarized by Counsel for Defendants, as follows:

1. Violation of Southampton Town Code 330, based on alleged zoning violations;

2. Misrepresentations in Defendants' December 2002 building permit application;

3. Violation of alleged covenants and restrictions intended to benefit Plaintiff's property;

4. Creation of a purported private nuisance because the garage is allegedly unsightly, dilapidated, and unreasonably close to Plaintiff's property;

5. Violation of Southampton Town Code 330-168 for, among other reasons, allegedly diminishing the character, historical interest and general welfare of the neighborhood and Town;

6. Violation of Southampton Town Code 330-170, because the building application was allegedly not approved or referred to the Town's Architectural Review Board or Planning Board;

7. Violation of Southampton Town Code 330-171, because the structure allegedly diminishes and detracts from the character of the Town;

8. Violation of Southampton Town Code 330-175, because allegedly no permit was issued for the building indicating it was designed and intended to conform in all respects to the provisions of Town Code 330;

9. Violation of Southampton Town Code 123-9, because of the alleged inaccurate or incomplete building permit application;

10. Violation of Southampton "Pyramid Law";

11. Requesting a permanent injunction and removal of the building, based on its allegedly substantial interference with Plaintiff's use and enjoyment of his property.

In answer thereto, Defendants have alleged 9 Affirmative Defenses, as follows:

1. Complaint fails to state a cause of action upon which ...


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