APPEAL by the defendants, in an action, inter alia, to recover damages for violation of 42 USC § 1983, as limited by their brief, from so much of an order of the Supreme Court (Alfred J. Weiner, J.), dated October 2, 2008, and entered in Rockland County, as denied their cross motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action or, in the alternative, for summary judgment dismissing the amended complaint pursuant to CPLR 3212.
The opinion of the court was delivered by: Chambers, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS and PLUMMER E. LOTT, JJ.
After a protracted land-use dispute, the plaintiff commenced the instant action against the Village of Suffern (hereinafter the Village), its Board of Trustees, and certain Village officials, inter alia, seeking damages for alleged violations of her constitutional rights to substantive and procedural due process, and of her right to be compensated for the taking of her property. The primary issues in the case before us are whether the plaintiff has stated causes of action sounding in violation of 42 USC § 1983 (see CPLR 3211[a]), and whether the defendants are entitled to summary judgment (see CPLR 3212).
The plaintiff, Sara B. Sonne, owns commercial property in the Village (hereinafter the subject property). The building on the subject property is approximately 100 years old. It is zoned for commercial use as part of the Central Business (hereinafter CB) district, and has three floors. The plaintiff planned to rent the third floor to a commercial tenant. The defendants are the Village, its Board of Trustees, its Deputy Building Inspector, Steven Conlee, and its Code Enforcement Officer, John Loniewski.
The catalyst for the plaintiff's dispute with the defendants is their refusal to permit the plaintiff to use the third floor on the ground that it has only one usable exit, in purported violation of the current New York State Uniform Fire Prevention and Building Code Act (Executive Law art 18; hereinafter the Fire Code).
The plaintiff presented documentary evidence indicating that a certificate of occupancy issued for the subject property on October 2, 1985, states that "permission is hereby granted for its occupancy" for "stores and loft space." At some point, this certificate of occupancy was marked "void." A second certificate of occupancy dated February 16, 1988, stated that the permitted use of the subject property was as a "store and loft." Both certificates of occupancy had the word "copy" inserted in a space for an application number.
Steven Conlee, a Deputy Inspector for the Town of Ramapo, who acted as the Deputy Building Inspector of the Village pursuant to a contract between the Town and the Village, testified at his deposition that a certificate of occupancy which had the word "copy" inserted in the space for an application number was considered void by Village authorities. To his knowledge, no one informed relevant property owners of this policy. According to Loniewski, the reason for this policy was that there were cases where the former Village Building Inspector from 1972 until 1992, Louis Glinsky, did not assign a number to an application, and just wrote "copy." He also noted that Louis Glinsky issued certificates of occupancy without performing the required inspections.
In 1989 Kiplou Realty, an adjoining property owner, installed a fence on its property, landlocking the rear exit of the subject property, which meant that the subject property had only one usable exit instead of two. The principals of Kiplou Realty were Howard Glinsky and Kip Glinsky, the sons of former Village Building Inspector Louis Glinsky. Howard Glinsky also served as a Village official on the Village Planning Board in the mid-1990's, on the Village Board of Trustees from 1998 until 2000, and as Village Mayor from 2001 until 2003.
In 2003, the former owner of the subject property applied for permission to convert the third floor to an artist's studio and residence, which was a permitted use by special permit. By letter dated March 26, 2003, Conlee denied the application based upon the Fire Code, on the ground that the building had only one usable exit. A second application by a proposed tenant, Geoff Welch, for a "certificate of occupancy" to convert the third floor to a studio and office was denied by letter dated May 23, 2003, from Conlee, again on the ground that the building had only one usable exit. The Town of Ramapo Building Department inquired as to the applicability and effect of the Fire Code. In response, Erika Krieger, Regional Architect for the New York State Department of State, assigned to the Peekskill Regional Office - Codes Division, stated by letter dated August 25, 2003, that her "advisory opinion" was that "[a]s long as the uses remain consistent with the last legal use, and no substantial work is performed, the second and third floor spaces can still be occupied, with the existing, though substandard exit."
In January 2005, after rejecting an offer to purchase from Howard Glinsky, co-owner of the adjoining property, the prior owner of the subject property sold it to the plaintiff. When the plaintiff took title, the third floor was unoccupied and used for storage. Shortly after purchasing the subject property, the plaintiff applied for a "certificate of use" of the third floor as an artist's studio with no residence. Village of Suffern Code § 266-48(D)(1) provides, in pertinent part, that a "certificate of use" is required for an existing structure for a change of use.
Conlee denied the plaintiff's application on the ground that "the third floor does not meet the egress requirements of the current New York State Code" which required two exits. He explained: "[t]he first and second floors of this building have had a continuous use; therefore, [they] fall under old state code requirements. The third floor, however, has not had any continuos legal use that we can find record of, and therefore, any new use must comply with the current state code." He suggested that the plaintiff apply to Krieger for a State variance.
The plaintiff spoke to Krieger, who, in a letter dated September 26, 2005, reiterated her prior advisory opinion that the current Fire Code would not apply to a use consistent with the last legal use of the space, unless there is "a change of occupancy, or substantial alteration or construction work." However, according to Conlee, Krieger supported his position, since the "last legal use" of the space was for storage, which is not listed among the permitted uses for the CB district.
After the Village Attorney informed the plaintiff that the Village of Suffern would not intervene to rectify the situation caused by the fence, on the ground that any dispute the plaintiff may have with Kiplou Realty was a "private matter," Loniewski attempted to negotiate a compromise between the plaintiff and Kiplou Realty. Pursuant to that compromise, the plaintiff obtained its permission to replace the fence with a new fence with a "panic bar" for egress. Since the proposed new fence exceeded eight feet in height, it required a height variance. On September 15, 2005, the variance was granted for a "two year period."
On September 17, 2005, the plaintiff complained to Loniewski by e-mail, and by letters to the Mayor and the Zoning Board of Appeals, about the attendant circumstances and that a two-year variance was useless. Thereafter, Loniewski issued three orders "to remove violation" against the subject property, each dated September 27, 2005, for "flaking and crumbling" surfaces, broken glass panes in the rear of the building, and overgrowth of vegetation. He testified at his deposition that the orders were issued pursuant to a "sweep" directed by the Mayor, after the Mayor drove around the area in September 2005, and pointed out "a lot of places downtown he'd like to see me pay a visit to." An "order to remove violation" was issued against one other ...