Appeal from orders of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), dated November 23, 2009 and February 8, 2010, respectively.
Decided on December 23, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., NICOLAI and MOLIA, JJ
The order dated November 23, 2009, insofar as appealed from, upon, in effect, deeming defendant's motion to dismiss the complaint to be a motion for summary judgment, granted defendant summary judgment dismissing the complaint. The order dated February 8, 2010 denied plaintiff's motion for leave to reargue its opposition to defendant's prior motion.
ORDERED that the appeal from the order dated February 8, 2010 is dismissed on the ground that no appeal lies from an order denying leave to reargue; and it is further,
ORDERED that the order dated November 23, 2009, insofar as appealed from, is reversed, without costs, and defendant's motion for summary judgment is denied.
The Town of Babylon (Town) commenced this action to recover civil monetary penalties for defendant's alleged violation of Babylon Town Code § 213-77 (A), which prohibits a landowner of a residential building from using the premises as a rooming house. The verified complaint alleged, in pertinent part, that defendant, as record owner of the premises located at 1581 3rd Street, West Babylon, New York (the premises), did violate Babylon Town Code § 213-77 (A) in that, upon information and belief, from November 21, 2007 through December 5, 2007, defendant did allow, permit or suffer the premises to be used as a rooming house. Defendant moved to dismiss the complaint. The District Court deemed defendant's motion to be a motion for summary judgment and granted summary judgment dismissing the complaint. The court found that defendant had made a prima facie showing that he was not operating the premises as a rooming house, and that plaintiff had failed to submit any evidence creating a triable issue of fact.
We find that defendant was not entitled to judgment as a matter of law, as his motion papers failed to set forth sufficient evidence demonstrating the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). The record contains an admission by defendant that two non-relatives, Joanne Shlegal and Ralph Caliendo, resided at the premises, and that at least Caliendo occasionally made financial contributions towards the household. This admission created a triable issue of fact as to whether defendant had violated Babylon Town Code § 213-77 (A). Moreover, beyond identifying Shlegal as his girlfriend and Caliendo as a close friend and fellow veteran, defendant failed to prove that they resided at the premises with him and his relatives as the factual or functional equivalent of a family. Thus, as defendant did not make a prima facie showing that he did not operate a rooming house on the premises, the burden never shifted to the Town to adduce evidentiary proof of material issues of fact (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 ; Alvarez, 68 NY2d at 324). Therefore, irrespective of the sufficiency of the Town's opposing papers, defendant was not entitled to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ).
We further find that the prior criminal prosecution of defendant for the same offense did not preclude the instant action on double jeopardy grounds (see Hudson v United States, 522 US 93 ; Town of Grafton v Cox, 23 AD3d 906 ).
Accordingly, the order dated November 23, 2009, insofar as appealed from, is reversed, and defendant's motion ...