Posted On: October 27, 2009

New York Court of Appeals Expands Criteria for Standing to Bring a SEQRA Challenge

The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource. In Matter of Save the Pine Bush v Common Council of the City of Albany, the Court held that both the individual petitioners and the organization had standing to challenge an action that allegedly threatened certain endangered species within the Pine Bush area. However, the Court also found that Petitioners had failed to prove their case on the merits as the City had examined the major potential impacts and the City "was not required to scrutinize every possible environmental issue, and the failure of the City's environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw."

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other "rare or unusual species...Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad." The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder's Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

The report of the biologist was supplemented to respond to comments on the DEIS. He stated the Frosted Elfin butterfly is "'likely to occur in the same places as Karner blue butterflies'; that the plants on which it is known to feed 'are absent or rare in the Albany Pine Bush'; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder's Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad." Thereafter the FEIS was accepted and the zone change was approved.

Petitioners then brought this action under SEQRA. While several causes of action were dismissed, and the Petitioners did not appeal dismissal of those causes of action, on the remaining cause of action, which alleged that he City failed to take a hard look at the potential impacts on species other than the Karner Blue butterfly, both the Supreme Court and Appellate Division found Petitioners had standing and that the City had failed to take a "hard look" at the potential impacts.

The City argued that under the Court's prior holding in Society of Plastics Industry, Inc. v County of Suffolk (77 NY2d 761 [1991]) that Petitioners lacked standing because the closest of them lives half a mile from the project. Petitioners argued that the Court should either abandon or modify the holding in Society of Plastics. Instead, the majority of the Court reached the conclusion that the prior holding in Society of Plastics supported its finding of standing for the Petitioners.

In an interpretation which appears to differ from that of many courts and commentators since Society of Plastics was decided the Court stated "...Society of Plastics does not hold, or suggest, that residence close to a challenged project is an indispensable element of standing in every environmental case."

In finding that Petitioners in this case had standing the Court held "people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development — the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site. The City asks us to adopt a rule that environmental harm can be alleged only by those who own or inhabit property adjacent to, or across the street from, a project site; that rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury."

The Court went on to say: " we do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face...while we decline to erect standing barriers that will often be insuperable, we are also conscious of the danger of making these barriers too low...Striking the right balance in these cases will often be difficult, but we believe that our rule — requiring a demonstration that a plaintiff's use of a resource is more than that of the general public — will accomplish that task better than the alternatives."

Yet, on the merits the Court held that the City had complied with the mandate of SEQRA. Pointing out that while the Karner Blue butterfly had been of major concern and impacts on its habitat had been addressed, with respect to the other species the Court found that while the "DEC did identify them in a letter commenting on the scoping checklist, it offered no particular reason to believe that the project would threaten them, and no other commenter in the SEQRA process mentioned them at all. When they were omitted from the DEIS neither DEC nor anyone else called attention to the omission....While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too....That it chose not to investigate some matters of doubtful relevance is an insufficient reason for prolonging the process further, and for adding to the expense. A "rule of reason" (Matter of Jackson v New York State Urban Development Corp., 67 NY2d at 417) is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation."

Thus, the Court's decision on the merits should serve as a warning to those challenging a review that they must do more than just raise an issue. Rather, to sustain a challenge under SEQRA they should articulate the basis for the concerns and object to any failure by a lead agency to address those concerns.

-Steven M. Silverberg

Posted On: October 11, 2009

Failure to Exhaust Adminstrative Remedies Bars Claim for Certificate of Occupancy

In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies. In Matter of Vinrus v. the Village of Pelham Manor Building Inspector, the building inspector had issued a notice that the property owner was required to obtain a certificate of occupancy for a new tenant. The property owner brought an article 78 proceeding challenging the direction of the building inspector on various grounds.

The Village, which was defended by Silverberg Zalantis LLP, argued that the building inspector had acted properly but that, irrespective of that fact, a precondition to a suit challenging the actions of a building inspector's interpretation of the zoning ordinance is that an appeal must be submitted to the zoning board of appeals to review the determination of the building inspector. Further, such an appeal must be made to the zoning board of appeals within 60 days of the challenged decision pursuant to Village Law section 7-712-a (5)(b). The lower court dismissed the action and the appellate division affirmed simply stating "the petitioner failed to exhaust its administrative remedies before commencing this proceeding (see Village Law § 7-712-a[5][b]; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854; see also Matter of Capitol Distribs. Corp. v Jones, 2 Misc 2d 816, 817; cf. Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756)."

The brief on appeal was written by Katherine Zalantis and the appeal was argued by Steven Silverberg.

Posted On: October 5, 2009

Deceitful Conduct May be a Basis for Denial of an Area Variance

The Appellate Division held that under certain circumstances a zoning board may consider deceitful conduct by an applicant in reaching a determination to deny an area variance. In Matter of Caspian Realty, Inc. v Zoning Board of Appeals of the Town of Greenburgh, the court reiterated that a zoning board of appeals may only apply the five criteria set forth in Town Law section 267-b (3) for granting or denying an area variance but “an applicant's deceitful conduct may form the basis for the denial of requested variances, but only if that conduct and other balanced considerations fit within the factors enumerated by Town Law § 267-b(3).”

The Petitioner had originally applied to the Town for site plan approval for a retail furniture store. The plans submitted designated a cellar area as storage. This was significant as otherwise the proposed structure would have exceeded the permitted floor area ratio (FAR) by almost 100% and would have had significantly less parking than would be required if the cellar was not used for storage. During construction the building inspector questioned the location of partitions, molding and carpeting in the cellar and he was again assured it would only be used for storage. To that point “Caspian provided, further revised plans dated September 25, 2003, that expressly designated the cellar for "storage."

Thereafter, Caspian operated its business using the cellar for retail and an offsite location for storage. Caspian was issued a violation and appealed to the Town Zoning Board of Appeals for area variances. During the hearings Caspian produced reports stating that the variances would not impact the neighborhood. Neighbors testified about noise, overnight parking and trucks backing into the property causing a problem on a busy road. The Zoning Board denied the variances finding inter alia:

“Caspian had continuously deceived the Town as to the intended use of the cellar, such that the benefit of granting the variances was outweighed by the detriment that would be caused to the Town by allowing a diminution of respect for its planning, building, and tax laws. The ZBA found that the retail use of the cellar burdened neighboring property owners in terms of noise, truck movement, and traffic tie-ups; that the variance requests were substantial, as they represented a 100% increase in permissible FAR and a 50% decrease in permissible parking; and that Caspian's need for the variances was self-created by its deceptive conduct.”

The lower court reversed finding that, while it agreed that Petitioner had been deceitful, the Petitioner’s deceit was not one of the criteria to be considered by a zoning board under Town Law section 267-b (3). The Appellate Division reversed the lower court.

The court’s findings set forth in detail the evidence in the record of the deceitful conduct of Caspian including: “after the store opened to the public, evidence of continuing deception exists from Caspian's submission on August 8, 2006, of a floor plan on which a revision changing the cellar's use to "retail" has apparently been back-dated to "4/7/03." As explained by the Town's Building Inspector, the floor plan submitted on August 8, 2006, does not bear his approval stamp, as do earlier uncontested plans submitted by Caspian. The alleged 4/7/03 revision is listed out of chronological order in the lower left-hand corner of the document after a revision containing the notation "9/25/03," an indication that the purported 4/7/03 revision was actually added sometime after September 25, 2003. Also, we note that the revised floor plans dated September 25, 2003, submitted to the Town by Caspian, do not show the "4/7/03" revision, and clearly delineate the cellar as merely "storage."

The court acknowledged that with respect the argument by Caspian that a zoning board cannot add criteria to the criteria established for area variances in Town Law “Caspian correctly argues that the standards set forth in Town Law § 267-b(3) are exclusive, thereby precluding zoning boards of appeal from considering any factors not recited in the statute… Pursuant to Town Law § 267-b(3), when making determinations on applications for area variances, zoning boards of appeals "must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted"

While lengthy, due to the unique nature of this case, the court’s findings are worth quoting extensively, as the court went through each of the criteria to be considered and how each relates to the facts of this case and the issue of the Petitioner’s deceitful conduct:

“We find that the ZBA considered and balanced the factors of Town Law § 267-b in denying Caspian's application for an area variance.

As to the primary consideration of the statute, regarding the benefit of the applicant weighed against any adverse impact upon the community, the ZBA noted that site plan approval was received from the Planning Board, permits were issued by the Building Department, and tax assessments were levied by the Tax Assessor, all based upon plans showing Caspian's cellar to be used for storage only. The ZBA concluded, in its written Certification of Decision, that Caspian "never intended use [of] the basement for storage," and that Caspian "concealed from the Town the actual intended use of the basement of this property from the very first day of operation." The ZBA concluded, in broad fashion, that any benefit to Caspian in permitting it to use the cellar as a retail showroom was outweighed by the detriment to the Town, its citizens, and its commercial operations, that would result from permitting Caspian to successfully mislead planning, building, and tax authorities. We take no issue with the ZBA on this point.

To the extent that Town Law § 267-b(3) requires consideration of whether the requested area variance is substantial, the ZBA properly noted that the requested increase in FAR was 100%, and the requested decrease in parking was 50%. These requested variances are substantial and support the denial of the variance application…

Town Law § 267-b(3) also requires consideration of whether the applicant's need for variances is self-created. While the self-imposed nature of a hardship is fatal to a use variance application… the self-imposed nature of a hardship is significant, but not determinative, to an area variance… We agree with the ZBA that under the peculiar circumstances of this matter, Caspian's self-created difficulties represent a particularly compelling statutory factor, given its repeated and documentable misrepresentations to the planning board, building department, tax assessor, and zoning board, both prior to and after the issuance of the Town's site plan approval and certificates of occupancy, as to its true intended use of the cellar….

Town Law § 237-b(3) requires that the variance applicant consider feasible alternatives that might alleviate the need for the variance (see Matter of Chandler Prop. Inc. v Trotta, 9 AD3d at 409; Johnson v Town of Queensbury Zoning Bd. of Appeals, 8 AD3d 741, 743). The benefit of the variance sought by Caspian is a furniture showroom that can compete, in terms of square footage, with those of competitors. The Supreme Court held that the ZBA failed to consider whether the same benefit could be obtained by alternate means. The ZBA did, however, address this factor of Town Law § 267-b(3) to the extent of finding that the cellar could be put to an alternative use, as storage, which is consistent with the plans that were originally approved by the Town.

The ZBA's recognition that the alternative uses of the cellar were limited, essentially, to being a showroom or a storage area, "merely stated the obvious" (Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d at 930) as to this factor. Nevertheless, the factor was considered. A showroom use of the cellar cannot be achieved without significant area variances as to FAR and parking, as noted. Moreover, Caspian provided no evidence of the square footage of competitor showrooms or the effect that additional showroom space might have on its profitability….

Not all of the statutory factors favor the denial of Caspian's area variance application. To the extent that Town Law § 267-b(3) requires consideration of whether there would be an undeniable change in the character of the neighborhood or detriment to nearby property created by the granting of an area variance, and whether the proposed variance would adversely affect the physical or environmental conditions of the neighborhood (see e.g. Matter of Matherson v Scheyer, 20 AD3d 425; Matter of Johnson v Town of Queensbury Zoning Bd. of Appeals, 8 AD3d at 743), the ZBA relied upon complaints from neighbors regarding noise and trucks backing into Caspian's parking lot, landscaping, garbage pickups, and the overnight storage of commercial vehicles. However, generalized or unsubstantiated complaints from neighbors, unsupported by empirical or expert evidence, are generally insufficient for a zoning board to base its decision…. In contrast, a zoning board's reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition….

Here, based upon complaints from members of the community, the ZBA determined that the particular size and placement of the buildings on the lot required delivery trucks to maneuver into Caspian's parking lot backwards, tying up traffic on Central Avenue, and that this factor was among those that warranted a denial of the requested area variance. The ZBA's determination in this regard is wholly unsupported by the record…

Contrary to the determination of the Supreme Court, we also find that the ZBA adequately distinguished other cases in the Town of Greenburgh where area variances had been granted…
The application to the ZBA raised some statutory factors of Town Law § 267-b(3) that favor the grant of Caspian's requested area variances, and other factors that negatively affect the application. …

In weighing these competing factors, which were each addressed in some form or fashion by the ZBA, we are mindful that our judicial responsibility is to review zoning decisions to assure that the statutory factors have been considered, but not, absent proof of arbitrary or irrational action, to make the decisions for the zoning boards …Local zoning boards have discretion in considering variance applications, particularly given their "familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community" (Cowan v Kern, 41 NY2d at 599).

Under the circumstances of this case, we find that the determination of the ZBA denying Caspian's requested area variances was neither arbitrary or irrational. In doing so, we are guided by two analagous cases from this Court, Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals (43 AD3d 926) and Matter Becvar v Scheyer (250 AD2d 842). Both cases involved homeowners who constructed second stories to their homes in violation of applicable local regulations and without obtaining prior area variances. In both cases, while some factors may have favored the grant of area variances that were later sought, this Court upheld the ZBA's denial of the variances on the grounds that, principally, the applicants' requests were significant and their difficulties self-created.”

Posted On: October 4, 2009

Court Allows Some Causes of Action Under 42 USC 1983 to Stand Against the Village of Suffern

The Appellate Division Second Department decided a complex appeal involving cross motions on whether a property owner had sufficiently stated causes of action sounding in violations of constitutional rights under 42 USC 1983 and related causes of action resulting from the denial of a certificate of use. In the case of Sonne v. Board of Trustees of the Village of Suffern, the court dismissed some but let stand several causes of action resulting from a long standing dispute over whether a property owner could use and occupy the third floor of a 100 year old commercial building.

The case has a complex history. The Village had denied the property owner the right to use the third floor of its commercial building because there is only one useable exit from the third floor and the Village claims this violates the State of New York Uniform Fire Prevention and Building Code . Underlying the dispute are several factors. The second means of egress from the third floor is blocked by a fence constructed on the adjoining property owned by a company which is Act controlled by the sons of the former Village Building Inspector, one of whom had also been a Village official, including Mayor from 2001 to 2003. The Village had indicated it would not intervene as this is a private matter between property owners. However, the fence is apparently in violation of the local code but no action was taken to cause it to be removed. Second, the Village has taken the position that the single exit does not comply with the State Uniform Fire Prevention and Building Code Act. Yet, there is an advisory opinion from the State indicating that where a property pre-exists the code, which is the case here, and there has been no substantial additional construction, none of which was proposed here, the current requirement of two exits is not applicable. Complicating the situation more is the fact that the use at issue is non-conforming and the third floor has been vacant for several years. The Village code provides that where a non-conforming use has ceased for more than 6 months it may not be re-established.

In an effort to resolve the issues an agreement was negotiated with the adjoining property owner to put a “panic bar’ in the fence, which would have permitted egress from the second exit in an emergency. In addition, as the fence was eight feet high and not in compliance with the local code a variance was obtained for the fence. However, the variance was issued for only two years. As a result the owner complained to Village officials that the two year variance was “useless.” Clearly the concern was that the variance for only two years limited the ability to rent the third floor space. Ten days later the property owner was issued several violations by the Village. During the litigation the Village claimed that this was coincidence and the violations issued were part of a “sweep” of the Village to clean up the downtown of the Village, based upon the Mayor telling the Code Enforcement Officer that there were “a lot of places downtown he’d like to see me pay a visit”. However, the court notes that there was only one other property issued a violation on that date and it appears the violation was based upon a review of the Village files not a “sweep.”

The Plaintiff commenced this action alleging various causes of action. There was discovery and then the Plaintiff moved for summary judgment and Defendants cross moved seeking either dismissal or summary judgment in their favor. The lower court denied both motions and the Appellate Division modified dismissing some causes of action and allowing others to stand.

The Appellate Division opinion first notes the different criteria in deciding a motion to dismiss under CPLR 3211 and a motion for summary judgment under CPLR 3212.

Noting the very limited scope of review on a motion to dismiss the court stated:
“A motion to dismiss a cause of action pursuant to CPLR 3211(a)(7) should not be granted [*4]"if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83, 87-88). In making such a determination, evidentiary material may be considered to "remedy defects in the complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 636; Leon v Martinez, 84 NY2d at 88), "and, unless it can be shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it," dismissal may not be predicated on such evidentiary material (Guggenheimer v Ginzburg, 43 NY2d 268, 275; 511 W. 223rd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151).”

The Court then reviewed the basic criteria in determining whether to grant summary judgment stating:
“When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "Once this showing has been made . . . the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562).”

Examining the claim for a violation of substantive due process the court addressed the application of 42 USC 1983 in the context of land use disputes:
“"In the land use context, 42 USC § 1983 protects against municipal actions that violate a property owner's rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution" (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 626; Town of Orangetown v Magee, 88 NY2d 41, 49). However, "42 USC § 1983 is not simply an additional vehicle for judicial review of land-use determinations" (Bower Assoc. V Town of Pleasant Val., 304 AD2d 259, 263). In order to establish a deprivation of a property right in violation of substantive due process, the claimant must establish (1) a cognizable or vested property interest, not the mere hope of one, and (2) that the municipality acted " without legal justification and motivated entirely by political concerns'" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 627, quoting Town of Orangetown v Magee, 88 NY2d at 53). "As for the second element of the test, only the most egregious official conduct can be said to be arbitrary in the constitutional sense'" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 628, quoting City of Cuyahuga Falls v Buckeye Community Hope Found., 538 US 188, 198; St. Joseph Hosp. of Cheektowaga v Novello, 43 AD3d 139, 144).”

Finding that the Village Officials had relied on an incorrect interpretation of the applicable codes the court nevertheless dismissed the cause of action for violation of substantive due process in failing to issue a certificate of use because: “despite these infirmities, the defendants' conduct in denying the plaintiffs' applications for certificates of use based upon an apparent misinterpretation of Village code provisions did not constitute egregious official conduct. Accordingly, the plaintiff does not state a cause of action sounding in the deprivation of property rights in violation of 42 USC § 1983 as alleged in her first cause of action, and that cause of action should have been dismissed pursuant to CPLR 3211(a)(7).”

The Plaintiff also sought a declaratory judgment that the provisions of the Fire Code do not apply because the structure was built prior to enactment of the Fire Code and no major renovations are planned. The Village contends that the Plaintiff failed to exhaust her administrative remedies by failing to seek a variance from the code provisions. The court noted however that the exhaustion of administrative remedies doctrine is not inflexible and in this case the State advised that no variance was necessary.

The court went on to find: “the defendants took the position that the plaintiff should have challenged each of its determinations in proceedings pursuant to CPLR article 78. However, at issue was the Village's classification of the subject property as subject to the current provisions of Fire Code, depriving the plaintiff of the use of her property in alleged violation of vested property rights, not the denial of a particular application for a certificate of use. Thus, a cause of action for a declaratory judgment, not a proceeding pursuant to CPLR article 78, was the proper vehicle to seek relief (see Matter of Huntington Hills Assoc. v Town of Huntington, 49 AD3d 647). The plaintiff's sixth cause of action states a cause of action for declaratory relief in her favor, and the defendants failed to establish as a matter of law that she is not entitled to such relief.”

The court next examined the claim of violation of equal protection of the laws based upon the alleged selective enforcement of the Village Code against Plaintiff. In holding that Plaintiff had adequately pleaded her claim the court held:

“"[A] violation of equal protection arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations . . . intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; see Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693). In determining whether persons are similarly situated, "the test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent. Exact correlation is neither likely nor necessary" (Penlyn Dev. Corp. V Incorporated Vil. Of Lloyd Harbor, 51 F Supp 2d 255, 264).
The person must be singled out for an impermissible motive not related to legitimate governmental objectives (see Bizzarro v Miranda, 394 F3d 82, 87; Gallo v Suffolk County Police Dept., 360 F Supp 2d 502, 511), which could include personal or political gain, or retaliation for the exercise of constitutional rights (see Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d at 693). In the instant case, the plaintiff is asserting that her building was singled out from other downtown buildings similarly situated because she exercised her rights to free speech under the First Amendment to the United States Constitution when she complained about the treatment of her application for a variance for the fence. In so doing, she adequately pleaded her causes of action. “

The court did dismiss her claim of violation of the right of free speech finding it duplicative of the claim for violation of equal protection finding: “the plaintiff does not allege how the defendants' actions actually chilled her exercise of her First Amendment Rights (id). However, she does allege that the defendants retaliated against her exercise of her First Amendment Rights. She contends that the defendants' retaliation resulted in selective enforcement of code provisions, constituting punishment for the exercise of the constitutional right to free speech, in violation of her right to equal protection of the laws.”

On the issue of failure to file a notice of claim the court held: “[a] cause of action asserted pursuant to 42 USC § 1983 does not require service of a notice of claim (see Rapoli v Village of Red Hook, 41 AD3d 456). However, the plaintiff's fifth cause of action sounding in the common-law tort of wrongful interference with prospective economic advantage required the service of a notice of claim as a condition precedent for maintaining it (see Montano v City of Watervliet, 47 AD3d 1106; Clemens v MTA N.Y. City Tr. Auth., 19 AD3d 636). Since the plaintiff failed to allege service of a notice of claim, the fifth cause of action should have been dismissed for failure to state a cause of action

Finally, there was a defense of qualified immunity raised on behalf of the individual defendants and the court ruled:
“Conlee was an employee of the Town of Ramapo performing duties for the Village pursuant to a contract between the Town of Ramapo and the Village. He established as a matter of law that, although he may have mistakenly violated the plaintiff's rights under the Village of Suffern Code in a good faith attempt to enforce Village policy, he did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The plaintiff, in opposition, failed to raise a triable issue of fact. However, the remaining defendants failed to establish their entitlement to judgment as a matter of law on this issue. ”

Unless it is settled we will no doubt see this case again.