110 Manno Realty Corp. v. Town of Huntington

• Decision Date: 06 January 1970
• Citation: 61 Misc.2d 702,306 N.Y.S.2d 746
• Parties: 110 MANNO REALTY CORP, Plaintiff, v. The TOWN OF HUNTINGTON, Defendant.
• Court: New York Supreme Court

Page 746

306 N.Y.S.2d 746

61 Misc.2d 702

110 MANNO REALTY CORP, Plaintiff, v. The TOWN OF HUNTINGTON, Defendant.

Supreme Court, Special Term, Suffolk County, Part I.

Jan. 6, 1970.

Corwin & Matthews, Huntington, for plaintiff.

Arthur Goldstein, Town Atty., Town of Huntington, Huntington, for defendant.

MEMORANDUM

JACK STANISLAW, Justice.

The motion is for a preliminary injunction enjoining defendant Town of Huntington, pending the trial and determination of this law suit, from holding a public hearing to reclassify plaintiff's real property (located on the easterly side of Route 110, at its intersection with the Northern State Parkway) from Planned Shopping Center District to R--10 Residence District. Plaintiff claims that such action would be illegal and in violation of its property rights; that defendant's deliberate interference with such rights over the past two years has resulted in the postponement of the proposed construction, costing plaintiff $85 per day in interest charges, plus $6,111.77 annually for real estate taxes, and approximately a million dollars due to the rise in construction costs. Plaintiff further claims it will be seriously and irreparably harmed if defendant is permitted to take the action sought to be enjoined.

The moving papers include supporting affidavits, documentary exhibits, a bond approved by the court to indemnify defendant for possible costs, as well as a summons and verified complaint, alleging two causes of action. In the first cause, plaintiff seeks judgment permanently enjoining defendants, its officers and employees from holding a public hearing to reclassify plaintiff's property into a residential district. The second cause is for declaratory judgment, decreeing that any residential classification of plaintiff's property would be unreasonable, arbitrary, confiscatory, unconstitutional and void.

The order to show cause, by which the motion is brought, was granted by Mr. Justice Geiler on November 19, 1969. It provides: (1) that the motion shall be returnable on December 1, 1969; (2) that pending the hearing of the motion, defendant, its officers and employees shall be enjoined from holding a public hearing to change the zoning classification of plaintiff's property; and (3) that service of the order and supporting affidavits at the office of the Town Attorney on or before November 24, 1969, shall be deemed good and sufficient service and notice of the application. An affidavit of service annexed to the moving papers indicates that on November 19, 1969, the order to show cause, supporting affidavits, summons and complaint were served on Arthur Goldstein, the Town Attorney, at the office address indicated in the order to show cause. Another affidavit of service, annexed to the reply affidavit, indicates that on November 28, 1969, the summons and complaint were personally served on the Town Clerk.

Despite service of the temporary restraining order in the manner prescribed by the court, it is alleged by plaintiff's attorney that on November 25, 1969, the Town Attorney, the Town Clerk, Supervisor Ambro and Councilmen Case, Horn and Mugridge held the public hearing specifically enjoined and proceeded to enact a resolution purportedly changing the zoning of plaintiff's property to an R--10 residential classification.

No answer to the complaint has yet been served. Nor has defendant opposed the motion on the merits. Instead, defendant crossmoves: (1) for judgment dismissing the complaint for lack of jurisdiction; and (2) to vacate the order to show cause.

In support of the first branch of its cross-motion, defendant contends that the summons and complaint attached to the order to show cause served on its Attorney does not constitute service on defendant Town, since they were not served upon the Town Clerk or Town Supervisor as prescribed by CPLR 311(5); that the court has not acquired jurisdiction of the person of defendant; and that the complaint, therefore, should be dismissed pursuant to CPLR 3211(a), par. 8. But since it is not denied that on November 28, 1969, prior to the return date of the motion, the Town Clerk was personally served with a copy of the pleadings, the first branch of the cross-motion must be denied.

The second branch attacks the validity of the order to show cause. It is defendant's contention that the court has no authority to issue an ex parte temporary restraining order upon a municipality. Defendant, it appears, relies upon CPLR 6313, which states, in part: 'No temporary restraining order may be granted * * * against a public officer, board or municipal corporation of the state to restrain the performance of Statutory duties.' (Emphasis supplied.) The question then, is whether defendant had a statutory duty to perform the act sought to be enjoined by the restraining order. We think not. The proposed reclassification, it appears, is part and parcel of a contrived plan on the part of defendant, not to perform but to Prevent the performance of a statutory duty.

Back in December of 1967, the then incumbent Town Board adopted a resolution changing the zoning of plaintiff's property to a Planned Shopping Center District. But because the Town Clerk refused to post and publish that enactment, as he was required to do under section 265 of the Town Law, plaintiff commenced a CPLR Article 78 proceeding, in the nature of mandamus, for an order directing the Town Clerk to perform that duty. By order of the Supreme Court, granted April 17, 1968, the Town Clerk was so directed. Dissatisfied with the court's decision, defendant appealed. But the order was unanimously affirmed by the Appellate Division, Second Department, on March 17, 1969, 31 A.D.2d 1006, 299 N.Y.S.2d 397. Leave to appeal was denied, first by that court on May 19, 1969 and then by the Court of Appeals, as recently as October 2, 1969, 25 N.Y.2d 741, 305 N.Y.S.2d 1025, 252 N.E.2d 862. The Town Clerk has not yet performed that duty (apparently upon the direction of the Town Board or the advice of the Town Attorney, or both). To prevent such performance, defendant recently commenced an action to Enjoin its Clerk from posting and publishing the December, 1967, enactment. The Town moved, in that action, for a temporary injunction to restrain the very duty mandated by the April 17, 1968 order. That motion, however, was denied by Mr. Justice Ritchie (Town of Huntington v. 110 Manno Realty Corp., N.Y.L.J. December 26, 1969, p. 11 col. 5).

If defendant had the legal right, or, as it now infers, the statutory duty to reclassify plaintiff's property from a Planned Shopping District to a residence district, then why did it appeal the April 17, 1968, order granted to plaintiff in the Article 78 proceeding and, in the spring of 1969, seek permission of the Appellate Division and Court of Appeals, for leave to appeal the affirmance of that order? And when such permission was denied, why did it then commence an action to enjoin its Clerk from posting and publishing the resolution classifying plaintiff's property as a Planned Shopping Center District? The only rational answer is that defendant had no such right and, certainly, no such duty.

Defendant further attacks the method of service prescribed by Mr. Justice Geiler in the order to show cause. It is defendant's contention that the Only method by which an order may be served upon a municipality is the one prescribed by CPLR 311(5). That section provides: 'Personal service * * * upon a town * * * shall be made by delivering the summons * * * to the supervisor or the clerk.' But CPLR 2214(d) authorizes the court to direct service of an order to show cause 'in a manner specified therein'. And although CPLR 6313(b) provides that a temporary restraining order, together with the papers upon which it was based and the notice of the hearing for the preliminary injunction, shall be personally served in the same manner as a summons, it should be noted that, in accordance with CPLR 2214(d), the introductory language of CPLR 6313(b) is: 'Unless the court orders otherwise.' Neither of those sections exclude service upon a Town. Thus, since it was made in the manner directed by the court, the service was effective. Moreover, since the relationship between the Town Attorney and the parties referred to under CPLR 311(5) is such 'as to lead...