Ardmar Realty Company v. Building Inspector of the Village of Tuckahoe, 2002-09849.

• Citation: 5 A.D.3d 517,773 N.Y.S.2d 129,2004 NY Slip Op 01714
• Decision Date: 15 March 2004
• Docket Number: 2002-09849.
• Parties: ARDMAR REALTY COMPANY, Appellant, v. BUILDING INSPECTOR OF THE VILLAGE OF TUCKAHOE et al., Respondents.
• Court: New York Supreme Court Appellate Division

5 A.D.3d 517

773 N.Y.S.2d 129

2004 NY Slip Op 01714

ARDMAR REALTY COMPANY, Appellant, v. BUILDING INSPECTOR OF THE VILLAGE OF TUCKAHOE et al., Respondents.

2002-09849.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 15, 2004.

In an action, inter alia, to recover damages pursuant to 42 USC § 1983 for alleged violations of constitutional equal protection rights, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Westchester County (Colabella, J.), dated October 4, 2002, as, after a nonjury trial, dismissed the first, second, and third causes of action in the complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff owns a parcel of real property in the Industry District of the defendant Village of Tuckahoe (see Village Code of Village of Tuckahoe § 4-8), which it leases to several commercial tenants. The tenants use the premises primarily to park their vehicles and trucks and to store construction materials and supplies. Some of the tenants have operated businesses out of trailers parked on the premises. On May 25, 1999, the defendant Zoning Board of Appeals of the Village of Tuckahoe (hereinafter the ZBA) upheld a determination of the defendant Building Inspector of the Village of Tuckahoe, dated February 4, 1999, that the plaintiff's use of the property was not permitted under the zoning provisions of the Village Code of the Village of Tuckahoe (hereinafter the Code). That determination was ultimately upheld by this Court in a prior CPLR article 78 proceeding (see Matter of Ardmar Realty Co. v Zoning Bd. of Appeals of Vil. of Tuckahoe, 297 AD2d 733 [2002]). However, in conjunction with the ZBA's ruling that the plaintiff's use of the premises was not permitted under the Code, the Village revoked the plaintiff's parking lot permit, on the ground that instead of using the property as a parking lot pursuant to the Village's parking ordinance (see Village Code of Village of Tuckahoe § 21-97 et seq.), the plaintiff was using the property as a multitenanted construction yard. The parking permit was originally obtained by the plaintiff years earlier, when it utilized the property as a parking lot for unsold new automobiles awaiting sale at various dealerships. That use, while permitted under the Code and parking ordinance, eventually ended and evolved into the otherwise impermissible multi-tenanted construction yard use. Thus, the plaintiff commenced this action, claiming, inter alia, that the defendants' conduct amounted to selective enforcement of the law and, hence, a violation of its rights under the Equal Protection Clause of the 14th Amendment of the United States Constitution. It also sought damages pursuant to 42 USC § 1983. After a nonjury trial, the Supreme Court found, inter alia, that the plaintiff failed to establish that it was treated differently from similarly situated property owners and, in effect, failed to...