Capruso v. Vill. of Kings Point

• Decision Date: 30 January 2013
• Citation: 959 N.Y.S.2d 233,102 A.D.3d 902,2013 N.Y. Slip Op. 00447
• Parties: Daniel CAPRUSO, et al., respondents, v. VILLAGE OF KINGS POINT, et al., appellants. (Action No. 1). State of New York, respondent, v. Village of Kings Point, appellant. (Action No. 2).
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 902

959 N.Y.S.2d 233

2013 N.Y. Slip Op. 00447

Daniel CAPRUSO, et al., respondents,

v.VILLAGE OF KINGS POINT, et al., appellants. (Action No. 1).

State of New York, respondent,

v.Village of Kings Point, appellant. (Action No. 2).

Supreme Court, Appellate Division, Second Department, New York.

Jan. 30, 2013.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman, Stephen G. Limmer, Todd H. Hesekiel, and Benjamin S. Kaplan of counsel), for appellants in ActionNo. 1 and appellant in ActionNo. 2.

Albert K. Butzel, New York, N.Y., and Super Law Group, LLC, New York, N.Y. (Reed W. Super, Alexandra I. Hankovszky, and Edan Rotenberg of counsel, for respondents in ActionNo. 1)(one brief filed).

Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing, Ann P. Zybert, Norman Spiegel, and Kathryn M. Liberatore of counsel), for respondent in ActionNo. 2.

RANDALL T. ENG, P.J., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.

In two related actions for certain declaratory and injunctive relief, which were joined for trial, (1)the defendants in ActionNo. 1 appeal, as limited by the joint brief, from so much of an order and interlocutory judgment (one paper) of the Supreme Court, Nassau County(Feinman, J.), entered June 14, 2011, as granted the plaintiffs' motion for summary judgment on the complaint and dismissing the defendants' affirmative defenses, and, thereupon, permanently enjoined the defendants from denying or obstructing existing access to a certain park, unless and until explicit and specific approval is obtained from the State Legislature, directed the defendants to remove from a certain portion of the subject park all materials, equipment, and physical alterations, including buildings and other structures, under the control of the defendantVillage of Kings Point, and directed the defendants to pay the plaintiffs' reasonable attorney's fees and other expenses in an amount to be determined, and (2)the defendant in ActionNo. 2 jointly appeals, as limited by the joint brief, from so much of the same order and interlocutory judgment as granted the plaintiff's motion for summary judgment on the complaint and certain related declaratory and injunctive relief, and, thereupon, permanently enjoined the defendant from denying or obstructing existing access to the subject park, unless and until explicit and specific approval is obtained from the State Legislature, and directed the defendant to remove from a certain portion of the subject park all materials, equipment, and physical alterations, including buildings and other structures, under the control of the defendant.

ORDERED that the order and interlocutory judgment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing the defendants in ActionNo. 1 to pay the plaintiffs' reasonable attorney's fees and other expenses in that action in an amount to be determined; as so modified, the order and interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements.

In the order and interlocutory judgment appealed from, the Supreme Court failed to state the basis for its award of reasonable attorney's fees to the plaintiffs in ActionNo. 1( see e.g.22 NYCRR 130–1.2).However, the only ground of which the defendants in ActionNo. 1 were...