Engert v. Phillips
| Decision Date | 30 May 1989 |
| Citation | 150 A.D.2d 752,542 N.Y.S.2d 202 |
| Parties | Bernd O. ENGERT, et al., Appellants, v. Howard L. PHILLIPS, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Payne, Wood & Littlejohn, Glen Cove (Daren A. Rathkopf, of counsel), for appellants.
Reilly, Like & Schneider, Babylon (Irving Like, of counsel), for respondents Howard L. Phillips and Rhoma Phillips.
Arlene R. Lindsay, Town Atty., Huntington (Michael L. McCarthy, of counsel; Nancy Brennan on the brief), for respondent Jeffrey A. Hartman.
Before BRACKEN, J.P., and RUBIN, SULLIVAN and HARWOOD, JJ.
In an action to enjoin an alleged violation of the Town of Huntington zoning ordinance, the plaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (Underwood, J.), entered November 13, 1987, which granted the motions of the defendants Howard L. Phillips and Rhoma Phillips for summary judgment dismissing the complaint, which motion was joined in by the defendant Hartman, and (2) from so much of an order of the same court, entered April 28, 1988, as, upon reargument, adhered to the original determination.
ORDERED that the defendants, appearing separately and filing separate briefs, are awarded one bill of costs.
The plaintiffs are the owners of a house and lot in an area presently zoned for residential use where lot sizes must be at least one acre. The defendants Howard L. Phillips and Rhoma Phillips own a substandard lot abutted on two sides by the plaintiffs' property and which, like the plaintiffs' property, fronts on Northport Harbor in the Town of Huntington. The Phillipses' lot is improved only with a beach house, which has stood on the property as a prior nonconforming use for several decades.
In September 1985 the Phillipses obtained a "Letter in Lieu of A Certificate of Occupancy" reflecting that the beach house is 30 feet by 35 feet, and that a certificate of occupancy could not be provided because the building was constructed before the enactment in 1934 of the Building Code and the Building Zone Ordinance of the Town of Huntington. In October 1985 the Phillipses applied for a building permit authorizing them to make alterations to the beach house. They represented in their application that the size of the structure was 30 feet by 35 feet, that the structure would remain that size after the alterations, and that the estimated cost of the alterations would be $8,082. In November 1985 the application was granted. In February 1986 the defendant Hartman, as Director of the Department of Engineering, Building and Housing of the Town of Huntington, issued a certificate of occupancy certifying that the completed alterations substantially conformed with the previously approved plans and all the requirements of the Huntington Town Code. Sometime thereafter, the plaintiffs asked the defendant Hartman to revoke the certificate of occupancy and building permit. By letter dated June 26, 1986, their request was denied.
The plaintiffs commenced this action in October 1986, inter alia, to compel the Phillipses to demolish the beach house and to compel the defendant Hartman to revoke the building permit and certificate of occupancy. They allege in their verified complaint that prior to October 1985 the beach house was only 10 feet by 12 feet, and that after the issuance of the building permit the Phillipses demolished the existing building and constructed a new, larger one which was not a "vested" nonconforming use.
Following joinder of issue, the Phillipses moved for summary judgment on the ground that the action was barred by the 30-day Statute of Limitations set forth in Town Law § 267(7), and the defendant Hartman joined in that motion. In granting the motion on that ground, the Supreme Court also ruled that the action was barred by laches, which the Phillipses had asserted as one of several affirmative defenses. The...
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...Law § 7-712[2]; Matter of Rattner v. Planning Comm. of Vil. of Pleasantville, 156 A.D.2d 521, 548 N.Y.S.2d 943; Engert v. Phillips, 150 A.D.2d 752, 542 N.Y.S.2d 202; Matter of Turner v. Town of Grand Is. Bldg. Dept., 97 A.D.2d 980, 468 N.Y.S.2d 783). Accordingly, the petitioner's failure to......
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