Goldberg v. Penny

• Citation: 558 N.Y.S.2d 564,163 A.D.2d 352
• Parties: Donald GOLDBERG, Appellant, v. Larry PENNY, et al., Respondents, et al., Defendant.
• Decision Date: 09 July 1990
• Court: New York Supreme Court — Appellate Division

Page 564

558 N.Y.S.2d 564

163 A.D.2d 352

Donald GOLDBERG, Appellant, v. Larry PENNY, et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

July 9, 1990.

Kolodny & Bonomo, Manhasset (David L. Darwin, of counsel), for appellant.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Charles Luceno, of counsel), for respondents.

Before BROWN, J.P., and LAWRENCE, KOOPER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages based upon fraud, implied breach of contract and the theory of quasi contract, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Cannavo, J.), entered August 22, 1988, which granted that branch of the motion of the defendants Larry Penny and the Town of East Hampton which was to dismiss the complaint for failure to state a cause of action as asserted against them and which denied the plaintiff's cross motion to amend the complaint and to serve a notice of claim nunc pro tunc.

ORDERED that the order and judgment is affirmed, with costs.

The plaintiff alleged that he caused certain improvements to be made on his property in reliance on assurances by the defendants Town of East Hampton and Larry Penny that he would thereafter be granted a variance. Despite such representations, the variance was never granted. The plaintiff did not bring a proceeding pursuant to CPLR article 78 to review the determination of the Town Board of Zoning Appeals. Instead he commenced this action seeking to recover damages for fraudulent misrepresentation, and breach of implied contract, as well as under the theory of quasi contract. We agree with the Supreme Court that the complaint must be dismissed for failure to state a cause of action.

It is fundamental that a municipality can only contract for an authorized purpose and then only in the manner provided by statute (see, Corning v. Village of Laurel Hollow, 48 N.Y.2d 348, 422 N.Y.S.2d 932, 398 N.E.2d 537; New York Tel. Co. v. Town of North Hempstead, 41 N.Y.2d 691, 395 N.Y.S.2d 143, 363 N.E.2d 694; Parone v. Rivers, 84 A.D.2d 686, 446 N.Y.S.2d 641; Gardner v. Town of Cameron, 155 App.Div. 750, 140 N.Y.S. 634, affd. 215 N.Y. 682, 109 N.E. 1074). Even where municipalities have accepted benefits, they will not be held liable under unauthorized agreements (see, Parsa v. State of New York, 64 N.Y.2d 143, 147, 485 N.Y.S.2d 27, 474 N.E.2d 235; Seif v. City of Long Beach, 286 N.Y. 382, 36 N.E.2d 630; Albany Supply & Equip. Co. v. City of Cohoes, 25 A.D.2d 700, 268 N.Y.S.2d 42; Lutzken v. City of Rochester, 7 A.D.2d 498, 501, 184 N.Y.S.2d 483). In the present case, it is undisputed that a contract was never approved by the Town Board and never executed by the Town Supervisor, as required by Town Law § 64(6). Moreover, even if a contract had been entered into with all the requisite formalities, it is doubtful that a Town could validly contract away its authority to make future zoning determinations (see, Atlantic Beach Property Owners Assn. v. Town of Hempstead, 3 N.Y.2d 434, 438, 165 N.Y.S.2d 737, 144 N.E.2d 409; Matter of Andgar Assoc. v. Board of Zoning Appeals, 30 A.D.2d 672, 291 N.Y.S.2d 991; Matter of NYC Housing Auth. v. Foley, 32 Misc.2d 41, 223 N.Y.S.2d 621; cf., E.F.S. Ventures v. Foster, 71 N.Y.2d 359, 369, 526 N.Y.S.2d 56, 520 N.E.2d 1345). Accordingly, the plaintiff failed to allege that an enforceable contract existed between him and the Town.

The plaintiff has failed to allege facts entitling him to recover under a theory of quasi contract. Quasi contract is an equitable concept which essentially stands for the proposition that a party should not be entitled to enrich himself unjustly at the expense of another (see, Parsa v. State of New York, supra; Bradkin v. Leverton, 26 N.Y.2d 192, 196-197, 309 N.Y.S.2d 192, 257 N.E.2d 643; Stanford Hghts. Fire Dist. v. Town of Niskayuna, 120 A.D.2d 878, 502 N.Y.S.2d 548; Ptachewich v. Ptachewich, 96 A.D.2d 582, 465 N.Y.S.2d 277). In the instant case, none of the alleged facts indicate that the Town has unfairly enriched itself at the plaintiff's expense.

Nor can the plaintiff recover under the causes of action sounding in tort. It is well settled that zoning decisions are discretionary acts for which an official and a...