Guzzardi v. Perry's Boats, Inc.

• Decision Date: 14 March 1983
• Citation: 92 A.D.2d 250,460 N.Y.S.2d 78
• Parties: Judith A. GUZZARDI et al., Respondents, v. PERRY'S BOATS, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 78

460 N.Y.S.2d 78

92 A.D.2d 250

Judith A. GUZZARDI et al., Respondents, v. PERRY'S BOATS, INC., et al., Appellants.

Supreme Court, Appellate Division Second Department.

March 14, 1983.

Alfred Sklaver, Yorktown Heights (Harvey M. Sklaver, Yorktown Heights, of counsel), for appellants.

Stockfield, Fixler & Hurta, Carmel (Robert M. Schwartz, of counsel), for respondents.

Before MOLLEN, P.J., and WEINSTEIN, BRACKEN and RUBIN, JJ.

BRACKEN, Justice.

In this action the plaintiffs seek to enjoin defendants from utilizing as a marina certain lake-front property owned by defendants and further seek to recover for damages allegedly sustained by the plaintiffs as a result of defendants' creating and maintaining a private nuisance adjacent to the plaintiffs' property.

The defendants' lake-front property in question is situated on Lake Oscawana, Town of Putnam Valley, Putnam County, New York. Defendant Perry Ellison is the owner of land abutting the lake and conducts a business through a wholly owned corporation, codefendant Perry's Boats, Inc. The property and business in question has been owned by defendant Ellison's family since the late 19th century.

In August, 1972 the plaintiffs, Stephen J. and Judith A. Guzzardi, purchased land adjacent to that of the defendants, which included a residence for use as a weekend and vacation retreat. Thereafter, in July, 1981, the plaintiffs commenced the instant action against the defendants.

The first cause of action alleges that the defendants' operation of a marina violated the provisions of the zoning ordinance of the Town of Putnam Valley since this type of business was prohibited in the "Residential Lake District", which district includes the land owned both by plaintiffs and defendants.

In the second cause of action plaintiffs allege that defendants' business created a private nuisance by virtue of excessive automobile traffic and the loud boisterous crowds which it attracted, as well as by the pollution caused to the lake by the large number of motorboats operated from the marina.

In lieu of submitting an answer to plaintiffs' complaint, defendants moved pursuant to CPLR 3211 (subd. [a], pars. 1, 7), to dismiss the action, alleging that the complaint failed to state a cause of action. The principal contention of the defendants was that the business in question constituted a valid nonconforming use which predated the enactment of the town's zoning ordinance and, therefore, was authorized to continue pursuant to section 66.34 of article VII of the zoning ordinance.

By order entered October 27, 1981 the court (HAWKINS, J.), elected to consider the aforesaid motion to dismiss as being one for summary judgment pursuant to CPLR 3211 (subd. [c] ) and adjourned the return date of the motion to allow the parties the opportunity to submit additional affidavits and other evidence.

In support of the motion, defendants thereafter submitted affidavits by Ellison and five other long-standing residents of the community, several of whom were former town officials, to demonstrate that the business conducted by defendants did not violate the zoning ordinance and did not generate the traffic congestion and water pollution characterized by plaintiffs as constituting a nuisance. In opposition to the motion, plaintiffs submitted an affidavit by their attorney, as well as affidavits by four other persons owning property in the immediate vicinity of the defendants. The affidavits of these landowners had been sworn to in September and October, 1973 and had been submitted in 1973 in response to prior requests from the Town Building, Zoning and Sanitary Inspector to substantiate complaints made at that time to the effect that defendants' business activities violated the local zoning ordinance. These affidavits asserted that the character of the defendants' activities changed in the late 1960's from a "boat livery", primarily engaged in the rental of rowboats and canoes, to a marina, which involved a substantial business in the mooring and launching of large power boats. Plaintiffs, however, submitted no affidavits based upon their own personal knowledge addressing the situation as it existed at the time of the within motion.

We reverse and hold that Special Term erroneously denied defendants' motion for summary judgment in that plaintiffs have failed to submit sufficient competent evidence to establish major elements of the causes of action set forth in their complaint. Although the standard of proof required of an opponent in a motion for summary judgment is more flexible than the standard applicable to the movan the opposing party is still required to tender evidentiary proof in admissible form to reflect such opposition or alternatively is required to demonstrate an acceptable excuse for the failure to do so (Sutton v. East Riv. Sav. Bank, 55 N.Y.2d 550, 553, 450 N.Y.S.2d 460, 435 N.E.2d 1075; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298). In this regard, in order to maintain a private action to enjoin a zoning violation, plaintiffs must establish that they have the standing to do so by demonstrating that they have sustained special damages by virtue of defendants' activities (Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 395 N.Y.S.2d 428, 363 N.E.2d 1163; Cord Meyer Development Co. v. Bell Bay Drugs, 20 N.Y.2d 211, 282 N.Y.S.2d 259, 229 N.E.2d 44; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 333, 28 N.E.2d 856; Rice v. Van Vranken, 132 Misc. 82, 229 N.Y.S. 32, affd. 225 App.Div. 179, 232 N.Y.S. 506, affd. 255 N.Y. 541, 175 N.E. 304). The Court of Appeals has stated, "In order to establish special damage it is necessary to show that there is some depreciation in the value of the premises as real property arising from the conduct of the forbidden use" (Cord Meyer Development Co. v. Bell Bay Drugs, supra, 20 N.Y.2d p. 218, 282 N.Y.S.2d 259, 229 N.E.2d 44). Plaintiffs have not demonstrated in the affidavits submitted in opposition that there has been any diminution of the value of their property as the result of defendants' business activities. Further, the affidavit submitted by plaintiffs' attorney must be disregarded as it is not based upon personal knowledge (see Sutton v. East Riv. Sav. Bank, supra; Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718; Matter of O'Hara, 85 A.D.2d 669, 671, 445 N.Y.S.2d 201). Were we to consider such attorney's affidavit, however, the conclusory assertions made by the attorney that plaintiffs were unable to sell or rent their premises, without setting forth specific detailed evidence to substantiate this fact, are insufficient to demonstrate...