Haberman v. Zoning Bd. of Appeals of City of Long Beach

• Citation: 990 N.Y.S.2d 245,119 A.D.3d 789,2014 N.Y. Slip Op. 05335
• Parties: In the Matter of Sinclair HABERMAN, et al., petitioners/plaintiffs-respondents, v. ZONING BOARD OF APPEALS OF CITY OF LONG BEACH, et al., respondents/defendants, Xander Corp., appellant.
• Decision Date: 16 July 2014
• Court: New York Supreme Court Appellate Division

119 A.D.3d 789

990 N.Y.S.2d 245

2014 N.Y. Slip Op. 05335

In the Matter of Sinclair HABERMAN, et al., petitioners/plaintiffs-respondents,

v.ZONING BOARD OF APPEALS OF CITY OF LONG BEACH, et al., respondents/defendants, Xander Corp., appellant.

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

July 16, 2014.

Lawrence B. Goodman, New York, N.Y., for appellant.

Herrick Feinstein LLP, New York, N.Y. (Scott Mollen of counsel), Duane Morris LLP, New York, N.Y. (Thomas R. Newman of counsel), Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger of counsel), and DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Lee S. Wiederkehr of counsel), for petitioners/plaintiffs-respondents (one brief filed).

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the City of Long Beach dated December 29, 2003, which revoked a building permit previously issued to the petitioners/plaintiffs on August 12, 2003, and action, inter alia, for a judgment declaring that the petitioners/plaintiffs are entitled to the building permit, Xander Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered June 14, 2012, as denied that branch of its motion which was for leave to serve and file an amended answer to the third amended petition/complaint.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as denied that branch of the appellant's motion which was for leave to serve and file an amended answer to the causes of action of the third amended petition/complaint pursuant to CPLR article 78 is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted ( seeCPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, with costs.

The petitioners/plaintiffs, Belair Building, LLC, and its sole owner, Sinclair Haberman (hereinafter together the developers), own real property located on Shore Road, between Monroe and Lincoln Boulevards, in the City of Long Beach. In 1985, Haberman's father, Jacob Haberman, obtained a variance from the Zoning Board of Appeals of the City of Long Beach (hereinafter the ZBA), later amended in 1989 and again in 1992, for construction of a four-tower cooperative/condominium project known as the Sea Pointe Towers Project. The appellant, the respondent/defendant Xander Corp. (hereinafter Xander), owns the only building of the proposed complex to have been constructed (hereinafter the Xander Building). In September 2003, Xander filed a petition with the ZBA, seeking to revoke a building permit that had been issued to the developers in August 2003 to begin construction on the second tower at 350 Shore Road. Xander alleged, among other things, that the proposed construction violated the Code of Ordinances of the City of Long Beach in that it did not provide sufficient off-road parking. The ZBA granted Xander's petition, largely based on its finding that the 1992 amendment of the variance was invalid. Thereafter, the developers commenced the instant hybrid proceeding pursuant to CPLR article 78 to review the ZBA's determination, and action, inter alia, for a judgment declaring that they are entitled to the building permit. After the Court of Appeals reversed a decision and order of this Court, inter alia, confirming the ZBA's determination ( see Matter of Haberman v. Zoning Bd. of Appeals of City of Long Beach, 9 N.Y.3d 269, 849 N.Y.S.2d 189, 879 N.E.2d 728), the matter was remitted to the Supreme Court, Nassau County, to permit the respondents/defendants to interpose an answer to the petition/complaint ( see Matter of Haberman v. Zoning Bd. of Appeals of City of Long Beach, 53 A.D.3d 490, 861 N.Y.S.2d 745).

While its September 2003 petition to the ZBA was still pending, Xander commenced a related proceeding (hereinafter the related proceeding) seeking to preliminarily and permanently enjoin the developers from undertaking any construction on 350 Shore Road, based on claims of adverse possession and prescriptive easement arising out of the Xander Building residents' use of the property for parking. After a 22–day trial, the Supreme Court, in a judgment dated December 23, 2009, dismissed the petition in the related proceeding, finding that Xander had failed to meet its burden of proving, by clear and convincing evidence, its entitlement to the subject property by either of the theories advanced. In a decision and order dated December 1, 2010, this Court dismissed Xander's appeal from that judgment for failure to perfect.

Or about October 27, 2011, Xander moved, among other things, for leave to serve and file an amended answer to the third amended petition/complaint to assert 19 counterclaims, all of which concerned the parking spaces located on the developers' property at 350 Shore Road and under the pool deck, beneath the Xander Building, which previously had been used by the Xander Building residents with the developers' permission. These parking spaces had been closed to those residents since October 28, 2010, with alternative parking spots temporarily provided at the developers' property at 340 Shore Road, to permit the removal by National Grid of gas lines improperly placed on the 350 Shore Road property. The proposed counterclaims seek reinstatement of access to the 350 Shore Road parking area and a permanent injunction guaranteeing the continued access by the Xander Building residents to those parking spaces, and to the parking beneath the pool deck. The proposed answer and counterclaims allege, inter alia, that, pursuant to various documents issued by the City of Long Beach, including the variances and certificate of occupancy for...