Incorporated Village of Laurel Hollow v. Laverne, Inc.

• Decision Date: 21 May 1964
• Citation: 43 Misc.2d 248,250 N.Y.S.2d 951
• Parties: INCORPORATED VILLAGE OF LAUREL HOLLOW, Plaintiff, v. LAVERNE, INC. (formerly Laverne Originals, Inc.), Erwine Laverne, Estelle Laverne, Rudolph Frederick Gorlitz, Edward J. Gorlitz and Frank Stein, Defendants.
• Court: New York Supreme Court

Page 951

250 N.Y.S.2d 951

43 Misc.2d 248

INCORPORATED VILLAGE OF LAUREL HOLLOW, Plaintiff, v. LAVERNE, INC. (formerly Laverne Originals, Inc.), Erwine

Laverne, Estelle Laverne, Rudolph Frederick

Gorlitz, Edward J. Gorlitz and Frank

Stein, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

May 21, 1964.

Sprague, Stern, Aspland, Dwyer & Tobin, Mineola, for plaintiff.

Jacobson & Goldberg, Mineola, for defendants.

THEODORE VELSOR, Justice.

This is a motion to dismiss an amended complaint in an action by the Incorporated Village of Laurel Hollow, to recover a penalty for violation of its Building Zone Ordinance. Dismissal of the amended pleading is sought on the grounds that no cause of action is stated and that the action is barred by the statute of limitations, res judicata, collateral estoppel and election of remedies.

The plaintiff's action was commenced in March of 1963, and service of an amended complaint was made pursuant to court order on September 18, 1963. The defendant served an answer to the amended pleading on October 28, 1963. This motion followed about a week later, and its hearing has been continuously adjourned.

None of the objections advanced for dismissal of the amended pleading except the alleged legal insufficiency of the complaint may be considered because of the defendants' service of an answer. All objections specified in subdivision (a) of Rule 3211 of the CPLR (other than those enumerated in paragraphs 2, 7 and 10) are waived unless raised either by motion, made before service of the responsive pleading, or inserted as a defense in the answer itself (Rule 3211, subd. (e)). In this case, the defendants in their answer interposed the statute of limitations, res judicata, collateral estoppel and election of remedies as defenses. As a result, a dismissal, on motion, based on those grounds is precluded, although such defenses may be asserted on trial. The sole objection which may now be addressed to the complaint by way of motion is that it fails to state a cause of action.

The alleged insufficiency of the amended complaint is predicated on the charge that the Village ordinance does not authorize cumulative remedies. A proper consideration of this objection requires a review of the previous litigation between these parties.

On June 16, 1950, the plaintiff village instituted an action to restrain the defendants Laverne, Inc. (formerly Laverne Originals, Inc.) and Erwine and Estelle Laverne from using premises located within the village boundaries for business and commercial uses in violation of the Building Zone Ordinance adopted on December 6, 1947. A permanent injunction was granted after trial. The judgment was modified in part on appeal to the Appellate Division (283 App.Div. 795, 128 N.Y.S.2d 326), and as modified, was affirmed by the Court of Appeals (307 N.Y. 784, 121 N.E.2d 618).

On December 27, 1962, the defendants in the injunction action were adjudged in contempt for wilfully violating the terms of the judgment, and were fined $250.00. On April 19, 1963, the defendants were again held in contempt for violation of the judgment and fined $250.00, and in addition were assessed $300.00 for the legal expenses incurred by the plaintiff. On April 6, 1954, the same defendants, as well as the additional defendants named in this action were adjudged guilty in a criminal proceeding, brought in the Village Court of Special Sessions. During the period that these proceedings took place, the Building Zone Ordinance of the Village was amended twice (on February 26, 1954, and again on August 16, 1960). The amendments to the ordinance, however, did not change the use classification of the defendants' premises. The amendments, insofar as they are applicable here, revised the remedies for enforcement of the ordinance.

The plaintiff's first cause of action seeks recovery of penalties in the sum of $464,200.00 or the sum of $100.00 per day from the date of commencement of the action for an injunction (June 21, 1950) to the date of institution of the present action (March 6, 1963). The second cause of action requests recovery of $313,400.00 or $100.00 per day from the date of service of a copy of the judgment of affirmance in the Court of Appeals (August 17, 1954) to the...