Kellner v. Town of Wappinger
| Decision Date | 07 December 2016 |
| Citation | 42 N.Y.S.3d 326,145 A.D.3d 676,2016 N.Y. Slip Op. 08203 |
| Parties | Aaron KELLNER, appellant, v. TOWN OF WAPPINGER, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
145 A.D.3d 676
42 N.Y.S.3d 326
2016 N.Y. Slip Op. 08203
Aaron KELLNER, appellant,
v.
TOWN OF WAPPINGER, et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 7, 2016.
James G. Sweeney, P.C., Goshen, NY (Max Wild and Michael H. Donnelly of counsel), for appellant.
Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY (Rebecca Baldwin Mantello and Joseph G. McKay of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
In an action, inter alia, for a judgment declaring that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 do not apply to the proposed construction of a dwelling on the subject property, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Rosa, J.), dated December 3, 2014, which denied his motion for summary judgment on the complaint and declaring that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 do not apply to the proposed construction, and granted the defendants' cross motion for summary judgment dismissing the complaint and declaring that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 apply to the proposed construction.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment, inter alia, declaring that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 apply to the proposed construction of a dwelling on the subject property.
The plaintiff is the owner of the subject property, located at the end of a private road traversing a bridge in the Town of Wappinger. Previously, there was a single-family house on the property in which the plaintiff resided. However, in 2004, the house was completely destroyed by a fire, leaving the property vacant.
In 2013, the plaintiff applied to the Town for a building permit to construct a new house on the property. The Town denied the application on the ground that there was no legal access to the property as required by Town Law § 280–a and an analogous local code provision, Code of the Town of Wappinger § 240–20, as the road and the bridge were in disrepair and virtually impassable. The plaintiff thereafter commenced this action against the Town, the Code Enforcement Officer of the Town, and the Town Zoning Board of Appeals seeking a judgment declaring that the proposed construction on the property for which he sought a building permit was not subject to Town Law § 280–a and Code of the Town of Wappinger § 240–20,
directing the Town to issue the building permit, and awarding him...
To continue reading
Request your trial
-
Troy Sand & Gravel Co., Inc. v. Fleming
...(see Matter of Avella v. City of New York, 29 N.Y.3d 425, 434, 58 N.Y.S.3d 236, 80 N.E.3d 982 [2017] ; Kellner v. Town of Wappinger, 145 A.D.3d 676, 677, 42 N.Y.S.3d 326 [2016], lv denied 29 N.Y.3d 902, 57 N.Y.S.3d 705, 80 N.E.3d 398 [2017] ), we find that the Town Board is the "authorized ......
-
Jung Hee Lee v. Viera
...that branch of the defendant's motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211(a)(5) on the ground that it 145 A.D.3d 676was barred by the doctrine of res judicata (see Kalinka v. St. Francis Hosp., 34 A.D.3d at 744, 827 N.Y.S.2d 75 ; 42 N.Y.S.3d 339Santangelo v.......