Kreamer v. Town of Oxford

• Decision Date: 07 June 2012
• Citation: 946 N.Y.S.2d 284,2012 N.Y. Slip Op. 04447,96 A.D.3d 1130
• Parties: Michele KREAMER et al., Appellants, v. TOWN OF OXFORD et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1130

946 N.Y.S.2d 284

2012 N.Y. Slip Op. 04447

Michele KREAMER et al., Appellants,

v.TOWN OF OXFORD et al., Respondents, et al., Defendant.

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

June 7, 2012.

Neroni Law Office, Delhi (Tatiana Neroni of counsel), for appellants.

Mackenzie Hughes, L.L.P., Syracuse (Jeffrey D. Brown of counsel), for respondents.

Before: LAHTINEN, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

McCARTHY, J.

Appeal from an order of the Supreme Court (Dowd, J.), entered February 24, 2011 in Chenango County, which, among other things, granted certain defendants' motion to dismiss the complaint against them.

Plaintiffs purchased property in the Town of Oxford, Chenango County and began construction or repairs on the foundation, siding and roof of the house located thereon. Defendant Town of Oxford, through defendant Patrick Moore, the Town Code Enforcement Officer, issued a stop work order because plaintiffs had not obtained a building permit. Moore then denied plaintiffs' application for a building permit because the lot was too small. Defendant Town of Oxford Zoning Board of Appeals (hereinafter the ZBA) denied their application for an area variance. In September 2009, plaintiffs commenced an action against the Town, the ZBA, Moore, defendant Town of Oxford Planning Board and defendant Lawrence Wilcox. Supreme Court dismissed that complaint in July 2010 and this Court affirmed in January 2012 ( Kreamer v. Town of Oxford, 91 A.D.3d 1157, 938 N.Y.S.2d 220 [2012] ).

In September 2010, while the appeal in the prior action was pending, plaintiffs commenced this action correcting some issuesunderlying the dismissal of their first complaint and naming defendant Town of Oxford Board of Supervisors and defendant Roger Monaco as additional defendants. In October 2010, all defendants except Monaco (hereinafter collectively referred to as defendants) moved to dismiss the complaint against them for failure to state a cause of action ( seeCPLR 3211[a][7] ).¹ Plaintiffs cross-moved for a default judgment against defendants, for summary judgment based on the default and for disqualification of defendants' counsel. Supreme Court granted defendants' motion to dismiss and denied plaintiffs' cross motion. Plaintiffs appeal.

Plaintiffs failed to establish that defendants' motion was untimely or that they defaulted. The record contains affidavits of service stating that the complaint was personally served on Moore and Wilcox, individually and in their official capacities, on September 16, 2010. Service upon Wilcox, as Town supervisor, constituted service upon the Town ( seeCPLR 311[a][5] ). Defendants' pre-answer motion to dismiss was served on October 6, 2010, the 20th day following service of the complaint, making the motion timely ( seeCPLR 320[a]; General Construction Law § 20).² Although plaintiffs contend that service was effected on the Town Clerk on behalf of the municipal defendants on September 15, 2010, making defendants' motion one day late, the record does not contain any affidavits of service to substantiate this contention. Thus, Supreme Court properly considered defendants' motion as timely and properly denied the portions of plaintiffs' cross motion seeking to hold defendants in default and for summary judgment based on that default.

Defendants' counsel was not suffering from a nonconsentable conflict due to his joint representation of the municipal defendants and the individual defendants. Although a conflict may arise in the future, depending on how the action is defended, counsel's motion to dismiss the complaint against all of his clients presented a unified front such that no conflict currently exists ( see Matter of Galligan v. City of Schenectady, 116 A.D.2d 798, 799, 497 N.Y.S.2d 186 [1986],lv. denied67 N.Y.2d 607, 502 N.Y.S.2d 1026, 494 N.E.2d 112 [1986];see alsoPublic Officers Law § 18[3][b] ). Accordingly, counsel could represent all of his clients simultaneously.

For the same reasons stated by this Court in affirming dismissalof plaintiffs' prior complaint, plaintiffs' complaint failed to state a cause of action for negligence or abuse of power ( see Kreamer v. Town of Oxford, 91 A.D.3d at 1159, 938 N.Y.S.2d 220).³

Plaintiffs alleged that they served a notice of claim and complied with their obligations under the General Municipal Law ( seeGeneral Municipal Law §§ 50–e, 50–h, 50–i). Defendants contend that dismissal should result because plaintiffs were required to serve a new notice to reflect changes in their factual allegations, theories and new parties. As the record does not contain a copy of any notice of claim, we cannot determine whether the notice of claim was deficient and, thus, cannot dismiss on that basis.

Plaintiffs' cause of action for a declaratory judgment was untimely. Although defendants did not list the statute of limitations defense on the notice of motion, they did include a general demand for “other, further and additional relief” and their supporting papers and memorandum of law argued that this cause of action should be dismissed because it was not brought within 30 days as required under Town Law § 267–c (1). Supreme Court could consider this defense because the notice of motion contained a general relief clause, it specifically requested dismissal of all causes of action, and the timeliness ground was raised and argued in the motion papers, such that plaintiffs should not have been prejudiced by the omission of a formal demand on the face of the notice of motion ( see Schenectady Intl. v. Employers Ins. of Wausau, 245 A.D.2d 754, 754–755, 665 N.Y.S.2d 455 [1997];HCE Assoc. v. 3000 Watermill Lane Realty Corp., 173 A.D.2d 774, 774, 570 N.Y.S.2d 642 [1991];see also Tirado v. Miller, 75 A.D.3d 153, 158, 901 N.Y.S.2d 358 [2010] ). This Court previously affirmed the dismissal of this cause of action on statute of limitations grounds, and we do so again based on the same reasoning ( Kreamer v. Town of Oxford, 91 A.D.3d at 1158–1159, 938 N.Y.S.2d 220).

Plaintiffs have stated a cause of action under 42 USC § 1983 claiming a deprivation of due process. Plaintiffs alleged that defendants acted in contravention of a local ordinance that grandfathered their property, such that plaintiffs were never required to apply for a building permit. They further argued that the stop work order and unjustified refusal to permit construction constituted an improper taking of their property. In determining whether a cause of action exists, courts can consider affidavits submitted by plaintiffs that remedy any defects in the complaint or provide additional information supporting a cause of action ( see Schmidt & Schmidt, Inc. v. Town of Charlton, 68 A.D.3d 1314, 1315, 890 N.Y.S.2d 693 [2009];Haire v. Bonelli, 57 A.D.3d 1354, 1356, 870 N.Y.S.2d 591 [2008] ). An affidavit submitted by plaintiff Michele Kreamer provided information concerning possible malicious intent by defendants to deprive plaintiffs of their property. Considering the allegations liberally, plai...