Lake George Park Com'n v. Salvador

• Decision Date: 04 December 1997
• Citation: 664 N.Y.S.2d 847,245 A.D.2d 605
• Parties: , 1997 N.Y. Slip Op. 10,380 LAKE GEORGE PARK COMMISSION, Respondent, v. John SALVADOR Jr. et al., Doing Business as Dunham's Bay Lodge, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 847

664 N.Y.S.2d 847

245 A.D.2d 605, 1997 N.Y. Slip Op. 10,380

LAKE GEORGE PARK COMMISSION, Respondent, v. John SALVADOR Jr. et al., Doing Business as Dunham's Bay Lodge, Appellants.

Supreme Court, Appellate Division Third Department.

Dec. 4, 1997.

Galvin & Morgan (James E. Morgan, of counsel), Delmar, for appellants.

Dennis C. Vacco, Attorney-General (Lawrence A. Rappoport, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeals (1) from a judgment of the Supreme Court (Moynihan Jr., J.), entered July 22, 1996 in Warren County, which, inter alia, granted plaintiff's motion for summary judgment, and (2) from an order of said court, entered November 26, 1996 in Warren County, which, inter alia, denied defendants' motion for renewal.

The instant matter challenging certain laws and regulations promulgated to implement regulatory authority of plaintiff over vessels, wharfs, moorings and the imposition of fee schedules was previously before us (see, Matter of Salvador v. State of New York, 205 A.D.2d 194, 197, 618 N.Y.S.2d 142, lv. denied 85 N.Y.2d 810, 629 N.Y.S.2d 724, 653 N.E.2d 620, lv. dismissed 85 N.Y.2d 857, 624 N.Y.S.2d 375, 648 N.E.2d 795).

The present proceeding was brought by plaintiff against defendants seeking an order directing defendants, inter alia, (1) to pay the regulatory fees assessed pursuant to ECL 43-0125(2)(a) in 1992, 1993 and 1994, (2) to pay the penalties which had accrued monthly due to defendants' nonpayment of annual fees, and (3) to remove six-foot extensions on 25 finger docks until defendants obtained a permit authorizing the extensions. Defendants answered. Plaintiff then sought to amend its complaint to include annual fee and penalties for 1995, which was granted. Defendants served a verified answer which contained 23 affirmative defenses. Plaintiff moved for an order (1) conforming paragraphs 2, 8, 9, 10 and 20 of its amended complaint to the statements contained in paragraphs 5 and 15 of the affidavit of Michael White, plaintiff's executive director, to amend plaintiff's demand for dock and mooring fees from $2,602.50 to $3,646, (2) for summary judgment on each of its causes of action, and (3) for summary judgment dismissing each of defendants' affirmative defenses. Defendants, proceeding pro se, cross-moved to dismiss plaintiff's motion. Supreme Court granted plaintiff's motions and denied defendants' motion.

Supreme Court ruled that the constitutionality of the annual dock and mooring fees and their applicability to defendants had previously been upheld in Matter of Salvador v. State of New York (supra, at 199-201, 618 N.Y.S.2d 142). The court found that no issue as to defendants' ownership and operation of Dunham's Bay Lodge existed and that the Lodge's dock complex, boathouse and boat-servicing utilities constitute a "class A marina" under plaintiff's regulations. The court found that defendants' affirmative defenses were unpersuasive and meritless, that several were barred by res judicata in that they could have been raised in Matter of Salvador v. State of New York (supra ), and that defendants have failed to exhaust their administrative remedies as to other defenses and that those issues were not ripe for review. The court also ruled that defendants failed to raise a question of fact as to the amount of fees and penalties due.

A proposed judgment was submitted in June 1996 by plaintiff seeking, in addition, to amend its request to include annual fees and penalties for 1996. Supreme Court granted the motion to amend and ordered defendants to pay plaintiff $23,802.16 and to remove the unauthorized extensions of the finger docks. Defendants paid the judgment to Supreme Court on August 6, 1996 and the court stayed injunctive relief requiring removal of the dock extensions pending appeal.

In September 1996, defendants moved for renewal of their cross motion against plaintiff who responded. In their reply defendants, appearing by counsel, alleged additional arguments not included in their motion to renew and not raised by them in opposing plaintiff's motion for summary judgment. Plaintiff submitted a surreply. In an order dated November 26, 1996, Supreme Court denied defendants' motion to renew. These appeals ensued.

We reject defendants' contention that their motion to renew should be granted in the interest of justice because they proceeded pro se and were, therefore, not adequately represented. A pro se litigant acquires no greater rights than any other litigant (see, Brooks v. Inn at Saratoga Assn., 188 A.D.2d 921, 591 N.Y.S.2d 625). Supreme Court properly denied defendants' motion to renew.

We find no merit in defendants' belated contention that the judgment entered should not bind Dunham's Bay, a subset of Dunham's Bay Resort Corporation. Defendants contend that Dunham's Bay is a corporation which was required to appear by counsel (see, CPLR 321). We note that defendants were sued individually and doing business as Dunham's Bay Lodge. Defendants admitted that they owned and operated Dunham's Bay. It was Dunham's Bay which appeared as applicant in the 1993 fee redetermination. It was also Dunham's Bay which was named in the 1988 agreement fixing commercial dock fees. Defendants' failure to earlier raise this issue forecloses its determination at this point (see, Matter of Gerdts v. State of New York, 210 A.D.2d 645, 646, 620 N.Y.S.2d 512, appeal dismissed 85 N.Y.2d 856, 624 N.Y.S.2d 374, 648 N.E.2d 794, lv. denied 85 N.Y.2d 810, 629 N.Y.S.2d 724, 653 N.E.2d 620). In addition, we reject defendants' argument in that:

* * * a corporation appearing and defending on the merits cannot move to set aside a judgment against it on the ground that the corporation was not represented by an attorney, for CPLR 321 "is not intended to penalize the adverse party for the corporation's improper appearance" (King Shell Serv. Sta. v. Douglas Co., 106 Misc.2d 57, 59, 430 N.Y.S.2d 484, quoting Cohn v. Warschauer Sick Support Soc. Bnei Israel, 19 N.Y.S.2d 742, lv. denied 259 App.Div. 914, 20 N.Y.S.2d 669).

Regarding defendants' challenge to the grant of summary judgment to plaintiff, we find that plaintiff sustained its burden establishing a prima facie entitlement to summary judgment by way of the affidavit of White, its executive officer. Defendants were required to come forward with evidentiary proof in admissible form sufficient to demonstrate a triable issue of fact (see, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298). Defendants did not submit proof of payment of fees and...