Paliotto v. Town of Islip

• Citation: 31 Misc.2d 447,224 N.Y.S.2d 466
• Parties: Angelo J. PALIOTTO v. TOWN OF ISLIP in the State of New York, Town Board of the Town of Islip, consisting of Thomas J. Harwood, Supervisor, Herman Hammer, Donald J. Kuss, Ridgeway T. Haggerty and Gordon Taylor, and Frank A. Gross, Town Clerk of the Town of Islip.
• Decision Date: 08 January 1962
• Court: United States State Supreme Court (New York)

Page 466

224 N.Y.S.2d 466

31 Misc.2d 447

Angelo J. PALIOTTO v. TOWN OF ISLIP in the State of New York, Town Board of the Town of Islip, consisting of Thomas J. Harwood, Supervisor Herman Hammer, Donald J. Kuss, Ridgeway T. Haggerty and Gordon Taylor, and Frank A. Gross, Town Clerk of the Town of Islip.

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

Jan. 8, 1962.

Angelo J. Paliotto, New York City, in pro. per.

George F. X. McInerney, Islip Town Atty., Bay Shore, New York, for defendants.

ANTHONY M. LIVOTI, Justice.

This is an action against nine known defendants and three unknown defendants setting up three causes of action as follows:

1. The first cause of action is predicated upon Section 51 of the General Municipal Law to obtain an injunction against the defendants Town Board of the Town of Islip and the individual defendants as members of the Town Board and the Town of Islip, enjoining them from taking any action whatsoever to consider and adopt any change of zone from 'BUSINESS OF BUSINESS 1 DISTRICTS TO BUSINESS 1 DISTRICT' to the Revised Zoning Ordinance of the Town of Islip affecting property of the plaintiff and other taxpayers in accordance with a purported notice dated November 6, 1961, which the plaintiff requests to be adjudged and decreed as void and of no effect.

2. The second cause of action is for a declaratory judgment declaring whether the plaintiff's property described in paragraph 6 of the complaint is zoned in 'BUSINESS' or in 'BUSINESS 1 DISTRICT' as promulgated by the Revised Zoning Ordinance of the Town of Islip, pursuant to Section 47o of the Civil Practice Act.

3. The third cause of action is for damages resulting from a conspiracy participated in and by all of the defendants or one or more of them, in a concerted scheme and plan, all to the damage of the plaintiff in the sum of $100,000.

Plaintiff moved for an injunction pendente lite to enjoin and restrain the defendants Town of Islip, Town Board of the Town of Islip and the individual defendants, as members of the Town Board of the Town of Islip, pending the determination of this action, from taking any action whatsoever to consider and adopt the proposed zoning amendment to the Revised Zoning Ordinance of the Town of Islip, in accordance with and as described in defendants' ambiguous and indefinite notice dated November 6, 1961, which renders such notice void in violation of the statutory requirements of Sections 264 and/or 265 of the Town Law. Said notice is contained in paragraph 5 of the complaint, which states in part:

'on the recommendation of ISLIP TOWN BOARD for the following change of zone from Business or Business 1 District * * * to Business 1 District'.

Plaintiff is a taxpayer in the Town of Islip, Suffolk County, assessed upon the assessment roll of said Town for an amount in excess of $1,000, and has been assessed and has paid taxes upon an assessment in excess of $1,000 within one year previous to the commencement of this action; thus plaintiff qualifies to commence the instant action pursuant to Section 51 of the General Municipal Law. Defendants are the Town of Islip, members of its Town Board, the Town Clerk, the Chief Building and Zoning Inspector of the Town and three unknown defendants.

It has been long settled in this State that before an injunction pendente lite may be granted, the court should be satisfied, first, that the plaintiff's right to the ultimate relief requested is not in doubt, and second, that the irreparable damage which he claims will result from its denial outweighs the damage which may result to the party whose actions are sought to be restrained.

In the light of this motion for an injunction pendente lite the court is given power to determine the sufficiency of the complaint, even without a formal cross motion. Challenger v. Household Finance Corp., 179 Misc. 906, 40 N.Y.S.2d 465, affd. 266 App.Div. 844, 43 N.Y.S.2d 517; Leonard v. John Hancock Mutual Life Ins. Co., Sup., 118 N.Y.S.2d 170, affd. 281 App.Div. 859, 119 N.Y.S.2d 918.)

The complaint alleges three causes of action. The first is set forth in the allegations numbered 1 through 12; the second in paragraphs numbered 13 through 41; and the third in paragraphs numbered 42 through 45. Paragraph 13 of the second cause of action realleges as part thereof paragraphs 1 through 12 of the first cause of action, and paragraph 42 of the third cause of action realleges, as a part thereof, paragraphs 1 through 12 of the first cause of action and paragraphs 14 through 41 of the second cause of action,

Formal allegations aside, which are based upon Section 51 of the General Municipal Law, the complaint contains the following facts as to the first cause of action:

By a published notice dated November 6, 1961, which defendant Town Board caused to be printed, it is stated in part:

'NOTICE IS HEREBY GIVEN that the Town Board of the Town of Islip will hold a public hearing on November 30, 1961 * * * on the recommendation of ISLIP TOWN BOARD for the following change of zone from Business or Business 1 District * * * to Business 1 District'.

The plaintiff herein, owner of part of property sought to be rezoned by defendants, challenges the validity of the publication by the defendants of the purported notice of hearing upon the ground that said notice is ambiguous, indefinite and renders such notice void in violation of the statutory requirements of Sections 264 and/or 265 of the Town Law and such action by defendant Town Board would constitute an illegal official act and that no hearing was ever had by the Planning Board of the Town of Islip prior to the purported public hearing by the Town Board, as adopted by defendants pursuant to Section 274 of the Town Law.

In paragraph 8 of his complaint plaintiff alleges 'That not only would such illegal official action by defendant Town Board be in violation of the Town Law * * * but it would be highly injurious to the public interest and would impose unjust burdens upon the plaintiff and other taxpayers whose properties will be affected by the adoption of the proposed illegal amendment'.

In paragraph 9 plaintiff alleges 'That any action by the defendant Town Board to adopt the proposed amendment * * * pursuant to said notice of hearing would constitute an illegal official act * * * and any such illegal official act would imperil public interest and property rights of the plaintiff and other taxpayers who would suffer irreparable injury and would impose unjust burdens upon the plaintiff and other taxpayers and should be permanently enjoined and restrained.'

In paragraph 10 plaintiff alleges 'That the matter of adoption of the proposed ambiguous amendment * * * is scheduled to be heard and considered by the defendant Town Board on November 30, 1961 * * * that the said defendants might at any time thereafter adopt the proposed ambiguous amendment which action would result in immediate and irreparable injury to the plaintiff and other taxpayers, unless the defendants are enjoined from performing the acts complained of and threatened, during the pendency of this action.'

In considering and in passing upon the legal sufficiency of this complaint this court is required to follow the well-established and fundamental rule of law that an application of this character must be accepted as true in all the relevant allegations and the reasonable inferences that may be drawn therefrom. (Schwartz v. Heffernan, 304 N.Y. 474, 109 N.E.2d 68.) Thus, the only basic issue presented for determination is whether the defendants Town of Islip and Town Board have the power, under the existing law, to do the threatened acts sought to be enjoined and restrained.

Pursuant to the provisions of Section 51 of the General Municipal Law, which, so far as pertinent herein, states as follows: 'All officers * * * acting * * * for and on behalf of any * * * town, * * * and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, * * * or to prevent waste or injury to, or to restore and make good, any property, funds, or estate of such * * * town * * * by any person * * * whose assessments shall amount to one thousand dollars * * * in the * * * town, * * * to prevent the waste or injury of whose property the action is brought.' (Emphasis supplied.) It is thus readily apparent, in express terms, that Section 51 of the General Municipal Law authorizes injunctive relief against town offices (1) 'to prevent any illegal official act'; (2) 'to prevent waste or injury to * * * any property, funds or estate' and (3) 'to prevent the waste or injury of whose property the action is brought.'

'A decision made without authority is an illegal official act.' (Aldrich v. City of New York, 208 Misc. 930, 936, 145 N.Y.S.2d 732, 738, affd. 2 A.D.2d 760, 154 N.Y.S.2d 427; 17 A.L.R.2d 475.) (Emphasis supplied.)

In effect, Section 51 of the General Municipal Law grants the right to the plaintiff to prevent the making of that decision.

In Rogers v. O'Brien, 153 N.Y. 357, on page 361, 47 N.E. 456, at page 457, the Court of Appeals said: 'The words, 'to prevent any illegal official act,' * * * plainly relate to acts germane to the purpose of the new legislation, which was to extend the remedy for the protection of taxpayers against frauds and peculations of public officials, and to prevent usurpation by public bodies or agents, of powers not granted, the exercise of which may imperil the public interests.' (Emphasis supplied.)

The Court of Appeals is reviewing the history of legislation in respect to taxpayers' actions in Altschul v. Ludwig, 216 N.Y. 459, 466-467, 111 N.E. 216, 218, said: 'If, therefore, the plaintiff can succeed, it must be by virtue of the provisions of section 51 of the General Municipal Law which authorize the maintenance of a taxpayer's action to prevent an 'illegal official act.' * * * The mere...