Palmieri v. Town of Babylon

• Decision Date: 18 May 2016
• Docket Number: 2013-01023, Index No. 23214/11.
• Citation: 139 A.D.3d 925,31 N.Y.S.3d 578,2016 N.Y. Slip Op. 03864
• Parties: Paul PALMIERI, appellant-respondent, v. TOWN OF BABYLON, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 925
31 N.Y.S.3d 578
2016 N.Y. Slip Op. 03864

Paul PALMIERI, appellant-respondent,
v.
TOWN OF BABYLON, et al., respondents-appellants.

2013-01023, Index No. 23214/11.

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

May 18, 2016.

31 N.Y.S.3d 579

Judith N. Berger, Babylon, NY, for appellant-respondent.

Farber Brocks & Zane, LLP, Garden City, NY (Andrew J. Mihalick of counsel), for respondents-appellants.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

139 A.D.3d 925

In an action, inter alia, to recover damages for trespass and pursuant to 42 U.S.C. § 1983 for violation of federal constitutional rights under color of state law, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered November 27, 2012, as granted that branch of the defendants' motion which was to dismiss the complaint for failure to comply with General Municipal Law § 50–h, and the defendants cross-appeal from so much of the same order as denied that branch of their motion which was for an award of costs and sanctions pursuant to 22 NYCRR 130–1.1.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was to dismiss the cause of action to recover damages pursuant to 42 U.S.C. § 1983 for violation of federal constitutional rights under color of state law for failure to comply with General Municipal Law § 50–h, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed

31 N.Y.S.3d 580

from, without costs or disbursements.

In a prior action between the plaintiff and the defendant Town of Babylon, those parties, who own adjacent parcels of real property, entered into a so-ordered stipulation of settlement in which the Town agreed to build a fence along its property (see Palmieri v. Town of Babylon, 56 A.D.3d 740, 741, 868 N.Y.S.2d 703 ). The Town thereafter unsuccessfully attempted to vacate the stipulation of settlement (see id. ) and never built the fence. The plaintiff commenced an action seeking, among other things, specific performance of the stipulation of settlement. After commencement of that action, the value of the plaintiff's real property was reassessed in such a manner as to increase his property taxes. The plaintiff thereafter commenced this action, inter alia, to recover...