Pet Time Enters. v. Town of Islip

• Decision Date: 15 January 2020
• Docket Number: Index 603669/2018
• Citation: 2020 NY Slip Op 34755 (U)
• Parties: PET TIME ENTERPRISES, INC., Plaintiff, v. TOWN OF ISLIP, LAWRENCE LABS, INC. d/b/a TOTAL PET CARE and 780 BROADWAY LLC, Defendant(s). Mot. Seq. Nos. 002, 003
• Court: New York Supreme Court

2020 NY Slip Op 34755(U)

PET TIME ENTERPRISES, INC., Plaintiff, v. TOWN OF ISLIP, LAWRENCE LABS, INC. d/b/a TOTAL PET CARE and 780 BROADWAY LLC, Defendant(s).

Mot. Seq. Nos. 002, 003

Index No. 603669/2018

Supreme Court, Suffolk County

January 15, 2020

Unpublished Opinion

ORIG.RETURN DATE: April 24, 2018

ORIG.RETURN DATE: May 16, 2018

FINAL RETURN DATE: June 12, 2018

PLAINTIFF'S ATTORNEYS: SCHEYER & STERN LLC

DEFENDANTS' ATTORNEYS: JOHN DICIOCCIO, ESQ. Attorney for Deft.Town of Islip

WILLIAM R. GARBARINO, ESQ. Attorney for Defis.Lawrence Labs Inc. d/b/a Total Pet Care and 780 Broadway LLC

PRESENT: Hon. Sanford Neil Berland, A.J.S.C.

HON. SANFORD NEIL BERLAND, A.J.S.C.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendantTown of Islip dated March 27, 2018 and supporting papers; (2) Notice of Motion by defendantsLawrence Labs, Inc. d/b/a Total Pet Care and 780 Broadway LLC dated April 27, 2018; (3) Affirmation In Further Support of Plaintiff s Preliminary Injunction Request and In Opposition to Both Motions Filed by the Defendants by plaintiff dated May 10, 2018 and supporting papers; (4) Reply Affirmation by defendantsLawrence Labs, Inc. d/b/a Total Pet Care and 780 Broadway LLC dated May 24, 2018 and supporting papers; and (5) Oral argument at a hearing held before the Court on January 10, 2019 it is

ORDERED that the motions (#002 and #003) by defendants are consolidated for purposes of this determination; and it is further

ORDERED that defendantTown of Islip's motion to dismiss the complaint against it herein pursuant to CPLR §§ 3211[a][3] and [a][7] is GRANTED; and it is further

ORDERED that defendantsLawrence Labs, Inc. d/b/a Total Pet Care and 780 Broadway LLC's motion to dismiss the complaint against them herein pursuant to CPLR § 3211 [a][7] is GRANTED.

This action arises out of a decision by defendantTown of Islip("the Town") to permit defendantLawrence Labs, Inc d/b/a Total Pet Care ("Total Pet Care") to operate an Animal Care Center in a building owned by defendant780 Broadway LLC in an Industrial 1 zone in the Town of Islip.Plaintiff commenced this action by filing a summons and complaint in which it alleges that the action by the Town has violated plaintiffs rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution and that the Town and the other defendants have acted in violation of General Business Law § 340. causing injury to plaintiff and its business.The Town now moves to dismiss the complaint against it pursuant to CPLR § 3211 [a][3], on the ground that plaintiff does not have standing to bring this action, and, together with the other defendants, pursuant to CPLR § 3211 [a][7]. on the ground that plaintiff has failed to state a cause of action.

Background

Plaintiff operates a retail store at 4601 Sunrise Highway in Bohemia in the Town of Islip, in a district zoned "Business 2."Plaintiff describes its primary focus to selling pet food and supplies to the public.Pet Time leases the premises in which its store is located.Defendant780 Broadway LLC owns the building located at 780 Broadway, Holbrook ("the premises") in which defendantLawrence Labs, Inc. operates its business known as "Total Pet Care."The 780 Broadway building is in a district in the Town of Islip zoned "Industrial L-l."Pet Time is situated approximately 2.9 miles from Total Pet Care.On January 22, 2015, a Town Fire Marshal investigating a complaint of safety violations at 780 Broadway found that 780 Broadway LLC was not in compliance with certain provisions set forth in the Islip Town Code, including that it had changed its use of the premises without a permit for its changed use.The Fire Marshal issued appearance tickets to 780 Broadway LLC which were returnable in the Fifth District Court.On June 24, 2015, 780 Broadway LLC submitted a request to the Town to permit a change of use of the premises by a new tenant.Total Pet Care, as an "Animal Care Center."Over the course of the prosecution of the charges pending in Fifth District Court, 780 Broadway LLC took steps to become compliant under the Town Code, including submitting plans to the Town Planning Department for review and adhering to various directives from the Town.On February 28, 2017, the Islip Town Code was amended to revise the definition of "Animal Care Center."As of that date, Islip Town Code§ 68-3 [B] provides, in pertinent part: "[An Animal Care Center is defined as] an establishment whose primary service is the boarding of dogs and cats, inclusive of day care, grooming, veterinary care and behavior training ....The accessor)' sale of animal care products, including, but not limited to, food, toys, and cleaning products, shall be clearly incidental and limited to 10% of the overall gross floor area or 2, 000 square feet, whichever is less.'* On June 29, 2017.780 Broadway LLC obtained a temporary certificate of occupancy to allow the premises to be used for the operation of an Animal Care Center.On November 1, 2017, a conditional discharge was issued by the Fifth District Court to 780 Broadway LLC, requiring, inter alia, that by May 1, 2018, it obtain a final certificate of occupancy.A survey of the premises dated June 23, 2017 showed that of the 15, 400 square feet of gross floor area at 780 Broadway, 1540 square feet, or 10% of that space was retail space.Ultimately, in May 2018, the Town found that 780 Broadway LLC was compliant with the Town Code and issued a final certificate of occupancy, dated August 28.2018, permitting the space to be used by Total Pet Care as an Animal Care Center.

On February 27, 2015, approximately a month after 780 Broadway LLC was charged with violations of the Town Code, counsel for Pet Time sent a letter to the Town indicating that inasmuch as Total Pet Care had been allowed to use their premises for a retail business, it was hoping to move to a premises in Holbrook, located in the same Industrial 1 zoned area as Total Pet Care, and seeking a permit from the Town to do so.In the letter, plaintiff asserted that "[being aware of the Equal Protection Clause of the Constitution, it would seem unfair that [Pet Time] cannot rent a site in the Holbrook Commercial Center when Total Pet Care is operating a major retail facility in the same Industrial-1 Zoning."In response, the Town informed plaintiff that a retail use was not allowed in an Industrial District under the Town of Islip Code.Plaintiff never made any attempt to apply to the Town to be permitted to operate as an Animal Care Center as Total Pet Care had.

Plaintiff commenced this action by filing a Summons and Verified Complaint on February 25, 2018.The complaint alleges four causes of action.The first three causes of action are asserted against the Town only, alleging that the Town conspired with its co-defendants to give preferential treatment to Total Pet Care, allowing it to operate a retail business in violation of the Town Code while prohibiting plaintiff from doing so.Plaintiff alleges that the rents in an Industrial 1 zoned area are significantly lower than in a Business 2 zoned district and that Total Pet Care thus was in a position to charge less for its retail products than Pet Time could.Plaintiff further alleges that the Town's conduct gave Total Pet Care an unfair competitive edge and that because, among other things, the Town does not require a permit to operate a business and. therefore, there is no formal procedure by which Pet Time can contest the Town's refusal to operate its business in an Industrial 1 zone, its rights to due process and equal protection under the United States Constitutionand42 USC § 1983 have been violated.The fourth cause of action charges all defendants with violating General Business Law § 340("the Donnelly Act").Plaintiff is seeking recompense for the damages it has suffered in the form of lost income, profits and business opportunities and, consequently, reduced shareholder dividends.Defendants Total Pet Care and 780 Broadway LLC answered the complaint on February 25, 2018. denying plaintiffs allegations, and asserting the affirmative defense that plaintiff lacks standing to bring the action.They join in the Town's motion to dismiss the complaint.

CPLR § 3211 [a][3]: Standing:

The United States Supreme Court has written that:

[T]he irreducible constitutional minimum of standing contains three elements.First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, . .. and (b)"actual or imminent, not 'conjectural' or 'hypothetical, '" . . . .Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court.". . . Third, it must be ''likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

(Lujan v Defs. of Wildlife,504 U.S. 555, 560-61[1992](internal citations omitted)).As pertinent to the current action, the New York standing requirements are not materially different: "[T]o establish standing to challenge governmental action, a party must show that it 'will suffer direct harm, injury that is in some way different from that of the public at large,' and that 'the in-fact injury of which it complains .. . falls within the "zone of interests," or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted'"(Tilcon New York Inc. v Town of New Windsor,172 A.D.3d 942, 102 N.Y.S.3d 35[2d Dept2019]...