Petruso v. Schlaefer

Decision Date14 February 2007
Docket NumberNo. CV 06 2632.,CV 06 2632.
Citation474 F.Supp.2d 430
PartiesJoseph PETRUSO and Sharon Anne O'Connor-Petruso, Plaintiffs, v. Douglas C. SCHLAEFER, Carmine Bichetti, Patrick Brostown, Michael Meehan and Brendan Fahey, Constituting the Board of Zoning Appeals of the Incorporated Village of Manorhaven and the Village of Manorhaven, Linda Dlugolecki and Chester Dlugolecki, Mayor and Village Trustees of Village of Manorhaven Including Nicholas B. Capozzi, Jennifer Wilson-Pines, James A. Tomlinson, David Nick Dilucia and John M. Dileo, Jr., Defendants.
CourtU.S. District Court — Eastern District of New York

Ledwith & Atkinson by Peter K. Ledwith, Lynbrook, for Plaintiffs.

Jaspan, Schlesinger Hoffman LLP by Laurel R. Kretzing, John C. Farrell, Garden City, for Defendants Schlaefer, Bichetti, Brostown, Meehan and Fahey as the Board of Zoning Appeals of Inc. Village of Manorhaven.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP by Robert Cabble, Mineola, for Defendants Village of Manorhaven, Capozzi, Wilson-Pines, Tomlinson, DiLucia and Dileo, Jr.

Cahn & Cahn, LLP by Daniel K. Kahn, Melville, for Defendants Linda and Chester Dlugolecki.

MEMORANDUM AND ORDER

WEXLER, District Judge.

In this lawsuit Plaintiffs Joseph and Sharon Anne O'Connor-Petruso (collectively "Plaintiffs" or the "Petrusos"), allege that actions taken by Defendants in connection with Plaintiffs' residential building permit violated their civil rights. Named as defendants are Douglas Schlaefer, Carmine Bichetti, Patrick Brostown, Michael Meehan and Brendan Fahey. These individuals are named in their capacities as the Village of Manorhaven's Board of Zoning Appeals (the "BZA"). Also named as Defendants are the Village of Manorhaven (the "Village") and the individuals comprising the Village Board of Trusteesdefendants Nicholas Capozzi, Jennifer Wilson-Pines, James Tomlinson, David Nick DiLucia and John DiLeo, Jr. (collectively the "Village Defendants"). Finally, Plaintiffs name two individuals, Linda and Chester Dlugolecki (the "Dlugoleckis"). The Dlugoleckis are Plaintiffs' neighbors, at whose behest the other Defendants are alleged to have acted.

Presently before the court are the motions of all Defendants to dismiss the complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. For the reasons that follow, the motions are granted in part and denied in part.

BACKGROUND
I. Factual Background

The facts set forth below are drawn from Plaintiffs' complaint. The facts are construed in the light most favorable to Plaintiffs, the non-moving parties and assumed, at this juncture, to be true. Facts are also drawn from state court judicial records presently before the court. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (in context of motion to dismiss court may consider matters of which judicial notice may be taken as well as documents in plaintiffs possession which are relied upon in bringing suit).

A. The Petrusos and Issuance of their Building Permit

The Petrusos are residents and home owners in the Village of Manorhaven, located in Nassau County, New York. Plaintiffs reside in a one family home to which they desired to construct a rear addition to be used as a family room. To that end, Plaintiffs hired an architect to prepare plans for the addition. Those plans showed that the contemplated addition would result in the house covering 26% of Plaintiffs' property., In view of the fact that the Village Code provides for a maximum lot coverage of 25% for a single family home, Plaintiffs petitioned for a variance. That variance was granted by the BZA on June 8, 2004. Thereafter, the Manorhaven Building Department Superintendent raised an issue with respect to the adequacy of rainwater runoff Plan amendments were filed to address this issue. Additionally, in October of 2004, Plaintiffs filed an amendment showing the addition of a roof deck. Plaintiffs' formal plans were approved on November 10, 2004. They were issued a building permit at that time and construction began.

B. The Dlugoleckis and Their Complaints Regarding the Rooftop Deck

The record indicates a long period of animosity between the Dlugoleckis and the Petrusos, who are next door neighbors. In addition to the events that led to this lawsuit, there is record evidence that the Petrusos complained to the Village about the Dlugoleckis and that the Dlugoleckis lodged complaints regarding the Petrusos. The first record evidence of the Dlugoleckis' complaint about the Petruso home extension came in the form of a December 2004 written complaint to the Village regarding the construction of the Petruso's rooftop deck. There is also evidence that prior to and after that letter, Mrs. Dlogolecki made several trips to: the Village Hall to complain about the construction. Despite the written and oral complaints, there is no evidence of the filing of a formal appeal to the November 2004 permit by the Dlugoleckis until June of 2005. By that time, Plaintiffs allege that their construction was 90% complete.

C. The Appeal

The Dlugoleckis' filed an appeal of the grant' of the Petruso building permit on June 5, 2005. In view of the November 2004 issuance of the permit, and the fact that the Village Code provides that an appeal from a permit grant must be made within thirty days of its issuance, Plaintiffs argue that the appeal was clearly untimely. Plaintiffs further allege, that on May 31, 2005, a series of events, orchestrated to allow for a late appeal, was set into motion. Specifically, it is alleged that Defendant Schlaefer, the chairman of the BZA, with full knowledge of the BZA and the Village Defendants, undertook to create a fictitious set of circumstances aimed at allowing the Dlugoleckis to file, a late appeal. Those events center around the incorporation of the roof deck into the Petrusos' building plan — an event that took place in October of 2004.

Plaintiffs allege that on May 31, 2005, BZA Chairman Schlaefer transmitted an e-mail to the Village Clerk ("Ronnie"). That e-mail states that a "determination" was needed on "the legality of the deck/patio from the Superintendent of Buildings so Dlugolecki can `challenge' the determination." The e-mail makes reference to the fact that the Dlugoleckis had only thirty days to challenge Plaintiffs' building permit, which time period "may" have expired. The e-mail asks Ronnie to check on the date that revised plans were approved by "Len," a reference to Len Baron, the Village Building Superintendent ("Baron"). In response to the e-mail, Ronnie is alleged to have stated that she spoke to Chris Coschignano (the Village Attorney) who told her that the Petruso case could not be re-opened. A handwritten note is alleged to have been appended to the email stating "Len — This needs to be done as per Chris C." It is signed with a handwritten "R."

Three days after this e-mail exchange, Baron wrote a letter to the Dlugoleckis, dated June 3, 2005. This letter states Baron's understanding as to the Dlugoleckis' belief that the Petrusos' rooftop structure was a deck. Baron explains that because the structure was actually a "terrace," it was exempt from the requirement of a variance. Two days after issuance of this letter, the Dlugoleckis filed an appeal. The appeal was placed on the BZA calendar for June 22, 2005 — a calendar date that is alleged to have been in violation of the Village Code's ten day notice requirement.

The Petrusos hired counsel and appeared before the BZA. At the hearing, the Petrusos argued that: (1) the statute of limitations as to the appeal had expired; (2) the June 3, 2005 letter from Len Baron did not constitute a proper basis for any new appeal; (3) the Dlugoleckis had notice of the November 2004 permit and (4) the completion of the construction gave the Petrusos a vested right to the permit that could not be vacated. Despite these arguments, the BZA granted the appeal. The grant of the appeal was oral, and a written decision was not filed until five months later. A time period which, according to the Petrusos, was in violation of New York State Village Law, which requires that such decisions be filed within 62 days of the close of a hearing.

D. The Decision of the BZA

As to the timeliness issue, the BZA found that since Baron's June 3, 2005 correspondence to the Dlugoleckis was the only "formal decision" pertaining to the deck, it constituted a separate basis for appeal. Therefore, the June 5, 2005 appeal was held to have been timely filed. On the merits, the BZA decision focused on that part of the Petruso building permit relating to the rooftop structure. The decision states that the initial lot coverage variance was sought without disclosing the contemplated rooftop structure. Although plans submitted as early as October of 2004 were acknowledged to show this structure, it was held that the Building Superintendent's approval was based upon the mistaken belief that the structure was not a zoning issue. The Board further found that the November 2004 stamped approval of the plan was "placed in the building file without actual or constructive notice to anyone."

The BZA disagreed with Superintendent Baron's finding that the rooftop structure was a "terrace" and therefore exempt from a variance requirement. Instead, the BZA held that the structure was, indeed, a deck and approval thereof was subject to approval by the BZA. It was therefore held that the determination of Superintendent Baron with respect to that portion of the permit should be considered null and void.

E. State Court Proceedings

Following the decision of the BZA, the Petrusos commenced a state court proceeding pursuant to Article 78 of the New York CPLR ("Article 78") against the BZA and the Village. In addition to claiming violation of state laws concerning timeliness and other issues, the Petrusos argued, in a second amended petition before the Article 78 court, that the Chairman of the BZA deliberately attempted to...

To continue reading

Request your trial
7 cases
  • Witt v. Vill. of Mamaroneck
    • United States
    • U.S. District Court — Southern District of New York
    • March 31, 2014
    ...was fifty-percent complete at the time Melillo issued the stop work order does not aid Plaintiffs' case. In Petruso v. Schlaefer, 474 F.Supp.2d 430 (E.D.N.Y.2007), the Eastern District of New York dismissed a due process claim that rested “primarily on the argument that the near completion ......
  • Riano v. Town of Schroeppel
    • United States
    • U.S. District Court — Northern District of New York
    • August 10, 2015
    ...Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 881-82 (2d Cir. 1996); Petruso v. Schlaefer, 474 F. Supp. 2d 430, 437 n.1 (E.D.N.Y. 2007), aff'd, 312 Fed. Appx. 397 (2d Cir. 2009). In fact, Plaintiff challenged the issuance of the permit herein in various ......
  • Crown Castle NG E. LLC v. Town of Oyster Bay
    • United States
    • U.S. District Court — Eastern District of New York
    • May 11, 2020
    ...prior issue to petitioner of a building permit [does] not confer rights in contravention of the zoning laws."); Petruso v. Schlaefer, 474 F. Supp. 2d 430, 439 (E.D.N.Y. 2007), aff'd, 312 F. App'x 397 (2d Cir. Feb. 26, 2009) ("Neither estoppel nor laches may be invoked against a municipality......
  • Eli Lilly & Co v. Gottstein
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 12, 2010
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT