Rattner v. Planning Com'n of Village of Pleasantville

• Decision Date: 13 December 1989
• Docket Number: No. 1,No. 2,1,2
• Citation: 548 N.Y.S.2d 943,156 A.D.2d 521
• Parties: In the Matter of Marshall RATTNER, et al., Petitioners, v. PLANNING COMMISSION OF the VILLAGE OF PLEASANTVILLE, et al., Respondents. (Matter) VILLAGE BOARD OF the VILLAGE OF PLEASANTVILLE, et al., Plaintiffs-Appellants-Respondents, v. PLANNING COMMISSION OF the VILLAGE OF PLEASANTVILLE, Defendant-Appellant-Respondent, Marshall Rattner, et al., Defendants-Respondents-Appellants; Richard Kersten, et al., Counterclaim Defendants-Appellants-Respondents. (Matter)
• Court: New York Supreme Court — Appellate Division

Page 943

548 N.Y.S.2d 943

156 A.D.2d 521

In the Matter of Marshall RATTNER, et al., Petitioners, v. PLANNING COMMISSION OF the VILLAGE OF PLEASANTVILLE, et al.,

Respondents. (Matter No. 1)

VILLAGE BOARD OF the VILLAGE OF PLEASANTVILLE, et al., Plaintiffs-Appellants-Respondents, v. PLANNING COMMISSION OF the VILLAGE OF PLEASANTVILLE,

Defendant-Appellant-Respondent,

Marshall Rattner, et al., Defendants-Respondents-Appellants;

Richard Kersten, et al., Counterclaim

Defendants-Appellants-Respondents. (Matter No. 2)

Supreme Court, Appellate Division Second Department.

Dec. 13, 1989.

Golenbock and Barell, New York City (Arthur M. Handler, Robert S. Goodman and Brian J. Kearney, of counsel), and Burns and Burns, Chappaqua (Richard E. Burns, of counsel), for plaintiffs-appellants-respondents, defendant-appellant-respondent and counterclaim defendants-appellants-respondents.

Liddell, Sapp, Zivley, Hill and LaBoon, New York City (David R. Kittay, of counsel), Cadwalader, Wickersham & Taft, New York City (John J. Walsh, of counsel), and Charles V. Martabano, Mount Kisco, for defendants-respondents-appellants.

Before BRACKEN, J.P., and RUBIN, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a consolidated proceeding pursuant to CPLR article 78 to compel the Planning Commission of the Village of Pleasantville to approve a site plan (Matter No. 1), and an action, inter alia, for a judgment declaring that the proposed use of the premises in question is in violation of the local zoning ordinance (Matter No. 2), (1) the plaintiffs, the defendant Planning Commission of the Village of Pleasantville, and the counterclaim defendants in Matter No. 2 appeal (a), as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Palella, J.), entered November 13, 1987, as granted that branch of the motion of the defendants Marshall Rattner, Marshall Rattner, Inc., and National Limousine Service, Inc., in Matter No. 2 which was to dismiss the thirteenth affirmative defense in their reply to those defendants' counterclaims, and (b), as limited by their brief, from so much of an order of the same court, entered September 7, 1988, as granted the motion of the defendants Marshall Rattner, Marshall Rattner, Inc., and National Limousine Service, Inc., for summary judgment dismissing the complaint and for severance of the proceeding pursuant to CPLR article 78, and which denied their cross motion for leave to serve an amended complaint, and, inter alia, failed to compel further discovery, and (2) Marshall Rattner, Marshall Rattner, Inc., and National Limousine Service, Inc., cross-appeal, as limited by their brief, from so much of the order entered November 13, 1987, as denied those branches of their motion which were to dismiss the twelfth affirmative defense and for leave to file a notice of claim nunc pro tunc for damages arising, inter alia, from the denial of their application for site plan approval.

ORDERED that the order entered November 13, 1987, is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the motion of the defendants Marshall Rattner, Marshall Rattner, Inc., and National Limousine Service, Inc., which was to dismiss the thirteenth affirmative defense is denied; and it is further

ORDERED that the order entered November 13, 1987, is affirmed insofar as cross-appealed from, without costs or disbursements; and it is further

ORDERED that the order entered September 7, 1988, is affirmed insofar as appealed from, without costs or disbursements.

Marshall Rattner, Marshall Rattner, Inc., and National Limousine Service, Inc. (hereinafter referred to as the Rattner parties) have been involved in protracted litigation with numerous administrative officials of the Village of Pleasantville (hereinafter referred to as the Village parties) stemming from a dispute over the propriety of parking commercial limousines on a lot located in a "RO-2" Medium Density Residential/Office District in the Village of Pleasantville. Marshall Rattner, Inc. (hereinafter the Rattner corporation) is the owner of the two contiguous properties known as 409 Manville Road and 423 Manville Road. The parcel located at 409 Manville Road is improved by a commercial office building. National Limousine Service, Inc. (hereinafter National) leased space in the office building and used the rear parking area for its limousines. Marshall Rattner is a principal shareholder of National and also operates an insurance business at 409 Manville Road. When the Rattner corporation purchased 423 Manville Road, the contract of sale gave the vendors a life tenancy in the residential home located on the parcel. Rattner proposed combining the parking area of the contiguous parcels to form a joint or common parking facility, servicing both the commercial and residential structures.

In September 1982 a site plan was submitted to the Planning Commission of the Village of Pleasantville and a revised plan to the Building Commissioner to use the unimproved portion of 423 Manville Road for the off-street parking of National's expanding fleet of commercial limousines. Rattner contended that the latter was an accessory use permitted in a "RO-2" Medium Density Residential/Office District. The then Village Building Inspector determined that the proposed use was legal and the Village Attorney concurred. Additionally, the Public Safety Commission and the Fire Department reviewed the site plan and had no objections. Nevertheless, by resolution dated December 1, 1982, the Planning Commission denied Rattner's application solely on the ground that the proposed use was in violation of the village zoning laws. Thereafter, Marshall Rattner and the Rattner corporation commenced a proceeding pursuant to CPLR article 78 to review the Planning Commission's determination, contending that the Commission had exceeded its authority in denying the application for site plan approval. By judgment dated April 25, 1983, the court annulled the determination and remitted the matter to the Planning Commission for further proceedings upon finding that the Commission had denied the application on an improper basis. The court noted that the Commission had usurped the function of the Building Inspector (an administrative official charged with enforcement of the local zoning laws) and the Zoning Board of Appeals (the board vested with exclusive power to interpret the provisions of the Village zoning law). This judgment was subsequently affirmed by this court (Rattner v. Planning Comm. of the Vil. of Pleasantville, 103 A.D.2d 826, 478 N.Y.S.2d 63).

On May 19, 1983, the Village Board of Trustees adopted a resolution directing the Village Attorney to prepare an application to the Zoning Board of Appeals to review the former Building Inspector's determination that the use was legal. The Planning Commission, acting independently, adopted a similar resolution on June 1, 1983.

On June 30, 1983, Marshall Rattner and Marshall Rattner, Inc., commenced Matter No. 1, a proceeding pursuant to CPLR article 78, to compel the Planning Commission to approve the site plan. That proceeding was consolidated with Matter No. 2, an action for a judgment declaring that the use of 423 Manville Road was illegal and constituted a nuisance.

On May 30, 1984, the Village Board of Trustees and the Planning Commission filed their respective administrative appeals with the Village Zoning Board of Appeals to review the former Building Inspector's determination that the parking of commercial limousines on 423 Manville Road was a permitted use. In response, the Rattner parties instituted a third proceeding pursuant to CPLR article 78 against the Village Zoning Board of Appeals, the Village Board of Trustees and the Planning Commission, inter alia, to prohibit the Zoning Board of Appeals from hearing the administrative appeals on the ground that they were untimely. While this proceeding was pending, and following the death of the residential tenant, by deed dated March 7, 1985, the two parcels were merged and the residence was demolished in July 1985 pursuant to a valid permit. By judgment dated August 29, 1985, the Supreme Court, Westchester County (Jiudice, J.), granted the relief requested in the Rattner parties' petition, holding that the administrative appeals were untimely and that the Zoning Board of Appeals was without jurisdiction to hear them. The judgment "estopped" the Board of Trustees and the Planning Commission from prosecuting the administrative appeals and prohibited the Zoning Board of Appeals from hearing them.

The Rattner parties then served a "supplemental answer," dated January 17, 1986, in Matter No. 2. In the supplemental answer, the Rattner parties counterclaimed to recover compensatory and punitive damages, inter alia, for alleged tortious acts and violations of their civil and constitutional rights. The Village parties served a reply to the counterclaims, setting forth 16 affirmative defenses. Only the twelfth and thirteenth affirmative defenses are at issue on this appeal. Since the Rattner parties had filed only one notice of claim on November 18, 1983, the twelfth affirmative defense asserted that the maintenance of the counterclaims, insofar as predicated upon any tortious or wrongful acts allegedly committed more than 90 days prior to November 18, 1983, were barred by noncompliance with the notice of claim requirements of the General Municipal Law, which requires, as a condition precedent to maintaining an action against a public corporation, the serving of a notice of claim within 90 days after the claim arose. The thirteenth affirmative defense seeks to bar the maintenance of the counterclaims insofar as they are based upon any tortious or wrongful acts committed after November 18, 1983.

In the order appealed from entered November 13, 1987, the court granted that branch of the Rattner parties' motion...