Ryles v. City of Newburgh

• Decision Date: 26 July 2011
• Citation: 927 N.Y.S.2d 603,86 A.D.3d 636,2011 N.Y. Slip Op. 06099
• Parties: Solomon RYLES, et al., appellants,v.CITY OF NEWBURGH, et al., respondents.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 636

927 N.Y.S.2d 603

2011 N.Y. Slip Op. 06099

Solomon RYLES, et al., appellants,

v.CITY OF NEWBURGH, et al., respondents.

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

July 26, 2011.

OPINION TEXT STARTS HEREDouglas R. Dollinger, Goshen, N.Y., for appellants.Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Nicholas A. Pascale of counsel), for respondent City of Newburgh.Monte J. Rosenstein, P.C., Middletown, N.Y., for respondent William Cummings.

[927 N.Y.S.2d 604 , 86 A.D.3d 636]

In an action, inter alia, to recover damages for the revocation of a building permit, the plaintiffs appeal from an order of the Supreme Court, Orange County (Ritter, J.) dated February 17, 2010, which granted the motion of the defendants City of Newburgh, Newburgh City Manager Jeanann McGrane, and Newburgh City Building Department for summary judgment dismissing the complaint insofar as asserted against them and granted the cross motion of the defendant William Cummings for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants City of Newburgh, Newburgh City Manager Jeanann McGrane, and Newburgh City Building Department for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with one bill of costs to the defendant William Cummings payable by the plaintiffs and one bill of costs to the plaintiffs payable by the defendants City of Newburgh, Newburgh City Manager Jeanann McGrane, and Newburgh City Building Department.

The defendant William Cummings established his prima facie entitlement to judgment as a matter of law dismissing of the complaint insofar as asserted against him. In response, the plaintiffs failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718). However, contrary to the Supreme Court's holding, the defendants City of Newburgh, Newburgh City Manager Jeanann McGrane, and Newburgh City Building Department (hereinafter collectively the Newburgh defendants) failed to sustain their burden of making a prima facie showing of entitlement to judgment as a matter of law. The evidence submitted in support of their motion...