Thomas v. Trs. of the Freeholders & Commonalty of the Town of Southampton

• Decision Date: 09 February 2022
• Docket Number: 2018-05020,Index No. 21519/15
• Citation: Thomas v. Trs. of the Freeholders & Commonalty of the Town of Southampton, 202 A.D.3d 858, 163 N.Y.S.3d 201 (N.Y. App. Div. 2022)
• Parties: Kathleen Araskog THOMAS, et al., appellants, v. TRUSTEES OF the FREEHOLDERS AND COMMONALTY OF the TOWN OF SOUTHAMPTON, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 858

163 N.Y.S.3d 201

Kathleen Araskog THOMAS, et al., appellants,

v.TRUSTEES OF the FREEHOLDERS AND COMMONALTY OF the TOWN OF SOUTHAMPTON, et al., respondents, et al., defendants.

2018-05020

Index No. 21519/15

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

Argued—October 21, 2021

February 9, 2022

Nica B. Strunk, Southampton, NY, for appellants.

Sokoloff Stern LLP, Carle Place, NY (Steven C. Stern and Chelsea Weisbord of counsel), for respondent Trustees of the Freeholders and Commonalty of the Town of Southampton.

Devitt Spellman Barrett, LLP, Smithtown, NY (Theodore D. Sklar of counsel), for respondent Village of Southampton.

Letitia James, Attorney General, New York, NY (Anisha S. Dasgupta and Mark S. Grube of counsel), for respondent New York State Department of Environmental Conservation.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory and injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated March 12, 2018. The order (1) granted the motion of the defendant New York State Department of Environmental Conservation pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it, (2) denied the plaintiffs’ motion for summary judgment on the first, second, and sixth causes of action and on the issue of liability on the third cause of action, (3) granted those branches of the cross motion of the defendant Village of Southampton which were for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel and for summary judgment dismissing the first, second, and third causes of action insofar as asserted against it, and, in effect, searched the record and awarded that defendant summary judgment dismissing the fourth, seventh, and eighth causes of action insofar as asserted against it, and (4) granted those branches of the cross motion of the defendant Trustees of the Freeholders and Commonalty of the Town of Southampton which were for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel and for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof, in effect, searching the record and awarding the defendant Village of Southampton summary judgment dismissing the fourth, seventh, and eighth causes of action insofar as asserted against it, and (2) by deleting the provision thereof granting that branch of the cross motion of the defendant Trustees of the Freeholders and Commonalty of the Town of Southampton which was for summary judgment dismissing the seventh cause of action insofar as asserted against it, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, with costs payable by the plaintiffs to the defendant New York State Department of Environmental Conservation.

The plaintiff Kathleen Araskog Thomas is the owner of residential property in the Village of Southampton, Town of Southampton, which is bounded on the north by Meadow Lane and on the south by the high-water line of the Atlantic Ocean. Pursuant to Code of the Village of Southampton (hereinafter Village Code) § 80–1(d)(1), it is generally prohibited to operate motor vehicles on ocean beaches between 9:00 a.m. and 6:00 p.m. during the summer months. However, the Village Code provides an exception to this general prohibition for a portion of the beach that includes Thomas's property, among others (hereinafter the subject beach area) (see id. § 80–1[d][4]; see also id. § 80–1[d][2]). The defendant Trustees of the Freeholders and Commonalty of the Town of Southampton (hereinafter the Town Trustees) adopted a similar daytime driving and parking regulation, which was set forth in Article XII of the Rules and Regulations for the Management and Products of the Waters of the Town (hereinafter Town Trustees’ Regulation). As a result of these exceptions to the general prohibition against summer daytime beach driving and parking, a large number of vehicles holding beach-driving permits drive and park on the subject beach area during the day in the summer months.

In 2015, the plaintiffs commenced this action against, among others, the Village and the Town Trustees, alleging, in the first and second causes of action, that Village Code § 80–1(d)(4) (hereinafter the Village Regulation) and the Town Trustees’ Regulation violated their rights to equal protection of the laws (see U.S. Const, 14th Amend; NY Const, art I, § 11 ). In the third cause of action, the plaintiffs alleged that the Village Regulation and the Town Trustees’ Regulation effected a per se unconstitutional physical taking of their property without just compensation. In the fourth cause of action, the plaintiffs alleged that the Village Regulation and the Town Trustees’ Regulation were void because they violated certain State regulations pertaining to coastal erosion management (see 6 NYCRR part 505). The plaintiffs alleged in the sixth cause of action that the Town Trustees’ Regulation was ultra vires and thus void. The seventh cause of action sought damages against the Village and the Town Trustees for private nuisance, and the eighth cause of action sought injunctive relief against those defendants based upon a public nuisance. The plaintiffs also asserted a cause of action (fifth cause of action) against the defendant New York State Department of Environmental Conservation (hereinafter the DEC), seeking to compel the DEC to "monitor and revoke the regulatory programs authorizing driving and parking on ocean beaches landward of the debris line."

The DEC moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it. The plaintiffs moved for summary judgment on the first, second, and sixth causes of action and on the issue of liability on the third cause of action. The Village cross-moved, inter alia, for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel and for summary judgment dismissing the first, second, and third causes of action insofar as asserted against it. The Town Trustees cross-moved, inter alia, for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel and for summary judgment dismissing the complaint insofar as asserted against it. In an order dated March 12, 2018, the Supreme Court (1) granted the DEC's motion, (2) denied the plaintiff's motion, (3) granted those branches of the Village's cross motion which were for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel and for summary judgment dismissing the first, second, and third causes of action insofar as asserted against it, and (4) granted those branches of the Town Trustees’ cross motion which were for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel and for summary judgment dismissing the complaint insofar as asserted against it. The court also, in effect, searched the record and awarded the Village summary judgment dismissing the fourth, seventh, and eighth causes of action insofar as asserted against it. The plaintiffs appeal.

The Supreme Court properly granted the DEC's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it. "[T]he remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion" ( Matter of Brusco v. Braun, 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724 ; see New York Civ. Liberties Union v. State of New York, 4 N.Y.3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947 ). "The general principle [is] that mandamus will lie against an administrative [body] only to compel [it] to perform a legal duty, and not to direct how [it] shall perform that duty" ( People ex rel. Schau v. McWilliams, 185 N.Y. 92, 100, 77 N.E. 785 ; see Matter of Willows Condominium Assn. v. Town of Greenburgh, 153 A.D.3d 535, 536, 60 N.Y.S.3d 233 ). Here, the acts the plaintiffs sought to compel the DEC to perform—"monitor and revoke the regulatory programs authorizing driving and parking" on the subject beach area—are not ministerial duties, but rather, involve an exercise of judgment. In essence, the plaintiffs were improperly seeking to direct how the DEC performs its duty of regulating coastal areas.

The Supreme Court properly granted those branches of the Town Trustees’ cross motion which were for summary judgment dismissing the first, fourth, sixth, and eighth causes of action insofar as asserted against it. Those causes of action, which sought only declaratory and injunctive relief related to the Town Trustees’ Regulation, were rendered academic by the repeal of that regulation after the commencement of this action (see Scarsdale Supply Co. v. Village of Scarsdale, 8 N.Y.2d 325, 327, 206 N.Y.S.2d 773, 170 N.E.2d 198 ).

The Supreme Court also properly granted those branches of the cross motions of the Village and the Town Trustees which were for leave to amend their answers to assert the affirmative defenses of res judicata and collateral estoppel, as those defenses were neither palpably insufficient nor patently devoid of merit, and the amendments did not serve to prejudice or surprise the plaintiffs (see CPLR 3025[b] ; Jin Liang Lin v. Gee, 200 A.D.3d 666, 154 N.Y.S.3d 835, 2021 N.Y. Slip Op. 06679 [2d Dept.] ).

The Village demonstrated its prima facie entitlement to judgment as a matter of law dismissing the first and second causes of action insofar as asserted against it on the basis of res judicata, and the plaintiffs failed to raise a triable issue of fact in opposition. "The doctrine of res...