Town of Tupper Lake v. Sootbusters, LLC

• Decision Date: 23 February 2017
• Citation: 147 A.D.3d 1268,47 N.Y.S.3d 778
• Parties: TOWN OF TUPPER LAKE, Appellant, v. SOOTBUSTERS, LLC, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1268

47 N.Y.S.3d 778

TOWN OF TUPPER LAKE, Appellant,

v.SOOTBUSTERS, LLC, et al., Respondents, et al., Defendant.

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

Feb. 23, 2017.

Lemire, Johnson & Higgins, LLC, Malta (Bradley J. Stevens of counsel), for appellant.

Law Office of Gerard V. Amedio, Saratoga Springs (Heather S. Odom of counsel), for respondents.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and MULVEY, JJ.

LYNCH, J.

Appeal from an order of the Supreme Court (Main Jr., J.), entered June 26, 2015 in Franklin County, which, among other things, denied plaintiff's motion to dismiss defendants' counterclaim.

Defendants Michael Vaillancourt and Ursula Vaillancourt own property in the Town of Tupper Lake, Franklin County. In June 2012, the Vaillancourts applied to plaintiff's Planning Board for a special use permit to allow them to construct a two-unit residential structure on the property that included a garage to store equipment used for defendants' business entity, defendant Sootbusters, LLC. By the June 2012 application, the Vaillancourts acknowledged that the property was zoned "High Density Residential Special" and that, pursuant to this classification, they were allowed to store up to four commercial vehicles on their lot. Because they also requested to use the building for commercial storage and to conduct some business, the Planning Board referred the request to plaintiff's Zoning Board of Appeals, which approved a use variance "as applied for" in August 2012.

Thereafter, the Vaillancourts sought to amend the existing special use permit to add four additional apartment units. In October 2013, the Planning Board granted the application with the conditions that (1) no more than four commercial vehicles could be stored, parked or garaged on the property and (2) defendants could not store or park construction equipment or trailers on the property. In June 2014, the Vaillancourts installed two 500 gallon fuel tanks for their commercial vehicles and equipment. In response, plaintiff's Code Enforcement Officer served a notice of violation directing the Vaillancourts to remove the fuel tanks and construction equipment that had been observed on the property. When they failed to comply or to appeal the notice of violation, plaintiff commenced this action against, among others, the Vaillancourts and Sootbusters (hereinafter collectively referred to as defendants) seeking a restraining order and a fine. Defendants answered and asserted 10 affirmative defenses and one counterclaim. Plaintiff moved to dismiss the counterclaim pursuant to CPLR 3211(a)(7) and defendants cross-moved for permission to file a late notice of claim. Supreme Court denied plaintiff's motion and granted defendants' cross motion, and plaintiff now appeals.

"[O]n a motion to dismiss pursuant to CPLR 3211(a)(7), we must afford the [pleading] a liberal construction, accept as true the allegations contained therein, accord [the defendant] the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable theory" (He v. Realty USA, 121 A.D.3d 1336, 1339, 996 N.Y.S.2d 734 [2014] [internal quotation marks and citations omitted], lv. dismissed and denied 25 N.Y.3d 1018, 10 N.Y.S.3d 510, 32 N.E.3d 946 [2015] ; see Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 [2012] ). We may consider an affidavit by the claiming party to remedy any defects in the pleading or to provide additional information supporting a cause of action (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Kreamer v. Town of Oxford, 96 A.D.3d 1130, 1132–1133, 946 N.Y.S.2d 284 [2012] ). "This liberal standard, however, will not save allegations that consist of bare legal conclusions or factual claims that are flatly contradicted by documentary evidence or are inherently incredible" (DerOhannesian v. City of Albany, 110 A.D.3d 1288, 1289, 975 N.Y.S.2d 188 [2013] [citations omitted], lv. denied 22 N.Y.3d 862, 2014 WL 642724 [2014] ). Here, defendants maintain that they initially obtained a variance "with no conditions" and that the Planning Board's determination to impose conditions in 2013 "constitute[d] official misconduct and fraud."

"The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the [defendant] and damages" (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] [citations omitted]; see DerOhannesian v. City of Albany, 110 A.D.3d at 1292, 975 N.Y.S.2d 188 ). A fraud cause of action must be "stated in detail" (CPLR 3016[b] ; see ARB Upstate Communications LLC v. R.J. Reuter, L.L.C., 93 A.D.3d 929, 932, 940 N.Y.S.2d 679 [2012] ). Here, defendants' claim for fraud appears to be based on their belief that the 2012 special use permit was unconditional, such that the Planning Board was not permitted to impose any conditions when it granted the Vaillancourts' application to amend the 2012 special use permit in 2013. Although no party has submitted a copy of the Town Code, our review of the 2012 application for a special use permit shows the Vaillancourts acknowledged that, with the two apartment units, the Town Code allowed them to park four commercial vehicles on their property. Defendants' submissions also confirm that in 2013, their amendment was approved subject to a continuation of this condition. Notably, Michael Vaillancourt was present at the 2013 hearing when the conditions were discussed and approved, defendants do not allege that they relied on any misrepresentation, and defendants never appealed the Planning Board's 2013 determination. In the absence of any factual support for defendants' bare allegation of fraud, we find that Supreme Court should have granted plaintiff's motion to dismiss this counterclaim.

We further find that Supreme Court should have dismissed defendants' counterclaim to the extent that it alleges "official misconduct" based on the Planning Board's 2013 determination. A government official may face civil liability if a party can prove that he or she was "depriv[ed] of...