Vill. of Woodbury v. Brach

• Decision Date: 03 October 2012
• Citation: 952 N.Y.S.2d 92,99 A.D.3d 697,2012 N.Y. Slip Op. 06598
• Parties: VILLAGE OF WOODBURY, appellant, v. Zigmond BRACH, et al., respondents.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 697

952 N.Y.S.2d 92

2012 N.Y. Slip Op. 06598

VILLAGE OF WOODBURY, appellant,

v.Zigmond BRACH, et al., respondents.

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

Oct. 3, 2012.

Burke, Miele & Golden, LLP, Goshen, N.Y. (Richard B. Golden of counsel), for appellant.

James G. Sweeney, P.C., Goshen, N.Y., for respondent Zigmond Brach.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, for a judgment declaring that the purported subdivision of certain real property was illegal and null and void, the plaintiff appeals from (1) an order of the Supreme Court, Orange County (Slobod, J.), dated February 9, 2011, which granted the motion of the defendant Zigmond Brach to dismiss the amended complaint insofar as asserted against him pursuant to CPLR 3211(a)(7), and the separate motion of the defendant Village of Kiryas Joel, in effect, to dismiss the amended complaint insofar as asserted against it pursuant to CPLR 3211(a)(7), and (2) a judgment of the same court entered April 13, 2011, which, upon the order, dismissed the amended complaint and declared that the plaintiff has no lawful rights to affect the real property interests of the defendant Village of Kiryas Joel by seeking to compel the defendant Zigmond Brach to rescind his deed conveying the subject real property to the defendant Village of Kiryas Joel, and further declared that the plaintiff has waived its right to the subdivision approval which it seeks to compel the defendant Zigmond Brach to apply for and secure.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the motion of the defendant Zigmond Brach to dismiss the amended complaint insofar as asserted against him pursuant to CPLR 3211(a)(7), and the separate motion of the defendant Village of Kiryas Joel, in effect, to dismiss the amended complaint insofar as asserted against it pursuant to CPLR 3211(a)(7), are denied, the amended complaint is reinstated, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order dated February 9, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the intermediate order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

In its amended complaint, the plaintiff, the Village of Woodbury, alleged that on August 11, 2006, the defendant Zigmond Brach conveyed a portion of certain real property to the defendant Village of Kiryas Joel (hereinafter Kiryas Joel) without obtaining necessary subdivision approval. The subject property is located within the Village of Woodbury. Thereafter, the plaintiff commenced the instant action against Brach, inter alia, for a judgment declaring that the conveyance of the subject property to Kiryas Joel constituted a subdivision that was illegal and null and void until such time as Brach obtained the appropriate subdivision approval and duly filed the requisite subdivision plat. After Brach served a verified answer, the plaintiff and Brach stipulated that the plaintiff would add Kiryas Joel as a necessary party to the action.

Brach moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against him for failure to state a cause of action. In support of his motion, Brach submitted, inter alia, a written agreement, dated October 17, 2007 (hereinafter the Agreement), between the plaintiff and Kiryas Joel. The Agreement states that Kiryas Joel had purchased the subject property from Brach in order to construct “two water towers to ensure an adequate and safe level of water service,” and that the construction of the water towers subsequently was stopped on the ground that Kiryas Joel had not obtained prior approval from the plaintiff. The Agreement further provides, inter alia, that the plaintiff agreed that “the appropriate balancing of the public interests has occurred” and, therefore, Kiryas Joel could complete the construction of the water towers on the subject property. Kiryas Joel also moved, in effect, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it for failure to state a cause of action.

In the order appealed from, the Supreme Court granted the defendants' respective motions to dismiss the amended complaint insofar as asserted against each of them, determining that the plaintiff had effectively waived its right to subdivision review and approval pursuant to the Agreement with Kiryas Joel. Thereafter, the Supreme Court entered a judgment, upon the order, inter alia, declaring that the plaintiff did not have the lawful right to affect the real property interests of Kiryas Joel by seeking to compel Brach to rescind his deed of conveyance, and that the plaintiff waived its right to the subdivision approval which it sought to compel Brach to apply for and secure. The plaintiff appeals from the order and the judgment.

“On a CPLR 3211 motion to dismiss, the court will ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” ( Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17;Makris v. Darus–Salaam Masjid, N.Y., Inc., 91 A.D.3d 729, 936 N.Y.S.2d 325;Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153).

Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment ... as to the rights and other legal relations of the parties to a justiciable controversy” (CPLR 3001), for the primary purpose of “stabiliz [ing] an uncertain or disputed jural relationship with respect to present or prospective obligations” ( Chanos v. MADAC, LLC, 74 A.D.3d 1007, 1008, 903 N.Y.S.2d 506). “[W]here a cause of action is sufficient to invoke the court's power to render a declaratory judgment ... as to the rights and other legal relations of the parties to a justiciable controversy, a ...