Zupa v. Paradise Point Association, Inc.

• Decision Date: 31 October 2005
• Docket Number: 2004-03573.
• Citation: 803 N.Y.S.2d 179,22 A.D.3d 843,2005 NY Slip Op 08111
• Parties: VICTOR J. ZUPA et al., Appellants, v. PARADISE POINT ASSOCIATION, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 843

803 N.Y.S.2d 179

2005 NY Slip Op 08111

VICTOR J. ZUPA et al., Appellants, v. PARADISE POINT ASSOCIATION, INC., Respondent.

2004-03573.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 31, 2005.

In an action, inter alia, for a permanent injunction, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Catterson, J.), entered April 5, 2004, which upon the granting of the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against them dismissing the complaint.

Ordered that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint for lack of standing to maintain the common-law cause of action to enjoin the alleged zoning ordinance violations and to enjoin the private nuisance cause of action insofar as asserted by Victor J. Zupa and Mary S. Zupa; as so modified, the judgment is affirmed, without costs or disbursements, and the causes of action insofar as asserted by Victor J. Zupa and Mary S. Zupa to enjoin the alleged zoning ordinances and to enjoin the public nuisance are reinstated.

The plaintiffs Victor Zupa and Mary Zupa have standing to maintain a common-law cause of action to enjoin the defendant, the Paradise Point Association, Inc. (hereinafter PPA), from its alleged violations of the Town of Southold zoning ordinances regarding its operation of a private marina in a basin which abuts the properties owned by the Zupas. Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant's activities (see Little Joseph Realty v. Town of Babylon, 41 NY2d 738 [1977]). It is well settled that "to establish special damage it is necessary to show that there is some depreciation in the value of the premises as real property arising from... the forbidden use" (Cord Meyer Dev. Co. v. Bell Bay Drugs, 20 NY2d 211, 218 [1967]). Yet, standing principles, which are in the end matters of policy, should not be heavy-handed (id.; see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]), and in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules (id.). Thus, an allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury (id.; see Williams v. Hertzwig, 251 AD2d 655 [1998]). In other words, when the premises that are the subject of the zoning violation are in close proximity to a party's property, a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the party need not allege specific injury (see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, supra at 409-410; Golden v. Steam Heat, 216 AD2d 440 [1995]; Matter of Prudco Realty Corp. v. Palermo, 93 AD2d 837 [1983], affd on other grounds 60 NY2d 656 [1983]). However, close proximity alone is insufficient to confer standing (see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, supra at 410; Scannell v. Town Bd. of Town of Smithtown, 250 AD2d 832 [1998]). A close neighbor must also demonstrate that his or her interest is within the "zone of interest" protected by the zoning laws to establish standing to enjoin a zoning ordinance violation (see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, supra at 410). Zoning ordinances are enacted to protect...