The following papers were considered on the motion by defendant Village of Larchmont, to dismiss the complaint pursuant to CPLR 3211 (motion sequence 1), and the cross-motion by plaintiff Hoffman Investors Corp. (motion sequence 2) for an order declaring that plaintiff has been issued a special permit for a drive-though Dunkin’ Donuts store at 1890 Palmer Avenue in Larchmont, New York, and requiring the Village to officially record the special permit as required by §381-49(B) of the Village of Larchmont Code:Papers NumberedNotice of Motion, Affirmation, Exhibits A — G 1Notice of Cross-Motion, and Memorandum of Law 2Reply Affirmation, Exhibit H, and Memorandum of Law 3DECISION and ORDER Plaintiff Hoffman Investors Corp. (“Hoffmann”) is the owner of a building located at 1890 Palmer Avenue in the “Retail Center Commercial District” of the Village of Larchmont. This action concerns the Village’s handling of an application by plaintiff’s lessee to obtain the permit necessary to operate its intended Dunkin’ Donuts franchise. It also involves what plaintiff terms a “demolition project” — which defendant Village explains was a streetscape project involving street widening, construction of new sidewalks, installation of new benches and planting of new trees, which it says took place in and around 2013. Plaintiff complains that the process was started and stopped over a period of years, causing severe disruption to the commercial properties on Palmer Avenue, and rendering its own property essentially unusable and unleaseable until the project was completed in April 2016.According to the complaint, in June 2015 plaintiff entered into a lease with Daniel Chiaravalle, a Dunkin’ Donuts franchisee. Plaintiff alleges that starting in June 2015, the Village (1) required repeated and unnecessary appearances by Dunkin’ Donuts representatives before the Larchmont Traffic Committee, Planning Board, Architectural Review Board, and Zoning Board of Appeals; (2) scheduled and repeatedly canceled hearings to discuss the Dunkin’ Donuts permit application, in order to delay consideration of the issue; (3) required the submission of a burdensome traffic study; and (4) repeatedly avoided providing Dunkin’ Donuts with a final determination on its application.Plaintiff’s complaint alleges that on March 1, 2017, Village attorney James Staudt informed Dunkin’ Donuts representatives that the Village would not allow a Dunkin’ Donuts drive-thru at the property on the ground that it would violate the Village’s anti-idling law. As a result, plaintiff alleges, on March 6, 2017 Dunkin’ Donuts sent it an email stating “We hereby terminate the Lease.”On April 25, 2017, plaintiff served a notice of claim against the Village of Larchmont, alleging (1) inverse condemnation; (2) private nuisance; (3) violation of Takings Clause; and (4) tortious interference with contract. The claim was based in part on the loss of the ability to use or lease the property during the period when the surrounding area was disrupted by the reconstruction work. The second ground for the notice of claim concerned the Village’s treatment of the Dunkin’ Donuts application following the June 2015 lease of the subject property.Plaintiff states in the complaint that at the Village’s urging, it filed a new application in June 2017, pursuant to which it appeared before the Planning Board on July 10, 2017, but after waiting more than four hours to be heard, it was told that it should not be before the Planning Board, but should rather be before the Zoning Board of Appeals. The Zoning Board of Appeals heard and approved plaintiff’s application for a special permit for a Dunkin’ Donuts with drive-thru at its October 4, 2017 meeting.Plaintiff was then directed to appear before the Planning Board yet again at its next meeting. Plaintiff attended the Planning Board’s November 6, 2017 meeting, at which meeting the Planning Board made clear that it would never allow a Dunkin’ Donuts drive-thru at that location, notwithstanding the Zoning Board of Appeals approval of the special permit, again giving the anti-idling statute as the reason for a denial. When asked for a written decision, the Planning Board took the position that the application was incomplete and could not be voted on. According to the complaint, no explanation was provided as to what purportedly made the application incomplete.This action was commenced by the filing of a summons and complaint on May 30, 2018. In addition to the foregoing, the complaint recites other acts of the Village thereafter, in further support of the contention that the Village acted in bad faith and in violation of its own procedures in order to deny Dunkin’ Donuts the permits necessary to operate its business on plaintiff’s property. Plaintiff alleges in the complaint that in handling the application, the Village made spurious and unreasonable demands in bad faith, constituting tortious interference with the lease; it also contends that the Village’s conduct amounted to an impermissible de facto taking of plaintiff’s property. The causes of action in the complaint are a taking of property, tortious interference with contract, denial of equal protection, inverse condemnation, and private nuisance.In moving pursuant to CPLR 3211 to dismiss the complaint, the Village raising the issues of standing, necessary parties, failure to exhaust administrative remedies, statutes of limitations, ripeness, and failure to include a cause of action in the Notice of Claim.According to the Village of Larchmont’s moving papers, Chiaravalle first applied for site plan approval on or about May 19, 2016, which application the Village deemed abandoned on April 3, 2017 based on Chiaravalle’s repeated failures to appear. The Village asserts that a new application to the Planning Board for site plan approval was submitted on June 14, 2017, simultaneously with an application to the Zoning Board for approval of a special permit for the project. The Village asserts that the Zoning Board approved the project on October 4, 2017, but that the site plan approval application remains pending before the Planning Board.Plaintiff’s cross-motion arises out of the Village’s acknowledgment, in its moving papers, that the Zoning Board gave its approval for the proposal on October 4, 2017 — in contrast to what plaintiff asserted was the Village Clerk’s previous position, namely, that it was plaintiff’s obligation to provide the Planning Board with a copy of the Zoning Board decision, because the Village did not keep copies of Zoning Board decisions. On the strength of the Village’s current acknowledgment, plaintiff cross-moves for an order declaring that plaintiff has been issued a special permit for a drive-though Dunkin’ Donuts store at 1890 Palmer Avenue in Larchmont, New York, and requiring the Village to officially record the special permit, pursuant to section 381-49(B) of the Village of Larchmont Code.Analysis“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008]). While the dismissal motion brought by defendant Village relies on other grounds for dismissal, this basic standard must be kept in mind when conducting the necessary analysis.The Village’s first argument for dismissal, lack of standing to bring suit, is without merit. While “a court can act only when the rights of the party requesting relief are affected” (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 772 [1991]), the “two-part test for the threshold legal requirement of standing to challenge governmental action” discussed in such cases as Society of Plastics, supra, was not intended to preclude legal challenges by property owners asserting an impermissible taking or treatment of its property by the municipality in which the property is located. The property owner’s standing is apparent.The suggestion that before plaintiff may seek relief against the Village for the alleged bad faith failure to approve the site plan, it must itself repeat the steps already taken by its lessee, distorts the standing requirement. Although plaintiff was not the named applicant for the permit or the site plan approval, the Village’s alleged conduct would impact the property owner, in that it would reduce or eliminate earnings from, and the value of, the property.Similarly, the lessee is not a necessary party. While Chiaravalle may be an appropriate witness to establish certain claimed facts, notably, nothing in the complaint indicates either that the lessee was damaged by the Village’s alleged conduct, or that he contributed to causing plaintiff’s alleged damages.The exhaustion of remedies defense also fails to provide grounds for dismissal here. The case relied on by defendant Village, Matter of Goldberg v. Incorporated Vil. of Roslyn Estates (61 AD3d 756, 757 [2d Dept 2009]), is inapplicable. There, the petitioners failed to seek available administrative review of the determination being challenged in the litigation (id.). Here, it is alleged that plaintiff, itself and through its lessee, performed the required steps, but were repeatedly and unreasonably stymied. If the Court were to adopt the Village’s proposed defense, the Village could delay indefinitely and not be answerable for its allegedly deliberate inaction.For similar reasons, the contention that plaintiff’s causes of action are not yet ripe for litigation is also rejected. Based upon the allegations of the complaint, including the claims of arbitrary denials and bad faith delays, plaintiff should not be required to wait until the Village concludes its process before seeking relief.To the extent defendant Village provides its own assertions of fact in support of its arguments, such as the claim that the Planning Board only received funds on or about July 26, 2018 to open an escrow account necessary for the outside review of Chiaravalle’s application, those alternative or additional factual assertions cannot be relied on as grounds to grant CPLR 3211 dismissal of the complaint. “When evidentiary material outside the pleading’s four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Matter of Kunik v. New York City Dept. of Educ., 142 AD3d 616, 618 [2d Dept 2016]).Defendant Village contends that the equal protection cause of action must be dismissed because it was not included in the notice of claim. Plaintiff responds, “[a] cause of action asserted pursuant to 42 USC §1983 does not require service of a notice of claim” (Sonne v. Board of Trustees of Vil. of Suffern, 67 AD3d 192, 205 [2d Dept 2009]), and “in the land-use context, 42 USC §1983 protects against municipal actions that violate a property owner’s rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution” (Bower Assoc. v. Town of Pleasant Valley, 2 NY3d 617, 626 [2003] [emphasis added]). The Village replies that state constitutional claims are subject to the notice of claim requirement, citing Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F Supp 2d 679, 709 [SD NY 2011]). Since review of the complaint’s prayer for relief reflects that the claims of a taking and of a violation of equal protection are pleaded under 42 USC §1983, those causes of action will survive this dismissal motion regardless of whether they were timely raised in a notice of claim.However, defendant Village correctly argues that the time-bar of General Municipal Law §50(e), which requires service of a notice of claim within 90 days of the alleged injury in order to sue on that ground, precludes plaintiff’s claims for inverse condemnation and private nuisance, which appear to be state law claims. Plaintiff states that the Village’s streetscape (or “demolition”) project was completed in April 2016, yet it did not serve its notice of claim until April 25, 2017. Since the claims for inverse condemnation and private nuisance appear to arise solely out of the claimed interference with the use of the property caused by the construction project, the failure to raise them in a notice of claim within three months after the completion of the project requires dismissal of those claims. They were untimely raised by the notice of claim served one year later.As to plaintiff’s cross-motion, the declaratory relief it seeks from this Court is unavailable at this time and in this context. Because the sought declaration is part of the ultimate relief sought in the complaint, to the extent plaintiff may be entitled to such a declaration, it may only issue following success at trial or in a summary judgment motion.Accordingly, it is herebyORDERED that defendant’s motion to dismiss is granted only to the extent of dismissing the claims for inverse condemnation and private nuisance, and is otherwise denied, and it is furtherORDERED that plaintiff’s cross-motion is denied, and it is furtherORDERED that the parties are directed to appear at the Preliminary Conference Part, room 811 of the Courthouse at 111 Dr. Martin Luther King Jr. Blvd., White Plains, NY 10601, on Monday, December 17, 2018 at 9:30 a.m.This Constitutes the Decision and Order of the Court.Dated: November , 2018White Plains, New York
