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PLAINTIFFS HAD STANDING TO BRING A COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS BY VIRTUE OF THE CLOSE PROXIMITY OF PLAINTIFFS’ AND DEFENDANTS’ PROPERTIES.

The Second Department determined plaintiffs had standing to bring a private common-law action to enjoin zoning violations by virtue of the proximity of plaintiffs’ property to defendants’ property:

 

“To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are different in kind and degree from the community generally’ and that the asserted interests fall within the zone of interest to be protected’ by the statute or ordinance at issue” … . However, “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” … . Here, the record demonstrates that the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests “were within the zone of interest to be protected by the zoning ordinances alleged to be violated” … . Since the appellant failed to demonstrate that the plaintiffs lacked standing to maintain this action, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3)… . Gershon v Cunninghaml, 2016 NY Slip Op 00332, 2nd Dept 1-20-16

 

ZONING (STANDING FOR PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)/STANDING (PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)

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Criteria for Disclosure from Nonparty Witness
PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).
IN THE ABSENCE OF AN ORDER SUBSTITUTING THE BANKRUPTCY TRUSTEE FOR THE PLAINTIFF-DEBTOR, THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED; SUPREME COURT SHOULD NOT HAVE DENIED DEFENDANTS’ MOTION AND DIRECTED PLAINTIFF TO SEEK RELIEF FROM THE BANKRUPTCY COURT (SECOND DEPT).
DESPITE THE EXPRESS EXCLUSION OF LIABILITY TO THIRD PARTIES IN THE CONTRACT BETWEEN DEFENDANT SECURITY COMPANY AND DEFENDANT THEATER, THE COMPLAINT ALLEGED A COMMON-LAW DUTY OWED BY THE SECURITY COMPANY TO PLAINTIFF, THE SECURITY COMPANY ALLEGEDLY DIRECTED PLAINTIFF TO RESTRAIN A NONPARTY WHO THEN ASSAULTED AND INJURED PLAINTIFF.
UNDER THE CITY CHARTER, THE MAYOR DID NOT HAVE THE POWER TO ABOLISH A CIVIL SERVICE POSITION; ONLY THE BODY EMPOWERED TO CREATE THE POSITION CAN ABOLISH IT.
ABSENT AN ORDER BASED UPON AN EXCEPTION TO THE SECRECY PROVSIONS IN TAX LAW SECTION 697, THE NYS DEPARTMENT OF TAXATION AND FINANCE WAS NOT REQUIRED TO TURN OVER TAX FORMS SUBMITTED BY THE CORPORATE DEFENDANTS IN THIS LABOR LAW ACTION TO RECOVER UNPAID WAGES AND TIPS (SECOND DEPT).
ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).
INSURER’S ACTION FOR A DECLARATORY JUDGMENT THAT IT WAS NOT OBLIGATED TO INDEMNIFY THE DEFENDANT SCHOOL DISTRICT FOR A SETTLEMENT REACHED IN AN UNDERLYING ACTION (WHICH ALLEGED THE SCHOOL DISTRICT DID NOT PROTECT AGAINST ANTI-SEMITIC HARASSMENT) SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

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