Court Allows Some Causes Of Action Under 42 USC 1983 To Stand Against The Village Of Suffern
The Appellate Division Second Department decided a complex
appeal involving cross motions on whether a property owner had
sufficiently stated causes of action sounding in violations of
constitutional rights under 42 USC 1983 and related causes of
action resulting from the denial of a certificate of use. In the
case of Sonne v. Board of Trustees of the Village of
Suffern, the court dismissed some but let stand several causes
of action resulting from a long standing dispute over whether a
property owner could use and occupy the third floor of a 100 year
old commercial building.
The case has a complex history. The Village
had denied the property owner the right to use the third floor of
its commercial building because there is only one useable exit from
the third floor and the Village claims this violates the State of
New York Uniform Fire Prevention and Building Code . Underlying the
dispute are several factors. The second means of egress from the
third floor is blocked by a fence constructed on the adjoining
property owned by a company which is Act controlled by the sons of
the former Village Building Inspector, one of whom had also been a
Village official, including Mayor from 2001 to 2003. The Village
had indicated it would not intervene as this is a private matter
between property owners. However, the fence is apparently in
violation of the local code but no action was taken to cause it to
be removed. Second, the Village has taken the position that the
single exit does not comply with the State Uniform Fire Prevention and Building Code
Act. Yet, there is an advisory opinion from the State
indicating that where a property pre-exists the code, which is the
case here, and there has been no substantial additional
construction, none of which was proposed here, the current
requirement of two exits is not applicable. Complicating the
situation more is the fact that the use at issue is non-conforming
and the third floor has been vacant for several years. The Village
code provides that where a non-conforming use has ceased for more
than 6 months it may not be re-established.
In an effort to resolve the issues an agreement was negotiated
with the adjoining property owner to put a "panic bar' in
the fence, which would have permitted egress from the second exit
in an emergency. In addition, as the fence was eight feet high and
not in compliance with the local code a variance was obtained for
the fence. However, the variance was issued for only two years. As
a result the owner complained to Village officials that the two
year variance was "useless." Clearly the concern was that
the variance for only two years limited the ability to rent the
third floor space. Ten days later the property owner was issued
several violations by the Village. During the litigation the
Village claimed that this was coincidence and the violations issued
were part of a "sweep" of the Village to clean up the
downtown of the Village, based upon the Mayor telling the Code
Enforcement Officer that there were "a lot of places downtown
he'd like to see me pay a visit". However, the court notes
that there was only one other property issued a violation on that
date and it appears the violation was based upon a review of the
Village files not a "sweep."
The Plaintiff commenced this action alleging various causes of
action. There was discovery and then the Plaintiff moved for
summary judgment and Defendants cross moved seeking either
dismissal or summary judgment in their favor. The lower court
denied both motions and the Appellate Division modified dismissing
some causes of action and allowing others to stand.
The Appellate Division opinion first notes the different
criteria in deciding a motion to dismiss under CPLR 3211 and a
motion for summary...
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