Application, Motion-Undefined in Board Of Managers - Parkview Condominiums At Maple & 45 v. County Of Rockland, Director Of Buildings And Inspectors Of The County Of Rockland, 29 Ewing Llc, Village Of Spring Valley| Trellis.Law

On May 02, 2023 a Exhibit,Appendix was filed involving a dispute between Board Of Managers - Parkview Condominiums At Maple & 45, Parkview Condominiums At Maple & 45-Bd Mgrs, and 29 Ewing Llc, County Of Rockland, Director Of Buildings And Inspectors Of The County Of Rockland, Rockland County, Rockland County Director Of Buildings And Inspectors, Spring Valley Village Of, Village Of Spring Valley, for Special Proceedings - CPLR Article 78 in the District Court of Rockland County.

Preview
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

EXHIBIT D
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023
FILED: APPELLATE DIVISION - 2ND DEPT 02/14/2023 01:37 PM 2022-03723
NYSCEF DOC. NO. 12 TO BE ARGUED BY: RECEIVED NYSCEF: 02/14/2023
ADAM M. MOSS, ESQ.
TIME REQUESTED: 15 MINUTES

Supreme Court of the State of New York
Appellate Division: Second Department

29 EWING LLC, For a Judgment Pursuant to Article 78 of the, Civil
Practice Law and Rules, Appellate
Petitioner-Respondent,
Division
-against- Docket No.
2022-03723
THE VILLAGE OF SPRING VALLEY, THE VILLAGE OF SPRING
VALLEY DEPARTMENT OF BUILDING AND ZONING and THE
CHIEF BUILDING INSPECTOR OF THE VILLAGE OF SPRING
VALLEY,
Respondents-Appellants.

BRIEF FOR RESPONDENTS-APPELLANTS

HARRIS BEACH, PLLC
Attorneys for Respondents-Appellants
333 Earle Ovington Blvd, Suite 901
Uniondale, New York, 11553
(516) 880-8484
amoss@harrisbeach.com

DENNIS E. A. LYNCH, ESQ.
Co-Counsel for Respondents-
Appellants

Supreme Court, Rockland County, Index No. 35395/2020

DICK BAILEY SERVICE, Inc. · 1-800-531-2028 · dickbailey.com
[REPRODUCED ON RECYCLED PAPER]
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

PRELIMINARY STATEMENT ...............................................................................1

QUESTIONS PRESENTED ......................................................................................3

FACTUAL BACKGROUND ....................................................................................4

A. Background of the Condominium Units to Be Developed by
Respondent LLC .........................................................................................4

B. The Building Permit Application Process .................................................. 6

C. Consideration by the Court Below of the Rabbinical Court
Decision ....................................................................................................10

D. The Decision of the Court Below .............................................................12

ARGUMENT ...........................................................................................................13

THE TRIAL COURT ERRED WHEN IT ORDERED THE VILLAGE
BUILDING DEPARTMENT TO ISSUE A FINAL DETERMINATION ON
THE BUILDING PERMIT APPLICATION ..........................................................13

I. THE COURT BELOW ERRED IN ORDERING THE VILLAGE
BUILDING DEPARTMENT TO ISSUE A DETERMINATION
THAT CONTRAVENED ITS OWN VILLAGE CODE
REQUIREMENTS AS WELL AS STATE LAW ........................................13

A. The Village Code Enforcement Officer Determined that the
Application was Incomplete ................................................................14

B. A Building Department Should not be Compelled to Issue a
Determination where it deems an Application Incomplete................. 17

i
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

C. A Writ of Mandamus Should Not Have Been Granted Where
there was No Clear Right to Relief ..................................................20

II. THE COURT BELOW ERRED IN INCORPORATING THE
RABBINICAL DECISIONS INTO ITS ORDER.........................................22

III. THE COURT BELOW ERRED BY NOT REQUIRING
RESPONDENT LLC TO EXHAUST ADMINISTRATIVE
REMEDIES AND OTHERWISE TIMELY CHALLENGE
ADVERSE VILLAGE DECISIONS ............................................................26

CONCLUSION ....................................................................................................29

PRINTING SPECIFICATIONS STATEMENT .................................................30

ii
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

TABLE OF AUTHORITIES

Cases Page(s)

Brusco v. Braun,
84 N.Y.2d 674 [1994] ....................................................................................20, 21

Congregation Yetev Lev D’Satmar, Inc. v. Kahana,
9 N.Y.3d 282 [2007] ............................................................................................ 24

County of Nassau v. Eagle Chase Ass’n,
144 Misc.2d 641 [Sup. Ct. Nassau Cnty. June 7, 1989] ...................................... 19

Cymbidium Dev. Corp. v. Smith,
133 A.D.2d 605 [2d Dep’t 1987] ......................................................................... 18

Goldberg v. Inc. Vill of Roslyn Estates,
61 A.D.3d 756 [2d Dep’t 2009] ........................................................................... 28

Klostermann v. Cuomo,
61 N.Y.2d 525 [1984] ..............................................................................20, 21, 22

Loskot-D’Souza v. Town of Babylon,
137 A.D.3d 751 [2d Dep’t 2016] ......................................................................... 19

Matter of County of Fulton v State of New York,
76 N.Y.2d 675 [1990] .......................................................................................... 20

Matter of Hamptons Hosp. & Med. Ctr. v Moore,
52 N.Y.2d 88 [1981] ............................................................................................ 20

Matter of Legal Aid Socy. v Scheinman,
53 N.Y.2d 12 [1981] ............................................................................................20

Matter of Mullen v Axelrod,
74 N.Y.2d 580 [1989] .......................................................................................... 20

Mtr. of Baez v. Brown,
98 A.D.3d 609 [2d Dep’t 2012] ........................................................................... 27

iii
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

Mtr. of Warner v. Town of Kent,
144 A.D.3d 814 [2d Dep’t 2016] ...................................................................17, 18

Ppl. v. Liden,
19 N.Y.3d 271 [2012] .......................................................................................... 27

Serbian Eastern Orthodox Diocese v. Jevich,
426 U.S. 696 [1976] .......................................................................................24, 25

Statutes/Regulations/Miscellaneous
CPLR Article 75....................................................................................................... 23
CPLR Article 78.............................................................................................9, 27, 28
CPLR 217[1] ............................................................................................................ 28
Real Property Law § 339-cc .................................................................................... 15
Real Property Law § 339-j ...................................................................................... 15
Real Property Law § 339-k ...................................................................................... 15
RPAPL 732 (3)......................................................................................................... 20
Village Code § 255-56(E) ........................................................................................ 27
Village Code § 255-61(B)(3)(c).......................................................................7, 9, 14

iv
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

PRELIMINARY STATEMENT

Respondents-Appellants the Village of Spring Valley, the Village of Spring

Valley Department of Building and Zoning, and the Chief Building Inspector of

the Village of Spring Valley (collectively the “Village” or “Appellant”)

respectfully submit this Brief in support of their appeal from the Order and

Judgment issued by the Supreme Court of the State of New York, Rockland

County (Hon. Paul I. Marx, J.S.C.) dated May 11, 2022 (hereinafter “Order”). The

Order granted relief to Petitioner-Respondent 29 Ewing LLC (the “LLC” or

“Respondent”) to compel the Village Building Department to make a final

determination as to whether to issue a building permit to Respondent. For the

reasons set forth in this Brief, it is respectfully submitted that such Order should be

reversed.

First, the Court below erroneously directed Appellant Village to issue a final

determination with respect to the LLC’s building permit application. But in fact,

the Village did issue such a final determination. Specifically, the Village Building

Department determined that the application was “incomplete,” because all owners

having an interest in the condominium complex involved with the subject lot had

not provided their consent as the Village’s Code and New York State Law

required. If the Order is not reversed, the Village will be forced to “accept” an

1
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

application, and grant or deny it, despite the fact that the application is simply not

complete, under the Village Code.

Second, and relatedly, as part of its Order stating that the Village Building

Department must accept, and then grant or deny the building permit application,

the Order stated that as part of making such a determination, the Village Building

Department must consider Rabbinical Court determinations, which essentially held

that Respondent LLC had a right to develop the vacant property at issue in this

litigation. In so holding, the Court below ignored well-established law that a party

(here, the Village), which never agreed to an arbitration process cannot be bound

by that arbitration outcome, and that Rabbinical decisions should not inform

municipal determinations. The Court below erred in requiring the Village to

consider these non-binding determinations when making a determination on the

building permit application.

Third, Appellant Village had raised an affirmative defense as part of its

Answer below that Respondent LLC had failed to exhaust its administrative

remedies, and thus its Petition should be dismissed. Specifically, the Village had

already, years before, denied a building permit application filed by Respondent

LLC on the exact same grounds. Having failed to challenge that determination, the

Court below should have held that the Petition in the instant litigation sought a

2
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

jurisprudential end run around a failure to timely bring a challenge, and thus

dismissed the Petition.

For all or any of these reasons, the Order by the Court below should be

reversed.

QUESTIONS PRESENTED

Question 1: Did the trial court err when it ordered the Village Building

Department to issue a final determination on Respondent LLC’s Building Permit

Application?

Answer: Yes. The trial court erred when it ordered the Village Building

Department to accept Respondent LLC’s building permit application and grant or

deny such application. The Village determined that the application submitted was

not complete as required by its Village Code, and thus, Respondent had no clear

right to compel the Village to act in violation of its Village Code.

Question 2: Did the trial court err when it ordered the Village Building

Department to make a determination on the Building Permit application based on a

Rabbinical Court determination to which the Village was not a party?

Answer: Yes. The trial court erred when it ordered the Village Building

Department to consider the Rabbinical determination as part of its final

determination. The Rabbinical Court decision should not bind the Village with

3
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

respect to the Village’s determination that all owners of the property were not

listed on the Building Permit application.

Question 3: Did the trial court err when it denied the Village’s affirmative defense

that the Petition should have been dismissed for failure to exhaust administrative

remedies and comply with the relevant statute of limitations?

Answer: Yes. The trial court erred when it did not dismiss the Petition

for failure to exhaust administrative remedies. The very legal question at issue in

this litigation had been decided by the Village as part of a prior building permit

application, but was never timely challenged by LLC Respondent. LLC

Respondent should not be permitted a second bite at the apple, having failed

previously to exhaust its administrative remedies or meet the applicable statute of

limitations.

FACTUAL BACKGROUND

A. Background of the Condominium Units to Be Developed by
Respondent LLC

The property at issue in this litigation is a condominium complex, the

“Parkview Condominiums at Maple & 45” (the “Condominium Complex”). At the

site of the Condominium Complex are several existing residential units, as well as

a vacant area sought to be developed by Respondent LLC and referred to by the

Court below as “Commercial A” (basement and ground floor) and “Commercial

4
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

B” (second floor) (together, the “Commercial Units”). (R. 7). 1 The Respondent

LLC, prior to the filing of the instant litigation, had previously applied to Appellant

Village to undertake the construction of these Commercial Units as offices in

October 2017. (R. 7). As noted by the Court below, in that initial Building Permit

application, Respondent LLC provided a Deed as purported proof of all ownership

interests in the Commercial Units. (R. 32). Yet, that Deed noted for both

Commercial Units, that Respondent LLC held title “together with an undivided

1.5625 percent interest in the Common Elements of the Property described in said

Declaration (hereinafter called the “Common Element”).” (R. at 33). Otherwise

stated, nearly 98% of the Condominium Complex Common Elements were not

owned by Respondent, but by the Condominium Board. (R. 88); Aff. of Dainde M.

LaPlante, Village Code Enforcement Officer (R. 116, ¶¶ 8-9).

As the Deed incorporates this Condominium Declaration (the

“Declaration”), reference to that Declaration is important to understand the various

property interests involved. This Declaration, as a matter of public record,

confirmed that a “unit” was defined as essentially the interior of each unit

“measured horizontally from the exterior surface of the sheetrock of all opposite

walls to the exterior surface of the sheetrock of all opposite walls and vertically

from the lower surface of…the floor…up to the exterior surface of the sheetrock

1
The letter “R” followed by pagination refers to pages in the Record on Appeal.

5
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

forming the ceiling of the Unit…[.]” (R. 95, at ¶ THIRD (b)). Otherwise stated,

Respondent LLC owns, for each Unit, essentially the interior space, with the

Condominium Complex Board of Managers (the “Condominium Board”) owning

all the common elements. (R. 95). Simply stated, Respondent LLC effectively

“owns” the spaces between all walls and above the lowest floor.

The Declaration also provided that Respondent LLC as Unit Owners “are

subject to the provisions of this Declaration…[.]” (R. 97, at ¶ ELEVENTH).

Furthermore, the Declaration also references that “No alterations to the exterior of

the Unit or any part of the common elements may be made and no structure may be

built on any portion of the common elements or restricted common elements

without the written consent of the Board of Managers.” (R. 99, at ¶

SEVENTEENTH (b)). Also of relevance to this appeal, is that “Occupancy of the

Units shall be restricted to Residential Occupancy in accordance with the

applicable zoning regulations of the municipality having jurisdiction over the

Community.” (R. 100). In summary, the construction of the improvements sought

by Respondent LLC needed to meet all the Declaration’s above requirements.

B. The Building Permit Application Process

In applying for any Building Permit for construction within this

Condominium Complex, Respondent LLC was required to comply with the Code

6
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

Requirements for the Village. The Village Code at § 255-61(B)(3)(c) sets forth the

requirements for any applicant submitting a Building Permit Application:

Applications shall be made by the owner or lessee or
agent of either or by the architect, engineer or builder
employed in connection with the proposed work. Where
such application is made by a person other than the
owner, it shall be accompanied by an affidavit of the
owner or applicant that the proposed work is
authorized by the owner and that the applicant is
authorized to make such application. (emphasis
added).

Therefore, permission to undertake any construction involving Respondent

LLC’s Units at this Condominium Complex expressly required, under the

applicable Village Code, consent of the owner of all property interests. The

Condominium Board owned such an interest.

Prior to Respondent LLC filing the Building Permit application that is the

subject of this appeal, Respondent filed an identical Building Permit application to

construct the identical commercial office units. As noted by the Court below,

Respondent LLC had previously filed litigation 2 because Appellant Village had not

approved that initial Building Permit application. That prior 2019 Litigation

resulted in an order that the Appellant Village act on this initial Building Permit

Application by Respondent. As the Court Below noted, on the same day that the

2
In its Order, the Court below noted that this prior litigation filed by Respondent LLC against
Appellant was commenced under Index No.32703/2019 in Rockland County Supreme Court. (R.
8).

7
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

prior litigation was concluded on October 23, 2019, “the (Village) Building

Inspector denied the permit application on the ground that it was defective.” (R. 8).

That denial was based upon a factual finding by the Village that the proper

“Property Owner” had not been listed on Respondent’s Building Permit

application. (R. 36).

Accordingly, there was no dispute in the Record before the Court below that

Respondent’s initial Building Permit application was denied in a written factual

determination by Appellant Village informing Respondent LLC that its Building

Permit application was denied for the following reasons:

(1) you failed to list the name of the “Property Owner”;
(2) you failed to list the name of the “contractor”; (3) you
failed to list the name of the “Applicant”; (4) you failed
to have the form property notarized in all required
spaces; (5) you failed to otherwise complete the
(Building Permit application) form; and (6) you failed to
provide all the required documents that are referenced in
the last page of the application.

Village Director of Building and Public Works letter to Applicant representative
dated October 23, 2019. (R. 36) (emphasis added).

Despite being unequivocally advised in October 2019 that Respondent LLC

did not list all property owners on its Building Permit application and that the

Village Code required all persons having an ownership interest in the property to

consent to any such application (R. 116), Respondent LLC never filed an appeal of

this determination to the Village Zoning Board of Appeals as required by the

8
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

Village Code. Likewise, Respondent never brought any Article 78 Proceeding

challenging that denial of its Building Permit application.

Well beyond the time for Respondent LLC to file an appeal with the Village

Zoning Board of Appeals or file an Article 78 Proceeding, it was not until August

11, 2020 that Respondent LLC took further action, when it filed an identical

Building Permit application to construct these Commercial Units. 3 While certain

procedural deficiencies were corrected by Respondent on this second and identical

Building Permit application, the substantive defect of not identifying all “property

owners” (R. 52) of all real property interests in the Condominium Complex was

not completed. Moreover, completely missing in this identical application was the

Village Code required affidavit of consent and confirmation that the “Owner” of

all real property interests in the Condominium Complex had authorized filing. See

Village Code § 255-61(B)(3)(c).

Notwithstanding the failure to comply with the Village Code

requirements, the Court below, held that Respondent LLC’s August 11, 2020

Building Permit application filing had presented a “minimally valid application for

a building permit for Village Code purposes.” (R. 12, at FN 3). Thus, despite a

lack of compliance with substantive requirements in the Village Code regarding

3
The Court below noted that Respondent LLC claimed to have filed another Building Permit
application in February 2020 and July 2020 (R. 8); the only confirmed application received by
the Village has a Village date stamp of “August 11, 2020.” (R. 52).

9
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

the Building Permit application that rendered it incomplete, the Court below

granted mandamus, determining that Respondent should have its “August 2020

application for a building permit” decided within 20 days. (R. 13).

The Court then noted that “[t]his Court cannot address Respondents’

determination, expressed herein, that Petitioner is not the sole owner of the subject

property and therefore the condominium board must consent on the application.”

(R. 13). And yet, just a few paragraphs later, in the Court’s “ORDER” portion of

its Order and Judgment, the Court below held that the Building Inspector “shall

either grant or deny Petitioner’s August 2020 application for a building permit”

and that, “[i]n doing so, Respondents shall take into consideration the full record of

this proceeding, including the Rabbinical Court determinations…[.]” (R. 13).

C. Consideration by the Court Below of the Rabbinical Court Decision

In rendering its Order, the Court below placed considerable emphasis

regarding the Rabbinical Court decisions related to the ownership dispute over the

property at issue in this litigation. The Court observed:

The dispute over who controlled the property was twice
arbitrated before a Rabbinical Court. In 2016, a
Rabbinical Court determined that the developer then
owning the lot “has the right to develop a commercial
site on the lot, provide that [it] does not use the existing
parking, but must arrange new parking for it, close to the
commercial site” (NYSCEF 10). After further resistance,
the developer joined a nonparty business entity which
later sold the vacant lot to the Petitioner [Respondent
LLC]. In March 2017, a Rabbinical Court determined

10
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

that construction could proceed on the lot within 30 days,
either residentially or commercially at the objecting unit
owners’ option, but thereafter the objectors could not
interfere either directly or by making objection to the
Village (see id.). The Rabbinical Court also directed that
the commercial development could make use of existing
parking facilities but must create six more spaces. (see
id.). There is no evidence that anyone challenged the
Rabbinical Court’s March 2017 determination, or that
any of the objecting unit owners exercised their option
pursuant to it. Petitioner purchased the lot on July 6,
2017. Three months later, on October 2, 2017, Petitioner
[Respondent LLC] applied to the Village for a building
permit to construct the contemplated offices. (R. 7).

The Court below then “ordered” that Appellant Village grant or deny the

Building Permit application and in doing so, “shall take into consideration the full

record of this proceeding, including the Rabbinical Court determinations…[.]” (R.

13). However, the record shows that none of those Rabbinical Court decisions

involved the Appellant Village nor the Respondent LLC, nor did either entity agree

to arbitrate this issue or enter any evidence as part of such proceedings. The only

parties involved in the 2016 Rabbinical Court proceedings were Messrs. Deitsch,

Fuerst, Unger, Jacobovits and 5 Nancen Ct, LLC. (R. 68). The only additional

parties involved in the 2017 Rabbinical Court proceedings were Messrs. Cohen,

Halpert and Route 45, LLC and 5 Nancen Ct. LLC. (R. 71).

Moreover, as part of these Rabbinical Court decisions that the Court below

ordered the Village to consider, it was held that the property owner of the vacant

lot could “build residential or commercial units,” while the Declaration states that

11
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

“units shall be restricted to Residential Occupancy.” Moreover, the Rabbinical

Court decision states that anyone constructing these Units may “create another six

[parking] spaces” and also that the users of these Units “may use the existing

parking spaces.” (R. 71). The Rabbinical Court decision also states that “if a

variance is needed” that another party to the Rabbinical Court decision “shall not

file an objection with the village.” (R. 71). The Order of the Court below appears

to require the Village to accept these Rabbinical decisions and all of their

accordant obligations, despite the fact that such requirements, from the perspective

of the Village, are not consistent with the Village Code and do not establish the

rights of the various parties.

D. The Decision of the Court Below

The jurisprudential fulcrum for the Court below in determining whether

Appellant Village was correct in not processing the Building Permit application

was its holding that “[t]he dispute over who controlled the property was twice

arbitrated before a Rabbinical Court.” (R. 7). The Order also held that Respondent

LLC complied with the requirements of the Village Code that a Building Permit

application include information, such as “a description of the land, a statement of

the current use or occupancy of the premises, the proposed work’s valuation, the

full name of the owner and applicant…and a brief description of the proposed

work.” (R. 13).

12
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

However, the Order did not consider the Village’s determination that one of

the proper owners was not named, and failed to examine or distinguish Appellant

Village’s citation to controlling provisions of the Real Property Law that expressly

require construction work by Respondent LLC to first obtain the Condominium

Board’s consent. The Record before the Court below does not indicate any

consent by the Condominium Board for Respondent LLC’s Building Permit

Application.

The Order also disregards Appellant’s affirmative defense of a failure to

exhaust administrative remedies and that the statute of limitations has expired. (R.

79, 81). Appellants submit that the IAS Court erred in its conclusions, appeal from

the Order, and seek reinstatement of the Village Building Department’s

determination that the application submitted was not complete.

ARGUMENT

THE TRIAL COURT ERRED WHEN IT ORDERED
THE VILLAGE BUILDING DEPARTMENT TO
ISSUE A FINAL DETERMINATION ON THE
BUILDING PERMIT APPLICATION

I. THE COURT BELOW ERRED IN ORDERING THE VILLAGE
BUILDING DEPARTMENT TO ISSUE A DETERMINATION THAT
CONTRAVENED ITS OWN VILLAGE CODE REQUIREMENTS AS
WELL AS STATE LAW

The Court below erred when it Ordered the Village Building Department to

issue a determination on Respondent LLC’s Building Permit application.

13
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

A. The Village Code Enforcement Officer Determined that the
Application was Incomplete

The Village had already, in fact, issued a final determination regarding the

application, i.e. that the application submitted was not complete because it failed to

comply with the application criteria, and thus could not properly be evaluated and

granted or denied. Specifically, the Code Enforcement Officer of the Village

attested:

The Village Code specifically requires the consent of the
owner in any application for a Building Permit…[T]here
is no doubt that the Petitioner claims an ownership
interest in Property as reflected in the Deed supplied to
this Court, but that same Deed confirms that the
Petitioner does not own all the common element[s] on
this Property, specifically the Petitioner only has an
undivided 1.5625 percent interest in the Common
Elements of the Property…Without the consent of the
Condominium Board who owns those “Common
Elements” to the Petitioner’s Application, there is not a
complete application for the Village to review and
approve pursuant to the Village Code. (R. 116).

The Village Code mandates that any owner of property involved in a

Building Permit application does not only need the owner’s consent, but requires a

sworn statement that the Building Permit application filed was submitted with the

consent of every owner. See Village Code § 255-61(B)(3)(c) (“Where such

application is made by a person other than the owner, it shall be accompanied by

an affidavit of the owner or applicant that the proposed work is authorized by the

owner and that the applicant is authorized to make such application”).

14
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

It was readily apparent to Appellant Village Building Department that there

was an ownership interest by the Condominium Board, as the Deed submitted by

Respondent to the Village with its Application evidenced the same. Moreover, that

same Deed referenced the Declaration as a matter of public record, which

confirmed the Condominium Board’s interest in and right to control any changes to

or construction within this Condominium Complex. Accordingly, the Building

Department concluded that the application was not complete, and therefore, that it

could not decide the application one way or another.

Additionally, New York State Law is clear that any work in a condominium,

such as this Condominium Complex, requires compliance with Real Property Law,

Article 9-B. Real Property Law § 339-j dictates the need for compliance with all

by-Laws and regulations of the Condominium Board. Also, Real Property Law §

339-k, titled “Certain work prohibited,” states that a unit owner may not “add any

material structure or excavate any additional basement or cellar, without in every

such case the consent of all the unit owners affected being first obtained.” The

Record does not indicate any such consent by the Condominium Board for this

Building Permit Application. Moreover, Real Property Law § 339-cc is also clear

that repair or reconstruction cannot take place without Condominium Board

approval.

15
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

The cause in the delay of the application is based on the failure of

Respondent LLC to obtain consent of the Condominium Board for any new

construction as required by the Declaration (R. 99, at ¶ SEVENTEENTH (b)),

which is a matter of public record, referenced by the Deed (R. 33). As explained

by the Village Code Enforcement Officer, Respondent only has “an undivided

1.5625 percent interest in the Common Elements of the Property…Without the

consent of the Condominium Board who owns those ‘Common Elements’ to

[Respondent LLC’s] Application, there is not a complete application for the

Village to review and approve pursuant to the Village Code.” (R. 116).

The “Declaration” establishes a plan for condominium ownership of the land

and building comprising the Condominium Property (R. 95) and confirms that the

Condominium Board alone has rights to the “common elements of the

Community,” which “will consist of all of the Community, except the Units,

including, but without limitations, outside walls and roofs of the Building, the land,

building and improvements (other than the Units) comprising the Community

(including the land under the Units and under the improvements), all utility or

other pipes and material located outside of the Units.” (R. 96). Respondent LLC is

only a “Unit Owner” under this Declaration and as such, only owns its individual

Unit—not the commons elements.

16
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

Accordingly, the Village reasonably determined that for the application to be

complete, it would have to include consent from the Condominium Board, both to

satisfy a complete application under its Village Code, as well as to ensure

compliance with New York State Real Property Law.

B. A Building Department Should not be Compelled to Issue a
Determination where it deems an Application Incomplete

The Court below should have deferred to the Building Department’s

conclusion that the application was incomplete, and should not compel the

Building Department to make a final determination based on a contrary conclusion.

In a similar circumstance, this honorable Court considered a denial by a

municipal body for failure to submit a complete application. In Mtr. of Warner v.

Town of Kent, an applicant for a building permit had a one-year window under the

Town Zoning Code to submit a building permit to re-build a home that was a pre-

existing, non-conforming structure under the Zoning Code, which had burned

down. The applicant timely submitted a building permit application, but the Town

would not review the application without the required site survey and plans. The

building department then rejected another application several months later, this

time, not because any part of the application was missing, but because the Town

legally could no longer approve such an application for a non-conforming use.

The Court summarized the circumstances as follows:

17
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

In its written decision, which was dated May 21, 2012,
and filed with the Town Clerk on June 1, 2012, the ZBA
found, among other things, that the petitioner had filed an
application for a building permit on January 21, 2011, but
that the application was “rejected” because it “lacked
basic elements like building plans, a survey, etc.” The
ZBA also found that a complete application for a
building permit had not been submitted until “[n]early
eight months after the initial year had lapsed,” and that
the Building Inspector denied it on that ground. The ZBA
noted that, “according to the [Town] Code, if the
homeowner wants to restore the noncomplying structure
in the same location, the restoration must be completed
within one year.” It pointed out that, “[h]ere, the
applicant merely submitted an incomplete application for
a building permit prior to the one-year expiration.”

Mtr. of Warner v. Town of Kent, 144 A.D.3d 814, 817 [2d Dep’t 2016] (emphasis
added).

In upholding the decision of the ZBA, this court concluded:

Nothing that the Building Inspector may have done or
said misled the petitioner into failing to comply with
Town Code § 77–48(A) (see Cymbidium Dev. Corp. v.
Smith, 133 A.D.2d 605, 608, 519 N.Y.S.2d 711 [1987]).
Indeed, in submitting only an incomplete application just
two weeks before the one-year restoration period expired,
the petitioner could not reasonably have thought that a
site survey was unnecessary. The requirement of a survey
is clearly stated in the Town Code (see Town Code § 27–
8[D]), as well as on the first page of the building
department form.

Id. at 821.

Similarly, here, the Village Building Department determined that application

criteria, namely, that all applicable owners are required to provide consent, was

18
FILED: ROCKLAND COUNTY CLERK 05/04/2023 01:08 PM INDEX NO. 031960/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/04/2023

required to be provided, before the Village could reach a determination as to

whether the application should be granted or denied. Without such materials, the

application was rejected, rather than accepted for filing.

Another Second Department case, Loskot-D’Souza v. Town of Babylon,

where the Town “deemed the building permit application incomplete,” lends

further support. Loskot-D’Souza v. Town of Babylon, 137 A.D.3d 751, 752 [2d

Dep’t 2016]. There, this Court summarized: “[T]he plaintiffs took no further steps

to complete an application for a building permit change of use permit, or any other

permit or approval with the

Case Info

Judge

Sherri L Eisenpress Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

May 04, 2023

Case Filing Date

May 02, 2023

County

Parties

29 Ewing LLC Defendant
BLANCHARD, MARK WILLIAM Attorney for the Defendant
Board of Managers - Parkview Condominiums At Maple & 45 Plaintiff
County of Rockland Defendant
Director of Buildings and Inspectors of the County Of Rockland Defendant
Feiden, Larraine S Attorney for the Defendant
FISCHER, PATRICK JOHN Attorney for the Defendant
HASPEL, JOSEPH J Attorney for the Plaintiff
LYNCH, DENNIS E Attorney for the Defendant
PARISI, MATTHEW G Attorney for the Defendant
Parkview Condominiums At Maple & 45-BD MGRS Plaintiff
ROCKLAND COUNTY Defendant
ROCKLAND COUNTY DIRECTOR OF BUILDINGS AND INSPECTORS Defendant
Spring Valley VILLAGE OF Defendant
Village of Spring Valley Defendant
ISAAC SCHEINER Attorney
TERRY RICE Attorney
THOMAS HUMBACH Attorney
ADAM MOSS Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Exhibit,Appendix: Parkview Condominiums At Maple & 45-Bd Mgrs v. Rockland County, Rockland County Director Of Buildings And Inspectors, 29 Ewing Llc, Spring Valley Village Of

Preview

Related Topics

Case Info

Parties