Court Allows Some Causes Of Action Under 42 USC 1983 To Stand Against The Village Of Suffern

Author:Mr Steven Silverberg
Profession:Silverberg Zalantis LLP

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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