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26 NEW YORK LAW JOURNAL Thursday. August 12, 2004 z Z o <5 through coustructiou of an Interior co

Court Decisions driveway which would necessitate the acquisition of contiguous parcels or easements. Thereafter, the Bobbin Inn -0 was demolished at an expense of $40,000 c C o Second and contiguous parcels were purchased for $800,000. In April 1996 the landowners filed a CT o' o Department excuse is not fatal in this instance (sec Matter of Shapiro u. County of Nassau, 5 AD3d 690). Under these circumstances, ceeding pursuant to Social Services Law §384-b to terminate the mother’s parental rights on the grounds of per­ watch over her until someone arrived to take her home" (Selletti v. Por! Washing­ ton Police Dist, 215 AD2d 642,643). appeal, by permission, from an order of the Supreme Court, Nassau County (Skelos, J.), dated July 18, 2003, which, site plan application with the Clarkstown Planning Board for the development of multi-family townhouse units on the o p. O that branch of the petition which was for manent neglect and that she is present­ Accordingly, under these circum­ upon adopting the report of a referee, property in conformity with the MF-3 Ca5 leave to serve a late notice of claim on ly and for the foreseeable future unable stances, the officer’s acts were not a directed the plaintiffs to respond to the classification. WMiie the site plan appli­ O> APPELLATE AHP should have been granted. In light of this determination we need by reason of her mental retardation to pi'ovide proper and adequate care for proximate cause of the accident, and the Supreme Court erred in denying the discovery demand of the defendants Beatrice Degliuomini, Patrick cation was under review the Town Board restored the property to MF-1 zoning. O o DIVISION not reach the petitioner's remaining con­ the subject child, Angel Guardian defendant’s motion for summary judg­ Degliuominl, and Inter Metal The related matters before us seek, o tentions. Children and Family Services appeals ment. Fabricators. Inc., dated July 12, 2002, inter alia, damage.s for breach of con­ c S. MILLER, J.P.. SCHMIDT, RIVERA and from an order of the Family Court, Kings FLORIO, J.P., SCHMIDT, ADAMS and and struck the plaintiffs’ notices to tract, invocation of estoppel, and man­ 3 klilHE SPOLZINO, JJ., concur. County (Lopez-Torres, J.), dated May 6. FISHER, JJ.. concur. admit. By decision and order on motion damus to compel issuance of a building o By Florio, J.P.; Miller, Rivera and Lif- 2002, which, after a fact-finding hearing, By Muller, J.P.; Goldstein, Luciano and of this court dated September 3, 2003. permit. The Supreme Court properly dis­ 3 Continued from preceding page son, JJ. denied the petition. Spolzino, JJ. enforcement of the order was stayed missed the cause of action to recover ORDERED that the order is affirmed, pending hearing and determination of damages for breach of contract on the Senior Mortgage. Therefore, the only ORTIZ, ap. V. CORMIER, res def — without costs or disbursements. BAIZ, ap, V. BAIZ, res — (INDEX NO. the appeal. ground that no notice of claim was filed remaining issue to be determined on (INDEX NO. 26182/01) — In an action to The Family Court properly found that 15409/99) — In an action for a renewal ORDERED that the order is reversed, pursuant to Town Law §65(3) (see recover damages for personal injuries, the appellant failed to establish, by clear judgment pursuant to CPLR 5014, the on the law, with costs, and the matter is appeal is the order of priority among the H. Poppe Gen. Contr. v. Town ofRamapo, Replacement Mortgage, the Kenney the plaintiff appeals from an order of and convincing evidence, that the moth­ plaintiff appeals from an order of the remitted to the Supreme Court, Nassau 280 AD2d 667: TownBd. of Town of New Mortgage, and the SBA Mortgage for pur­ the Supreme Court, Suffolk County er is “presently and for the foreseeable Supreme Court, Suffolk County County, for further proceedings in accor­ Castle V. Meehan, 226 AD2d 702, 703; . poses of allocating the surplus funds. (Emerson, J.), dated June 10, 2003, future unable, by reason of... mental (Cohalan. J.), dated July 16, 2003, which dance herewith. Holzmacher, McClendon & Murrell v. Contrary to Citibank’s contentions, the which granted the motion of the defen­ retardation, to provide proper and ade­ denied her motion pursuant to CPLR The Supreme Court erred in adopting Town of E. Hampton, 204 AD2d 604). Supreme Court’s determination to subor­ dant Karen Cormier for summary judg­ quate care” for the subject child (Social 5019(a) to amend a renewal judgment of the report of a referee, who was assigned The record is insufficient to support dinate the Kenney Mortgage to the ment dismissing the complaint insofar Services Law §384-b [4][c]; see Matter of the same court (Hall, J.) entered to hear and report on various disclosure January 8, 2001. the determination of the Supreme Court Replacement Mortgage was neither legal­ as asserted against her and denied the Edon F, 256 Ab2d 517; Matter of Erica J., issues, prior to the expiration of the 15- that the petitioners-plaintiffs acquired ly nor equitably equivalent to the rein­ plaintiff’s cross motion for leave to 154AD2d 595,596). ORDERED that the order is affirmed, day period during which the parties with costs. vested rights in the rezoning of their statement of the Original Mortgage, amend the summons and complaint. Moreover, in order to terminate were permitted to move to confirm or property from MF-1 to MF-3 when they insofar as the scope of the Replacement ORDEI^D that the order is affirmed, parental rights based upon permanent On March 29,1988, the plaintiff reject the report in whole or in part (see complied with the conditions imposed Mortgage was broader than the scope of with costs. neglect, the appellant was required to obtained a judgment against the.defen- CPLR 4403; Matter of Breland v. Motor by the Town as a quid pro quo for the the Original Mortgage. Therefore, with The plaintiff commenced this action establish that the mother failed, for a dant in the State of Texas in the sum of Vehicle Acc. Ind. Corp.. 24 AD2d 881). change in zoning. respect to the new liens encumbering against the respondent homeowner and period of more than one year following $43,038, with interest at the rate of 10 Accordingly, we remit the matter to the At the time of its demolition, the Bob­ “John Doe” Construction Company to the date the child came into the appel­ percent per annum. On August 21,1989, Supreme Court, Nassau County, to afford lots 62, 63, and 64, which were not bin Inn was income-producing property included within the description of the recover damages for personal injuries lant’s care, “substantially and continu­ she filed the judgment with the Clerk of the parties such an opportunity. occupied by families receiving public Original Mortgage, Kenney’s lien is sen­ allegedly sustained when he fell from the ously or repeatedly to maintain contact Suffolk County, pursuant to CPLR aj ticle RITTER, J.P., H. MILLER. S. MILLER and assistance. However, there is no informa­ ior to Citibank’s by virtue of its prior roof of a one-family home where he was with or plan for the future of the child, 54- In July 1999 the plaintiff commenced CRANE, JJ., concur. tion in the record as to the extent of the recording date (see Real Property Law engaged in construction work. According; although physically and financially able an action for a renewal judgment, pur­ By Ritter, J.P.; Miller, Goldstein and income derived from the Bobbin Inn to his deposition testimony, a strong to do so, notwithstanding the agency’s suant to CPLR 5014, asserting that the §291)- Mastro, JJ. prior to its demolition. However, v/ith respect to those lots wind blowing against the plywood he diligent efforts to encourage and judgment had been partially satisfied, The Town Supervisor acknowledged was carrying caused him to lose his bal­ strengthen the parental relationship” but that the sum of $26,310.69 with inter­ MATTER OF STERNGASS. res-ap, v. that were encumbered both by the Origi­ that the Town wanted the Bobbin Inn ance and fall from the roof. The plaintiff (Social Services Law §384-b[7][a]; see est at the rate of 10 percent per annum TOWN BOARD OF TOWN OF nal Mortgage and by the Replacement closed because “some of its residents alleged common-law negligence and vio­ Matter ofMarielene T.R., 253 AD2d 882, was still due. The defendant answered CLARKSTOWN, ET AL., ap-res — Mortgage (i.e., lots 51 through 61), the had created problems.” He further court correctly determined that lations of Labor Law §§240 and 241. 882-883). the complaint, but did not oppose the (MATTER NO. 1) (INDEX NO. 6929/99) acknowledged that “we had had numer­ Citibank’s lien had priority over Ken­ The Supreme Court properly granted Assuming arguendo that the appellant plaintiff’s subsequent motion for summa­ MATTER OF LEATHER STOCKING ous inspections over there, but I don’t, the respondent’s motion for summary demonstrated that it exercised diligent ry judgment. As a result, on January 8, ANTIQUES, INC., ET AL., res-ap, v. ney’s. To be sure, when Citibank discov­ think we were ever successful in having judgment dismissing the complaint inso­ efforts to encourage and strengthen the 2001, the proposed renewal judgment TOWN OF CLARKSTOWN, ET AL., ap-res ered in 1996 that the Original Mortgage the structure closed.” The Town made far as asserted against her. The respon­ parental relationship (see Matter of Maria which the plaintiff prepared and submit­ _ (MATTER NO. 2) (INDEX NO. had been erroneously discharged, it had demolition of the Bobbin Inn a condition dent demonstrated that, as the owner of Ann P, 296 AD2d 574, 574-575; Matter of ted, in the sum of $40,874.53, was 6930/99) MATTER OF LEATHER the right to seek the reinstatement of the for rezoning to MF-3 on the ground that, a one-family home, she was entitled to Erica J., supra at 595), it did not estab­ entered. STOCKING ANTIQUES. INC,, ET AL., res- Original Mortgage to its former status in the words of the Town Supervisor, judgment as a matter of law on the lish, by clear and convincing evidence, In February 2003 the plaintiff made the ap, V. ZONING ADMINISTRATOR OF and priority, as neither Kenney nor the “[i]t had been a problem for a long time. ground she did not direct or control the that the mother failed "substantially and instant motion, pursuant to CPLR TOWN OF CLARKSTOWN ap-res — SBA had changed their positions in and the Town felt that this was an oppor­ plaintiff’s work within the meaning of continuously or repeatedly to maintain 5019(a). to amend the renewal judgment. (MATTER NO. 3) (INDEX NO. 7281/00) reliance on the validity of the prior dis­ tunity to put an end to its sorry history.” Labor Law §§240 and 241 (see Decavallas contact with or plan for the future of the She contended that she had erroneously — In related matters, inter alia, for a charge (see Application ofDilta, Sup Ct., The Court of Appeals has held that Kings County, Oct. 11,1961, Cohn, J.). V. Pappantoniou,liGi)AD2d5l7,6i8; child, although physically and financially computed the amount due her by apply­ judgment declaring the rezoning of the “[wjhether rooted in equity or the com­ Angelucci v. Sands, 297 AD2d 764, 766; able to do so” (Social Services Law §384- ing the defendant’s partial payments to petlhoners-plaintiffs’ properties from Contrary to Kenney’s contentions, how­ mon law, the operation and effect of the Moran v. Janowski, 276 AD2d 605, 606; b[7][a]). Although the mother, who suf­ the principal balance of the loan, instead MF-3 to MF-1 null and void, and for a ever, Citibank’s decision to enter into the vested rights doctrine is the same and it Lang V. Havlicek, 272 AD2d 298; Kelly v. fers from mild mental retardation, did of applying those payments to interest judgment declaring that the petitioners- Replacement Mortgage in lieu of moving has been applied alike to a single build­ Bruno and Son, 190 AD2d 777, 778). The not avail herself of all the programs and then due. Based on her re-computation plaintiffs' proposed development of lot to reinstate the Original Mortgage does ing or a subdivision” (Matter of Ellington not compel the conclusion that Citibank respondent also met her prima facie bur­ opportunities the appellant offered her, of the amount due her, this time applying 28 is exempt from Clarkstown Town Constr. Corp. v. Zoning Bd. ofAppeals, 77 waived its seniority under the Original den of demonstrating that she was not and failed to appear at some scheduled the defendant’s partial payments to Code §290-31(D) requiring site plan NY2d 114,122). Further, the Court of Mortgage. The inadvertent discharge of liable for common-law negligence meetings and appointments, the appel­ interest first, the plaintiff sought an approval, (I) the Town of Clartesto^vn, Appeals has recognized that there are because she did not owe a duty of care lant’s “UCR Risk Assessment and Service amended renewal judgment in the sum Town Board of the Town of Clarkstown, the Original Mortgage, without concomi­ exceptions to the general rule against to the plaintiff (see Sprague v. Peckham Plan" for the mother demonstrated that of $78,326.10. The Supreme Court denied and Clarkstown Planning Board appeal tant satisfaction of the underlying debt, invoking estoppel against a municipality Materials Corp.,‘MO AD2d 392,394). In the mother successfully completed a her motion and we affirm. from stated portions of an order and did not extinguish Citibank’s security in unusual factual situations to prevent opposition, the plaintiff failed to raise a parenting skills program, received an While the Supreme Court has the dis­ judgment (one paper) of the Supreme interest; rather, it left Citibank with an injustice (see Matter ofEF.S. Ventures unrecorded, equitable lien, which triable issue of fact (see Alvarez v. "Independent Living” award for showing cretion to cure mistakes, defects, and Court, Rockland County (O’Rourke, J.), Corp. V. Foster, 71 NY2d 359). Prospect Hospital. 68 NY2d 320,324). “visible improvement" during a review irregularities in judgments that do not entered June 24, 2002, which, inter alia, Citibank could have enforced by way of Generally, a landowner does not have Further, the Supreme Court provident­ period, cooperated with the appellant to affect substantial rights of the parties denied that branch of their motion foreclosure (see Federal Deposit Ins. Co. vested rights in a zoning change (see ly exercised its discretion in denying the obtain citizenship and to apply for social (see CPLR5019[a]:^/A-ern Nassau Coun­ which was for summary judgment dis­ u. Five StarMgt., 258 AD2d 15, 21; Sullivan Rodgers v. Village of Tarrytown, 302 NY plaintiff’s cross motion for leave to security benefits, was able to travel inde- ty, 85 NY2d 879; Parkinson u. Bono. 300 missing the cause of action sounding in V. Corn Exchange Bank, 154 App Div 292, 115,120). Substantial improvements and amend the summons and complaint. The pendentlj^ throughout the city, and did AD2d 640), here the plaintiff elected to estoppel and, upon searching the 296). Moreover, the subsequent creation expenditures standing alone are insuffi­ plaintiff failed to make the requisite evi­ housekeeping and dressed appropriate­ apply the defendant’s partial payments record, granted the petitioners-plaintiffs by Citibank of a duly perfected mortgage cient to give vested rights. The landown­ (i.e., the Replacement Mortgage) encum­ dentiary showing that a valid cause of ly. The mother's aunt, the subject child’s to the principal amount of the judgment. summary judgment declaring that the er must establish that the expenditures bering the same property and securing a - action existed against the proposed caretcLker, reported that the mother “fre­ That she could have elected to apply rezoning of their property from MF-3 to MF-1 is null and void, (2) the Zoning were so substantial that the “municipal restructured version of the same-under­ additional defendant (see Tospano v. quently” visited the aunt and the child at those partial payments to interest first, action, results in serious loss rendering Toscano, 302 Ab2d 453;. Bartone. v. Counfy the aunt's home and tended to the child did not render incorrect her original Administrator of the Town Of ' ■' 3 lying debt did not, unddr the cifciim- ■- the improvements essentially valueless” of Nassau. 286 AD2d 354.356). “satisfactorily.” Under these circum­ method of computing the amount due Clarkstown, the Building Inspector of stances, operate as a waiver of Citibank’s (Town of Orangetown v. Magee, 88 NY2d FLORlQ, J.P.' S. MILLER. iUVERA and stances, we see no reason to disturb the her in the renewal judgment which was the Town of Clarkstown, and the Town prior equitable lien or as a merger of 41,48). UFSON, jJ., concur. Family Court’s denial oi the petition (see entered (.see 72 NY lur 2d. Interest and of Glarkstowir separately appeal, as lim­ such lien into the subsequent Replace­ Usury §41 f“in the absence of agreement. ited by their brief, from so much of the The Town’s rezoning of the property ment Mortgage. Accordingly, because By Smith, J.F.; Kirausman, Adams and Matter ofMarielene T.P., supra at 883). from MF-1 to MF-3 invited invocation of Skelos, JJ. RITTER, J.P., GOLDSTEIN, MASTRO .. [a] creditor may apply partial pay­ same order and judgment as declared Kenney never changed her position in ments to principal or to interest or to that the proposed development of lot 28 the doctrine of vested rights by requir­ reliance on the inadvertent discharge of and FISHER, JJ., concur. ing the demolition of the Bobbin Inn PRUS, plf, V, GLENCOTT REALTY both, as and when he or she elects to do is exempt from Clarkstown Town Code the Original Mortgage, there was no CORP., def THIRD-PARTY pif-res; By Florio, J.P.; Schmidt, Adams and so”]). As such, her belated attempt to §290-31(D) requiring site plan approval within 45 days and requiring the acquisi­ basis in equity to deny the continued ASBESTWAY ABATEMENT CORP., Fisher, JJ. tion of easements or adjoining parcels in amend the renewal judgment, employing and directed the issuance of a building nrripK tn i- seniority of Citibank’s equitable lien over THIRD-PARTY def, INSURANCE MALDONADO, JR., ETC., res. v. a more favorahlp romniitatinin the Kenney Mortgase with resoect to