Lesron Junior, Inc. v. Feinberg

13 A.D.2d 90, 213 N.Y.S.2d 602, 1961 N.Y. App. Div. LEXIS 11550

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1961
• Status: Published

Opinions

Eager, J.

The plaintiffs appeal from an order of Special Term, entered September 7, 1960, which dismissed their complaint, on the motion of certain defendants for judgment on the pleadings under rule 112 of Rules of Civil Practice, and which denied plaintiffs’ motion for summary judgment.

The action is brought by the owner and the lessee of premises at 575 Madison Avenue and 55-57 East 56th Street, New York City, to enjoin the construction on adjoining premises of a tower building allegedly in violation of the provisions of the Multiple Dwelling Law and the Zoning Resolution of the City of New York. It is alleged that the plaintiffs’ property is improved with a 25-story modern office building; that the adjoining lot to the southeast on 56th Street and the next lot thereto, owned by certain of the defendants, are at present improved by two five-story office buildings; that certain defendants have filed plans and specifications with the Department of Buildings of the City of New York for the erection of a tower building upon these adjoining lots, which building is to adjoin and to be used as an annex to the Hotel Drake situate on the corner of 56th Street and Park Avenue; that the Department of Buildings has issued a building permit for the construction of said tower building; that, pursuant to such permit, the defendants intend to demolish the present five-story buildings on the adjoining lots and to erect thereon a 16-story tower building; and that the- same will obstruct the light and air of plaintiffs’ adjoining office building and will destroy the market and rental value thereof. It is further alleged that said proposed 16-story tower building would violate the Multiple Dwelling Law, and particularly sections 26 and 27 thereof, relating to setback and fear yard requirements and that it would also violate the Zoning Resolution of the city, and particularly subdivision (d) of section 9 and subdivision (a) of section 12 thereof relating to such requirements.

The answer of the defendants admits the proposed construction pursuant to the plans approved and the permit issued by the Building Department, but otherwise denies the material allegations of the complaint. Among other defenses, the answer sets forth the alleged failure of plaintiffs to exhaust the administrative remedies prescribed and required by the New York City Charter and the Administrative Code of the City of New York. In this connection, the answer alleges that:

“ 10. During the pendency of the aforesaid Application to the Department of Housing and Buildings [the application for the building permit], plaintiffs and/or their predecessors in interest knew that said Application was pending and intervened in said • proceeding in an unsuccessful effort to prevent the issuance of the Permit.

‘ ‘ 11. Pursuant to the provisions of the City Charter, Sections 666 and 668, and the New York City Administrative Code, Section 668e-1.0, and other applicable provisions of the Charter and Code, the exclusive remedy of a person aggrieved by the Decision of the Department of Housing and Buildings granting the Permit aforesaid, is to appeal from said Decision in the first instance to the Board of Standards and Appeals of The City of New York and from an adverse ruling of the said Board by certiorari to the Supreme Court; and aforesaid appeals to the Board and the Court by certiorari are conditions precedent to any right of remedy by plaintiffs for the things complained of. ’ ’

Prom the affidavits submitted in connection with the summary judgment application, it appears that, prior to and after the issuance of the building permit, the plaintiffs and/or their predecessors in title verbally and by letter made known to the Building Department their objections to the issuance of a permit for the -proposed building, and that the Building Department disregarded them.

It is true that the City Charter generally provides that the Commissioner of Buildings of the City Building Department shall have exclusive power, not subject to review, except by the Board of Standards and Appeals, to approve and disapprove building plans and to require that they be in accordance with law (see New York City Charter, § 645); and that appeals may be taken by any person aggrieved from decisions of the Commissioner of Buildings to the Board of Standards and Appeals (§§ 648, 668). We conclude, however, that the action here for an injunction is not barred by the failure of the plaintiffs to take and prosecute an appeal to the Board of Standards and Appeals.

Generally speaking, ‘ ‘ In order to deny one the relief which a court of equity can give, it is not in all cases sufficient that there be a remedy at law. The remedy must be plain and adequate and as certain, prompt, complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity. (Dailey v. City of New York, 170 App. Div. 267, affd. 218 N. Y. 665; Rice v. Van Vranken, 132 Misc. 82, affd. 225 App. Div. 179, affd. 255 N. Y. 541.) ” (Boston & Maine R. R. v. Delaware & Hudson Co., 238 App. Div. 191, 196.) Further, specifically with respect to injunction actions, and the right to maintain them, the general rule is: “ The mere existence, however, of a remedy at law is not in itself sufficient ground for refusing relief in equity by injunction; nor does the existence or nonexistence of a remedy at law afford a test as to the right to relief in equity. To deprive a plaintiff of the aid of equity by injunction it must also appear that the remedy at law is plain and adequate; in other words, that it is as practical and efficient to secure the ends of justice and its proper and prompt administration as is the remedy in equity. And unless this is showm a court of equity may lend its extraordinary aid by injunction, notwithstanding the existence of a remedy at law.” (1 High, Injunctions [4th ed.], § 30, p. 47.) (See, also, Pomeroy, Equity Jurisprudence [5th ed.], §§ 176, 216-222; also, Wickwire v. Warner, 191 App. Div. 835, affd. 233 N. Y. 572; Lang’s Creamery v. City of Niagara Falls, 224 App. Div. 483, affd. 251 N. Y. 343; Republic Aviation Corp. v. Republic Lodge, 10 Misc 2d 783; Phillips v. Hilmont Realty Corp., 195 Misc. 270.)

Under the settled doctrine, the right to the equitable remedy of injunction depends upon whether or not an existing remedy provided by law will furnish plaintiffs with proper and adequate relief. Thus, in determining whether or not an action for an injunction is to be defeated by the failure of plaintiff to exhaust an alleged administrative remedy, it is to be borne in mind that an administrative officer or board generally has but very limited powers; and that a party, maintaining a proceeding before such an officer or board, is not generally enabled to obtain at his or its hands the broad and complete relief providable by a court. And, if an administrative remedy would afford a plaintiff substantially less than adequate relief for a clear wrong, the failure to exhaust the same should not be regarded as a bar to the obtaining of complete relief in a court of equity. In fact, recently, in connection with the affirmance of an injunction to the extent that it barred the improper obstruction of street and sidewalk access to plaintiff’s premises, this court had occasion to comment that ‘ ‘ it does not follow that because equity will decline to exercise its power where there is an adequate remedy at law, meaning an action at law, that, therefore, its doors are closed to petitioners because of the existénce of an administrative remedy, an appropriate criminal proceeding,—or even the availability of self-help.” (Graceland Corp. v. Consolidated Laundries, 7 A D 2d 89, 93, affd. 6 N Y 2d 900.)

Clearly, here, the plaintiffs could not obtain adequate and complete relief in the prosecution of an appeal to the Board of Standards and Appeals from the Building Commissioner’s determination to issue the permit. The power of the board in connection with such an appeal would be limited to one of three determinations, namely (1) the approval of the issuance of the particular permit; (2) the revocation of the permit; or (3) upon a proper showing of practical difficulties and unnecessary hardship, the allowance of a proper variance of the zoning regulations. No one of these results would afford plaintiffs proper relief, in that (1) the approval of the permit by the board on the appeal would be opposed to the relief which is sought by plaintiffs and to which they are entitled if their allegations are sustainable; (2) the revocation of the permit on such an appeal would not give the plaintiffs relief equivalent to that which they seek in this action, namely, injunctive relief against the erection of the allegedly illegal structure; and (3) any variance of the zoning regulations by the board on an appeal certainly would not aid the plaintiffs. Furthermore, a determination of an appeal, if taken, would not necessarily end the controversy. In fact, upon a determination thereof, the plaintiffs could very well be faced with the necessity of maintaining or defending an article 78 proceeding to review the same. Thus, the relegating of plaintiffs to the alleged remedy before the said board could very well result in unnecessary, time-consuming and expensive procedures.

If the plaintiffs are entitled to bar the construction of the proposed structure, this action constitutes a proper and simple method of affording them relief. It is settled beyond doubt that an action for injunctive relief is the appropriate remedy of an aggrieved property owner who seeks to bar the erection of a structure on adjoining or nearby premises in violation of express zoning regulations. (See Marcus v. Village of Mamaroneck, 283 F. Y. 325; Daub v. Popkin, 9 Misc 2d 362, mod. 5 A D 2d 283, affd. 4 F Y 2d 1024; Rice v. Van Vranken, 132 Misc. 82, affd. 225 App. Div. 179, affd. 255 N. Y. 541; Roock v. Womer, 233 App. Div. 566; Bailer v. Ringe, 255 App. Div. 976; Kaltenbach v. Benisch, 252 App. Div. 788.) And the fact that there is outstanding, as here, an unrevoked and unappealed from building permit issued by the local Building Department or Commissioner, for the proposed structure, is immaterial and constitutes no defense to the action for injunction, that is, where the structure in fact violates the law. (Marcus v. Village of Mamaroneck, supra; Rice v. Van Vranken, supra; Roock v. Womer, supra; Daub v. Popkin, supra.)

In view of the foregoing, it is concluded that the learned Justice at Special Term erred in dismissing the complaint upon the ground stated by him, namely, the plaintiffs’ failure to allege that they had exhausted their administrative remedies. The decisions cited by the defendants to sustain the judgment on this ground are clearly distinguishable and inapposite.

It appearing, however, that there exist material and relevant issues of fact, other than with reference to the particular defense here discussed, the granting of summary judgment would not be proper. Therefore, the order, entered September 7, 1960, should be modified on the law and the facts, with $20 costs and disbursements to appellants, to delete the first and third ordering paragraphs and to provide that the defendants ’ motion is in all respects denied, with $10 costs.