Town of Alexandria v. MacKnight

281 A.D.2d 945, 723 N.Y.S.2d 591, 2001 N.Y. App. Div. LEXIS 2725

Opinion

Order unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed. Memorandum: Plaintiff commenced this action seeking judgment permanently enjoining defendants from constructing a floating dock system that allegedly fails to comply with the site plan approval previously granted by plaintiffs Planning Board. Construction on the floating dock system was complete when the action was commenced. Supreme Court erred in granting plaintiffs cross motion for summary judgment, permanently enjoining defendants from using the floating dock system and denying defendants’ motion to dismiss the complaint. The floating dock system is located on the navigable waters of the State and thus plaintiff lacks authority to regulate the construction or use of that system (see, Erbsland v Vecchiolla, 35 AD2d 564, 565, affd sub nom. Erbsland v Rubin, 33 NY2d 787; Britt v Zoning Bd. of Appeals, 124 AD2d 987; see also, Navigation Law § 46-a [2]). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Kehoe, Burns and Lawton, JJ.