Zupa v. Paradise Point Ass'n, 22 A.D.3d 843 (N.Y. App. Div. 2005). · Go Syfert
Zupa v. Paradise Point Ass'n, 22 A.D.3d 843 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
24 citation events (24 in the last 25 years) across 2 distinct courts.
Strongest positive: Cohen v. CASSM Realty Corp. (nysupct, 2016-03-14)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) Cohen v. CASSM Realty Corp.
N.Y. Sup. Ct. · 2016 · confidence medium
Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413-414 [1987]; Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 843-844 [2d Dept 2005]; Williams v Hertzwig, 251 AD2d 655, 656 [2d Dept 1998]; see Business Corporation Law § 626 [c].) VI.
discussed Cited as authority (rule) Gershon v. Cunningham
N.Y. App. Div. · 2016 · confidence medium
However, “an allegation of close proximity *817 may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury” (Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 844 [2005]).
discussed Cited as authority (rule) Town of North Elba v. Grimditch
N.Y. App. Div. · 2015 · confidence medium
Where, as here, the offending premises are immediately adjacent to the neighbors’ property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury” (Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 844 [2005]; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 414-415 ; Citizens for St.
discussed Cited as authority (rule) Niagara Preservation Coalition, Inc. v. New York Power Authority
N.Y. App. Div. · 2014 · confidence medium
With respect to petitioner’s fourth cause of action alleging a violation of unspecified provisions of the City of Niagara Falls Zoning Ordinance, petitioner contends that its members “have been in Niagara Falls for years” and that they “use and enjoy the recreational benefits of the Niagara Reservation Park.” Petitioner therefore seeks a declaration that, unless the City of Niagara Falls conducts the balancing test as set forth in Matter of County of Monroe (City of Rochester) ( 72 NY2d 338 [1988]) to determine whether the public interest will be served by the improvements, the proje…
discussed Cited as authority (rule) Niagara Preservation Coalition, Inc. v. New York Power Authority
N.Y. App. Div. · 2014 · confidence medium
With respect to petitioner’s fourth cause of action alleging a violation of unspecified provisions of the City of Niagara Falls Zoning Ordinance, petitioner contends that its members “have been in Niagara Falls for years” and that they “use and enjoy the recreational benefits of the Niagara Reservation Park.” Petitioner therefore seeks a declaration that, unless the City of Niagara Falls conducts the balancing test as set forth in Matter of County of Monroe (City of Rochester) ( 72 NY2d 338 [1988]) to determine whether the public interest will be served by the improvements, the proje…
discussed Cited as authority (rule) Nemeth v. K-Tooling
N.Y. App. Div. · 2012 · confidence medium
Case law has been unclear, however, as to whether “special damages” are an aspect of standing — which may presumptively be satisfied by proof of close proximity and assertion of an interest within the “zone of interest” of the regulation — or are, separate and apart from standing, an element of the cause of action alleging a violation of zoning laws (compare Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 409-410, 413-414 , Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 843-844 [2005], with Marlowe v Elmwood, Inc., 12 AD3d 742, 744-745 …
discussed Cited as authority (rule) Nemeth v. K-Tooling
N.Y. App. Div. · 2012 · confidence medium
Case law has been unclear, however, as to whether “special damages” are an aspect of standing — which may presumptively be satisfied by proof of close proximity and assertion of an interest within the “zone of interest” of the regulation — or are, separate and apart from standing, an element of the cause of action alleging a violation of zoning laws (compare Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 409-410, 413-414 , Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 843-844 [2005], with Marlowe v Elmwood, Inc., 12 AD3d 742, 744-745 …
discussed Cited as authority (rule) East Hampton Indoor Tennis Club, LLC v. Zoning Board of Appeals
N.Y. App. Div. · 2011 · confidence medium
The petitioner established that it held a legal interest in properties located in close proximity to the subject property, including properties required to receive notice of the administrative hearing, and demonstrated that certain alleged injuries, aside from the threat of increased business competition, were within the “zone of interest[s]” protected by the zoning laws (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 412, 413-414 [1987]; Matter of J & M Harriman Holding Corp. v Zoning Bd. of Appeals of Vil. of Harriman, 62 AD3d 705, 706 [200…
discussed Cited as authority (rule) Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel
N.Y. App. Div. · 2009 · confidence medium
The Supreme Court properly determined that the defendant has standing to assert a cause of action seeking to enjoin the plaintiffs from allegedly violating the Code of the Village of Kiryas Joel (hereinafter the Code; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]; Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 843-844 [2005]).
discussed Cited "see" SMITH, GARY J. v. STEPHENS MEDIA GROUP-WATERTOWN, L
N.Y. App. Div. · 2015 · signal: see · confidence high
Nevertheless, as the owners of property adjacent to the alleged -2- 1238 CA 13-02246 violation, plaintiffs have standing to maintain an action enjoining the alleged violation without proving special damages inasmuch as they are within the “zone of interest” protected by the ordinance at issue (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410 ; see Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 844 ).
discussed Cited "see" Smith v. Stephens Media Group-Watertown, LLC
N.Y. App. Div. · 2015 · signal: see · confidence high
Nevertheless, as the owners of property adjacent to the alleged violation, plaintiffs have standing to maintain an action enjoining the alleged violation without proving special damages inasmuch as they are within the “zone of interest” protected by the ordinance at issue (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410 [1987]; see Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 844 [2005]).
discussed Cited "see" Smith v. Stephens Media Group-Watertown, LLC
N.Y. App. Div. · 2015 · signal: see · confidence high
Nevertheless, as the owners of property adjacent to the alleged violation, plaintiffs have standing to maintain an action enjoining the alleged violation without proving special damages inasmuch as they are within the “zone of interest” protected by the ordinance at issue (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410 [1987]; see Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 844 [2005]).
Retrieving the full opinion text from the archive…
Victor J. Zupa
v.
Paradise Point Association, Inc.
Appellate Division of the Supreme Court of the State of New York.
Oct 31, 2005.
22 A.D.3d 843
Cited by 20 opinions  |  Published

In an action, inter alia, for a permanent injunction, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Catterson, J.), entered April 5, 2004, which upon the granting of the defendant’s motion for summary judgment dismissing the complaint, is in favor of the defendant and against them dismissing the complaint.

Ordered that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint for lack of standing to maintain the common-law cause of action to enjoin the alleged zoning ordinance violations and to enjoin the private nuisance cause of action insofar as asserted by Victor J. Zupa and Mary S. Zupa; as so modified, the judgment is affirmed, without costs or disbursements, and the causes of action insofar as asserted by Victor J. Zupa and Mary S. Zupa to enjoin the alleged zoning ordinances and to enjoin the public nuisance are reinstated.

The plaintiffs Victor Zupa and Mary Zupa have standing to maintain a common-law cause of action to enjoin the defendant, the Paradise Point Association, Inc. (hereinafter PPA), from its alleged violations of the Town of Southold zoning ordinances regarding its operation of a private marina in a basin which abuts the properties owned by the Zupas. Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant’s activities (see Little Joseph Realty v Town of Babylon, 41 NY2d 738 [1977]). It is well settled that “to establish special damage it is necessary to show that there is some depreciation in the value of the premises as real property arising from . . . the forbidden use” (Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 218 [1967]). Yet, standing principles, which are in the end matters of policy, should not be heavy-[*844] handed (id.; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]), and in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules (id.). Thus, an allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury (id.; see Williams v Hertzwig, 251 AD2d 655 [1998]). In other words, when the premises that are the subject of the zoning violation are in close proximity to a party’s property, a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the party need not allege specific injury (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 409-410; Golden v Steam Heat, 216 AD2d 440 [1995]; Matter of Prudco Realty Corp. v Palermo, 93 AD2d 837 [1983], affd on other grounds 60 NY2d 656 [1983]). However, close proximity alone is insufficient to confer standing (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 410; Scannell v Town Bd. of Town of Smithtown, 250 AD2d 832 [1998]). A close neighbor must also demonstrate that his or her interest is within the “zone of interest” protected by the zoning laws to establish standing to enjoin a zoning ordinance violation (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 410). Zoning ordinances are enacted to protect the health, safety, and welfare of the community (id. at 412).

Here, the plaintiffs Victor Zupa and Mary Zupa established that their properties were in close proximity to the boat basin, and that their interests were within the zone of interest to be protected by the zoning ordinances alleged to be violated by the PPA’s operation of the private marina in the boat basin abutting the Zupas’ property. The zoning ordinances which are allegedly violated prohibit, inter alia, excessive lights, noise, pollution, and smoke in residential areas (see Southold Town Code §§ 97-20, 97-27, 100-237, 100-241). Since the Zupas’ properties are subject to such excessive light, noise, pollution, and smoke, their interests are within the zone of interest to be protected by the ordinances (see Williams v Hertzwig, supra; Matter of Parisella v Town of Fishkill, 209 AD2d 850 [1994]). Accordingly, they have standing to maintain a common-law cause of action to enjoin the zoning violations without establishing special damages.

Furthermore, the plaintiffs Victor Zupa and Mary Zupa have standing to maintain a private nuisance cause of action since[*845] they allege interference with the use or enjoyment of their land (see Copart Indus, v Consolidated Edison Co. of N.Y., 41 NY2d 564, 568-569 [1977]).

Thus, the plaintiffs Victor Zupa and Mary Zupa have standing to maintain a cause of action to enjoin the PPA’s alleged zoning violations and a private nuisance cause of action.

By contrast, the plaintiff James Miller, whose property is located more than one-half mile away from the basin at issue, has no standing under any of the causes of action asserted in the complaint since he failed to establish special damages, is not in close proximity to the basin, is not aggrieved by the PPA’s marina activity pursuant to Town Law § 268 (2), and cannot demonstrate that his use and enjoyment of his land is disturbed by the PPA’s marina activities (see Town Law § 268 [2]; Copart Indus. v Consolidated Edison Co. of N.Y., supra; Guzzardi v Perry’s Boats, 92 AD2d 250 [1983]).

The parties’ remaining contentions are without merit. Adams, J.P., Luciano, Skelos and Lifson, JJ., concur.