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Jaspan Schlesinger Wins Reversal of Trial Judgment
Date: March 14th, 2012
Location:Garden City, New York


In a legal battle that spanned more than a decade and involved several prior appeals, the Supreme Court Appellate Division, Second Department reversed a judgment-after-trial issued by now-retired Suffolk County Supreme Court Justice Patrick Sweeney.  The Town was represented by Jaspan Schlesinger partner Maureen T. Liccione, who argued the appeal.  She was assisted on the brief by associate Christopher Palmieri. 

The property in question, located in Rocky Point, had been used for commercial/recreational purposes.  In 2000, the Town of Brookhaven commenced the process to up-zone the property from Retail (J-2) to Commercial/Recreational, consistent with the Town’s Comprehensive Plan and the prior uses. Upon learning of the Town’s proposal, the owner of the Rocky Point Drive-In brought a site plan application to construct a Lowe’s, which he claimed was a permitted use under the original J-2 zoning, albeit incorrectly, and  brought several lawsuits against the Town, challenging the up-zoning. After those efforts failed, the owner brought a declaratory judgment action claiming that the Town intentionally and maliciously delayed hearing the Lowe’s application until after the up-zoning was approved by the Town Board, such that the "special facts” rule should apply to the earlier zoning. Despite the fact that a commercial center was not a permitted use under the prior J-2 zoning, the Suffolk Supreme Court ruled in favor of the plaintiff, allowing Lowe’s to go forward without variances.  The Town subsequently appealed and, in the meantime, Lowe’s withdrew from the project.  The owner then indicated that it planned to construct a Target store on the site. 

On March 7, 2012, the New York State Supreme Court Appellate Division completely reversed the Suffolk County Supreme Court’s original decision on the law and the facts, finding that there had been no intentional delay or malice on the part of the Town and that the Commercial/Recreational zoning was to remain in place. 

"The record does not support the [Suffolk Supreme Court’s] determinations of undue delay and bad faith… or that the [Town] selectively enforced the prohibition against commercial centers in J-2 zoning districts,” the Court wrote in its decision.

The Court additionally dismissed the plaintiff’s cross-appeal and awarded a bill of costs to the Town, and also granted the Town’s motion to strike portions of the Respondent property owner’s reply brief in support of the dismissed cross appeal.

"The Town’s good faith efforts to zone this property in accordance with its Comprehensive Plan have been recognized and, indeed, vindicated. We are proud to have assisted in this effort and gratified that the correct result was reached. We hope everyone can move forward with development appropriate for the area,” Ms. Liccione said.
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