There are two motions before this Court.

The first motion by The Board of Trustees of the Village of Sackets Harbor (Village) seeks temporary relief in the nature of a preliminary injunction (CPLR 6311). This Motion is essentially a further argument of a previously decided matter that was returned to this Court by direction of the Appellate Division, with an Order that the Court reconsider its prior ruling.

The second motion is one for summary judgment on the second cause of action in the Complaint, which seeks a permanent injunction (CPLR 3212).

The Court ruling on the first Motion for a preliminary injunction detailed the documents considered at that time, pursuant to CPLR 2219. Those same documents, along with the Appellate Division, Fourth Department, Memorandum and Order entered December 31, 2003 have been considered again, and further oral argument was received to assist.

The second Motion was filed while the Court was reconsidering the first issue. Documents involved in the second Motion have also now included: Notice of Motion, dated February 13, 2004; Affidavit of Jonathan B. Fellows, sworn to February 4, 2004; Affidavit of Jon P. Constance, sworn to February 12, 2004; Affidavit of Harold Cring, sworn to February 11, 2004; Affidavit of Mary Jo Deans, sworn to February 12, 2004; Affidavit of Eric Constance, sworn to February 12, 2004; Affidavit of G. Hale Smith, sworn to February [*2]12, 2004; Affidavit of David A. Renzi, sworn to February 11, 2004; Reply Affidavit of Harold Cring, sworn to March 1, 2004, with Exhibit A; Reply Memorandum of Law, dated March 1, 2004; Affidavit of Alan R. Peterman, Esq., sworn to February 25, 2004, with exhibits A - N; Affidavit of Michael Campbell, sworn to on February 25, 2004; Affidavit of Robert Charron, sworn to on October 21, 2003; Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment, dated February 25, 2004; Affidavit of Service dated February 20, 2004.

All the documents and arguments are now considered in deciding both Motions.

PROCEDURAL BACKGROUND

On or about September 20, 2002, Plaintiff filed a Summons and Complaint seeking a declaratory judgment and an injunction (CPLR 3001; 6301). On the same date Plaintiff brought an Order to Show Cause seeking a preliminary injunction (CPLR 6301). Defendant opposed the immediate relief, and cross-moved. After substantial submissions, and oral argument, this Court denied Plaintiff's requested temporary relief in a decision entered December 20, 2002. The Court had also converted Defendant's motion to dismiss (CPLR 3211) into one for summary judgment (CPLR 3212), and granted Defendant partial summary judgment on Plaintiff's second cause of action.

Plaintiff appealed that Decision, and the Appellate Division, Fourth Department, reversed this Court's Decision by Memorandum and Order entered December 31, 2003. The Appellate Division determined this Court had erroneously converted Defendant's Motion to dismiss into one for summary judgment; denied the Defendant's Cross-motion to dismiss; re-instated Plaintiff's second cause of action; and directed this Court to reconsider the merits of Plaintiff's Motion for a preliminary injunction.

FACTUAL BACKGROUND

In January 2000 Sackets Harbor Leasing Company, LLC (SHLC) applied to the Sackets Harbor Village Planning Board (Planning Board) for site plan review in order to demolish existing buildings and construct a yacht club, hotel and meeting facility. Defendant also intended to remove existing non-conforming docks, and construct new ones with accompanying slips. Over the next two years there were several more submissions, Planning Board meetings, public hearings, and correspondence regarding the project, including both the buildings and the docks. The parties were also in negotiations over a 20-foot section of adjacent property.

The Planning Board approved the project, at least the land based portion, after public hearing. A building permit was issued on September 6, [*3]2001. Defendant obtained the necessary permits from the required state agencies, and approval after review by the Army Corp of Engineers.

In the Spring of 2002, following certain objections raised, primarily to the Defendant's proposed docks, there were additional meetings, hearings, and correspondence. While matters were in discussion with the Village, SHLC installed the new docks that are now in question on July 4th weekend: one being 84 feet long; the second being 119 feet long. The Village reacted by immediately requesting their removal. Negotiations were undertaken and SHLC submitted an application for a permit and/or variance for the installed docks, SHLC withdrawing same application later. The Village then directed immediate removal of the docks, and instituted the present litigation.

DISCUSSION

Preliminary Injunction

The evidence presented in the submitted documents demonstrates the Plaintiffs have made a prima facie case that there is noncompliance with the specific requirements of the Waterfront Management Law. The adopted Village law limits docks to no more than 50 feet (WML, §4-4(G)). There is no factual dispute that Defendant's docks exceed that limit by 34 feet, and 69 feet. Nor is it a factual dispute that the docks do not meet the 20 foot side setback requirement because of the fingers extending from the dock (WML, §4-4(K)). The Village Law also requires any final decision by the Planning Board be in writing and specify the reasons that the Planning Board approved the proposal, and that was not done here (WML, §4-3(D)). It is also a requirement that any requests for variances be submitted to, and approved by, the Village Board of Trustees, who must also issue a written decision with its' approval or denial and the specific reasons for such, which was not done here (WML, §6-5). SHLC argued that the Planning Board had authority to approve the new docks as a "change, alteration or expansion" of the previously existing docks (WML §4-5). The facts reveal that the old docks were completely removed and new larger, nonconforming, docks installed.Defendant also argued that the Planning Board considered the dock issue and conditioned their approval upon approval by the Army Corp of Engineers. While the Army Corps of Engineers approved the docks configuration, they referenced the necessity to comply with local approvals, that is, possible property setback requirements (see February 11, 2004 Affidavit of Harold Cring, Exhibit 3 with exhibit J). Again, it is clear the existing installed docks do not meet the required setbacks.

The facts also now clearly reveal no confusion between the parties as to the requirement for the dock permits as seen in their letters of May 2002. On May 13, 2002 the Village Attorney sent a letter to the Defendant advising him that he did not have a permit to install the proposed docks (see [*4]February 12, 2004 Constance Affidavit, Exhibit 2 with exhibit H). On May 28, 2002 the Defendant sent a letter the Village Planning Board advising them that they were aware they did not have the necessary permits for the docks (see February 12, 2004 Constance Affidavit, Exhibit 2 with exhibit H). Based upon the above, the Municipality has now made the required showing as to its' entitlement to a preliminary injunction. There is now clear proof of knowledge by Defendant that changes the equity balancing that was tipped in Defendant's favor previously, and improperly so under the evidence now submitted.

With the Village's prima facie showing, the balancing of equities seemed to favor SHLC previously (see this Court's December 2002 Decision). The prior evidence revealed that SHLC made an effort to comply with Sackets Harbor's zoning requirements; SHLC did not attempt to hide it's intentions to install the docks in question; the Planning Board was well aware of those intentions; SHLC received the Army Corp's approval; and the Village even assisted with the dredging for the new docks. In regard to a preliminary injunction this Court previously held that even with the necessary showing by a municipality there still must be some evaluation of the equities between the parties, considering the municipality's equities in its role as government, not as an individual citizen.

It appears the Court erred with such a balancing of equities here as the Appellate Division has presented a different position, and this Court is bound by that position, and is also convinced otherwise by the material now presented.

Having considered all of the submissions, the new Affidavits now provided by Plaintiff, and in accordance with the directive from the Appellate Division, the Court concludes Plaintiff is entitled to the relief requested for a preliminary injunction regarding the dock portion of the project.

The Village is also seeking an injunction while it attempts to recover a parcel of land. That action is not a zoning issue, but a title dispute. As a title dispute the municipality is not exempt from satisfying the three prerequisites for a preliminary injunction. Initially, the Village's submissions did not satisfactorily show the pressing need to enjoin Defendant (see this Court's December 2002 decision). The additional affidavits do not change that. No further facts have been presented to alter the Court's initial denial of a preliminary injunction regarding the title issue.

Summary Judgment

Plaintiff is also entitled to summary judgment on the second cause of action for an injunction. Plaintiff has now submitted sufficient evidence that the Defendant did not apply for the necessary permits for dock installation; did not receive the necessary written approval for such docks from the [*5]Village Planning Board; did not receive the necessary written approval for the necessary variances as to the length and side setback requirements from the Village Board of Trustees. Defendant has admitted as much. Thus there is no question of fact that Defendant did not meet the necessary procedural requirements for installation of the docks as they currently exist. There is no fact question as to Defendant's knowledge, either, a fact that was previously persuasive.

Defendant has argued that Plaintiff's summary judgment motion is premature in the absence of necessary depositions. Based upon the undisputed facts, that no variances, or permits were granted, further depositions as to what the Village officials may or may not have thought do not have bearing on the underlying action as to the legal procedures for approval of the docks.

Defendant presented a sworn statement by a Planning Board member that the Planning Board approved Defendant's submissions, including the docks, in September 2001 pending Army Corp approval (see February 25, 2004 Affidavit of Michael Campbell). However, even if those facts are accepted as true they are not enough to prevent summary judgment for Plaintiff. The facts reveal that if a dock permit was issued by the Planning Board, it was issued in error. The Court does not find discovery here a necessary requirement before summary judgment may be sought (see Hecht v Vanderbilt Assoc., 141 AD2d 696 [1988]).

While Defendant still argues that a balancing of equities favors him, the Appellate Division and now this Court, disagrees.

CONCLUSION

In accord with the foregoing, it is

ADJUDGED, that the motion of the Plaintiff Village for a preliminary injunction as to the usage of the docks is Granted; and it is further

ADJUDGED, that the Plaintiff's motion for summary judgment on the second cause of action is Granted.

Plaintiff's Attorney is directed to submit an Order containing appropriate injunctive language, with a suggested time frame for compliance by Defendant within the decretal paragraphs of the Order.

ENTER

Dated: April 30, 2004

Lowville, New York

Joseph D. McGuire , J.S.C.