                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 24, 2014                      518451
________________________________

TOWN OF CHATHAM,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

LILY N.L. SMITH,
                    Appellant.
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Calendar Date:    June 3, 2014

Before:    Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

                              __________


     Francis J. Roche, Hudson, for appellant.

     Tal G. Rappleyea, Valatie, for respondent.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Zwack, J.),
entered February 7, 2014 in Columbia County, which granted
plaintiff's motion for summary judgment.

      Defendant commenced construction of an inground swimming
pool on her property located in the Town of Chatham, Columbia
County in 2009 without seeking a building permit. Upon learning
of the construction, plaintiff's code enforcement officer
notified defendant of the need for a permit and, after receiving
her application, informed her that the location of the pool did
not comply with the applicable setback requirements.
Nevertheless, defendant completed construction of the pool, and
it was later determined that a portion of it encroached on the
neighboring property. Defendant eventually applied for a zoning
variance from the setback requirement, but plaintiff's Zoning
Board of Appeals denied the application and Supreme Court
                              -2-                518451

(McGrath, J.) dismissed her CPLR article 78 proceeding
challenging that determination. Defendant neither appealed the
dismissal nor removed the encroachment. Eventually, plaintiff
commenced this action to enforce the local zoning law by
requiring, among other things, that defendant remove the swimming
pool. Following joinder of issue, plaintiff moved for summary
judgment and defendant opposed the motion, arguing that it was
premature and should await the outcome of a separate RPAPL
article 15 action that she had commenced against the neighboring
property owner seeking to establish title to a portion of the
neighbor's property by adverse possession. Supreme Court (Zwack,
J.) rejected the request to hold the motion in abeyance and
granted summary judgment to plaintiff.

      On appeal, defendant does not dispute plaintiff's
entitlement to summary judgment. Rather, she claims that Supreme
Court erred by failing to exercise its discretion to hold the
motion in abeyance pending the outcome of the adverse possession
action. As she concedes, however, even if she is successful in
that action, she will still need a variance from the setback
requirements. Moreover, there is no evidence in the record
before us that would enable us to gauge the merit of her adverse
possession claim. In view of these circumstances, we can find no
abuse of discretion in Supreme Court's refusal to hold the motion
for summary judgment in abeyance (see e.g. Heim v Tri-Lakes Ford
Mercury, Inc., 25 AD3d 901, 903 [2006], lv denied 6 NY3d 886
[2006]; Polyglycoat Ctr. of Conn. v Arace's Ford, 126 AD2d 844,
845 [1987]; Peckham v Peckham, 97 AD2d 578, 578-579 [1983]).

     Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur.
                        -3-                  518451

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
