                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   523002
________________________________

TOWN OF TUPPER LAKE,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
SOOTBUSTERS, LLC, et al.,
                    Respondents,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   January 18, 2017

Before:   McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


      Lemire, Johnson & Higgins, LLC, Malta (Bradley J. Stevens
of counsel), for appellant.

      Law Office of Gerard V. Amedio, Saratoga Springs (Heather
S. Odom of counsel), for respondents.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Main Jr., J.),
entered June 26, 2015 in Franklin County, which, among other
things, denied plaintiff's motion to dismiss defendants'
counterclaim.

      Defendants Michael Vaillancourt and Ursula Vaillancourt own
property in the Town of Tupper Lake, Franklin County. In June
2012, the Vaillancourts applied to plaintiff's Planning Board for
a special use permit to allow them to construct a two-unit
residential structure on the property that included a garage to
store equipment used for defendants' business entity, defendant
Sootbusters, LLC. By the June 2012 application, the
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Vaillancourts acknowledged that the property was zoned "High
Density Residential Special" and that, pursuant to this
classification, they were allowed to store up to four commercial
vehicles on their lot. Because they also requested to use the
building for commercial storage and to conduct some business, the
Planning Board referred the request to plaintiff's Zoning Board
of Appeals, which approved a use variance "as applied for" in
August 2012.

      Thereafter, the Vaillancourts sought to amend the existing
special use permit to add four additional apartment units. In
October 2013, the Planning Board granted the application with the
conditions that (1) no more than four commercial vehicles could
be stored, parked or garaged on the property and (2) defendants
could not store or park construction equipment or trailers on the
property. In June 2014, the Vaillancourts installed two 500
gallon fuel tanks for their commercial vehicles and equipment.
In response, plaintiff's Code Enforcement Officer served a notice
of violation directing the Vaillancourts to remove the fuel tanks
and construction equipment that had been observed on the
property. When they failed to comply or to appeal the notice of
violation, plaintiff commenced this action against, among others,
the Vaillancourts and Sootbusters (hereinafter collectively
referred to as defendants) seeking a restraining order and a
fine. Defendants answered and asserted 10 affirmative defenses
and one counterclaim. Plaintiff moved to dismiss the
counterclaim pursuant to CPLR 3211 (a) (7) and defendants cross-
moved for permission to file a late notice of claim. Supreme
Court denied plaintiff's motion and granted defendants' cross
motion, and plaintiff now appeals.

      "[O]n a motion to dismiss pursuant to CPLR 3211 (a) (7), we
must afford the [pleading] a liberal construction, accept as true
the allegations contained therein, accord [the defendant] the
benefit of every favorable inference and determine only whether
the facts alleged fit within any cognizable theory" (He v Realty
USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks and
citations omitted], lv dismissed and denied 25 NY3d 1018 [2015];
see Simkin v Blank, 19 NY3d 46, 52 [2012]). We may consider an
affidavit by the claiming party to remedy any defects in the
pleading or to provide additional information supporting a cause
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of action (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kreamer v
Town of Oxford, 96 AD3d 1130, 1132-1133 [2012]). "This liberal
standard, however, will not save allegations that consist of bare
legal conclusions or factual claims that are flatly contradicted
by documentary evidence or are inherently incredible"
(DerOhannesian v City of Albany, 110 AD3d 1288, 1289 [2013]
[citations omitted], lv denied 22 NY3d 862 [2014]). Here,
defendants maintain that they initially obtained a variance "with
no conditions" and that the Planning Board's determination to
impose conditions in 2013 "constitute[d] official misconduct and
fraud."

      "The elements of a cause of action for fraud require a
material misrepresentation of a fact, knowledge of its falsity,
an intent to induce reliance, justifiable reliance by the
[defendant] and damages" (Eurycleia Partners, LP v Seward &
Kissel, LLP, 12 NY3d 553, 559 [2009] [citations omitted]; see
DerOhannesian v City of Albany, 110 AD3d at 1292). A fraud cause
of action must be "stated in detail" (CPLR 3016 [b]; see ARB
Upstate Communications LLC v R.J. Reuter, L.L.C., 93 AD3d 929,
932 [2012]). Here, defendants' claim for fraud appears to be
based on their belief that the 2012 special use permit was
unconditional, such that the Planning Board was not permitted to
impose any conditions when it granted the Vaillancourts'
application to amend the 2012 special use permit in 2013.
Although no party has submitted a copy of the Town Code, our
review of the 2012 application for a special use permit shows the
Vaillancourts acknowledged that, with the two apartment units,
the Town Code allowed them to park four commercial vehicles on
their property. Defendants' submissions also confirm that in
2013, their amendment was approved subject to a continuation of
this condition. Notably, Michael Vaillancourt was present at the
2013 hearing when the conditions were discussed and approved,
defendants do not allege that they relied on any
misrepresentation, and defendants never appealed the Planning
Board's 2013 determination. In the absence of any factual
support for defendants' bare allegation of fraud, we find that
Supreme Court should have granted plaintiff's motion to dismiss
this counterclaim.
                              -4-                523002

      We further find that Supreme Court should have dismissed
defendants' counterclaim to the extent that it alleges "official
misconduct" based on the Planning Board's 2013 determination. A
government official may face civil liability if a party can prove
that he or she was "depriv[ed] of any rights, privileges, or
immunities secured by the Constitution and laws" (42 USC § 1983).
With respect to zoning issues, "42 USC § 1983 protects against
municipal actions that violate a property owner's rights to due
process, equal protection of the laws and just compensation for
the taking of property under the Fifth and Fourteenth Amendments
to the United States Constitution" (Bower Assoc. v Town of
Pleasant Val., 2 NY3d 617, 626 [2004]). To state a cause of
action, defendants must "allege that, without legal
justification, they were deprived of a vested property interest,
consisting of more than a mere expectation or hope of obtaining a
permit or a variance" (Kreamer v Town of Oxford, 91 AD3d 1157,
1160 [2012] [internal quotation marks and citation omitted]).
Further, a municipal body may face liability pursuant to 42 USC
§ 1983 only where the constitutional deprivation stems from an
official municipal policy or custom (see Monell v Department of
Social Servs. of City of N.Y., 436 US 658, 690-691 [1978]).

      Here, defendants never had a permit to allow them to park
more than four commercial vehicles on the property or to install
fuel tanks to use in association with their commercial
operations. Nor do they allege that they had a vested property
interest in such a special use permit (see Eagles Landing, LLC v
New York City Dept. of Envtl. Protection, 75 AD3d 935, 939
[2010], lv denied 16 NY3d 710 [2011]). Moreover, defendants'
submissions fail to establish that the Planning Board's
discretionary determination to impose conditions on defendants'
special use permit "rose to the level of a constitutional
violation, i.e., that they were so outrageously arbitrary as to
constitute a gross abuse of governmental authority . . . that
would support a claim pursuant to 42 USC § 1983" (Matter of
Loudon House LLC v Town of Colonie, 123 AD3d 1406, 1408-1409
[2014] [internal quotation marks and citations omitted]; see
Kreamer v Town of Oxford, 91 AD3d at 1160). Even accepting as
true that one Planning Board member stated that he wanted to
"make an example" of defendants, defendants did not allege, nor
does the record support a claim, that this motivation resulted
                              -5-                  523002

from official municipal policy or custom (see Monell v Department
of Social Servs. of City of N.Y., 436 US at 690-691).

      In light of the foregoing, we find that Supreme Court
should have denied defendants' cross motion for leave to file a
late notice of claim.

     McCarthy, J.P., Garry, Devine and Mulvey, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, plaintiff's motion granted, defendants' cross motion
denied and counterclaim dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
