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Second Department Finds Laches Defense Applicable in Building Permit Dispute between Neighbors

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  • Posted on: Jun 7 2019

In Henry VI, William Shakespeare wrote, “[d]efer no time, delays have dangerous ends” – a quote apropos to a discussion of laches.  “The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party.”  Skrodelis v. Norbergs, 272 A.D.2d 316 (2nd Dep’t 2000).

In Kverel v. Silverman (2nd Dep’t May 29, 2019), the Appellate Division, Second Department, applied the doctrine of laches and dismissed plaintiff’s action in which he sought to enjoin the construction of a house being built on neighboring property.

The simplified facts are as follows.  The plaintiff in Kverel owned property in Southampton.  The defendant was a contract vendee who ultimately purchased a lot (the “Defendant’s Lot”) on which he intended to construct a house that was situated between plaintiff’s house and the beach.  In 2010, defendant entered into a contract to purchase the Defendant’s Lot, which was undeveloped at the time.  Thereafter, plans for a house were prepared by an architect and defendant applied for a building permit.  Two months after the building permit was issued in May of 2012, plaintiff filed an administrative appeal with the Town Zoning Board of Appeals (the “ZBA”) in which the height of defendant’s proposed house was challenged.

In August of 2012, in response to the appeal, defendant’s architect applied to amend the building permit and submitted revised building plans.  The application was approved.  In September of 2012, plaintiff withdrew his appeal to the ZBA because the revised plans and the amended building permit application “appear to be in substantial compliance with the Town Building and Zoning Code.”  The record reflected that despite the withdrawal of the ZBA appeal, defendant understood that plaintiff remained opposed to the construction and intended to urge that a restrictive covenant required plaintiff’s approval before a house could be constructed on Defendant’s Lot (the “Restrictive Covenants”).

In December of 2012, defendant commenced an action in which he sought a declaratory judgment that plaintiff could not enforce the Restrictive Covenants.  The Restrictive Covenant action was resolved when the parties entered into a “so-ordered” stipulation (the “Stipulation”) in which the plaintiff consented to the entry of a judgment declaring that defendant is “entitled to build upon the Premises any single family residence for which [he had] obtained a building permit from the Town, whether the residence is the one currently planned by defendant or one larger and more extensive so long as it complied with Town law, ordinances, and regulations.”  (Internal brackets and ellipses omitted.)

In April of 2013, defendant purchased the defendant’s lot from the contract vendor.  The building permit was amended several times thereafter. In August of 2014, after the parties could not agree on a deal to sell the Defendant’s Lot to the Plaintiff, construction began on the house.  In March of 2015, after another building permit amendment, plaintiff commenced an action to enjoin the construction of a home that plaintiff alleged violated Town Code.  Plaintiff also moved for a preliminary injunction preventing the construction of the top floor of the home.  Defendant cross-moved to dismiss the Complaint.

Supreme court granted plaintiff’s motion for a preliminary injunction and denied defendant’s motion to dismiss and defendant appealed.  In reversing supreme court, the Second Department found that plaintiff’s actions were barred by the doctrine of laches.  The Court explained that:

[t]o establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant.  The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought.  Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense. (Citations omitted.)

The Second Department found that plaintiff’s action for injunctive relief was commenced almost three years after the first building permit was issued and defendant withdrew his ZBA appeal, two years after the Stipulation and six months after construction began on the home.  The Court also found that plaintiff had been aware since July of 2012 (and before the defendant purchased the property) that “defendant’s construction was in violation of the Town Code.”  The Court also found that while it was clear that plaintiff opposed the construction, he did not seek ZBA review or injunctive relief prior to the commencement of the underlying action.  The Court further found that subsequent to the plaintiff’s withdrawal of the ZBA appeal and the execution of the Stipulation, defendant knew that plaintiff would again urge that the construction was in violation of Town Code.  Finally, the Court found that defendant would be prejudiced by plaintiff’s “undue delay in challenging the construction.”

In light of plaintiff’s delay in seeking to safeguard [his] interests and [his] failure to offer any viable reason for [his] failure to act sooner, the doctrine of laches serves as a bar to this action.”  (Citations and internal quotation marks omitted.)

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