TOWN OF ALEXANDRIA v. MacKNIGHT III (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

TOWN OF ALEXANDRIA, Plaintiff-Respondent, v. Arthur A. MacKNIGHT, Darl K. Johnston, Dart Building Contractors, Inc., and Hunter Grimes, III, d/b/a Diverse Marine Construction, Defendants-Appellants.

Decided: March 21, 2001

PRESENT: PIGOTT, JR., P.J., GREEN, KEHOE, BURNS and LAWTON, JJ.

James A. Burrows, for defendants-appellants. Thomas J. Fucillo, for plaintiff-respondent.

Plaintiff commenced this action seeking judgment permanently enjoining defendants from constructing a floating dock system that allegedly fails to comply with the site plan approval previously granted by plaintiff's Planning Board. Construction on the floating dock system was complete when the action was commenced. Supreme Court erred in granting plaintiff's cross motion for summary judgment, permanently enjoining defendants from using the floating dock system and denying defendants' motion to dismiss the complaint. The floating dock system is located on the navigable waters of the State and thus plaintiff lacks authority to regulate the construction or use of that system (see, Erbsland v. Vecchiolla, 35 A.D.2d 564, 565, 313 N.Y.S.2d 576, affd. sub nom. Erbsland v. Rubin, 33 N.Y.2d 787, 350 N.Y.S.2d 653, 305 N.E.2d 775; Britt v. Zoning Bd. of Appeals, 124 A.D.2d 987, 508 N.Y.S.2d 801; see also, Navigation Law § 46-a [2]).

Order unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed.

MEMORANDUM:

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