BENEKE v. TOWN OF SANTA CLARA (2007)

Appeal from an order of the Supreme Court (Demarest, J.), entered February 2, 2007 in Franklin County which, among other things, granted certain defendants' motion for summary judgment on defendant Town of Santa Clara's counterclaim for injunctive relief.

The issues in this matter have been before us on three prior occasions (see 36 A.D.3d 1195, 828 N.Y.S.2d 692 [2007], lv. dismissed 8 N.Y.3d 938, 834 N.Y.S.2d 713, 866 N.E.2d 1041 [2007]; ¹  28 A.D.3d 998, 814 N.Y.S.2d 315 [2006];  Matter of Beneke v. Town of Santa Clara, 9 A.D.3d 820, 780 N.Y.S.2d 827 [2004] ).   When we last reviewed Supreme Court's order, we held that it had properly concluded that defendant Town of Santa Clara had “jurisdiction, power and authority to regulate, control, restrict or otherwise issue a building permit for the floating boathouse” (36 A.D.3d at 1198, 828 N.Y.S.2d 692).   As a result, the Town moved for an order compelling the removal of the floating boathouse and for summary judgment dismissing any remaining claims that have not already been dismissed.   After Supreme Court granted the Town's motion, this appeal ensued.

 We affirm.   Injunctive relief is an appropriate means by which a governmental agency may abate a violation, including the removal of an unauthorized structure (see e.g. Town of New Baltimore v. Winslow, 39 A.D.3d 1074, 1075, 832 N.Y.S.2d 459 [2007];  Town of Coeymans v. Malphrus, 160 A.D.2d 1178, 1179, 555 N.Y.S.2d 456 [1990] ).   The cause of action accrues each day that the wrong continues (see Jensen v. General Elec. Co., 82 N.Y.2d 77, 85, 603 N.Y.S.2d 420, 623 N.E.2d 547 [1993];  State of New York v. CSRI Ltd. Partnership, 289 A.D.2d 394, 395, 734 N.Y.S.2d 626 [2001], lv. dismissed 97 N.Y.2d 749, 742 N.Y.S.2d 608, 769 N.E.2d 354 [2002];  State of New York v. Schenectady Chems., 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010 [1984] ).   Here, the continued presence of the floating boathouse constitutes, in our view, a continuing violation of the Town's local law (see Marcus v. Village of Mamaroneck, 283 N.Y. 325, 330, 28 N.E.2d 856 [1940] ).   Indeed, Executive Law § 382(2) expressly authorizes the ongoing accrual of penalties for continuing violations.

 As to plaintiff's remaining contentions which have previously been considered and rejected by this Court, the law of the case doctrine precludes relitigation (see People v. Evans, 94 N.Y.2d 499, 502-504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000];  Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d 1177, 1179, 834 N.Y.S.2d 736 [2007];  Dukett v. Wilson, 31 A.D.3d 865, 868, 818 N.Y.S.2d 337 [2006];  Bennett v. Nardone, 298 A.D.2d 790, 791, 748 N.Y.S.2d 708 [2002], lv. dismissed 99 N.Y.2d 579, 755 N.Y.S.2d 714, 785 N.E.2d 736 [2003] ).   Having failed to allege any applicable exceptions to that doctrine (see Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d at 1179, 834 N.Y.S.2d 736), we affirm.

ORDERED that the order is affirmed, with one bill of costs.

FOOTNOTES

1.   On April 26, 2007, the Court of Appeals dismissed plaintiff's application for leave to appeal because of the absence of a final judgment.

PETERS, J.

MERCURE, J.P., SPAIN, CARPINELLO and KANE, JJ., concur.