HABERMAN v. CITY OF LONG BEACH (2006)

In an action, inter alia, for a judgment declaring that the defendants effected an unconstitutional taking of the plaintiff's property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated April 1, 2004, as denied their renewed motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On a prior appeal this court determined that there were issues of fact, inter alia, as to whether there had been a taking which needed to be decided at trial (see Haberman v. City of Long Beach, 298 A.D.2d 497, 748 N.Y.S.2d 397).   The plaintiff subsequently amended his complaint to allege a temporary regulatory taking claim (see Tahoe-Sierra Preservation v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517).   Thereafter, the defendants renewed their motion for summary judgment dismissing the amended complaint asserting essentially the same arguments, except that they added the fact that the Architectural Review Board of the City of Long Beach, comprised of members of the City Council of the City of Long Beach, never rendered a determination on the plaintiff's application for a building permit.   This new fact does not alter the result.   Accordingly, the Supreme Court properly denied the defendants' renewed motion for summary judgment (see Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, supra;  Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631;  Matter of Gazza v. New York State Dept. of Envtl. Conservation, 89 N.Y.2d 603, 617, 657 N.Y.S.2d 555, 679 N.E.2d 1035;  Matter of Friedenburg v. New York State Dept. of Envtl. Conservation, 3 A.D.3d 86, 767 N.Y.S.2d 451).