HAMPSHIRE RECREATION LLC v. VILLAGE OF MAMARONECK (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for a regulatory taking of property without just compensation, the defendants appeal from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated May 30, 2023.  The order denied the defendants' motion for leave to renew their prior motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, which had been denied in an order of the same court dated May 3, 2022.

ORDERED that the order dated May 30, 2023, is affirmed, with costs.

In May 2021, the plaintiff commenced this action against the defendants, asserting, among other things, a cause of action to recover damages for a regulatory taking of property without just compensation on the basis that the defendant Village of Mamaroneck Planning Board (hereinafter the Planning Board) denied the plaintiff's proposal for a residential development on land that it purchased in 2010.  The complaint alleged that the plaintiff had purchased the property, which was zoned for residential purposes, with the reasonable expectation that it could construct a residential development consisting of approximately 105 single-family units.  The complaint further alleged that in May 2020, after adopting the findings of a State Environmental Quality Review Act statement and considering the plaintiff's primary proposal and 16 alternative proposals, the Planning Board denied the plaintiff's proposal and declined to issue the necessary permits, approvals, and variance.  Before answering the complaint, the defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.  In an order dated May 3, 2022 (hereinafter the May 2022 order), the Supreme Court denied the motion.  The defendants appealed from the May 2022 order, and this Court affirmed (see Hampshire Recreation, LLC v. Village of Mamaroneck, ––– A.D.3d ––––, 2026 WL 2590120 [Appellate Division Docket No. 2022–04513;  decided herewith] ).

Concomitantly, in a separate proceeding pursuant to CPLR article 78, the Supreme Court, in an order dated November 15, 2022 (hereinafter the November 2022 order), granted the plaintiff's petition challenging the Planning Board's determination.  The court remitted the matter to the Planning Board, finding that the Planning Board's determination should be annulled because it was not supported by substantial evidence.

In December 2022, the defendants moved for leave to renew their prior motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint on the ground that the November 2022 order was a new fact that would have changed the Supreme Court's prior determination in the May 2022 order.  In an order dated May 30, 2023, the court denied the motion.  The defendants appeal.

As a general matter, a motion for leave to renew is addressed to the sound discretion of the court (see Rooney v. Ying Zhou, 222 A.D.3d 678, 682, 201 N.Y.S.3d 187;  Okumus v. Living Room Steak House, Inc., 112 A.D.3d 799, 800, 977 N.Y.S.2d 340).  Such a motion “must be based upon new facts not offered on the prior motion that would change the prior determination and must also contain a reasonable justification for the failure to present such facts on the prior motion” (Gall v. Colon–Sylvain, 151 A.D.3d 701, 703, 54 N.Y.S.3d 659;  see CPLR 2221[e];  Deutsche Bank Natl. Trust Co. v. Elshiekh, 179 A.D.3d 1017, 1020, 118 N.Y.S.3d 183).

The defendants contend that the November 2022 order would have changed the Supreme Court's prior determination denying the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, because the November 2022 order established that the Planning Board's determination on the plaintiff's proposal was not final.  However, the finality rule is “not mechanically applied” (East End Resources, LLC v. Town of Southold Planning Bd., 135 A.D.3d 899, 900, 26 N.Y.S.3d 79 [internal quotation marks omitted] ).  For example, an owner of property will be excused from obtaining a final decision if it would be futile, such as when the agency “has dug in its heels” and made clear that a proposal will be denied (see Matter of Cornwall Commons, LLC v. Town of Cornwall, 163 A.D.3d 810, 814, 82 N.Y.S.3d 428;  East End Resources, LLC v. Town of Southold Planning Bd., 135 A.D.3d at 901, 26 N.Y.S.3d 79).  Here, accepting the allegations in the complaint as true and considering the evidentiary material submitted by the plaintiff in opposition to the defendants' motion, including a transcript of the deposition testimony of a Planning Board member and emails between Planning Board members, the plaintiff sufficiently alleged that it was not likely to receive an unbiased review by the Planning Board (see East End Resources, LLC v. Town of Southold Planning Bd., 135 A.D.3d at 901, 26 N.Y.S.3d 79;  Matter of Counties of Warren & Washington, Indus. Dev. Agency v. Village of Hudson Falls Bd. of Health, 168 A.D.2d 847, 848, 565 N.Y.S.2d 236;  see also Loskot–D'Souza v. Town of Babylon, 137 A.D.3d 751, 753, 26 N.Y.S.3d 577).  Thus, the November 2022 order would not have changed the court's prior determination denying the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

The defendants' remaining contentions are either without merit or improperly raised for the first time in their reply brief (see Morton v. North Shore Univ. Hosp., 244 A.D.3d 722, 723–724, 246 N.Y.S.3d 271).

Accordingly, the Supreme Court providently exercised its discretion in denying the defendants' motion for leave to renew their prior motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint (see Fuzailova v. Rincon, 211 A.D.3d 824, 825, 181 N.Y.S.3d 137;  Gall v. Colon–Sylvain, 151 A.D.3d at 703, 54 N.Y.S.3d 659).

LASALLE, P.J., CONNOLLY, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.