IN RE: Deborah KOPALD (2026)

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the respondent/defendant Town of Highlands New York Planning Board dated June 17, 2021, which, after a hearing, granted the application of the respondent/defendant David Tonneson for authority to subdivide the subject property, and action to cancel certain related real estate contracts of sale, the petitioner/plaintiff appeals from (1) an order and judgment (one paper) of the Supreme Court, Orange County (Robert A. Onofry, J.), dated December 2, 2021, (2) an order of the same court dated May 16, 2022, and (3) a money judgment of the same court entered June 14, 2022.  The order and judgment granted the motion of the respondent/defendant Town of Highlands New York Planning Board pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against it, granted the separate motion of the respondents/defendants David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition insofar as asserted against them and to impose sanctions upon the petitioner/plaintiff and for an award of costs, including attorneys' fees, denied the amended petition/complaint, dismissed the proceeding/action, and enjoined the petitioner from commencing further actions and proceedings against the respondents/defendants concerning the subject property without express prior written approval of the court.  The order granted the motion of the respondents/defendants David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner in the form of an award of costs and attorneys' fees to the extent of awarding those respondents/defendants attorneys' fees in the sum of $5,970 and denied the petitioner/plaintiff's motion for leave to reargue her opposition to the prior motion of the respondent/defendant Town of Highlands New York Planning Board pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against it and the separate prior motion of the respondents/defendants David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against them and to impose sanctions upon the petitioner/plaintiff and for an award of costs, including attorneys' fees.  The money judgment, upon the order, is in favor of the respondents/defendants David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) and against the petitioner/plaintiff in the sum of $5,970.

ORDERED that the appeal from so much of the order as denied the petitioner's motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Aloi v. Tobal, 236 AD3d 618);  and it is further,

ORDERED that the appeal from so much of the order as granted the motion of the respondents/defendants David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner in the form of an award of costs and attorneys' fees to the extent of awarding those respondents/defendants attorneys' fees in the sum of $5,970 is dismissed, as that portion of the order is superseded by the money judgment;  and it is further,

ORDERED that the order and judgment is affirmed;  and it is further,

ORDERED that the money judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents/defendants appearing separately and filing separate briefs.

The respondent/defendant David Tonneson applied to the respondent/defendant Town of Highlands New York Planning Board (hereinafter the Planning Board) for approval to subdivide certain real property (hereinafter the Tonneson property) owned by the respondents/defendants David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) (hereinafter collectively the Tonnesons).  Of the approximate 14–acre Tonneson property, the Tonnesons proposed to sell a total of approximately three acres of land to three adjacent landowners.  By resolution dated June 17, 2021, after Planning Board review and a public hearing, the Planning Board approved the Tonnesons' application, noting that the action constituted an unlisted action under the State Environmental Quality Review Act and that a negative declaration had been issued.

The petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding to annul the Planning Board's determination dated June 17, 2021, and action to cancel pending contracts of sale between the Tonnesons and the three adjacent landowners.  The Planning Board moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against it.  The Tonnesons separately moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against them and to impose sanctions upon the petitioner and for an award of costs, including attorneys' fees, on the ground that this proceeding/action was frivolous.  In an order and judgment dated December 2, 2021, the Supreme Court granted the Planning Board's motion, granted the Tonnesons' separate motion, denied the amended petition, dismissed the proceeding/action, and enjoined the petitioner from commencing future actions and proceedings against the respondents/defendants without express prior written approval of the court.  The petitioner appeals.

Subsequently, the Tonnesons moved pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner in the form of an award of costs and attorneys' fees in the sum of $6,512.50.  In an order dated May 16, 2022 (hereinafter the May 2022 order), the Supreme Court, inter alia, granted the Tonnesons' motion to the extent of awarding the Tonnesons attorneys' fees in the sum of $5,970.  The petitioner appeals.

On June 14, 2022, the Supreme Court entered a money judgment, upon the May 2022 order, in favor of the Tonnesons and against the petitioner in the sum of $5,970.  The petitioner appeals.

Contrary to the petitioner's contention, the Tonnesons' motion, inter alia, to dismiss was properly accepted by the Supreme Court notwithstanding that it was served on the petitioner one day late (see CPLR 2103[c];  2214[b] ) due to technical difficulties with electronic filing.  A court may consider untimely papers if there is no prejudice to the opposing party (see Sheehan v. Marshall, 9 AD3d 403).  Furthermore, failure to provide the requisite notice of a motion is a procedural irregularity that may be waived by opposing the motion on the merits (see Piquette v. City of New York, 4 AD3d 402).  Here, the petitioner opposed the Tonnesons' motion on the merits.  “Under these circumstances, the [petitioner] was not prejudiced by the allegedly improper service of the motion papers, and waived [her] objection thereto” (Ciafone v Queens Ctr. for Rehabilitation & Residential Healthcare, 126 AD3d 662, 663).

The Supreme Court properly dismissed the proceeding/action for lack of standing (see CPLR 3211[a][3] ).  In order to establish standing to commence this proceeding/action, the petitioner had to show she “would suffer direct harm, injury that is in some way different from that of the public at large” (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 774).  Here, the petitioner's hypothetical and speculative assertions of harm resulting from the approval of David Tonneson's application for authority to subdivide the Tonneson property, which created no new lots and involved no construction or physical changes to the land, were insufficient to establish the petitioner's standing (see Matter of Shelter Is. Assn. v Zoning Bd. of Appeals of Town of Shelter Is., 57 AD3d 907).  The petitioner's property is not adjacent to any portion of the Tonneson property that is being sold.  Even if an injury-in-fact could be inferred from the petitioner's general proximity to the Tonneson property, the petitioner has not alleged a specific nonspeculative injury that would befall her as a result of the approval of David Tonneson's application (cf.  Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 153 AD3d 823).  Accordingly, the petitioner lacked standing and the court properly granted the Planning Board's motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against it and that branch of the Tonnesons' separate motion which was pursuant to CPLR 3211(a) and 7804(f) to dismiss the amended petition/complaint insofar as asserted against them.

In light of our determination, the parties' contentions regarding the merits of the amended petition/complaint need not be reached.

The Supreme Court providently exercised its discretion in granting that branch of the Tonnesons' motion which was to impose sanctions upon the petitioner and for an award of costs, including attorneys' fees, and the Tonnesons' separate motion pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner in the form of an award of costs and attorneys' fees (see Matter of Gordon v. Marone, 202 AD2d 104).  The court further providently exercised its discretion in awarding the Tonnesons attorneys' fees in the sum of $5,970 (see RMP Capital Corp. v. Victory Jet, LLC, 139 AD3d 836, 839–840).  Contrary to the petitioner's contention, the Tonnesons' attorney submitted sufficient documentation, including a letter of engagement and detailed time sheets, from which the court could accurately calculate the amount of the fee award (see Lancer Indem.  Co. v. JKH Realty Group, LLC, 127 AD3d 1035, 1036).

The petitioner's contention that the Supreme Court improperly enjoined her from commencing further actions or proceedings against the respondents/defendants concerning the Tonneson property without the express written prior approval of the court is improperly raised for the first time in her reply brief.

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.