ROMANO v. DAMIANO

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

Piertro ROMANO, et al., Appellants, v. Anthony DAMIANO, et al., Respondents.

Decided: August 04, 1997

Before THOMPSON, J.P., and PIZZUTO, FRIEDMANN and KRAUSMAN, JJ. Sorrentino, Thomas and Sorrentino, Valhalla, (Dominick Sorrentino, of counsel), for appellants. John F. Bianchi, Tarrytown, (Russell Ippolito, of counsel), for respondents Anthony Damiano and Margaret Damiano. Delbello Donnellan Weingarten & Tartaglia, LLP, White Plains, (Andrew J. Balint, of counsel), for respondent Elsie W. Drayer.

In an action, inter alia, for injunctive relief pursuant to RPAPL § 871, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Scarpino, J.), entered May 24, 1996, which denied their motion to amend the complaint.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The Supreme Court correctly denied the plaintiffs' motion to amend their complaint (see, CPLR 3025[b] ) to assert a claim under Town Law § 268(2) since the basis for the amendment was patently lacking in merit (see, McKiernan v. McKiernan, 207 A.D.2d 825, 616 N.Y.S.2d 629;  Board of Mgrs. of Gramercy Park Habitat Condominium v. Zucker, 190 A.D.2d 636, 594 N.Y.S.2d 18;  Rothfarb v. Brookdale Hosp., 139 A.D.2d 720, 527 N.Y.S.2d 473).   Specifically, the plaintiffs, both residents of the City of Yonkers, where the subject parcels are situated, had no standing to seek relief under the Town Law since the City of Yonkers is governed by the General City Law (see, Curtis v. Eide, 19 A.D.2d 507, 244 N.Y.S.2d 330;  McKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 76, 232).   Furthermore, we reject their contention that the Town Law is applicable to the City of Yonkers by virtue of the fact that the General City Law does not contain a provision similar to Town Law § 268(2) enabling private citizens to maintain an action to enjoin an alleged zoning violation (see, Allen Avionics v. Universal Broadcasting Corp., 118 A.D.2d 527, 499 N.Y.S.2d 154, affd. 69 N.Y.2d 406, 515 N.Y.S.2d 418, 508 N.E.2d 130).   In any event, the plaintiffs also failed to satisfy the requirement that a proceeding under Town Law § 268(2) be commenced by “any three taxpayers of the town” (see, Guzzardi v. Perry's Boats, 92 A.D.2d 250, 460 N.Y.S.2d 78).

MEMORANDUM BY THE COURT.

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