Crady v. Newcomb

Order insofar as it denied defendants’ motion to dismiss complaint and dismissed plaintiffs’ claim for money damages unanimously affirmed; cross appeal unanimously dismissed as moot, all without costs. Memorandum: Subsequent to entry of the order restraining defendants from violating the village zoning ordinance and directing them to reduce the number of dwelling units from 5 to 2, the Village Zoning Board of Appeals granted defendants a variance permitting a five-unit apartment use on their property. Defendants’ appeal from the grant of injunctive relief was thereby rendered moot, and that portion of their appeal is dismissed (see, Yuelys v Grigonis, 112 AD2d 157; O'Reilly v City of Fulton, 91 AD2d 835; 4 NY Jur 2d, Appellate Review, §§ 301, 326). Were we to reach the issue, we would affirm. The uncontroverted proof demonstrated that the prior nonconforming use of defendants’ building had been altered and expanded in violation of the ordinance. Dismissal of the money damages claim was proper. The building now owned by defendants had been converted to a five-unit apartment dwelling and 4 of the 5 units had been occupied prior to plaintiffs’ purchase. Plaintiffs’ appraiser opined that the existence of a five-unit apartment diminishes the value of adjacent property, in plaintiffs’ case by about $30,000. Because a diminution in value presumably also ex 941 isted at the time of purchase, plaintiffs presented no proof that they suffered any damages by continuance of that use. Moreover, the appraiser’s opinion was not supported by any market data information or explanation of adjustments and comparisons and thus was lacking in probative value (see, Matter of County Dollar Corp. v City of Yonkers, 97 AD2d 469, lv dismissed 61 NY2d 759; City of Buffalo v Diocese of Buffalo, 42 AD2d 817). Plaintiffs failed to raise a triable issue of fact as to damages, and defendants were entitled to summary judgment dismissing that claim. We further conclude that the denial of defendants’ motion to dismiss the complaint should be affirmed. As owners of adjacent land, plaintiffs are presumed to have standing to enjoin a violation of the ordinance regardless of whether the value of their property interests was harmed by the violation (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406). (Appeals from order of Supreme Court, Yates County, Reed, J. —summary judgment.) Present—Doerr, J. P., Denman, Boomer, Green and Balio, JJ.