Haberman v. City of Long Beach

In an action, inter aha, for a judgment declaring that the defendants effected an unconstitutional taking of the plaintiffs 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 AD2d 497 [2002]). The plaintiff subsequently amended his complaint to allege a temporary regulatory taking claim (see Tahoe-Sierra Preservation Council, Inc. v Tahoe Regional Planning Agency, 535 US 302 [2002]). 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 *584of 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, Inc. v Tahoe Regional Planning Agency, supra; Penn Central Transp. Co. v New York City, 438 US 104 [1978]; Matter of Gazza v New York State Dept. of Envtl. Conservation, 89 NY2d 603, 617 [1997]; Matter of Friedenburg v New York State Dept. of Envtl. Conservation, 3 AD3d 86 [2003]). Schmidt, J.P., Mastro, Spolzino and Covello, JJ., concur.