Appellate Court Rejects Defendant’s Motions To Dismiss For Lack Of Standing And Personal Jurisdiction

In an action to permanently enjoin alleged violations of the New York City Zoning Resolution, defendant Robert Cunningham appealed from an order of the Supreme Court, Kings County denying his motion to dismiss for lack of standing and personal jurisdiction.

Standing in a private common-law action to enjoin zoning violations requires the plaintiff establish that the defendant's activities have caused the plaintiff damages “different in kind and degree from the community generally,” and that plaintiff interest is “‘within the zone of interest to be protected’ by the statute or ordinance at issue.” Here, the court found that the record indicated the plaintiffs' property was in close proximity to the defendants' property and that the plaintiffs' interests were within the zone of interest to be protected by the zoning ordinances alleged to be violated. Because defendant failed to rebut this evidence, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3).

The court also found that the trial court properly denied the appellant's motion to dismiss for lack of personal jurisdiction because the appellant failed to submit a sworn denial of receipt of process to rebut the presumption of proper service. The court therefore affirmed the determination of the trial court to dismiss Cunningham’s motions.

The case is Gershon v Cunningham, 2016 WL 229867 (App. Div. 2d Dep’t.)

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