Court Upholds Denial of Damages Claim for Delayed Building Permit

Appellants applied for a building permit in the Village of Farmingdale. After reviewing their application, the inspector for respondent informed the appellants that the permit would not be granted as aspects of their building plan failed to comply with the New York State building code. Addressing those concerns required the appellants to alter their plans, increasing costs and delaying the permit. Plaintiffs then sued respondents for their costs and damages caused by the delay. The Supreme Court granted summary judgment for the defendants, and the New York Appellate Division, Second Department affirmed.

Unsurprisingly, the Supreme Court ruled that the defendants were immune from liability and dismissed for the plaintiffs failure to state a claim as a matter of law. As the decision of whether to grant a building permit is discretionary, and the inspector was clearly acting within the scope of his authority when deciding the permit should not be granted, plaintiffs had failed to state a claim for damages. On review, the Appellate Division not only upheld the Supreme Court’s grant of summary judgment, but found the plaintiff had improperly raised a complaint about the timeliness of the defendant’s motion for the first time on appeal.   

So what is the take away from this case? Having a building permit denied can cause all kinds of costs, from financial losses to delays in construction, but suing the inspector likely won’t get you very far. That is why when drawing up building plans, it is critical to be aware of the building code and ensure your plans are in complete compliance with its terms. If they are not, there will be very little recourse you can seek in the courts.

The case is Sharp v Incorporated Village of Farmingdale, 129 A.D. 3d 821 (NYAD 2 Dept. 2015)

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