Petitioners/Plaintiffs brought an hybrid Article 78/declaratory judgment action to review a determination of the Zoning Board of Appeals of the City of Long Beach that revoked a previously-issued building permit, and for a declaration that they were entitled to the building permit. In a September 2010 order, Supreme Court, Nassau County granted the branch of defendants’ motion to dismiss relating to the sixth cause of action, finding that Petitioners did not allege sufficient facts that Defendants’ alleged actions effected a deprivation of their constitutional rights.  The Supreme Court also found that that the individual defendants, who were members of the Zoning Board of Appeals of the City of Long Beach, were immune from suit for monetary damages.

Petitioners took a limited appeal with respect to order dismissing the sixth cause of action. The appeal was granted and the order reversed.  However, the Supreme Court, in a subsequent 2015 order, stated that it was “unclear” as to whether the Second Department’s determination “impacted” the Supreme Court’s finding in that order that the individual defendants had qualified immunity from claims seeking damages under 42 USC § 1983. In light of this uncertainty, the Supreme Court granted the individual defendants leave to move to “be let out of the case” as to the fourth and sixth causes of action.  Petitioners again appealed to the Second Department.

On appeal, the Second Department found that Petitioner’s notice of appeal from the September 2010 order specifically encompassed that part of the order which “granted Defendants’ motion to dismiss Count ... Six.” As such, the September 2010 order to dismiss the sixth cause of action insofar as asserted against the individual defendants was properly before the Court. The Court further found that its decision and order on the appeal from the September 2010 order clearly reversed the order granting the defendants’ motion to dismiss the sixth cause of action insofar as asserted against all of the defendants. Accordingly, the court held that the reversal of the September 2010 order necessarily rejected the individual defendants’ claims of qualified immunity. The order dismissing the sixth cause of action against the individual defendants was therefore reversed.

The case was Haberman v ZBA of Long Beach, 152 A.D.3d 685 (2d Dep’t 2017).