State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 519426 

________________________________

In the Matter of CITIZENS FOR

ST. PATRICK'S et al.,

Appellants,

v MEMORANDUM AND ORDER

CITY OF WATERVLIET ZONING BOARD

OF APPEALS et al.,

Respondents.

________________________________

Calendar Date: May 29, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Rosemary Nichols, Watervliet, and McMahon, Kublick & Smith,

PC, Syracuse (Jan S. Kublick of counsel), for appellants.

Goldman Attorneys PLLC, Albany (Paul J. Goldman of

counsel), for City of Watervliet Zoning Board of Appeals and

another, respondents.

Whiteman Osterman & Hanna, LLP, Albany (Robert L. Sweeney

of counsel), for PCP Watervliet, LLC, respondent.

__________

Egan Jr., J.

Appeal from a judgment of the Supreme Court (O'Connor, J.),

entered July 17, 2014 in Albany County, which, among other

things, in a proceeding pursuant to CPLR article 78, granted a

motion by respondent PCP Watervliet, LLC for damages sustained as

a result of a temporary restraining order.

In 2012, respondent PCP Watervliet, LLC (hereinafter

respondent) purchased certain real property located in the City
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of Watervliet, Albany County with the intention of demolishing

the buildings contained thereon, including a church, school and

rectory, and constructing a Price Chopper supermarket. 

Petitioners, a citizens advocacy group, thereafter commenced a

declaratory judgment action seeking, among other things, to

rescind the judicial authorization for the sale of the property. 

Petitioners' efforts in this regard proved to be unsuccessful

(Citizens for St. Patrick's v Saint Patrick's Church of W. Troy,

117 AD3d 1213 [2014]), as was their challenge to the subsequent

rezoning of the parcel (Citizens for St. Patrick's v City of

Watervliet City Council, 126 AD3d 1159 [2015]).

Respondent City of Watervliet Building Inspector thereafter

issued permits authorizing asbestos abatement and demolition of

the subject buildings, prompting petitioners to seek

administrative relief from respondent City of Watervliet Zoning

Board of Appeals. Additionally, petitioners moved by order to

show cause seeking, among other things, to suspend the relevant

permits during the pendency of the administrative appeal. 

Supreme Court, among other things, denied petitioners'

application for a preliminary injunction and granted respondent

leave to apply for sanctions and costs, including reasonable

counsel fees, pursuant to 22 NYCRR 130-1.1.

Petitioners appealed to this Court and, in conjunction

therewith, moved for a temporary restraining order and a

preliminary injunction pending appeal. Petitioners' request for

a temporary restraining order was granted by a Justice of this

Court upon the posting of a $10,000 bond. One week later, this

Court denied petitioner's request for a preliminary injunction,

and petitioners apparently did not perfect the subject appeal

(Citizens for St. Patrick's v City of Watervliet City Council,

126 AD3d at 1160 n 3).

Demolition of the church ensued, and Supreme Court

thereafter dismissed the underlying petition for failure to state

a cause of action.1 Supreme Court also denied respondent's

1 Petitioners apparently did not appeal from the resulting

judgment.
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request for sanctions and costs, finding that petitioners'

litigation – although "somewhat disjointed" – was not frivolous. 

Respondent then moved by order to show cause for damages – in the

form of counsel fees – incurred as a result of the issuance of

the temporary restraining order, citing CPLR 6315. Supreme

Court, among other things, granted respondent's application,

prompting this appeal by petitioners.2

We affirm. Although an undertaking is required where a

party is seeking a preliminary injunction (see CPLR 6312 [b]) and

discretionary where a party is seeking a temporary restraining

order (see CPLR 6313 [c]), the same general principles apply. 

Hence, once there is a final determination that the moving party

was not entitled to injunctive relief, the moving party will be

liable under the bond for all damages and costs that were

incurred by reason thereof (see Marietta Corp. v Pacific Direct,

Inc., 9 AD3d 815, 817 [2004]). Such damages, in turn, "may be

ascertained upon motion on such notice to all interested persons

as the court shall direct" (CPLR 6315).

Here, petitioners contend that CPLR 6315 does not

contemplate the recovery of damages consisting solely of counsel

fees. The record reflects, however, that petitioners failed to

advance this argument in opposition to respondent's application

for such fees under CPLR 6315; accordingly, this issue is

unpreserved for our review (see Tverskoy v Ramaswami, 83 AD3d

1195, 1198 [2011]; Kamp v Fiumera, 69 AD3d 1168, 1170 [2010]).3

Moreover, the case law makes clear that "attorneys' fees incurred

in a successful effort to vacate a restraining order may be

recoverable damages under CPLR 6315" (Shu Yiu Louie v David &

2 Following a hearing, Supreme Court awarded respondent

damages in the sum of $10,000 – the full amount of the bond

previously posted.

3 We reach a similar conclusion regarding petitioners'

claim – raised for the first time at oral argument before this

Court – that, inasmuch as it was this Court that granted the

temporary restraining order, respondent erred in seeking counsel

fees from Supreme Court in the first instance.
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Chiu Place Rest., 261 AD2d 150, 152 [1999]; see Marietta Corp. v

Pacific Direct, Inc., 9 AD3d at 817; A & M Exports v Meridien

Intl. Bank, 222 AD2d 378, 380 [1995]; Matter of Kaplan v Werlin,

215 AD2d 387, 388 [1995], appeal dismissed 86 NY2d 884 [1995], lv

denied 87 NY2d 806 [1996]; Hanley v Fox, 90 AD2d 662, 662-663

[1982]). Hence, contrary to petitioners' assertion, Supreme

Court did not err in granting respondent's application in this

regard.

Petitioners' remaining arguments do not warrant extended

discussion. To the extent that petitioners assert that

respondent is not entitled to counsel fees under CPLR 6315

because Supreme Court previously denied respondent's request for

costs and sanctions under 22 NYCRR 130-1.1, we need note only

that respondent's respective applications in this regard were

brought under separate statutory/regulatory provisions that, in

turn, impose distinctly different burdens upon the party seeking

an award of counsel fees thereunder. Accordingly, the mere fact

that Supreme Court denied respondent relief under the frivolous

litigation standard embodied in 22 NYCRR 130-1.1 in no way barred

respondent's subsequent request for counsel fees under CPLR 6315. 

Finally, to the extent that petitioners' Civil Rights Law claim

has been preserved for our review, we find it to be lacking in

merit.

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court