text:
    [813 NE2d 891, 780 NYS2d 750]
    The People of the State of New York, Respondent, v Gregory P. Cunningham, Appellant.
    Argued May 6, 2004;
    decided June 10, 2004
    POINTS OF COUNSEL

      Raymond A. Kelly, Jr., Albany, for appellant.
    I. Gregory Cunningham’s act of signing his own name to Herkimer Precut check number 10052 without representing himself to be someone other than Gregory Cunningham requires reversal of his conviction for forgery, second, degree. (People v Levitan, 49 NY2d 87; People v Johnson, 96 AD2d 1083, 63 NY2d 888; People v Wesley, 238 AD2d 939; People v Freeman, 99 AD2d 648; People v Briggins, 50 NY2d 302; People’s Trust Co. v Smith, 215 NY 488; People v Barreau, 183 AD2d 904, 80 NY2d 926; People v Ramirez, 168 AD2d 907, 77 NY2d 965; People v Lewandowski, 255 AD2d 902; People v Panetta, 250 AD2d 710, 92 NY2d 903.) II. Gregory Cunningham was denied a fair trial by the trial court’s ruling permitting the prosecution to introduce both the underlying acts and the Broome County conviction during its case-in-chief when there was no foundation of uniqueness, materiality or necessity demonstrated to justify its admission under People v Molineux (168 NY 264 [1901]). (Coleman v People, 55 NY 81; People v Mullin, 41 NY2d 475; People v Hudy, 73 NY2d 40; People v Lewis, 69 NY2d 321; People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40; People v Katz, 209 NY 311; People v Alvino, 71 NY2d 233; People v Zackowitz, 254 NY 192.) III. The trial court’s ruling granting consolidation with no showing of good cause set forth by the prosecution or why the interest of justice mandated joint trials denied Gregory Cunningham a fair trial regarding Indictment No. 045-2001. (People v Lane, 56 NY2d 1.) IV The trial court’s failure to permit cross-examination into Peter Morat’s interest/ hostility/other motive to fabricate mandates reversal and a new trial. (.People v McDowell, 9 NY2d 12; People v Brooks, 131 NY 321; Schultz v Third Ave. R.R. Co., 89 NY 242.) V The forgery, second degree conviction should be dismissed, with prejudice to reprosecution, due to the facial, factual insufficiency of this count in Indictment No. 045-2001. (People v Morris, 61 NY2d 290; People v MacAfee, 76 AD2d 157; People v Pries, 81 AD2d 1039.)

      James E. Conboy, District Attorney, Fonda {Pamela A. Ladd of counsel), for respondent.
    I. Defendant’s act of signing his own name on the check resulted in the commission of the crime of forgery. (People v Levitan, 49 NY2d 87.) II. Defendant-appellant was not denied a fair trial. (People v Hayes, 97 NY2d 203; People v Mattiace, 77 NY2d 269; People v Rahman, 46 NY2d 882; People v Pavao, 59 NY2d 282; People v Dales, 309 NY 97; People v Molineux, 168 NY 264; People v Lane, 56 NY2d 1; People v Hudy, 73 NY2d 40.) III. The charge of forgery in the second degree was properly set forth in Indictment No. 045-2001. (People v Iannone, 45 NY2d 589; People ex rel. Best v Senkowski, 200 AD2d 808, 83 NY2d 951; People v Davis, 41 NY2d 678.)
   OPINION OF THE COURT

Rosenblatt, J.

Defendant was convicted of forgery in the second degree (Penal Law § 170.10) for signing his own name to a corporate check, in excess of his authority. Because defendant’s conduct does not constitute forgery under our statute, we reverse his conviction.

L

As the owner of a logging operation, Peter Morat planned to open a sawmill business in Madison County, under the name Herkimer Precut, Inc. He engaged defendant as a consultant to arrange for financing and related activities. In exchange for his services, defendant was to receive a 20% interest in the new venture. As the project progressed, Morat turned over various financial aspects of the business to defendant, entrusting him with control over the corporate checkbook. Because defendant was responsible for paying bills, Morat would sometimes provide defendant with blank, signed checks. At no time, however, did Morat authorize defendant to sign any checks.

After Morat discovered that corporate bills were not being paid, he examined the company’s bank records and found unauthorized payments, some on checks he had signed in blank and others bearing a signature he did not recognize. Morat alleged that by improperly signing or issuing checks, defendant stole thousands of dollars from Herkimer Precut.

In two indictments consolidated for trial, a Montgomery County grand jury charged defendant with one count of grand larceny in the second degree, 15 counts of forgery in the second degree and 15 counts of criminal possession of a forged instrument in the second degree. A single count survived the trial: the forgery conviction before us, stemming from a $195.50 Herkimer Precut check defendant wrote to Nancy Herrick for work performed by Northeast Woodcraft. In Montgomery County, defendant signed his own name to that check, telling Herrick that he owned Herkimer Precut. Herrick was acquainted with defendant personally and professionally and knew that he was affiliated with Herkimer Precut. She did not know, however, that Morat owned the company and that defendant lacked authority to sign checks. The check was for defendant’s personal expenses.

A divided Appellate Division affirmed defendant’s conviction. We agree with the dissenters that forgery was not proved.

IL

In People v Levitan (49 NY2d 87, 90 [1980]), we held that “[w]hile it is true that in certain rare instances one may commit a forgery by signing one’s own name, this is so only where the signing is done in such a way as to deceive others into believing that the signer is in fact some third party.” Levitan signed her name to deeds purporting to convey real property she did not own. In reversing her forgery conviction, we noted that “no pretense was ever made that the signatory was anyone other than defendant” (id. at 89). We also observed that “[u]nder our present Penal Law, as under prior statutes and the common law, a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument” (id. at 90).

Although the Legislature has updated the statute to cover credit cards (see L 1984, ch 949, § 1) and certain other technological advances (see L 1996, ch 357, § 4), it has not abrogated Levitan’s classic approach to forgery. In defining forgery, Penal Law § 170.00 (4) provides, in pertinent part, that “[a] person ‘falsely makes’ a written instrument when he makes or draws a complete written instrument . . . which purports to be an authentic creation of its ostensible maker or drawer, but which is not such . . . because the ostensible maker or drawer . . . did not authorize the mating or drawing thereof’ (emphasis supplied).

The terms “authentic creation” and “ostensible maker” are pivotal. In most prosecutions, the forger, acting without authority, signs someone else’s name. Thus, in a typical case, the forger, John Doe, wrongfully signs Richard Roe’s name, (mis)leading the payee into believing that the check is the authentic creation of Richard Roe, its ostensible maker. Roe, of course, has not granted Doe any such authority and in many such instances has never even met Doe. In this simple formulation, the ostensible maker (Roe) and the actual maker (Doe) are two different people. If, however, the ostensible maker and the actual maker are one and the same, there can be no forgery under the statute.

Not surprisingly, the parties here disagree as to who is the ostensible maker. The prosecution argues that it is Herkimer Precut; defendant argues that he, the actual maker, is also the ostensible maker. They also disagree as to whether the check was the authentic creation of its ostensible maker.

The People contend that Herkimer Precut is the ostensible maker because its name appears on the check as owner of the account. Further, they argue that because defendant lacked authority to sign company checks, the check in question was not the authentic creation of the company, and a forgery is made out. Defendant counters that the check was an authentic creation of its ostensible maker and that because he signed his own name, he cannot be guilty of forgery: as the ostensible maker, he did not pretend to be anyone other than himself—the actual maker. Moreover, defendant argues that even if Herkimer Precut was the “ostensible maker” of the check, defendant’s relationship with Herkimer Precut was sufficient to make the check the “authentic creation” of the company. In People v Briggins (50 NY2d 302, 307 [1980]), we observed that “when an individual signs a name to an instrument and acknowledges it as his own, that person is the ‘ostensible maker.’ ” Although Briggins involved a slightly different setting (and not a corporate check, as here), its language along with the statute’s history and purpose, informs our analysis and supports defendant’s position.

Forgery is a crime because of the need to protect signatures and make negotiable instruments commercially feasible (see generally Kessler, Forged Indorsements, 47 Yale LJ 863 [1938]). In its common-law roots, forgery had little to do with abstract questions of authority. 5At Queen’s Bench, Chief Justice Cock-burn wrote that forgery “by universal acceptation ... is understood to mean . . . the making or altering of a writing so as to make the writing or alteration purport to be the act of some other person, which it is not” (In re Windsor, 6 Best & Sm 522, 122 Eng Rep 1288, 1290 [1865]). As one treatise explains, “it is not forgery for a person to sign his own name to an instrument, and falsely and fraudulently represent that he has authority to bind another by doing so” and “the signer is guilty of false pretenses only” (Clark and Marshall, A Treatise on the Law of Crimes § 12.34, at 957 [7th ed 1967]). Although statutes vary, most jurisdictions in this country have tended to follow the Windsor approach to forgery (see e.g. 2 Wharton, Criminal Law § 859, at 1162-1163 [12th ed 1932]).

In Gilbert v United States (370 US 650 [1962]), the Court considered whether a federal forgery statute included misrepresented agency. An accountant endorsed a government check written to a client by signing the name of the payee and then his own, as agent. He had no authority to do so. Under the federal statute, forgery “does not embrace a purported, but misrepresented, agency endorsement” (id. at 652). Recognizing the common-law origins of that statute, the Court (id. at 655) quoted Regina v White (2 Car & K 404, 413, 175 Eng Rep 167, 170 [1847]), which held that “indorsing a bill of exchange under a false assumption of authority to indorse it per procuration, is not forgery, there being no false making.”

As the court noted in United States v Young (282 F3d 349, 351-352 n 1 [5th Cir 2002]), “[t]he majority of state law cases hold that signing one’s own name on one’s own check without sufficient funds to cover the amount of the check does not constitute forgery. In these cases, the person writing the check is not trying to pass himself off as someone else. . . . The same principle applies when an agent signs a company check without actual authority to do so.” We conclude that authority and authenticity are not the same thing. Defendant did not commit forgery merely by exceeding the scope of authority delegated by the corporation. 8Our interpretation leaves no gap in the Penal Law. Although embezzlers who use their own names to sign checks beyond their authority are not guilty of forgery in New York, their conduct would ordinarily fall within our larceny statutes (see Penal Law § 155.00 et seq.; see also, n 2 at 595.

Moreover, importing issues of authority into the statute, without express legislative language, would create vexing problems in adjudging forgery cases. If, for example, a corporate officer authorized to sign corporate checks does so for a personal purchase, is that forgery? Would an officer authorized to sign checks up to $20,000 who signs a check for $25,000 be guilty of forgery? While the prosecution argues that we should read our statute to justify convictions in those instances, it has not identified any New York decision interpreting the statute that expansively.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . Although defendant contends Morat gave him authority to sign certain checks, the jury necessarily concluded that authority was lacking. On appeal from a conviction, we must consider the evidence in the light most favorable to the People (see e.g. People v Barney, 99 NY2d 367, 371 [2003]; People v Hitchcock, 98 NY2d 586, 591 [2002]).

      . The defense claimed that Montgomery County had no jurisdiction over the alleged crimes. Herkimer Precut was based in Madison County. The company’s only checking account was with an office of Manufacturers and Traders Trust Company in Onondaga County. The bank mailed statements to a Madison County address. Defendant was a resident of Oneida County. In rendering its verdict, the jury announced that defendant was “Not guilty. No jurisdiction” with respect to the first count, grand larceny. As the foreman continued to read the verdicts on other counts, he said “Not guilty.” At that point, the judge interrupted and asked whether the jury found defendant not guilty or whether there was a lack of jurisdiction. The foreman then explained that the jury had found no jurisdiction as to 19 of the counts (presumably because defendant’s acts did not take place in Montgomery County). However, no question regarding jurisdiction or the form of the verdict is before us. The appeal deals only with whether defendant committed forgery by signing the check in question.

      . Our current forgery statutes have their roots in Penal Code of 1881 §§ 509-527.

      . Lord Coke illustrated this point, describing the crime’s derivation: “[t]o forge is metaphorically taken from the smith who beateth upon his anvill, and forgeth what fashion or shape he will: the offence ... is called crimen falsi, and the offender falsarius, and the Latin word to forge is falsare or fabricare. And this is properly taken when the act is done in the name of another person” (3 Edward Coke, Institutes of the Laws of England, ch 75, at 168 [1644]; see also 4 William Blackstone, Commentaries on the Laws of England, at 245 [1769] [defining forgery as “the fraudulent making or alteration of a writing to the prejudice of another man’s right”]).

      . See also Greathouse v United States, 170 F2d 512, 514 (4th Cir 1948) (holding that “[i]t is well established that forgery contemplates a writing which falsely purports to be the writing of another person than the actual maker” and therefore “it is not forgery for one, with intent to defraud, to issue a check in his own name on a bank in which he has no funds”); Edwards, Annotation, Commerce—“Forged Security,” 4 ALR Fed 793, 803, § 6.

      . (Citing Levitan, 49 NY2d 87 [1980]; see also People v Mann, 75 NY 484 [1878]; Matter of Heilbonn, 1 Parker Grim Rep 429, 434 [Sup Ct, NY 1853]; Commonwealth v Baldwin, 77 Mass 197, 198, 11 Gray 197 [1858]; People v Bendit, 111 Cal 274, 43 P 901 [1896]; State v Wilson, 28 Minn 52, 56, 9 NW 28, 30 [1881]; People v James, 178 Colo 401, 405, 497 P2d 1256, 1258 [1972]; State v Taylor, 46 La Ann 1332, 16 So 190 [1894]; Mallory v State, 179 Term 617, 168 SW2d 787 [1943]; Sales v State, 628 SW2d 796, 798-799 [Tex Grim App 1982]; Leslie v State, 10 Wyo 10, 24, 69 P 2, 3 [1902]; Charter Bank Northwest v Evanston Ins. Co., 791 F2d 379 [5th Cir 1986]; In re Tally, 20 F 812, 814-815 [SD NY 1884]; Greenberg, New York Criminal Law § 16:3, at 684 [6 West’s NY Prac Series 2002]; 2 Groble, Callaghan’s Criminal Law in New York § 26:06 [3d ed 1998]; 10 Zett, New York Criminal Practice H 111.1 [2], at 111-4; 37 CJS, Forgery § 13, at 76.) While some states have adopted a contrary, broad conception of forgery, they have tended to do so based on statutes that have expanded the crime beyond its common-law boundaries (see e.g. People v Susalla, 392 Mich 387, 220 NW2d 405 [1974]; In re Clemons, 168 Ohio St 83, 85, 151 NE2d 553, 555-556 [1958]).

      . We recognize that theft of a check might be different from embezzlement, but have no occasion to decide whether it would be forgery to sign one’s own name on a corporate check when having no connection with the corporation.

      . In People v Cannarozzo (62 AD2d 503 [4th Dept 1978]), the Court properly reversed a conviction for criminal possession of a forged instrument. An agent of the Commissioner of Motor Vehicles issued a drivers license to defendant without requiring him to pass the requisite tests. Even though the agent did not have authority to issue licenses without giving the tests, the Court held that the license was not a forgery. The ostensible and actual maker of the license were the same: an agent of the Commissioner of Motor Vehicles. This Court affirmed without opinion (see 48 NY2d 687 [1979]; accord Commonwealth v Apalakis, 396 Mass 292, 486 NE2d 669 [1985]). We note that in the case before us neither the majority at the Appellate Division nor the prosecution relies on Cannarozzo. Nevertheless, to the extent the Appellate Division’s dictum in Cannarozzo suggests it would be forgery for an agent to sign one’s own name in excess of authority, we decline to follow that reasoning.


source: Caselaw Access Project

author: Rosenblatt, J.

license: Public Domain

text:
    [814 NE2d 37, 781 NYS2d 59]
    Perry Frankel, Respondent, v Karyn Frankel, Defendant. Schlissel, Ostrow, Karabatos, Poepplein & Taub, PLLC, Nonparty Appellant.
    Argued June 2, 2004;
    decided June 29, 2004

      POINTS OF COUNSEL

      Schlissel, Ostrow, Karabatos, Poepplein, Cender & Fisher, PLLC, Garden City (Stephen W Schlissel, Barry J. Fisher, Lisa R. Nakdai and Michael J. Ostrow of counsel), for appellant.
    I. Domestic Relations Law § 237 (a) does, and was specifically amended to, protect attorneys discharged without cause. (Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; People ex rel. Wood v Lacombe, 99 NY 43; Surace v Danna, 248 NY 18; Eck v United Arab Airlines, 15 NY2d 53; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Price v Price, 69 NY2d 8; Matter of Guido v New York State Teachers’ Retirement Sys., 94 NY2d 64; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Klein v Eubank, 87 NY2d 459; People v Finnegan, 85 NY2d 53.) II. The Appellate Division’s decision is inconsistent with the holdings of this Court in Klein v Eubank (87 NY2d 459 [1996]). (Intar-Tass Russian News Agency v Russian Kurier, Inc., 140 F3d 442; Shalom Toy v Each & Every One of Members of N.Y. Prop. Ins. Underwriting Assn., 239 AD2d 196.) III. The firm’s rights under Domestic Relations Law § 237 (a) were preserved in prior court decisions and at the time the firm was discharged. (Hogan v Hogan, 194 AD2d 520; Redgrave v Redgrave, 304 AD2d 1062; Gleckman v Kaplan, 215 AD2d 527.) IV. The order of the Appellate Division should be reversed as being contrary to the law and public policy. (O’Shea v O’Shea, 93 NY2d 187; Charpie v Charpie, 271 AD2d 169; Katzman v Katzman, 284 AD2d 160; Sadofsky v Sadofsky, 78 AD2d 520; Hogan v Hogan, 194 AD2d 520; Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888; Monteleon v Monteleon, 163 AD2d 372; Klein v Eubank, 87 NY2d 459.) V. The order of the Appellate Division must be reversed. (Klein v Eubank, 87 NY2d 459; O’Shea v O’Shea, 93 NY2d 187.)

      Alexander Potruch, L.L.C., Mineóla (Alexander Potruch and Michael C. Daab of counsel), for respondent.
    I. Domestic Relations Law § 237 (a) does not grant a “discharged” or “former” attorney the right to seek an award of counsel fees in its own name as against the adversary spouse. (O’Shea v O’Shea, 93 NY2d 187; Charpie v Charpie, 271 AD2d 169; Katzman v Katzman, 284 AD2d 160; Sadofsky v Sadofsky, 78 AD2d 520; Bartow

      v Bartow, 212 AD2d 564; Hogan v Hogan, 194 AD2d 520; Monteleon v Monteleon, 160 AD2d 372; American Home Assur. Co. v Levy, 179 Misc 2d 773; Weiss v Manfredi, 83 NY2d 974; Bluntt v O’Connor, 291 AD2d 106.) II. “Under the circumstances of this case” appellant’s right to make an application against respondent was not preserved, and a reversal of the Appellate Division’s determination will lead to unintended, negative consequences which could not have been intended by the Legislature. (Campaign for Fiscal Equity v State of New York, 100 NY2d 893; DeCabrera v Cabrera-Rosete, 70 NY2d 879.) III. The facts in the case of Klein v Eubank (87 NY2d 459 [1996]) do not parallel the facts of the instant matter and do not provide a basis to reverse the majority opinion of the Appellate Division. (Sadofsky v Sadofsky, 78 AD2d 520; Haser v Haser, 271 AD2d 253; Miller v Kassatly, 216 AD2d 260; Kaplan v Reuss, 113 AD2d 184.)

      Elliott Scheinberg, New York City, for American Academy of Matrimonial Lawyers, New York Chapter, amicus curiae.
    I. Counsel fees have long been acknowledged as a failsafe to financial disparity which permits the nonmonied spouse, typically the wife, to participate meaningfully in the litigation. (Hinden v Hinden, 122 Misc 2d 552; O’Shea v O’Shea, 93 NY2d 187; DeCabrera v Cabrera-Rosete, 70 NY2d 879; Charpie v Charpie, 271 AD2d 169.) II. Frankel v Frankel (309 AD2d 65 [2003]) is contrary to codified principles of statutory construction that the legislative intent be effectuated, first and foremost, and to the precedent authority of O’Shea v O’Shea (93 NY2d 187 [1999]) and DeCabrera v Cabrera-Rosete (70 NY2d 879 [1987]) which held that the elimination of the words “during the pendency of the action” broadened the scope of the statute with the legislative intent. (Matter of Albano v Kirby, 36 NY2d 526; Matter of Hogan v Culkin, 18 NY2d 330; Katzman v Katzman, 284 AD2d 160.) III. Decisional authority, like its statutory counterpart, has steadfastly held that an absence of ambiguity in a statute does not mandate a substitution for reasoned interpretation: effectuating the legislative intent is the preeminent responsibility. (Fumarelli v Marsam Dev., 92 NY2d 298; Matter of Petterson v Daystrom Corp., 17 NY2d 32; New York State Bankers Assn. v Albright, 38 NY2d 430; Price v Price, 69 NY2d 8; Rankin v Shanker, 23 NY2d 111; Matter of Albano v Kirby, 36 NY2d 526; Matter of Hogan v Culkin, 18 NY2d 330; Matter ofSutka v Conners, 73 NY2d 395; Matter of Scotto v Dinkins, 85 NY2d 209.) IV Statutes are presumed not to work hardships nor injustice, nor are they created in a vacuum to leave parties without a remedy; decisional authority and the Legislature have been consistent in their efforts to prevent unjust results to counsel and clients; if permitted to stand, Frankel v Frankel (309 AD2d 65 [2003]) will harm counsel and litigants. (Sadofsky v Sadofsky, 78 AD2d 520; Haser v Haser, 271 AD2d 253.) V. It is settled law that a timely fee application is key to the preservation of an outgoing attorney’s rights to a hearing within the context of the action; although timely asserted Frankel v Frankel (309 AD2d 65 [2003]) resulted in a forfeiture of the right. (Sadofsky v Sadofsky, 78 AD2d 520; Pratt v Pratt, 282 AD2d 941; Matter of Buono v Fantacone, 252 AD2d 917; Shapiro v Shapiro, 179 AD2d 525; Gleckman v Kaplan, 215 AD2d 527; New York Life Ins. Co. v Aitkin, 125 NY 660; Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173; Rubenfeld v Rubenfeld, 279 AD2d 153; Bartow v Bartow, 212 AD2d 564; Zielinski v Zielinski, 252 AD2d 800.) VI. Outgoing counsel in Frankel v Frankel (309 AD2d 65 [2003]) seeks to preserve a procedural right not to immediately enforce a substantive one to the client’s detriment as seems to concern the majority; these concerns can be easily remedied without prejudice to counsel. (O’Shea v O’Shea, 93 NY2d 187; DeCabrera v Cabrera-Rosete, 70 NY2d 879.) VII. Pursuant to the principles of statutory construction Domestic Relations Law § 237 (a) and Judiciary Law § 475 are statutes in pari materia which must be accorded analogous and parallel readings because they seek to protect the same class of people— attorneys; Frankel v Frankel (309 AD2d 65 [2003]) contravenes this Court’s ruling in Klein v Eubank (87 NY2d 459 [1996]) under section 475. (Kaplan v Reuss, 113 AD2d 184, 68 NY2d 693.) VIII. Frankel v Frankel (309 AD2d 65 [2003]) erred in ruling that neither statute nor case law grants a discharged attorney a right to apply in his or her own name for retrospective fees against the adversary spouse, either within or without the matrimonial action. (Klein v Eubank, 87 NY2d 459; Haser v Haser, 271 AD2d 253; Kaplan v Reuss, 113 AD2d 184, 68 NY2d 693.) IX. Domestic Relations Law § 237 (a) places counsel for the nonmonied spouse in limited privity directly with the other spouse. (Sadofsky v Sadofsky, 78 AD2d 520; Haser v Haser, 271 AD2d 253.) X. Frankel v Frankel (309 AD2d 65 [2003]) not only devastates counsel’s procedural rights but it also assaults his or her substantive rights by exposing uncollected fees to discharge-ability in bankruptcy. (In re Spong, 661 F2d 6.)
   OPINION OF THE COURT

Rosenblatt, J.

In matrimonial litigation, counsel fee awards have helped reduce what would otherwise be a substantial advantage to the monied spouse. Pursuant to Domestic Relations Law § 237 (a), a lawyer who represents a nonmonied spouse may seek attorneys’ fees from the monied spouse in the divorce action. This appeal raises the question whether attorneys may do so after their clients have discharged them without cause. A divided Appellate Division said no. We disagree and reverse.

The Frankels were married in December 1988. The husband was a cardiologist and the wife a homemaker. The husband filed for divorce in 1998, and Supreme Court granted it in 2001. The wife paid her lawyer an initial retainer of $5,000, but the billings soon went well beyond that amount. In June 1999, Supreme Court awarded the wife’s attorney an interim fee of $2,500. Nearly two years later, after a 32-day custody trial, the court granted an additional interim counsel fee of $25,000 on March 12, 2001, to be paid by the husband at the rate of $1,500 per month. Eighteen days later, the wife discharged her lawyer without cause. After taking into account the retainer and the two interim awards, the wife’s lawyer claimed that she owed him considerably more and proceeded against the husband for that amount pursuant to Domestic Relations Law § 237 (a). The court ruled that even though the wife’s attorney had been discharged, he could look to the husband for counsel fees. The court then ordered a hearing before a special referee to determine the appropriate award. On the husband’s appeal, the Appellate Division reversed, holding that “former counsel has no standing to pursue the adversary spouse within the matrimonial action” (309 AD2d 65, 69 [2d Dept 2003]).

Domestic Relations Law § 237 (a) provides, in pertinent part, that

“[i]n any action or proceeding . . . for a divorce . . . the court may direct either spouse ... to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”

The statute goes on to say that “[a]ny applications for counsel fees and expenses may be maintained by the attorney for either spouse in [counsel’s] own name in the same proceeding.” The provision is silent, however, as to whether an attorney who has been discharged without cause has the right in the same proceeding to seek counsel fees.

A divided Appellate Division concluded that, because he was discharged, the wife’s attorney had no standing to proceed against the husband for counsel fees. The Court interpreted Domestic Relations Law § 237 (a) as authorizing only “the current attorney of record” to seek counsel fees against a client’s spouse (309 AD2d at 67). Reading the provision in light of our precedents and the policy interests surrounding the statute, we agree with the Appellate Division dissenters that Domestic Relations Law § 237 (a) allows an attorney who was discharged without cause to proceed against the monied spouse in the matrimonial litigation.

In O’Shea v O’Shea (93 NY2d 187 [1999]), we considered whether a trial court had discretion to award fees under Domestic Relations Law § 237 (a) for legal services rendered before and after the divorce action. Although the predecessor statute, former Civil Practice Act § 1169, included language limiting fee awards to services rendered “during the pendency” of an action, this clause does not appear in the current statute. In concluding that courts could award counsel fees for services performed both before and after the divorce action itself, we looked not only to this textual change but also to the policy underlying fee shifting in the divorce context. This is a dramatic departure from the American rule that usually requires litigants to pay their own legal expenses. We explained that giving courts the power to order a spouse to pay the other’s counsel fees “is designed to redress the economic disparity between the monied spouse and the non-monied spouse” and ensure that “the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet” (id. at 190).

That is true here. If lawyers terminated without cause lose their right to petition the court for a fee award from an adversary spouse, the less affluent spouse would suffer the consequences. The spouse with ready and ample funds would have a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the nonmonied spouse would struggle to find a lawyer who might have to go unpaid. A matrimonial lawyer may be willing to carry a client on its accounts receivable books, but not as to accounts that will prove unreceivable. In this regard, the Legislature designed Domestic Relations Law § 237 (a) to eliminate the disparity between the monied and the nonmonied spouse. The husband’s interpretation would thwart the statutory intent.

As amicus American Academy of Matrimonial Lawyers points out, the realities of contentious matrimonial litigation require a regular infusion of funds. Although this is a regrettable byproduct of divorce, interpreting the statute to preclude applications like the one at issue here would confound the collection process and discourage attorneys from representing nonmonied litigants.

The husband argues that a rule allowing a wife’s discharged attorney to proceed against him would impede settlements. We disagree. Allowing the application would enable a global settlement that takes into account property distribution and other equities that affect the outcome. Otherwise, the case would be “settled,” leaving unadjudicated the amount of the attorney’s rightfully earned fees and shifting the venue to a plenary proceeding—another lawsuit, with the unpleasant prospect of a judgment against the nonmonied spouse.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Nassau County, reinstated.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . We note that more frequent interim counsel fee awards would prevent accumulation of bills. As the Committee to Examine Lawyer Conduct in Matrimonial Actions (Committee) noted in a report, “[t]he practice of many judges to defer [pendente lite counsel fee applications] to the trial court essentially delays the awarding of fees until the final settlement or judgment, and often compromises the nonmonied spouse’s ability to adequately litigate the case” (Report of Committee, at 36 [May 4, 1993]). The Committee further observed that if applications for legal fees are denied or deferred, “the attorney for the nonmonied spouse is left not only without payment for services rendered but without reasonable expectation as to how or whether payment will be made. Considering the protracted nature of divorce actions, both client and attorney are left in limbo for an indefinite period of time, a circumstance which can drive a wedge between attorney and client” (id. at 37; see also Seheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C237:4 [1999]; Uniform Rules for Trial Cts [22 NYCRR] § 202.16 [k]).

      . We note that in the context of Judiciary Law § 475, we have already held that a discharged attorney may enforce his statutory charging lien (see KLein v Eubank, 87 NY2d 459, 462 [1996]).


author: G.B. Smith, J.

text:
    [814 NE2d 404, 781 NYS2d 234]
    In the Matter of Gregory Pecoraro, Respondent, v Board of Appeals of Town of Hempstead, Appellant.
    Argued March 23, 2004;
    decided May 4, 2004

      POINTS OF COUNSEL
    - Joseph J. Ra, Town Attorney, Hempstead (Charles S. Kovit of counsel), for appellant.
    I. The lower courts’ decisions constituted an impermissible substitution of their opinions for that of the Board of Appeals. (Matter of Ifrah v Utschig, 98 NY2d 304; Matter of Fuhst v Foley, 45 NY2d 441; Matter of Easy Home Program v Trotta, 276 AD2d 553; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190; Matter of Market Sq. Props, v Town of Guilderland Zoning Bd. of Appeals, 66 NY2d 893; Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000.) II. The practical effect of the variance is to rezone the minimum lot size in the 200-foot radius area back to 4,000 square feet. III. The lower courts overemphasized the effect of the applicant’s unopposed expert upon the Board of Appeals’ deliberation. (Matter of Necker Pottick, Fox Run Woods Bldrs. Corp. v Duncan, 251 AD2d 333.)

      Forchelli, Curto, Schwartz, Mineo, Carlino & Cohen, LLP, Mineóla (Joseph F. Buzzell and James A. Boglioli of counsel), for respondent.
    I. Balancing the paramount interest of the applicant in achieving any use of the subject property against the interest of the surrounding community, which would not suffer any “detriment,” demands that Mr. Pecoraro’s application should have been granted. (Matter of Sasso v Osgood, 86 NY2d 374; Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656; Matter of Frank v Scheyer, 227 AD2d 558; Matter of Necker Pottick, Fox Run Woods Bldrs. Corp. v Duncan, 251 AD2d 333; Matter of Peccoraro v Humenik, 258 AD2d 465; Matter of Shaughessy v Roth, 204 AD2d 333; Matter of Sautner v

      Amster, 284 AD2d 540; Matter of Weir v Zoning Bd. of Appeals of Town of Westport, 263 AD2d 752.) II. The mere presence of community opposition does not provide a valid basis for the denial of a land use application. (Matter of Ifrah v Utschig, 98 NY2d 304; Matter of Sasso v Osgood, 86 NY2d 374; Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190; Matter of Inlet Homes Corp. v Zoning Bd. of Appeals of Town of Hempstead, 304 AD2d 758, 100 NY2d 516; Matter of Collinwood Estates v Wright, 303 AD2d 679; Matter of Market Sq. Props, v Town of Guilderland Zoning Bd. of Appeals, 66 NY2d 893; Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; Matter of Hugel v Campbell, 276 AD2d 488; Matter of Eddy v Niefer, 297 AD2d 410.) III. The present matter does not involve or turn on single and separate ownership. (Matter of Allen v Adami, 39 NY2d 275; Matter of Green v Planning Bd. of Town of New Castle, 220 AD2d 415; Matter of DeTroia v Schweitzer, 87 NY2d 338; Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344; Matter of Shaughessy v Roth, 204 AD2d 333; Matter of Frank v Scheyer, 227 AD2d 558; Matter of Necker Pottick, Fox Run Woods Bldrs. Corp. v Duncan, 251 AD2d 333; Matter of Sautner v Amster, 284 AD2d 540; Matter of Buckley v Amityville Vil. Clerk, 264 AD2d 732.) IV. The old file has no bearing on the present application due to the changes in fact and a change in law. (Matter of Sasso v Gamble, 181 AD2d 988; Matter of Josato, Inc. v Wright, 288 AD2d 384; Matter ofPeccoraro v Humenik, 258 AD2d 465; Matter ofDurler v Accettella, 165 AD2d 872.)
   OPINION OF THE COURT

G.B. Smith, J.

The sole issue presented in this case is whether the Board of Appeals of the Town of Hempstead abused its discretion, as a matter of law, in denying petitioner’s application for an area variance. We conclude that the Board did not abuse its discretion. We therefore reverse the order of the Appellate Division and dismiss the petition.

Petitioner Gregory Pecoraro entered into a contract for the purchase of an unimproved parcel of land located on the north side of Madison Avenue in West Hempstead, Town of Hemp-stead. The contract was contingent on petitioner obtaining an area variance and a permit to build a single-family dwelling on the property. The subject property has a total land area of 4,000 square feet, with 40 feet of frontage width and 100 feet of depth. The property is located within a “B” residential zoning district, which requires 6,000 square feet of lot area, including 55 feet of frontage width, a front yard setback of 26 feet, a total side yard setback of 15 feet, an individual side yard setback of five feet and a building limit of 30% of the lot area.

The subject property was once in common ownership with the improved parcel adjoining it to the west. The improved parcel has 60 feet of frontage width and 100 feet of depth. In 1959, the overall plot was illegally subdivided by the common owner, who conveyed the improved parcel to Abe Shenitzer and his wife, Sarah, and simultaneously conveyed the substandard parcel to Sarah and her mother, Dora Pomerantz. In 1969, Sarah Shenitzer and Pomerantz sought, and were denied, an area variance to build a single-family dwelling on the substandard parcel. In 1970, Supreme Court upheld the denial of the variance. In May 1980, petitioner’s contract vendor acquired the substandard parcel at a tax sale by the payment of two years’ taxes. Petitioner subsequently entered into a contract with the vendor to purchase-the property, subject to obtaining the variance, for $76,000.

Petitioner applied for a variance to reduce the lot area requirement from 6,000 square feet to 4,000 square feet and to reduce the width requirement from 55 feet to 40 feet. Petitioner’s initial house plan also required a variance for side yard setbacks. At a hearing before respondent Board of Appeals, petitioner introduced expert testimony that the proposed development was in character with the neighborhood and would not negatively affect community property values. He introduced evidence that behind the subject lot, there existed four parcels that were also 40 feet by 100 feet. He also provided proof that the proposed development would not disturb the physical or environmental characteristics of the surrounding area.

Several community residents appeared at the hearing to oppose the application and submitted a petition signed by 214 members of the community stating they were “in agreement with the Supreme Court of Nassau County decision that granting a variance ‘would be contrary to and have an adverse effect on the character of the area.’ ” The West Hempstead Civic Association also opposed the area variance based on the Board’s 1969 denial of a similar request. After the hearing, but before the Board rendered its decision, petitioner submitted plans for a smaller house that did not require side yard setback variances.

Considering only petitioner’s revised house plans, the Board denied petitioner’s application. The Board concluded that the variance sought was a substantial one, requiring a 33.3% deficiency in lot area and a 27.3% deficiency in frontage width.The Board further concluded that the character of the area had not changed since its 1969 determination and that the neighborhood surrounding the subject property was overwhelmingly conforming to or larger than the zoning requirements. The Board thus held that granting the variance would have an adverse effect on the character of the neighborhood.

Petitioner commenced this CPLR article 78 proceeding, seeking an annulment of the Board’s determination. Supreme Court granted the petition, annulled the decision and remanded the matter for further proceedings. The court held that the Board improperly denied the variance based on “generalized community opposition” and failed to provide specific reasons for its decision. The court further concluded that the Board’s denial of the variance in 1969 did not bar the granting of the variance here. The court, however, remanded the matter so that the Board could conduct a hearing on the application based on the final plans submitted to the Board. Both the Board and petitioner appealed.

The Appellate Division modified Supreme Court’s order on the law by deleting the provision remitting the matter for an additional hearing and directing the Board to issue petitioner an area variance, and as modified, affirmed. The Court determined that no evidence was presented at the hearing upon which the Board could conclude that granting the area variance would adversely effect the character of the neighborhood. It also noted that no empirical data or expert testimony had been introduced to refute the evidence presented by petitioner. However, the Court decided that further proceedings were unnecessary because the final plans for petitioner’s house had been considered by the Board in reaching its conclusion, and the Court ordered the Board to issue the area variance. This Court granted leave to appeal, and we now reverse.

Pursuant to Town Law § 267-b (3), when determining whether to grant an area variance, a zoning board of appeals must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted (see Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]; Matter of Sasso v Osgood, 86 NY2d 374, 382, 384 [1995]). The zoning board is also required to consider whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than a variance; (3) the requested area variance is substantial; (4) granting the proposed variance would have an adverse effect or impact on physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty is self-created. While the last factor is not dispositive, it is also not irrelevant (see Matter of Ifrah v Utschig, 98 NY2d at 308).

This Court has often noted that local zoning boards have broad discretion in considering applications for area variances and the judicial function in reviewing such decisions is a limited one. Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure (see Matter of Ifrah v Utschig, 98 NY2d at 308; Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000, 1002 [1997]; Matter of Cowan v Kern, 41 NY2d 591, 598 [1977]). A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence (see Matter of Ifrah v Utschig, 98 NY2d at 308; Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]). In Matter of Cowan v Kern, this Court stated the rationale for this rule:

“The crux of the matter is that the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies” (41 NY2d at 599).

For this reason, a reviewing court should refrain from substituting its own for the reasoned judgment of the zoning board. “It matters not whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them” (id.).

We conclude that both Supreme Court and the Appellate Division improperly supplanted the reasoned decision of the Board in favor of their own judgments. Giving due deference to the broad discretion of the Board, we cannot conclude that the Board’s denial of the variance was either an abuse of discretion or irrational under the circumstances presented. Nor do we agree with the courts below that the Board based its decision on generalized community objections. The record demonstrates that the Board reasonably considered all of the factors delineated in Town Law § 267-b and weighed the petitioner’s interest against the interest of the neighborhood.

The Board’s conclusion that the area variance would have a negative impact on the character of the neighborhood was supported by documentary evidence that within the 200-foot radius of the subject property, the area was overwhelmingly conforming to or larger than the zoning requirements. While the Board relied on its 1969 denial of a similar variance, it did not give estoppel effect to that decision. Nor could it do so since Town Law § 267-b was enacted after that determination. However, in considering the first factor, the Board was entitled to observe the fact that the character of the neighborhood, in terms of the lot size and frontage widths of the parcels, had not changed since 1969. It was further entitled to take into account the fact that the subject parcel is the only one within the 200-foot radius on Madison Avenue that has a property width as narrow as 40 feet. Moreover, within the entire 200-foot radius of the subject parcel, out of 35 plots, only six plots (or 17.1%) have a 40-foot width. Of the remaining 29 plots, one has a width of 45 feet, five have a width of 50 feet, two have a width of 55 feet and 21 plots have a width of at least 60 feet. Under these circumstances, the Board could rationally conclude that the character of the area was that of parcels conforming to the zoning requirements, and that, therefore, granting the variance would have an adverse effect on the character of the neighborhood.

In considering the other factors under Town Law § 267-b (3), the Board concluded that the requested variance was substantial. The variance sought would have allowed a 33.3% deficiency in lot area and a 27.3% deficiency in frontage width. It was not an abuse of discretion to determine that the substantiality of such a variance weighed against granting it. Moreover, the Board properly determined that the need for the variance was self-created here. Petitioner was fully aware that the subject parcel did not conform to the zoning requirements, which was the reason that the sale of the parcel was conditioned on obtaining the variance he seeks. The Board also rightly concluded that petitioner was in no better position than the contract vendor, who knew or should have known that the parcel was the result of an illegal subdivision and that a similar variance was previously denied by the Board.

To be sure, the Board determined that aside from obtaining the variance, there was no other means by which petitioner could build a dwelling on the parcel. It also concluded that the construction itself would cause no physical or environmental harm to the neighborhood, both factors that weigh in favor of granting the variance. Nevertheless, it decided that given the character of the neighborhood and the substantiality of the deficiencies requested, the detriment to the community in granting the variance outweighed the benefit that would accrue to petitioner. That determination was within the Board’s discretion.

While petitioner urges that the Board should have granted his variance given that all of the substandard parcels in the area have been improved, the Board was nonetheless entitled to deny the variance, especially given that none of the improvements on the substandard parcels were erected pursuant to a variance. Those parcels, though substandard, were legally nonconforming and the dwellings erected on them were built prior to the enactment of the current zoning ordinance. Only the subject property is the result of an illegal subdivision. And significantly, the Board has never issued an area variance for building upon any substandard parcel in the neighborhood.

The Board was also entitled to consider that granting a variance for an illegally substandard parcel with 40 feet of frontage width could set a precedent within the neighborhood such that landowners of oversized parcels could illegally subdivide their land and seek an area variance to improve the substandard plot with the idea that two parcels with two houses are worth more than one parcel with one house. As the Board is entrusted with safeguarding the character of the neighborhood in accordance with the zoning laws (see Town Law § 267-b [3] [c]), it was well within its discretion to deny a variance that would have allowed an owner to take advantage of an illegally nonconforming parcel by erecting a dwelling upon it.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.


author: Chief Judge Kaye.

text:
    [814 NE2d 410, 781 NYS2d 240]
    Bower Associates, Appellant, v Town of Pleasant Valley et al., Respondents. Home Depot, U.S.A., Inc., Appellant, v Edward B. Dunn, Individually and as Mayor of the City of Rye, et al., Respondents.
    Argued March 31, 2004;
    decided May 13, 2004

      POINTS OF COUNSEL

      Tuczinski, Cavalier, Burstein & Collura, EC., Albany {Andrew W. Gilchrist and Alison M. Coan of counsel), for appellant in the first above-entitled action.
    Bower has a federally protectable property interest in its subdivision application; therefore, it has properly stated a 42 USC § 1983 claim against the Town of Pleasant Valley. (Natale v Town of Ridgefield, 170 F3d 258; Town of Orangetown v Magee, 88 NY2d 41; RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d 911; Yale Auto Parts, Inc. v Johnson, 758 F2d 54; Penlyn Dev. Corp. v Incorporated Vil. of Lloyd Harbor, 51 F Supp 2d 255; Masi Mgt. v Town of Ogden, 180 Misc 2d 881; Matter of Twin Town Little League v Town of Poestenkill, 249 AD2d 811; DLC Mgt. Corp. v Town of Hyde Park, 163 F3d 124; Zahra v Town of Southold, 48 F3d 674; Matter of Terra Homes v Smallwood, 247 AD2d 394.)

      Ahmuty, Demers & McManus, Albertson CBrendan T. Fitzpatrick and Kevin G. McMorrow of counsel), for respondents in the first above-entitled action.
    The Town of Pleasant Valley and its Planning Board were entitled to the dismissal of Bower’s 42 USC § 1983 claim, because Bower never had a constitutionally protected property interest in the approval of the subdivision. (Town of Orangetown v Magee, 88 NY2d 41; Lisa’s Party City, Inc. v Town of Henrietta, 185 F3d 12; McMenemy v City of Rochester, 241 F3d 279; Board of Regents of State Colls, v Roth, 408 US 564; Olim v Wakinekona, 461 US 238; Zahra v Town of Southold, 48 F3d 674; Natale v Town of Ridgefield, 170 F3d 258; Honess 52 Corp. v Town of Fishkill, 1 F Supp 2d 294; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674.)

      Collier, Halpem, Newberg, Nolletti & Bock, LLP, White Plains (Philip M. Halpem and William A. Walsh of counsel), for appellant in the second above-entitled action.
    I. The application of this Court’s scope of review to the Appellate Division’s decision necessitates the reversal of the Appellate Division’s decision and a reinstatement of the Supreme Court’s decision. (Matter of New York State Assn, of Criminal Defense Lawyers v Kaye, 95 NY2d 556; Schwartz v Greenberg, 304 NY 250; Matter of Belding v Belding, 53 NY2d 810; Hart v Blabey, 287 NY 257; People v Kin Kan, 78 NY2d 54; People ex rel. Ray v Martin, 294 NY 61; People v Dunn, 77 NY2d 19; Flanagan v Prudential-Bache Sec., 67 NY2d 500; Alvez v American Export Lines, 46 NY2d 634; De-Blasio v Zoning Bd. of Adj. for Twp. of W. Amwell, 53 F3d 592.) II. The Appellate Division erred in dismissing plaintiffs equal protection cause of action as “academic.” (Mannington Mills, Inc. v Shinn, 877 F Supp 921; T.S. Haulers, Inc. v Town of Riv

      erhead, 190 F Supp 2d 455; Matter of Abrams v Bronstein, 33 NY2d 488; Welch Foods v Wilson, 277 AD2d 882; Zahra v Town of Southold, 48 F3d 674; FSK Drug Corp. v Perales, 960 F2d 6; Yajure v DiMarzo, 130 F Supp 2d 568; Dartmouth Review v Dartmouth Coll., 889 F2d 13.) III. The Appellate Division erred as a matter of law in holding that plaintiff lacked protected property interests and a proper cause of action for a violation of its substantive due process rights. (Town of Orangetown v Ma-gee, 88 NY2d 41; Regents of Univ. of Mich, v Ewing, 474 US 214; Moore v City of E. Cleveland, Ohio, 431 US 494; City of Cuyahoga Falls, Ohio v Buckeye Community Hope Found., 538 US 188; Board of Regents of State Colls, v Roth, 408 US 564; National Mut. Ins. Co. v Tidewater Transfer Co., Inc., 337 US 582; Perry v Sindermann, 408 US 593; Yale Auto Parts, Inc. v Johnson, 758 F2d 54; Willner v Committee on Character & Fitness, 373 US 96; Schware v Board of Bar Examiners of State of N.M., 353 US 232.) IV The Appellate Division erred, as a matter of law, in holding that the individual defendants enjoyed the protection of qualified immunity. (Johnson v Newburgh Enlarged School Dist., 239 F3d 246; Young v County of Fulton, 160 F3d 899; Anderson v Creighton, 483 US 635; Walz v Town of Smithtown, 46 F3d 162; Town of Orangetown v Magee, 88 NY2d 41; Sullivan v Town of Salem, 805 F2d 81.)

      Bleakley, Platt & Schmidt, LLP, White Plains (William P. Harrington and Susan A. Galváo of counsel), for Edward B. Dunn, respondent in the second above-entitled action.
    I. Home Depot’s complaint was properly dismissed. II. Mayor Dunn and the City Council members were entitled to qualified immunity. (Weaver v Brenner, 40 F3d 527; Cartier v Lussier, 955 F2d 841; Doe v Marsh, 105 F3d 106; Salim v Proulx, 93 F3d 86; Connecticut ex rel. Blumenthal v Crotty, 346 F3d 84; Lewis v City of Mount Vernon, Mount Vernon Police Dept., 984 F Supp 748; Anderson v Creighton, 483 US 635; McEvoy v Spencer, 124 F3d 92; Richardson v Selsky, 5 F3d 616; Sound Aircraft Servs., Inc. v Town of E. Hampton, 192 F3d 329.) III. Mayor Dunn and the City Council members are entitled to legislative immunity. (Tango v Tulevech, 61 NY2d 34; Matter of Kaczmarek v Conroy, 218 AD2d 97; Press v County of Monroe, 50 NY2d 695; Matter of Nassau Shores Civic Assn. v Colby, 118 AD2d 782; Bogan v Scott-Harris, 523 US 44; Carlos v Santos, 123 F3d 61; Goldberg v Town of Rocky Hill, 973 F2d 70.)

      Thacher Proffitt & Wood LLP, White Plains (Robert Hermann of counsel), for James K. Burke and others, respondents in the second above-entitled action.
    I. Home Depot’s substantive due process claim is without merit. (Yale Auto Parts, Inc. v Johnson, 758 F2d 54; City of Cuyahoga Falls, Ohio v Buckeye Community Hope Found., 538 US 188; Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494; Reed’s of Armonk Bldg. Supply v Curry, 246 AD2d 587, 91 NY2d 813; Zahra v Town of Southold, 48 F3d 674; Masi Mgt. v Town of Ogden, 180 Misc 2d 881, 273 AD2d 837; DLC Mgt. Corp. v Town of Hyde Park, 163 F3d 124; Vertical Broadcasting, Inc. v Town of Southampton, 84 F Supp 2d 379; RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d 911; Board of Regents of State Colls, v Roth, 408 US 564.) II. The Appellate Division correctly held that there is no factual or legal basis for imposing liability on the individual defendants. (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73; Stipo v Town of N. Castle, 205 AD2d 608; Kravitz v Police Dept. of City of Hudson, 285 AD2d 716; Tango v Tulevech, 61 NY2d 34; Matter ofKaczmarek v Conroy, 218 AD2d 97; Matter of Nassau Shores Civic Assn. v Colby, 118 AD2d 782; Bogan v Scott-Harris, 523 US 44; Goldberg v Town of Rocky Hill, 973 F2d 70; Weaver v Brenner, 40 F3d 527; Mitchell v Forsyth, 472 US 511.) III. Home Depot’s unpleaded equal protection cause of action was properly dismissed. (Weinstock v Handler, 254 AD2d 165; John William Costello Assoc. v Standard Metals Corp., 99 AD2d 227; Lisa’s Party City, Inc. v Town of Henrietta, 185 F3d 12; Zahra v Town of Southold, 48 F3d 674; Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494; Masi Mgt. v Town of Ogden, 180 Misc 2d 881, 273 AD2d 837; Bower Assoc. v Town of Pleasant Val., 304 AD2d 259; W.J.F. Realty Corp. v Town of Southampton, 261 AD2d 609; Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920; Staatsburg Water Co. v Dutchess County, 291 AD2d 552.)

      Finger & Finger, White Plains (Kenneth J. Finger and Dorothy M. Finger of counsel), for The Building and Realty Institute of Westchester & The Mid-Hudson Region (BRI), amicus curiae in the second above-entitled action.
    I. There is a protected property interest that vests or attaches at the point when a person has filed for a SEQRA review with the environmental assessment form. (RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d 911; Sullivan v Town of Salem, 805 F2d 81; City of Cuyahoga Falls, Ohio v Buckeye Community Hope Found., 538 US 188; Town of Orangetown v Magee, 88 NY2d 41.) II. The courts of this state have, historically, recognized that in certain situations property rights vest even where there was no substantial construction undertaken. (Matter of Schoonmaker

      Homes—John Steinberg, Inc. v Village of Maybrook, 178 AD2d 722; Telimar Homes v Miller, 14 AD2d 586, 701; Preble Aggregate v Town of Preble, 263 AD2d 849; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114; Matter of Putnam Armonk v Town of Southeast, 52 AD2d 10; Matter of Berman v Warshavsky, 256 AD2d 334; Matter of Lombardi v Habicht, 293 AD2d 474; Matter of Ronsvalle v Totman, 303 AD2d 897; Matter ofPokoik v Silsdorf, 40 NY2d 769; Yale Auto Parts, Inc. v Johnson, 758 F2d 54.) III. Where a permit has been issued, an approval granted or a right vested, a property owner possesses a cognizable property interest sufficient to satisfy the basic element of a due process claim; predicated on today’s construction and development realities, the right should be vested at an earlier stage than the “permit” being issued, or an approval granted. (RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d 911; Brady v Town of Colchester, 863 F2d 205; Town of Orangetown v Magee, 88 NY2d 41.) IV It is not only a breach of the “equitable” theory of vesting to delay egregiously so as to change the law after the filing of an environmental assessment form, but also of the “legal” theory, since there has been a substantial expenditure and engineering, architectural, financial, legal and other expertise has been brought into play at a large monetary cost. (Matter of Pete Drown, Inc. v Town Bd. of Town of Ellenburg, 229 AD2d 877.)

      J. Wade Beltramo, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the second above-entitled action.
    I. The nature of the permitting process for altering a public roadway did not entitle plaintiff to a permit as of right and, thus, plaintiff does not have a proprietary interest in the permit. (Markey v County of Queens, 154 NY 675; Acme Realty Co. v Schinasi, 215 NY 495; City of New York v Rice, 198 NY 124; People v Kerr, 27 NY 188; Board of Trustees of Vil. of Lansing v Pyramid Cos., 51 AD2d 414; Matter of Hill v Town of Horicon, 176 AD2d 1169; Matter of Danial v Town of Delhi, 185 AD2d 500; Lincoln Safe Deposit Co. v City of New York, 210 NY 34; Cities Serv. Oil Co. v City of New York, 5 NY2d 110; Matter of Syosset Indus. Bldrs. v Town of Oyster Bay Highway Dept., 24 AD2d 763.) II. Defendants are entitled to qualified immunity regarding discretionary determinations. (Young v County of Fulton, 160 F3d 899; Richardson v Selsky, 5 F3d 616; Board of Trustees of Vil. of Lansing v Pyramid Cos., 51 AD2d 414; Matter of Hill v Town of Horicon, 176 AD2d 1169; Matter of Danial v Town of Delhi, 185 AD2d 500; Anderson v Creighton, 483 US 635.)
   OPINION OF THE COURT

Chief Judge Kaye.

In the two appeals before us, appellants claim they were deprived of civil rights protected by the United States Constitution when the municipal defendants wrongfully refused consent to land-use permit applications. Although the projects ultimately proceeded to completion, appellants seek damages under 42 USC § 1983 for the delays occasioned by the wrongdoing. We conclude, as did the Appellate Division, that there was no constitutional violation and the complaints should be dismissed.

I.

Bower Associates v Town of Pleasant Valley

Bower Associates, a housing developer, owns approximately 91 acres in Dutchess County—88 acres in the Town of Poughkeepsie and three adjacent acres in the Town of Pleasant Valley. In August 1999, Poughkeepsie approved Bower’s plan to subdivide the land and construct the Stratford Farms subdivision—134 detached single-family homes and 51 townhouses. The project has two access roads—one wholly within Poughkeepsie, the second partially in Pleasant Valley, through the three-acre Bower Associates subdivision. Poughkeepsie’s final approval of Stratford Farms was conditioned on approval by Pleasant Valley of the access road partially within that Town.

In January 1999, Bower applied to the Pleasant Valley Planning Board for permission to subdivide its three acres there to create three residential homes and access roads for use by both Bower subdivisions. In January 2000, the Pleasant Valley Planning Board denied Bower’s application, citing numerous environmental concerns relating to the Stratford Farms subdivision.

In Bower’s challenge under CPLR article 78, Supreme Court directed approval of the subdivision plan, concluding that the Planning Board’s actions were arbitrary in that its determination was not based on environmental concerns unique to the Bower Associates subdivision. Rather, “the determination was driven largely by community pressure because the Stratford Farms subdivision located in the Town of Poughkeepsie would provide no tax benefit to the Town of Pleasant Valley.” The Appellate Division affirmed, agreeing that Bower “met all the conditions needed for approval of its subdivision application in both this and the related Stratford [Farms] subdivision” (Matter of Bower Assoc. v Planning Bd. of Town of Pleasant Val., 289 AD2d 575, 575 [2d Dept 2001]).

Its article 78 relief in hand, in March 2001 Bower commenced this civil rights action pursuant to 42 USC § 1983 against the Town of Pleasant Valley and its Planning Board for $2 million in damages, alleging a denial of procedural and substantive due process, equal protection and just compensation. Supreme Court denied defendants’ motion to dismiss, but the Appellate Division reversed, finding no cognizable property interest entitling Bower to substantive due process protection, both because the Board had discretion in granting subdivision approval and because defendants violated no rights protected by the United States Constitution (304 AD2d 259 [2d Dept 2003]). Further, the Appellate Division dismissed Bower’s takings and equal protection claims, concluding that Bower alleged no unlawful taking, and failed to show that the subject property was treated differently from other similarly situated properties. We now affirm.

Home Depot v Dunn

In February 1996, Home Depot, U.S.A., Inc., a home improvement retailer, obtained site plan approval from the Village of Port Chester to develop an 8.33 acre site for a retail establishment of approximately 101,467 square feet, with an 18,000 square foot outdoor garden center and 537 parking spaces in Port Chester, at the border between Port Chester and the City of Rye. The facility opened in February 2000, after long wrangling with defendants, the City of Rye, its Mayor and City Council members (collectively Rye).

As an “Interested Agency” in the environmental review process led by Port Chester, Rye demanded that four traffic-mitigating measures be imposed, among them the widening of Midland Avenue in Rye—and Port Chester made that demand a condition for its approval of the project. Because Midland Avenue is a county road within the City of Rye, the plans also required the County’s approval, which in turn required the City’s approval. Thus, without Rye’s go-ahead, Home Depot could not proceed.

Beginning in fall 1996 with a Home Depot letter threatening damages actions unless Rye signed the county permit, tension mounted. After several executive sessions of the Rye City Council, and negotiations with Home Depot, the parties reached tentative settlement in February 1997, with Rye exacting a promise of a $200,000 payment by Home Depot and additional traffic-mitigation measures, and agreeing not to appeal an adverse decision in its second article 78 proceeding against Port Chester. In March 1997, however, after community opposition, the City Council rejected the settlement and refused consent to the permit.

In April 1997, Home Depot commenced two suits—an article 78 proceeding to compel Rye to sign (and the County of Westchester to issue) the permit, and a civil rights action pursuant to 42 USC § 1983 against the Mayor and the City Council members (both personally and officially) seeking $50 million in compensatory damages and unspecified punitive damages, for delaying construction by more than two years. As a July 1997 Home Depot interoffice memorandum reflects, Home Depot saw the “real value” of the section 1983 action “as leverage for settlement.”

On January 30, 1998, in Home Depot’s article 78 proceeding, Supreme Court—while recognizing that the actions Home Depot sought to compel were “of a discretionary nature” held that Rye’s insistence on additional mitigation measures and its refusal to approve the permit were arbitrary and capricious. The court annulled Rye’s denial of the road-widening permit, and the Appellate Division affirmed (259 AD2d 547 [2d Dept 1999]). At about that time, however, Home Depot’s site plan approval from Port Chester expired, which necessitated a third environmental review. Port Chester issued a new site plan approval, which did not require the widening of Midland Avenue or Rye’s consent. Construction began almost immediately and the facility opened in February 2000.

Meanwhile, discovery proceeded in the section 1983 action, after which Home Depot sought summary judgment and Rye cross-moved for dismissal of the complaint. Supreme Court granted Home Depot’s motion for summary judgment with respect to liability on its substantive due process claim, holding that Home Depot had a “clear entitlement to defendants’ approval of the permit” because defendants’ refusal to sign off on the permit lacked a rational basis, and that defendants’ conduct was a gross abuse of governmental authority. The court denied Home Depot’s motion for summary judgment on the equal protection claim, finding a triable issue with respect to the similarities of other permit applications to Home Depot’s; the court further denied both sides summary judgment with respect to the takings claim, and denied defendants’ claim of immunity. The Appellate Division reversed and dismissed the complaint, concluding that Home Depot had failed to raise a triable issue of fact as to a due process violation and that defendants were entitled to qualified immunity, rendering the remaining contentions academic (305 AD2d 459 [2d Dept 2003]). We now affirm as to the lack of a constitutional violation, and thus need not reach the immunity issue.

II.

In the land-use context, 42 USC § 1983 protects against municipal actions that violate a property owner’s rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution (Town of Orangetown v Ma-gee, 88 NY2d 41, 49 [1996]). Both cases before us center on alleged deprivation of substantive due process; in this Court, Home Depot also presses a claimed violation of the guarantee of equal protection.

We underscore at the outset of our analysis the Appellate Division’s observation that “42 USC § 1983 is not simply an additional vehicle for judicial review of land-use determinations” (Bower Assoc. v Town of Pleasant Val., 304 AD2d 259, 263 [2d Dept 2003]). In the same vein, federal courts dismissing section 1983 land-use claims have repeatedly noted that they do not function as zoning boards of appeal, or substitute for state courts interpreting land-use regulations. The point is simply that denial of a permit—even an arbitrary denial redressable by an article 78 or other state law proceeding—is not tantamount to a constitutional violation under 42 USC § 1983; significantly more is required. With that in mind, we turn to consideration of appellants’ claims.

Substantive Due Process

More often litigated in federal courts, the issue of substantive due process in land-use cases has come before this Court once, in Town of Orangetown v Magee (88 NY2d 41 [1996]). There, the Magees had acquired 34 acres of land in the Town of Orangetown at an estimated cost of $3 million in order to construct a 184,000 square foot industrial building. Years later, after plans had been approved, a permit issued and more than $4 million spent on the land and building, the Town revoked the permit and amended its Zoning Code to preclude commercial buildings on the land, halting the project. We agreed with the trial court and Appellate Division that the Town’s action violated 42 USC § 1983, and affirmed the order reinstating the building permit and awarding the Magees damages of $5,137,126, costs and attorneys’ fees.

Drawing on federal precedents, we set out the two-part test for substantive due process violations. First, claimants must establish a cognizable property interest, meaning a vested property interest, or “more than a mere expectation or hope to retain the permit and continue their improvements; they must show that pursuant to State or local law, they had a legitimate claim of entitlement to continue construction” (Magee, 88 NY2d at 52 [internal quotation marks omitted]). Second, claimants must show that the governmental action was wholly without legal justification (id. at 53).

Key to establishing the Magees’ cognizable property interest was that the right to develop their land had vested under state law: they owned the land, a permit and improvements and “unquestionably would have received the limited future authorizations necessary to complete the project. . . . [T]he Town had ‘engendered a clear expectation of continued enjoyment’ of the permit sufficient to constitute a protectable property interest for purposes of a section 1983 claim” (Magee, 88 NY2d at 52-53, quoting Barry v Barchi, 443 US 55, 64 n 11 [1979]). The Magees satisfied the second requirement by establishing that the Town’s actions were “without legal justification and motivated entirely by political concerns” (Magee, 88 NY2d at 53).

Federal courts elaborating on the first element of the test have noted that it should be applied “with considerable rigor” (RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d 911, 918 [2d Cir 1989]). Even if “objective observers would estimate that the probability of [obtaining the relief sought] was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest” (id.). Beyond a vested property right arising from substantial expenditures pursuant to a lawful permit (as in Magee), a legitimate claim of entitlement to a permit can exist only where there is either a “certainty or a very strong likelihood” that an application for approval would have been granted (Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494, 504 [2d Cir 2001]). Where an issuing authority has discretion in approving or denying a permit, a clear entitlement can exist only when that discretion “is so narrowly circumscribed that approval of a proper application is virtually assured” (Villager Pond, Inc. v Town of Darien, 56 F3d 375, 378 [2d Cir 1995]; see also Natale v Town of Ridgefield, 170 F3d 258, 263 [2d Cir 1999]; Walz v Town of Smithtown, 46 F3d 162, 168 [2d Cir 1995]).

As for the second element of the test, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense” (City of Cuyahoga Falls, Ohio v Buckeye Community Hope Found., 538 US 188, 198 [2003] [internal quotation marks omitted]; see also Harlen, 273 F3d at 501 [board action based on community opposition is not unconstitutionally arbitrary “if the opposition is based on legitimate state interests such as, inter alia, traffic, safety, crime, community pride, or noise” (internal quotation marks omitted)]; Natale, 170 F3d at 263 [“(s)ubstantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority”]; Lisa’s Party City, Inc. v Town of Henrietta, 185 F3d 12, 17 [2d Cir 1999] [where town acted in accordance with a legitimate concern, it cannot be said to have acted “in an outrageously arbitrary manner so as to violate (plaintiffs) substantive due process rights”]).

The two-part test strikes an appropriate balance between the role of local governments in regulatory matters affecting the health, welfare and safety of their citizens, and the protection of constitutional rights “at the very outer margins of municipal behavior. It represents an acknowledgment that decisions on matters of local concern should ordinarily be made by those whom local residents select to represent them in municipal government” (Zahra v Town of Southold, 48 F3d 674, 680 [2d Cir 1995]).

Applying this test, we agree with the Appellate Division that neither appellant established a cognizable property interest or arbitrary conduct of a constitutional dimension.

While recognizing the discretion of the Planning Board in the subdivision approval process, Bower argues that because the Board acted outside its discretion there was necessarily a deprivation of a protected property right. This claim relies heavily on the Appellate Division’s conclusion in the article 78 proceeding that Bower had “met all the conditions needed for approval of its subdivision application in both this and the related Stratford [Farms] subdivision” (289 AD2d at 575). In effect, Bower argues that victory in an article 78 proceeding—a finding that conduct was arbitrary, capricious and without rational basis, or an abuse of discretion, or even action beyond or outside a board’s discretion—establishes a constitutionally protected property interest.

The law is otherwise. While the existence of discretion in a municipal actor does not alone defeat the existence of a property interest in a permit applicant, that discretion must be so narrowly circumscribed that approval is virtually assured. That was the case in Magee (88 NY2d at 52 [town engendered clear expectation of future authorizations]), and Walz v Town of Smithtown (46 F3d 162, 168 [2d Cir 1995] [so long as the permit application stated nature, location, extent and purpose of the proposed excavations, there was no discretion to decline the permit]), and Sullivan v Town of Salem (805 F2d 81, 85 [2d Cir 1986] [if homes fully conformed to building requirements, builder was entitled to certificates of occupancy]). That is not the case here.

We reach the same conclusions as to Home Depot, where the actions it sought to compel were discretionary in nature and that discretion had not been so circumscribed as to create a clear entitlement to Rye’s signature on the County’s permit. Moreover, unlike Bower (which owned the subject land), Home Depot at the time of Rye’s refusal to consent to the road-widening permit was a contract vendee and, significantly, had only conditional site plan approval for the property it hoped to buy.

In neither case was the challenged conduct constitutionally arbitrary. While the lower courts concluded that the municipalities’ actions in both cases were arbitrary, capricious and without rational basis in an article 78 sense, what is lacking is the egregious conduct that implicates federal constitutional law (see e.g. Walz, 46 F3d 162 [1995] [homeowner compelled to convey portion of property in order to obtain water and utility service]; Scott v Greenville County, 716 F2d 1409 [4th Cir 1983] [moratorium to limit rental housing for minorities]).

Thus, we agree with the Appellate Division in each case that appellant has failed to state a cause of action for a due process violation.

Equal Protection

Unlike substantive due process, the Equal Protection Clause has generated relatively few federal court decisions in land-use cases, and none in this Court. Because equal protection can no more become another general overseer of local land-use determinations than substantive due process, the standards must be applied with the same “rigor” (see RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d at 918).

The essence of a violation of the constitutional guarantee of equal protection is, of course, that all persons similarly situated must be treated alike. Home Depot’s equal protection challenge does not rest on differential treatment as a constitutionally protected suspect class, or denial of a fundamental right (see e.g. Frooks v Town of Corttandt, 997 F Supp 438, 453 [SD NY 1998], affd 182 F3d 899 [2d Cir 1999] [unpublished op]). Rather, Home Depot’s equal protection claim sounds in selective enforcement (see Village of Willowbrook v Olech, 528 US 562 [2000]).

As such, a violation of equal protection arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person (Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494, 499 [2d Cir 2001]). In that Home Depot does not allege selective treatment based on race, religion or punishment for the exercise of constitutional rights, it must demonstrate that Rye singled out its request for consent to the road-widening permit with malevolent intent.

The “similarly situated” element of the test asks “whether a prudent person, looking objectively at the incidents, would think them roughly equivalent” (Penlyn Dev. Corp. v Incorporated Vil. of Lloyd Harbor, 51 F Supp 2d 255, 264 [ED NY 1999]). But even different treatment of persons similarly situated, without more, does not establish a claim. What matters is impermissible motive: proof of action with intent to injure—that is, proof that the applicant was singled out with an “evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances” (Masi Mgt. v Town of Ogden [appeal No. 3], 273 AD2d 837, 838 [4th Dept 2000], quoting Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693 [1979]). The following cases (where federal courts denied motions to dismiss equal protection claims) are illustrative: Forseth v Village of Sussex (199 F3d 363, 371 [7th Cir 2000] [village official demanded and received significant personal financial gain]); LaTrieste Rest. & Cabaret Inc. v Village of Port Chester (40 F3d 587, 590 [2d Cir 1994] [village’s enforcement tactics to prohibit proposed land use included fines and arrests]); Brady v Town of Colchester (863 F2d 205 [2d Cir 1988] [permit denied because owner leased space to opposing political party]); Gavlak v Town of Somers (267 F Supp 2d 214, 223 [D Conn 2003] [town officials acted to destroy business after owner refused to make a zoning official a partner in the business]).

Home Depot argues that it was treated in a manner uniquely different from any other applicant and that Rye withheld, its signature from the county permit in order to impede construction, despite having executed other contemporaneous applications within hours or days. There is no proof, however, that other entities were similarly situated to Home Depot—in terms of obtaining Rye’s signature on comparable permits—and received more favorable treatment. The other allegedly comparable situations—permits for road work by the New York State Thruway Authority, a curb cut, digging up pavement to install a domestic water service, closing the entrance of a driveway and installing a water service pipe—were not shown to be comparable to widening a county road for a traffic influx and thus do not support an equal protection claim.

While Home Depot makes much of the City Manager’s testimony that this was the first permit the City Council reviewed in executive session, the requisite showing of improper motivation is lacking. Home Depot’s improper motivation claim more closely addresses the merits of the City’s decision than its constitutionality (Harlen, 273 F3d at 502; Masi Mgt. v Town of Ogden, 180 Misc 2d 881, 902 [Sup Ct, Monroe County 1999] [“The concept of equal protection is trivialized when it is used to subject every decision (claimed to be arbitrary and capricious in the sense contemplated by principles of State administrative law) to constitutional review by federal courts”], affd 273 AD2d 837 [4th Dept 2000]). Even the community’s “political” opposition to the high-traffic superstore at the City’s border is not the equivalent of the “evil eye and an unequal hand” for constitutional equal protection purposes.

Accordingly, in each case, the order of the Appellate Division should be affirmed, with costs.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith taking no part.

In each case: Order affirmed, with costs.

      . After Poughkeepsie approved the subdivision, Pleasant Valley brought a CPLR article 78 proceeding to nullify that determination. While finding no standing to lodge the challenge, Supreme Court dismissed the petition, and the Appellate Division affirmed on the merits (see Town of Pleasant Val. v Town of Poughkeepsie Planning Bd., 289 AD2d 583 [2d Dept 2001]).

      . Home Depot actually acquired a right to buy the site in 1992, hut was not obligated to conclude the purchase unless the seller had obtained the necessary land-use approvals; Home Depot nonetheless acquired title in March 1998, while issues remained unresolved.

      . Port Chester declined to adopt the three other traffic mitigation measures Rye had requested. Rye and a local citizens group then brought an article 78 proceeding challenging Port Chester’s approval of the project. Supreme Court dismissed the petition, and the Appellate Division affirmed (see Matter of City of Rye v Korff, 249 AD2d 470 [2d Dept 1998]).

      . Matter of Home Depot USA, Inc. v City of Rye, Sup Ct, Westchester County, Feb. 2, 1998, Cowhey, J., Index No. 3486/97, at n 1 (as amended Feb. 6, 1998), affd 259 AD2d 547 (2d Dept 1999).

      . Home Depot’s motion followed an earlier attempt by Rye—prior to the close of discovery—to dismiss the section 1983 action for failure to state a cause of action and for dismissal because the action was a SLAPP (Strategic Lawsuit Against Public Participation) suit. In denying the motion, Supreme Court noted that “[t]he issue of building a Home Depot in Port Chester has generated extensive litigation between Port Chester and Rye over the past few years, as well as strong community opposition to the project by the citizens of Rye. Rye officials have adamantly opposed said project” (Home Depot U.S.A., Inc. v Dunn, Sup Ct., Westchester County, Feb. 17, 1998, Cowhey, J., Index No. 97/05316).

      . We reject Home Depot’s argument that this Court should adopt the subjective standard spelled out in the dissenting opinion in RRI (870 F2d at 922 [Garth, J., dissenting]) and in certain decisions of the Third Circuit.

      . Equal protection sometimes appears in the federal land-use case law as the subsidiary argument to due process; most often, both have been rejected. In the present case, Home Depot never even asserted an equal protection claim in its complaint. Defendants contend that the claim should be dismissed on this ground alone. However, we treat that cause of action as did the parties, the trial court and the Appellate Division, who addressed and resolved it.