Nuisance/Town Code/Official Nonfeasance/Taxpayer Suit: Three taxpayers brought an action to enjoin commercial activity in a residential zone. The case included common law nuisance and a cause under Town Law §286(2) which permits a taxpayer to institute an action where the town has failed to take “appropriate action or proceeding” to correct a zoning violation. Defendant moved for summary judgment arguing that the town had brought a criminal proceeding against it thereby negating a required element under §286(2) - that the town has failed to take “appropriate action or proceeding” to correct the violation. The Supreme Court, Suffolk County granted and the Second Dept. reversed. The Court stated that the Town’s prosecution of defendant is not an “appropriate action or proceeding” as contemplated by the statute in that the prosecution “will not prevent, restrain, abate, or correct them, as the statute requires”. Phair v Sand Land Corp., 2008 NY Slip Op 08470, Appellate Division, Second Department, November 5, 2008 opinion Focus Briefs are prepared by Johnny D. Hall, Esq., Long Island Counsel, Chicago Title Insurance Company. Questions or comments may be directed by email to email@example.com or by phone to 516- 535-5223 or 631-284-2419.
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