Howard Norton v. Town of Islip

In this Article 78 case, the plaintiff Howard Norton purchased a house in 1986 that had been converted into a two-family dwelling which the Town of Islip certified as a “legal nonconforming two-family dwelling”. When the plaintiff decided to rent out the house two years later, he was denied a rental permit because the Town claimed the house had lost its “legal nonconforming” status after being left vacant for a year. Plaintiff then commenced an Article 78 proceeding in Supreme Court to challenge the permit denial. The Supreme Court denied the petition but refused to determine whether the house was a legal nonconforming two-family dwelling or not.

After the conclusion of the Article 78 hearing, the Commissioner of the Town’s Department of Building and Engineering made notations of the house’s certificate of occupancy describing the denial of the rental permit and concluding that the house’s “non-conforming use” had been “lost due to non-use in excess of one consecutive year”. Plaintiff was not informed of these notations nor was he given an opportunity to challenge them.

In 1997, the Town commenced a criminal action against the plaintiff for using the house as a two-family dwelling. The Town charged him with violating the Town Code based on the notations made by the Commissioner on the certificate of occupancy. The plaintiff then brought about an action against the District Court claiming his Due Process rights had been violated. Plaintiff claimed that the Town’s attorneys committed malicious prosecution and abuse of process in connection with the criminal proceeding against him. The individual defendants then moved for summary judgment in District Court alleging they were entitled to absolute or qualified immunity. The Court granted the individual defendants the qualified immunity with respect to plaintiff’s federal-law claims since they believed that the house’s nonconforming use had been lost based on the notations on the certificate of occupancy and had probable cause to prosecute the plaintiff for a Town Code violation. Since the District Court did not discuss whether the individual defendants were entitled to immunity with respect to the plaintiff’s state-law claims, the Court must remand this issue to the District Court to address the confusion.

Accordingly, the Court reversed the District Court’s order and remanded the cause for further proceedings with this order.

Read more about this Article 78 housing case here.

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