Matter of Haberman v. Zoning Bd. of Appeals of the City of Long Beach, 152 A.D.3d 685

Petitioners (Haberman) sought judicial review and declaratory relief after the Zoning Board of Appeals (ZBA) revoked a building permit issued in August 2003.
The ZBA and several individual members moved to dismiss causes of action in the petition/complaint, including a § 1983 claim for damages (sixth cause of action).
In a September 13, 2010 order, Supreme Court dismissed the sixth cause of action, finding (1) insufficient facts to show constitutional deprivation and (2) that the individual ZBA members had qualified immunity from damages.
Plaintiffs appealed the September 2010 order; the Appellate Division reversed the dismissal of the sixth cause of action as to all defendants (denying defendants’ CPLR 3211(a)(7) motion to dismiss that claim).
Later, uncertainty arose whether that reversal had extinguished the individual defendants’ qualified-immunity defense; the individual defendants moved to be “let out of the case” as to the fourth and sixth causes.
Supreme Court treated that motion as a CPLR 3211(a)(7) dismissal and granted it as to the individual defendants; the Appellate Division reversed, holding the reversal of the September 2010 order necessarily rejected the qualified-immunity dismissal and the individual defendants’ dismissal should have been denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs’ appeal from the Sept. 2010 order encompassed the dismissal of the § 1983 (sixth) claim as to the individual defendants	Haberman argued the notice of appeal specifically included dismissal of Count Six and thus the Appellate Division’s reversal covered the individual defendants too	Individual defendants contended plaintiffs did not properly appeal dismissal as to them and thus qualified immunity dismissal survived	Court held the notice of appeal did encompass dismissal of Count Six; reversal applied to all defendants, so individual defendants’ qualified-immunity dismissal was rejected
Whether qualified immunity justified dismissal of the § 1983 claim against individual ZBA members after the appellate reversal	Haberman argued the appellate reversal of the CPLR 3211(a)(7) dismissal foreclosed the qualified-immunity defense at the motion-to-dismiss stage	Individual defendants argued qualified immunity independently supported dismissal of the § 1983 claim as to them	Court held qualified immunity could not be used to re-dismiss the § 1983 claim after the appellate reversal; the motion to dismiss on that ground should have been denied

Weinstock v. Sanders, 144 A.D.3d 1019 (2d Dep’t 2016) (discusses CPLR 3211(a)(7) standard for dismissal)
24 Franklin Ave. R.E. Corp. v. Cannella, 139 A.D.3d 717 (2d Dep’t 2016) (addresses use of CPLR 3211(a)(7) dismissal when factual sufficiency is challenged)