Opinion
Index No. 63382/2018 Motion Sequences No. 1 2&3
05-29-2019
In the Matter of the Application of BETH-ANN PERMUY, JASON R. PERMUY, MARY F. MURPHY, JAMES MURPHY, NEGJIB BAKRAQ, FATLUME BAKRAQ, RUBY SCHUBERG, MARY CRAIG, DAVID CRAIG, STEPHANIE SMITH, PATRICK SMITH, MONICA TOMASINI, KRANK A. TOMASINI, JR., JOHN CARBO, and ROOPAL CARBO, Plaintiffs/Petitioners, v. GEORGE HIRSCH, FRANCINE HIRSCH, GEORGE HIRSCH and FRANCINE HIRSC1I d/b/a YORKTOWN GARDEN SUPPLY, G.A.H. BUILDING CORP., JASON ZEIF, as Code Enforcement Officer of the Town of Yorktown, and JOHN H. LANDI, as Building Inspector of the Town of Yorktown, Defendants/Respondents. For an Order pursuant to New York Civ. Prac. L. & R. §7803(1) directing respondents Jason Zeif, as Code Enforcement Officer of The Town of Yorktown, and John H. Landi, as Building Inspector of the Town of Yorktown, to enforce and prescribe remedial measures to cure the violations issued to defendants George Hirsch and Francine Hirsch in 2016, 2017, and 2018.
Unpublished Opinion
DECISION AND ORDER
HON. HELEN M. BLACKWOOD ACTING JUSTICE OF THE SUPREME COURT
The following papers (e-filcd documents 3-11, 18, 21, 38-50, 56, 57, 59, 60 & 62-92) were considered on the E-filcd motion by BETH-ANN PERMUY, JASON R. PERMUY, MARY F. MURPHY, JAMES MURPHY, NEGJIB BAKRAQ, FATLUME BAKRAQ, RUBY SCHUBERG, MARY CRAIG, DAVID CRAIG, STEPHANIE SMITH, PATRICK SMITH, MONICA TOMASINI, FRANK A. TOMASINI, JR., JOHN CARBO, and ROOPAL CARBO, in connection with their application for a temporary restraining order and injunctive relief during the pendency of the action enjoining GEORGE HIRSCH, FRANCINE HIRSCH, GEORGE HIRSCH and FRANCINE HIRSCH d/b/a YORKTOWN GARDEN SUPPLY, and G.A.H. BUILDING CORP. from conducting noxious and offensive activities on Iheir real property in violation of the Town of Yorktown Code (motion sequence # 1); and on the E-filed motion by GEORGE HIRSCH, FRANCINE HIRSCH, GEORGE HIRSCH and FRANCINE HIRSCH d/b/a YORKTOWN GARDEN SUPPLY, and G.A.H. BUILDING CORP. for an order granting them summary judgment on the claims filed against them, as well as on their counter-claims, and for sanctions and attorney's fees (motion sequence #2); and on the E-filed motion by JASON ZE1F, as Code Enforcement Officer of the 'I own of Yorklown, and JOHN H. LANDI, as Building Inspector of the Town of Yorktown, for an order granting them summary judgment of the claims filed against them (motion sequence #3):
Papers
Order to Show Cause, Affirmation in Support (Exhibits A-C), Affidavit in Support (Exhibits A- D), Memorandum of Law (Motion Sequence 1)
Notice of Cross-Motion, Affirmation in Support (Exhibits A-K) (Motion Sequence 2)
Notice of Cross-Motion, Affirmation in Support (Exhibits A & B) (Motion Sequence 3)
Affirmation in Opposition to Cross-Motion (Exhibits A-I), Schuberg Affidavit, Tomasini Affidavit (Exhibit A), Craig Affidavit (Exhibits A-E), Permuy Affidavit (Exhibit A), Memorandum of Law (Motion Sequenee 2)
Affirmation in Reply (Exhibits L-Q) (Motion Sequence 2)
Amended Memorandum of Law in Opposition (Motion Sequence 2)
GEORGE and FRANCINE HIRSCH ("ihe Hirsches") own the property located at 3311 Gomer Street, Yorktown Heights, New York, identified on the tax map of the Town of Yorklown as 17.13-2-61. 3311 Gomer Street shares an entrance with 3293 Gomcr Street, identified on the tax map of the Town of Yorktown as 17.13-2-60, which is also owned by the Hirsches. The Hirsches purchased 3311 Gomcr Street and 3293 Gomer Street (collectively "the premises") in 1986 from a Mr. Fedele, who purchased the property from the original owners, the Solomon Family. Additionally, the Hirsches own the corporation known as G.A.H. BUILDING CORP. ("GAH"), which owns and operates the business known as YORKTOWN GARDEN SUPPLY ("Garden Supply") at the premises. There is a residential home on the property that the Hirsches lease to a third party. In addition to the Garden Supply business operating at the premises, the Hirsches' daughter's business called Landcor, a landscaping business, keeps multiple trucks and a trailer upon the premises. The Hirsches also own a business called Michael's Paving, though they claim to store all of its trucks, equipment and materials in another location. Finally, the Hirsches rent parking spots on the premises to other businesses which store trucks, trailers, and equipment there.
Although the premises are located in a Rl-20 "one-family residential" zoning district, the Garden Supply business exists as a so-called legal non-conforming use. To that end, there is a Zoning Board of Appeals decision from June 3, I960, granting a variance permitting the "northerly side yard of 115 feet" to be used for the retail sale of gardening supplies. The same decision authorized a special use permit to allow a building existing on the premises to be used for the retail sale of plants and trees. The decision limited the items to be sold to be "garden plants, and accessory garden supplies, such as peat, hay, lime, sprays, insecticides and fertilizers" (Pcrmuy Affidavit, Exhibit D). It specifically excluded any "garden tools, equipment or general hardware products" (id). Additionally, the decision limited the amount of accessory supplies that could be displayed outside and the number of signs that could be displayed.
On Jule 27, 1983, the Yorktown Zoning Board of Appeals granted another variance for the property to allow for the "construction of a roofed enclosure on south side of garage leaving a side yard of 0 ft where 10 ft is required" (Permuy Affidavit, Exhibit E). This decision also legalized a newly erected sign on the property.
On August 27, 2018, BETH-ANN PERMUY, JASON R. PERMUY, MARY F. MURPHY, JAMES MURPHY, NEGJIB BAKRAQ, FATLUME BAKRAQ, RUBY SC1IUBERG, MARY CRAIG, DAVID CRAIG, STEPHANIE SMITH, PATRICK SMITH, MONICA TOMASINI, FRANK A. TOMASINI, JR., JOHN CARBO, and ROOPAL CARBO ("plaintiffs") filed a summons and complaint containing a hybrid proceeding against the Hirsches, Garden Supply, and GAH (collectively, "the Hirsch defendants"), alleging causes of action for nuisance, negligence, and seeking an injunction and declaratory relief The gravamen of the complaint is that the Hirsch defendants have "qualitatively and quantitatively expanded the commercial uses on the premises to such a degree that the present uses are fundamentally different in character than any special use permit granted to Hirsch or their predecessors" (Verified Complaint, ¶43). Moreover, the plaintiffs, all home-owners with land abutting or very near the premises, claim to experience dust, airborne debris, excessive noise, vibration, runoff, and flooding due to die enhanced business of the Hirsch defendants
The action also contains causes of action for an equal protection violation and mandamus to compel against JASON ZEIF ("Zeif"), the Code Enforcement Officer of the Town of Yorkton, and JOHN H. LANDI ("Landi"), the Building Inspector of the Town of Yorktown (collectively, the "Yorktown defendants"), alleging that both men have failed to enforce the Zoning Ordinances of the Town of Yorktown against the Hirsch defendant. Along with the filing of the summons and complaint, the plaintiffs filed the within Order to Show Cause, seeking a restraining order to enjoin the Hirsch defendants from conducting their business during the pendency of this matter, On December 21, 2018, the Hirsch defendants filed an answer to the lawsuit, which denied the plaintiffs' allegations and contained thirty-four affirmative defenses and a counterclaim against Permuy and Murphy for libel and defamation, counter-claims against all of the plaintiffs for sanctions and legal fees, and a counter-claim against Mary Craig and David Craig for the removal of numerous trees on the premises without permission or consent. A reply to the counter-claims was filed on February 21, 2019.
On February 11, 2019, the Hirsch defendants filed cross-motions to dismiss the complaint and for summary judgment on the claims against them and on their counter-claims. On February 21, 2019, Zeif and Landi filed a cross-motion for summary judgment, as well.
Order to Show Cause
The plaintiffs move for a preliminary injunction, pursuant to section 6301 of the Civil Practice Law and Rules ("CPLR"), to restrain the Hirsch defendants from conducting their businesses on the premises during the pendency of this hybrid proceeding. In support of their application, the plaintiffs argue that they have established a likelihood of success on the merits of the lawsuit, that the plaintiffs will suffer irreparable harm absent the injunctive relief that they seek, and that balancing the equities favors the plaintiffs. Therefore, plaintiffs contend, their application for injunctive relief should be granted.
The I lirsch defendants, on the other hand, argue that the motion for injunctive relief should be denied since each of the plaintiffs' claims is without merit, and there is no evidence of the irreparable injury that the plaintiffs will suffer if the relief is not granted.
CPLR 6301 allows a court to grant a preliminary injunction "in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff (CPLR 6301). Furthermore, "it is well settled that in order to prevail on a motion for a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of the equities favors the movant's position" (Golden v. Steam Heath. Inc., 216 A.D.2d 440, 442 [2d Dept. 1995]; see also Aetna Ins. Co. v. Canasso. 75 N.Y.2d 860 [1990]). "Moreover, the irreparable harm must be shown by the moving party to be imminent, not remote or speculative" (Golden v. Steam Heat Inc..216 A.D.2d at 442).
In the case at bar, the court agrees with the llirsch defendants that the irreparable harm alleged by the plaintiffs is not supported by the necessary evidence. Moreover, the court finds that balancing the equities does not favor the plaintiffs, considering the financial hardship that the Hirsch defendants will face if they are forced to stop all business operations during their peak seasons of operations. Finally, given the fact that the Hirsch defendants claim that their business operates as a legal non-conforming use, a claim supported by the Zoning Board of Appeals' decisions, the plaintiffs have failed to show a likelihood of ultimate success on the merits of their claims. Therefore, the motion for a preliminary injunction is denied.
Defendants' Motions to Dismiss
First, the court turns to the Yorktown defendant's motion to dismiss the sixth cause of action against them, which is mandamus to compel. In this cause of action, the plaintiffs seek a mandamus to compel the Yorktown defendants to enforce the Yorktown Zoning Ordinance Code, particularly with respect to violations filed against the Hirsch defendants on three separate occasions. Specifically, on June 6, 2016, the Hirschcs were issued a violation for noise being generated by construction equipment. On October 20, 2017, and February 14, 2018, they were issued additional violations for expanding property operating as a non-conforming use without proper site approval. The plaintiffs allege that Zief and Landi never enforced these violations and failed to penalize the Hirsch defendants for the violations, nor did they mandate compliance by the Hirsch defendants with the Yorkton Code. Therefore, the plaintiffs claim, they are entitled to a mandamus to compel pursuant to CPLR 7801.
The Yorktown defendants argue that this cause of action should be dismissed as being moot, since the Hirsches have been served with an Appearance Ticket charging them with '"enlarging, increasing and extending their non-conforming use, business to occupy a greater amount of land'" and that the matter "is presently an active matter in the Town of Yorktown Justice Court which is being prosecuted by the Town Prosecutor" (Abbate Affirmation in Support, ¶¶ 4 & 5). Hence, there is no need for the court to issue a mandamus to compel, since the Yorktown defendants are already proceeding with the appropriate enforcement measures.
The court agrees with the Yorktown Defendant's argument. Furthermore, the court acknowledges that "mandamus is an extraordinary remedy which will lie only to enforce a clear legal right" and "will not lie to compel the performance of a discretionary duty by an administrative duty" fYouno v. Town of Huntington, 121 A.D.2d 641, 642 [2d Dept. 1986]). Since the enforcement of a town zoning code is such a discretionary act, the petition seeking mandamus to compel must be dismissed.
Similarly moot is the seventh cause of action for declaratory judgment in a citizen's suit pursuant to section 268(2) of the Town Law. This section states that "any three taxpayers of the town residing in the district wherein such violation exists, who are jointly or severally aggrieved hy such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do" when the "proper local authorities of the town" fail to "institute any appropriate action or proceedings" to correct "unlawful erection, construction, reconstruction, alteration, conversation, maintenance, use or division of land" (Town Law §268(2]), Since the appropriate local authorities have acted in the case at bar, the law is inapplicable and the seventh cause of action is dismissed.
Turning next to the Hirsch defendants' cross-motion, they move to dismiss all of the causes of action filed against them pursuant to CPLR 3211(a)(7), as well as for summary judgment pursuant lo CPLR 321 2.
In order to establish a cause of action for private nuisance, as alleged in the first cause of action, the plaintiffs must allege "an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a persons' property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" CAristides v. Foster, 73 A.D.3d 1105, 1106 [2d Dept. 2010J). Likewise, in a cause of action for public nuisance or nuisance per se, "the plaintiffs need only establish a violation of law, and need not show that the nuisance was intentional or negligent" but must also show "proof of a situation created by the defendants which endangers or injures the property, health, safety, or comfort of a considerable number of persons" (State v. Fermenta ASC Corp., 238 A.D.2d 400, 403 [2d Dept. 1997]). Affording the pleading a liberal construction, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, as the court must do in a motion to dismiss pursuant to CPLR 3211, the court finds that the facts as alleged in the first and second causes of action fit within the alleged cognizable legal theories (see Leon v, Martinez, 84 N.Y.2d 83, 87 [1994]). For those reasons, the motion to dismiss the first two causes of action is denied.
Applying the same standard to the cause of action for a permanent injunction, the court finds the motion to dismiss to be without merit. "To sufficiently plead a cause of action for a permanent injunction, a plaintiff must allege that there was a 'violation of a right presently occurring, or threatened and imminent,' that he or she has no adequate remedy at law, that serious and irreparable harm will result absent the injunction, and that the equities are balanced in his or her favor" (Caruso v. Blumgarner, 120 A.D.3d 1174, 1175 [2d Dept. 2014] citing Elow v. Svenningsen. 58 A.D.3d 674, 675 [2d Dept. 2009]). The court finds that the plaintiffs have done so in the third cause of action.
In the fourth cause of action, the plaintiffs seek a judgment declaring that the Hirsch defendants' use of the premises is an enlargement of a nonconforming use and therefore, unlawful in a residential zoning district. In determining whether or not the plaintiffs have stated a cause of action for declaratory judgment, the court must find that the cause of action "is sufficient to invoke the court's power to 'render a declaratory judgment... as to the rights and other legal relations of the parties to a justiciable controversy'" (Tilcon New York, Inc. v. Town of Poughkeepsie. 87 A.D.3d 1148, 1150 [2d Dept. 2011]; quotations omitted). The court finds that the cause of action for declaratory judgment in the complaint is sufficient. However, since the record before this court "is insufficient to resolve all factual issues such that the rights of the parties cannot be determined as a matter of law," the court cannot make a declaration in favor of cither party, nor can it grant summary judgment in favor of the defendant (Tilcon New York, Inc. v. Town of Poughkeepsie, 87 A.D.3d at 1150).
As to the fifth cause of action for negligence against the Hirsch defendants, the court finds that when applying the standard set forth above, the plaintiffs have sufficiently stated a cause of action.
As to each of the surviving causes of action, it is well established throughout the affidavits submitted by all parties that there are triable issues of fact sufficient to preclude the remedy of summary judgment in favor of the Hirsch defendants. Therefore, the cross-motion for summary judgment is denied.
These same triable issues of fact, particularly with respect to the truth of the allegations made by the plaintiffs, render the Hirsch defendants' motion for summary judgment on their counter-claims and for attorney's fees and sanctions mertiless. Therefore, such motion is denied.
Accordingly, it is hereby
ORDERED that the plaintiffs' motion for a preliminary injunction to restrain the Hirsch defendants from conducting their businesses on the premises during the pendency of this hybrid proceeding is denied; and it is further
ORDERED that the motion by the Yorktown defendants to dismiss the sixth cause of action in the complaint for mandamus to compel is granted; and it is further
ORDERED that the motion by the Hirsch defendants to dismiss the seventh cause of action for a judgment declaring a citizen's suit is granted; and it is further
ORDERED that the motion by the Hirsch defendants to dismiss the remaining causes of action for the plaintiffs' failure to state each cause of action is denied; and it is further
ORDERED that the motion by the Hirsch defendants seeking summary judgment dismissing all of the causes of action against them and granting summary judgment on their counter-claims is denied; and it is further
ORDERED that ail remaining parties are to appear in the Compliance Part, Courtroom 800 of the Westchester County Courthouse at 111 Dr. Martin Luther King., Jr. Boulevard, White Plains, New York 10601 at 9:30 am on Monday, June 3, 2019.
This constitutes the opinion, decision, and order of this Court.