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FROOKS v. TOWN OF CORTLANDT

March 11, 1998

GEORGE FROOKS, JOAN MASKELL, MOHEGAN PLAZA, INC. and GEORGE FROOKS d/b/a FROOKS REALTY, Plaintiffs, against TOWN OF CORTLANDT, LINDA D. PUGLISI, individually and in her capacity as Town Supervisor, VINCENT F. NYBERG, P.E., R.A., individually and in his capacity as Director of Code Enforcement and Deputy Town Engineer, BARBARA K. MILLER, individually and in her capacity as Deputy Director of Code Enforcement, HARRIET L. BOYLE, individually and in her capacity as Town Clerk, ANTHONY TURCO, individually and in his capacity as a member of the Department of Code Enforcement and Building Inspector, JOHN HAMILTON, individually and in his capacity as a member of the Department of Code Enforcement and Town Fire Inspector, JACK GAFFNEY, individually and in his capacity as Town Supervisor, ROBERT CONLON individually and in his capacity as Fire Inspector, and JOHN T. FELT, individually and in his capacity as Director, Department of Planning and Community Improvement, Defendants.

William C. Conner, Senior United States District Judge.


The opinion of the court was delivered by: CONNER

Conner, Senior D.J.

 Plaintiffs George Frooks, d/b/a Frooks Realty ("Frooks"), Joan Maskell, and Mohegan Plaza, Inc. brought this action against defendants the Town of Cortlandt, New York (the "Town"); and Linda Puglisi, Town Supervisor; Vincent Nyberg, Director of Code Enforcement and Deputy Town Engineer, now deceased; Barbara Miller, Deputy Director of Code Enforcement; Harriet Boyle, Town Clerk; Anthony Turco, Town Building Inspector; John Hamilton, Town Fire Marshall and Assistant Building Inspector; Jack Gaffney, Town Supervisor; Robert Conlon, Fire Inspector and Assistant Building Inspector; and John Felt, Town Planner (collectively, the "Town employees"), alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986, 18 U.S.C. § 1961 et seq., the First, Fourth, Sixth and Fourteenth Amendments of the United States Constitution, unspecified provisions of the New York State Constitution, and New York common law. Defendants now move for summary judgment, and plaintiffs cross-move for partial summary judgment. For the reasons discussed below, defendants' motion is granted and plaintiffs' motion is denied.

 BACKGROUND

 A. Zoning Change

 In February, 1989, Frooks applied to the Town to re-zone four acres of the property from residential to commercial in order to build a shopping mall. Accordingly, pursuant to the State Environmental Quality Review Act ("SEQRA"), N.Y. Envtl. Conserv. Law § 8-0103 et seq. (McKinney's 1984) ("ECL"), *fn2" the Town directed Frooks to submit a Draft Environmental Impact Statement ("DEIS") and deposit $ 5,500 into an escrow account to cover the review of the DEIS. Plaintiffs claim that prior to his submission of the DEIS, Town employees told Frooks that his application was compatible with the Town's Master Plan. Defendants maintain that John Felt, Town Planner, and Ken Verschoor, Deputy Town Planner, told Frooks that it was difficult to obtain a zoning change, and that applications for re-zoning were seldom granted.

 In September, 1990, the Town's expert issued comments on the DEIS and by resolution, the Town directed Frooks to address them. In February, 1991, Frooks submitted a revised DEIS and deposited an additional $ 4,842 into the escrow account. By letter, the Town's expert advised Frooks that the revised DEIS did not address all of the expert's concerns. Accordingly, the Town rejected the revised DEIS. Frooks maintains that the Town Board never reviewed the revised DEIS, because Felt did not submit it.

 In June, 1991, Frooks met with Felt. While the parties' recollection of that meeting differs, they agree that Felt informed Frooks that he would need to submit additional site plans and escrow deposits in order for the Town to pursue his application.

 In July, 1991, Frooks sent a letter to Felt stating the following:

 
I believe I have, in good faith, tried to go along with you and your consultants. Your latest suggestions that I should finance yet another meeting because of problems caused by your consultants' non-compliance with the SEQRA . . . is out of the question.
 
Accordingly, I see no reason to proceed. Please refund the balance of my account.

 Defs.' Ex. A (emphasis added). The parties disagree whether Frooks, by this letter, meant to withdraw his application for re-zoning or merely to cancel a previously scheduled meeting between Frooks and Felt.

 On or about July 23, 1993, approximately two years after plaintiff's Planning Board File had been deemed closed, the Town issued a new Master Plan proposing the changes Frooks had requested in his application. The Master Plan was the subject of public hearings, which Frooks did not attend. The plan that the Town ultimately adopted did not include Frooks' proposals, because according to the Town, there was public outcry over the prospect of increased traffic along Route 6.

 B. Cabaret License and Certificates of Occupancy

 One of the buildings on plaintiffs' property has housed a "bar/disco" since the 1930s. That building received a certificate of occupancy in 1981, under the New York State Construction Code, formerly N.Y. Exec. Law §§ 370-387 (the "Construction Code"). In 1984, the Construction Code was superseded by the New York State Uniform Fire Prevention and Building Code, N.Y. Exec. Law § 373 et seq. (McKinney's 1993) (the "Uniform Code" or the "Code"). The Uniform Code requires certain minimum training and enforcement standards for the fire protection, construction and maintenance of buildings. See id., § 371(b). The Code also requires a municipality to petition the State if the municipality wishes to enact more restrictive standards than those prescribed by the Code. See id., § 379(2).

 On June 18, 1985, the Town Board adopted an ordinance providing for the licensing of "cabarets," defined as "any room, place or space in the town where for gain or profit, live or mechanically reproduced music is provided in connection with dancing or where, for gain or profit, any musician, group of musicians, floor show or similar live entertainment is provided." Local Law No. 4, Cortlandt Code § 23-2 (the "Cabaret Law"). The Cabaret Law required, among other things, that all such establishments have sprinklers and smoke detectors in "each storage room, attic, basement, cellar [or] other concealed location[]." See id., § 23-12 K. Moreover, the law required any licensed cabaret to apply for a supplemental license whenever there was a change in ownership or management. See id., §§ 23-7B; 23-4A (3), (4), (5), (20). Plaintiffs allege that these requirements were significantly more restrictive than the provisions of the Uniform Code, and that the Town enacted the Cabaret Law without first petitioning the State for permission, in violation of the Code. Plaintiffs further allege that they were "forced to make . . . concessions to keep the premises rented," due to the law's requirements.

 In 1987, plaintiffs' tenant, Michael Tommorello, d/b/a Omega Entertainment or Foxes, applied for a cabaret license. The Town granted the application under the condition that a sprinkler system would be installed on the premises. Accordingly, Frooks submitted a $ 10,000 security deposit to the Town, in the form of a passbook, to cover potential damage to the water main beneath Route 6.

 In early 1990, plaintiffs leased the premises to new tenants, JoAnn DiConstanzo and Anthony Brucculeri, d/b/a Cousin's Entertainment or Alibi's ("Cousin's or Alibi's"). The lease provided that Cousin's would install a sprinkler system on the premises.

 On April 4, 1990, defendant John Hamilton, Town Fire Marshall and Assistant Building Inspector, observed what he believed to be construction debris, including a header from a door or window, behind Alibi's. Hamilton entered the bar and determined that structural alterations were being made. Hamilton then issued a stop work order prohibiting Cousin's from completing any work until it had obtained a building permit. Plaintiffs claim that Cousin's was merely redecorating Alibi's and that no building permit was required.

 On May 18, 1990, Hamilton again entered the building, observed an open section of the floor, and issued a second stop work order. Hamilton also issued a criminal appearance ticket to plaintiff Frooks, on the ground that the original stop work order had not been released and that Frooks had violated it, by opening the floor.

 On June 6, 1990, plaintiff Frooks applied for a building permit in order to make "interior structural and cosmetic repairs." The criminal charges were voluntarily withdrawn on July 10, 1990, upon Frooks' arraignment, because Frooks had applied for the permit.

 In September and October, 1990, defendants continued to inspect the premises. They claim that on various occasions, the Town cited plaintiff for additional items in need of repair under the Uniform Code.

 In October, 1990, Alibi's opened for business without a cabaret license. Defendants maintain that Frooks and Cousin's allowed bands and disc jockeys to perform, without a license, in violation of the Cabaret Law. Cousin's then applied for a cabaret license, which was denied, because it had not yet installed a sprinkler system. Plaintiffs contend that Alibi's opened as a bar in October 1990, and did not open as a cabaret until 1991. Moreover, plaintiffs claim that when Alibi's opened as a bar, an application for a cabaret license was pending.

 On November 5, 1990, Cousin's was issued two appearance tickets charging it with occupying an unsafe structure and occupying a building without a certificate of occupancy. Plaintiffs claim that the building was issued a valid certificate of occupancy in 1981, and that the type of repairs that were being made did not require a permit or an additional certificate of occupancy. Plaintiffs further allege that the tickets were issued on account of a "personal vendetta" between Nyberg and Frooks, that when issuing the tickets, Nyberg "made malicious comments" about Frooks, and that the tickets were based on "materially false reports." The charges against Cousin's were withdrawn without prejudice in June, 1991, on the grounds that it was repairing the allegedly defective items.

 Additional appearance tickets were issued on December 14, 1990 and January 19, 1991 to Alibi's manager, Michael DiConstanzo, for allowing bands to perform and dancing, without a license, in violation of the Cabaret Law. These charges were also withdrawn without prejudice in June, 1991. Alibi's continued to operate without a cabaret license.

 By letter dated March 6, 1991, plaintiff Frooks informed the Town that he would not be installing a sprinkler system and requested the return of his $ 10,000 deposit. Plaintiffs claim that Frooks wrote the letter, because he had determined that the Cabaret Law was invalid under the Uniform Code. Plaintiffs further allege that Frooks had to write to the Town multiple times, before the Town returned his deposit, and that by failing timely to return the deposit, the Town caused him "to deplete his life savings and increase his debt dramatically."

 On or about March 10, 1991, the Town denied Frooks' application for a certificate of occupancy. Frooks appealed the Town's denial to the Department of State, Uniform Code Board of Review (the "Review Board") on March 12, 1991. At the hearing, Charles DeFeo, Frooks' engineer, testified that the Town had reportedly found exposed wiring in the building during the last inspection. However, Frooks testified that the necessary electrical work had been completed, and produced a certificate of compliance from the New York Board of Fire Underwriters (the "Fire Underwriters") issued on March 11. Defendants had not been provided with a copy of the certificate prior to the hearing. The Review Board ordered the Town to issue the certificate of occupancy based on the issuance of the certificate of compliance the day before. The Board also ordered the Town to conduct periodic inspections of the building and cite Frooks and his tenants with any further violations of the Code.

 On September 23, 1991, Cousin's again applied for a cabaret license, which was denied on or about November 7, 1991, because hazardous conditions had been found on the premises. Plaintiff Frooks states that he assisted Cousin's in applying for the license, but did not sign the application. Cousin's appealed the denial, and on or about November 25, 1991, that appeal was denied.

 In June 1992, plaintiffs Frooks and Maskell brought an Article 78 proceeding in the Supreme Court for the State of New York, Westchester County, demanding a declaration that the Cabaret Law was invalid. On January 12, 1993, the court struck down sections of the Cabaret Law as invalid under the Uniform Code.

 C. The Instant Action

 Plaintiffs filed the instant action on October 25, 1993, alleging that defendants had denied or withheld the re-zoning approval, cabaret licenses and certificate of occupancy in violation of the First, Fourth, Sixth and Fourteenth Amendments of the Constitution, 42 U.S.C. §§ 1983, 1985 and 1986, 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"), unspecified provisions of the New York State Constitution, and New York common law. *fn3" Defendants now move for summary judgment and plaintiffs cross-move for partial summary judgment pursuant to Fed. R. Civ. P. 56.

 DISCUSSION

 I. Summary Judgment ...


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