Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LEEANDY DEVELOPMENT CORP. v. TOWN OF WOODBURY.

March 15, 2001

LEEANDY DEVELOPMENT CORP. AND PHILIP WOLIKOW, PLAINTIFFS
V.
TOWN OF WOODBURY, GARY THOMASBERGER, INDIVIDUALLY AND AS BUILDING ADMINISTRATOR OF THE TOWN OF WOODBURY, JOAN CARUSO, INDIVIDUALLY AND AS SUPERVISOR OF THE TOWN OF WOODBURY, DENNIS G. LINDSAY, INDIVIDUALLY AND AS TOWN OF WOODBURY TOWN ENGINEER, JOHN KELEMAN, HARRY DOBSON, JAMES GALVIN, AND FRANK PALERMO, INDIVIDUALLY AND AS COUNCILMEN OF THE TOWN OF WOODBURY, DEFENDANTS



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

MEMORANDUM DECISION AND ORDER

Before this Court are two motions for summary judgment, one on behalf of the Town of Woodbury (the "Town"), Gary Thomasberger, Joan Caruso, John Keleman, Harry Dobson, James Galvin and Frank Palermo, and the other on behalf of Dennis Lindsay, an engineering consultant retained by the Town. See Fed.R.Civ.P. 56. For the following reasons, defendants' motions are granted.

BACKGROUND

On a motion for summary judgment, "[a]s a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The following facts are construed accordingly.

Plaintiff Leeandy Development Corp. ("Leeandy"), a New York corporation engaged in real estate development and residential construction, was formed in March 1985. Co-Plaintiff Philip Wolikow owned 75% of its shares and Samuel Deutsch, now deceased, owned the remaining 25%. The Defendants include the Town and a number of Town officials, including the Town's engineer.

On April 16, 1986, Modern Realty Company conveyed to Leeandy a 27-acre parcel of land, later known as the Woodbury Estates. in August 1986, the Town's Planning Board granted final subdivision approval for the development of a 35-lot subdivision, subject to a number of conditions, including, inter alia, Condition # 2, which required that a drainage channel be installed along the "green" area of the plot, subject to later relocation.

I. Woodburg's Sewage System

During the course of the approval process, Plaintiffs received permission from the New York State Department of Environmental Conservation (the "State DEC") to connect all 35 homes in the proposed subdivision to the Town's sewer system, as well as approval from Orange County (the "County") for the design of the system. On September 22, 1987, the Town's Sewer Department issued a permit authorizing Plaintiffs to connect all 35 proposed homes in the Woodbury Estates to the Town sewer system. After the receipt of these approvals, Plaintiffs expended more than $1 million on land acquisition, approvals, and infrastructure improvements.

The Town's sewer system was, and still is, connected to the Harriman Wastewater Treatment Plant (the "Harriman Plant"), which treats sewage from a number of different municipalities in the area. In 1978. the Town entered into a cooperation agreement with a number of surrounding municipalities (the "Cooperation Agreement") for the administration, design, construction and joint use of the Harriman Plant. Sec General Municipal Law, Article 5-G, § 119-o. in 1988, the Cooperation Agreement was amended to limit the access of participating municipalities to the Harriman Plant. Specifically, the agreement provided that "no new users will be permitted to hook into any local municipal sewer system without a permit issued by the County" Amendment to the Cooperation Agreement dated September 8, 1988, ¶ 3.

By 1996, the County, which monitored the average daily demand on the sewer system made by each municipality, informed the Town and other local municipalities than the Harriman Plant was operating at or near capacity. As a result, in a letter dated September 27, 1996, the County imposed its own moratorium on new sewer connections, under which no new connections would be authorized without County approval. By June 30, 1997, the Town was significantly exceeding its contractually allocated capacity at the Harriman Plant and this County-imposed moratorium continues to date.

II. The 1994 Agreement

On September 7, 1994, Leeandy entered into an agreement with the Town Board regarding the snow plowing, sweeping, dedication and acceptance of two roads in the Woodbury Estates, Jefferson Street and Lincoln Court (the "1994 Agreement"). Paragraph 7 of the 1994 Agreement provided that when four vacant building lots remained, Leeandy would complete the roads for dedication to the Town or post a bond to guarantee completion. Failure to complete the road or to post the bond would result in the suspension of building permits for construction on those lots.*fn1

On July 23, 1997, Leeandy re-confirmed and ratified the 1994 Agreement in a letter to the Town Supervisor (Defendant Joan Caruso), which stated:

We hereby reaffirm that we are legally bound and obligated to complete the improvements in [Woodbury Estates] and to dedicate the roads and other improvements in the subdivision to the Town of Woodbury. We further confirm that we will honor our agreement with the Town dated September 4, 199[4], and in particular paragraph 7 of the agreement which states we will complete the roads and other ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.