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ER & JR Pub, Inc. v. Town of Babylon

September 17, 2010

ER & JR PUB, INC. D/B/A LONG ISLAND CAFE, PLAINTIFF,
v.
THE TOWN OF BABYLON, NEW YORK BY AND THROUGH THE TOWN BOARD OF THE TOWN OF BABYLON, NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

In January 2005, the parties entered into a settlement agreement ("Settlement Agreement"). On October 18, 2005, the Court So Ordered the stipulation and closed the case.*fn1 Nearly four years after reaching settlement, Plaintiff filed its motion to alter the Judgment. Thereafter, Defendant filed its motion seeking enforcement of the judgment and sanctions against Plaintiff. For the reasons cited herein, the Court DENIES Plaintiff's motion. Furthermore, the Court GRANTS Defendant's motion to enforce the Judgment and DENIES, without prejudice and with leave to renew, Defendant's motion for sanctions.

BACKGROUND*fn2

The Court presumes familiarity with the facts of this case. For purposes of this Memorandum and Order, the Court focuses solely on the terms of the Settlement Agreement. The Settlement Agreement provides in relevant part:

1. Except as hereinafter provided, ER & JR shall each cease to use or occupy the premise located and known as 770 Sunrise Highway, Babylon, New York, ("the Premise") for purposes of conducting any Adult Use on or before November 15, 2009 [the "Termination Date"]. For purposes of this Settlement Agreement, the term "Adult Use" shall be defined as any of the uses set forth in Section 213-377 of Article XXXI of the Zoning Code of the Town of Babylon . . . .

2. ER & JR warrants, covenants and represents that as of the date of this Settlement Agreement, the Premise, is employed exclusively for the purposes of conducting business as a cabaret featuring live performances by female dancers performing in a seminude state including, the exposure of the female breast but not including any portion of the female genitalia. ER & JR agrees that at no time prior to the Termination Date shall they change, alter, modify or expand the use of the Premise to include any other Adult Use as defined in Section 213-377 of the Zoning Code of the Town of Babylon.

3. In the event that ER & JR shall cease to occupy or own the Premise prior to November 15, 2009, or shall assign, sublet or transfer all or any portion of the Premise occupied by it prior to November 15,2009, the use of the Premise as an Adult Use shall cease immediately and the date of the cessation of occupancy or use of the Premise(s) or the assignment, subletting or transfer of all or part of the Premise shall be deemed to be the Termination Date. For purposes of this agreement, the sale, assignment or transfer of more than fifty (50%) percent of the outstanding shares issued by ER & JR shall be deemed to constitute a change of the identity of the corporation and occupant of the Premise.

4. ER & JR shall not allow or construct any sexual explicit images or wording on or as exterior signage.

(Settlement Agreement ¶¶ 1-4.)

DISCUSSION

I. Rule 60(b): Motion For Relief from a Judgment

Rule 60(b) of the Federal Rules of Civil Procedure provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, ...


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