City of New York v. Miller, 2008 NY Slip Op 51374(U) (N.Y. Sup. Ct. 6/27/2008), 8846/08
| Decision Date | 27 June 2008 |
| Docket Number | 8846/08 |
| Citation | 2008 NY Slip Op 51374 |
| Parties | THE CITY OF NEW YORK, ET ANO., Plaintiffs, v. DARREN MILLER, In His Individual Capacity, ET ANO., Defendants. |
| Court | New York Supreme Court |
Vincent M. Gerardi, Esq., Mineola, New York, Counsel for defendants
Upon the foregoing papers, in this action by plaintiffs the City of New York (the City) and John Doherty, in his capacity as the Commissioner of the New York City Department of Sanitation (the DSNY) (collectively, plaintiffs) alleging claims of violations of Administrative Code of the City of New York § 16-119, § 16-130(b), and § 24-604, a violation of 16 RCNY 3-02, trespass, private nuisance, public nuisance, and liability under the Navigation Law, defendants Darren Miller, in his individual capacity, and Darren Miller d/b/a Darren Miller Trucking a/k/a D Miller Trucking a/k/a DM Trucking and Parking a/k/a DM Trucking (collectively, defendants) move, by order to show cause, for a preliminary injunction, pursuant to CPLR 6301, enjoining plaintiffs, their agents, employees and/or representatives, and any and all persons acting individually or in concert with them: (1) from permitting or authorizing the entry and/or entering upon the vacant parcel known as Block 4452, Lots 570, 530 area, located at Erskine Street, in Brooklyn, New York, and (2) from removing or in any manner interfering with defendants' trucks and movable property located in the area known as Block 4452, Lots 570, 530.
Defendants, in their motion, also seek an order vacating the temporary restraining order signed on April 10, 2008 and the preliminary injunction issued on April 11, 2008 based upon the purported ground of a lack of service of process. In addition, defendants, by their motion, request that the court order sanctions against the New York City Corporation Counsel's office for allegedly failing to follow the court's April 10, 2008 order as to service of the order to show cause with respect to the preliminary injunction, and that the City be compelled to pay attorney's fees to them for allegedly wrongfully obtaining the preliminary injunction to circumvent existing ongoing litigation.
The property at issue1 in this action is located west of Erskine Street and south of Vandalia Avenue, and lies just north of the Gateway Plaza Shopping Mall. It includes four parcels: Block 4586, Lot 1 and Block 4452, Lots 170, 400, and 570. The property was acquired by the City through condemnation in 1968, and dedicated for the public purpose of the Fresh Creek Urban Renewal Project. The City presently owns two of these four parcels, i.e., Block 4586, Lot 1 and Block 4452, Lot 170. The City-owned parcels are managed by the New York City Department of Housing Preservation and Development (HPD), which has plans to sell portions of the parcels to a developer for, among other things, the construction of affordable housing. Home Depot and the State of New York own the other portions of the property. Defendants do not hold legal title to any portion of the property.
Defendant, Darren Miller states that he is a minority businessperson doing business as Darren Miller Trucking, and that his principal place of business is at the property, i.e., the vacant parcel of land on Erskine Street. Mr. Miller further states that he enclosed the property with a chain link fence in 1995 and has been parking trucks and construction equipment at the site since that time.
In the summer of 2005, the DSNY allegedly became aware of illegal dumping on the property when environmental police officers from its permit and inspection unit (PIU Officers) noted piles of fill on the property. Thereafter, the DSNY began to monitor the property for changes. The PIU Officers noted that an increasingly large portion of Block 4586, Lot 1, had been graded with asphalt millings each time they visited, and that the graded portion of the property began to be used to park a large number of vehicles, including tractor trailers.
On August 19, 2005, PIU Officer Christopher Misciagna allegedly witnessed a truck owned by a company called Bhola Hauling, Inc. illegally dumping on the property, and he issued a summons and impounded the truck. PIU Officers continued to monitor the property. The amount of material, consisting mostly of construction and demolition debris, that had been dumped at the property gradually increased with each of the PIU Officers' visits, and the PIU Officers issued summonses to deter future use of the property for illegal dumping.
Darren Miller states that in September 2005, a group of people from the City broke down the chain link fence gate at the property and demanded that he cease doing business and leave the premises. On September 15, 2005, Darren Miller d/b/a Darren Miller Trucking filed an action against the City and the HPD (Miller v. City of New York, Sup Ct, Kings County, index No. 28504/05) seeking adverse possession of the property (the adverse possession action). Vincent M. Gerardi, Esq. is the attorney for Darren Miller d/b/a Darren Miller Trucking in the adverse possession action.
On November 15, 2006, PIU Officers Emma and Delardi witnessed Darren Miller's employee, Robert Dyke, use a truck registered to Darren Miller, with "D & M Trucking" printed on its side, to dump approximately 10 cubic yards of dirt and rock onto the ground of the property without a permit from the DSNY Commissioner to operate a dump or conduct a fill material operation as required by Administrative Code § 16-130(b). The PIU Officers issued summonses to Darren Miller and his employee, Robert Dyke, for violations of the Administrative Code, and impounded the vehicle. At a hearing held on November 28, 2006 before the Environmental Control Board of the City of New York (the ECB), the ECB found Darren Miller and Robert Dyke in violation of Administrative Code § 16-119(a), which prohibits "any person [or] his or her . . . employee . . . to . . . permit any dirt . . . rocks . . . or debris of any sort . . . being transported in a dump truck or other vehicle to be dumped . . . in or upon any . . . lot . . . or other area whether publicly or privately owned."
On August 27, 2007, PIU Officers Coca and McClernon allegedly witnessed the driver of a dump truck, David Loja, dump approximately 18 cubic yards of dirt and rock at the property and Darren Miller immediately begin to grade the material into the property. When questioned, David Loja allegedly told the PIU Officers that he had paid Darren Miller $200 per load and had dumped on the property on more than one occasion. Darren Miller also allegedly informed the PIU Officers that he was accepting loads of dirt and rock because the soil at the property was too soft and he needed to construct a heavy road on which heavy trucks could drive. Darren Miller was issued a summons for violating Administrative Code § 16-130(b) due to his operation of a dump site and fill operation without a permit. He was also issued a summons for violating 16 RCNY 3-02(h) which prohibits the acceptance of fill at a landfill operation which is not clean fill, based upon his changing the grade of the site with unacceptable fill material (i.e., asphalt). David Loja was issued a summons for violating Administrative Code § 16-119 due to his illegal dumping. A videotape taken by PIU Officer McClernon, which showed asphalt being layered in the ground, was produced at a hearing before the ECB. After the hearing, the ECB found both Darren Miller and David Loja in violation of the aforesaid laws.
On January 23, 2008, PIU Officers allegedly observed a vehicle, registered to JBS Construction and driven by Satwant Singh, dump approximately 16 cubic yards of dirt and rock on the property. Satwant Singh allegedly informed the PIU Officers that Darren Miller charged his company $200 per load to dump at the property in order to provide him with fill, and $1,500 per month to store its containers (which appeared to contain construction and demolition debris) on Block 4452, Lot 170.
On January 25, 2005, PIU Officers stopped a car carrier, whose driver had a receipt for a payment of $150 to DM Trucking and Parking to park the carrier on the property, and, on February 14, 2008, PIU Officers witnessed a backhoe, with an attachment, being used on the property to chop and crush vehicles. As a result, automotive fluids, including motor oil, transmission fluid, and antifreeze, were being spilled onto the ground. According to the PIU Officers, the area surrounding the backhoe was filled with piles of automobile parts, including metal, tires, and batteries.
Darren Miller challenges the continuous surveillance of the property by the PIU Officers, claiming that ever since he directed his attorney, Vincent M. Gerardi, to bring the adverse possession action against the City, the City has conducted an ongoing campaign of harassment, intimidation, and racial discrimination against him, using the DSNY police and various City employees and agencies. Specifically, Mr. Miller states that the DSNY PIU Officers continuously enter the property without a search warrant, at any time of the day or night, and have admitted that the property has been under constant surveillance since 2005. Mr. Miller asserts that on occasion, the DSNY PIU Officers have even entered the property with their guns drawn. Darren Miller claims that these actions of the City and the PIU Officers are racist and discriminatory, and would never be used against a white businessman.
According to PIU Officer Joseph Coca, piles of solid waste, consisting of dirt, rock, construction and demolition debris, asphalt millings, and putrescible waste, have been dumped at and often graded into the property. The DSNY estimates that as a result of Darren Miller's solicitation for fill material and his construction of a stable surface on the...
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