Cohn Chemung Props., Inc. v. Town of Southport

• Decision Date: 11 July 2013
• Citation: 2013 N.Y. Slip Op. 05285,108 A.D.3d 928,969 N.Y.S.2d 571
• Parties: In the Matter of COHN CHEMUNG PROPERTIES, INC., Petitioner, v. TOWN OF SOUTHPORT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 928

969 N.Y.S.2d 571

2013 N.Y. Slip Op. 05285

In the Matter of COHN CHEMUNG PROPERTIES, INC., Petitioner,

v.TOWN OF SOUTHPORT et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 11, 2013.

Pope & Schrader, LLP, Binghamton (Alan J. Pope of counsel), for petitioner.

Buck, Danaher, Ryan & McGlenn, Elmira (John J. Ryan of counsel), for respondents.

Before: LAHTINEN, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

LAHTINEN, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Town Board of the Town of Southport which revoked petitioner's license to operate a mobile home park.

Petitioner owns the Brookside Trailer Park in the Town of Southport, Chemung County, and it had a license to operate the mobile home park under chapter 352 of the Town of Southport Municipal Code. In March 2011, respondent David Sheen, the Town Supervisor, received a letter from the volunteer fire department regarding purported “sub-human living conditions” and “serious code violations” observed by fire department members when responding to a call at the mobile home park in January 2011. On April 15, 2011, Peter Rocchi, the Town's Code Enforcement Officer, apparently attempted to inspect the park but was refused entry by its manager, Jerry Shoemaker. Rocchi reported the refusal to the Chemung County Sheriff, who applied for an administrative inspection warrant. A warrant, limited to an inspection for violations of land use regulations, was issued by a town justice and, on April 21, 2011, Rocchi, accompanied by five inspectors and escorted by a dozen law enforcement personnel, conducted an inspection of the park.

Over 300 alleged code violations were found, resulting in Rocchi issuing a notice of violation and order to remedy such conditions. Petitioner was then directed to appear before the Town Board of the Town of Southport for a hearing regarding the revocation of its license to operate the mobile home park. The hearing was held over two days in June 2011, after which the Town Board voted four to zero, with Sheen abstaining, to revoke petitioner's license. This proceeding to annul that determination ensued. Supreme Court, among other things, denied petitioner's requests for discovery and for a hearing regarding the issuing and executing of the administrative warrant. Upon finding no objections that would terminate the proceeding, and a substantial evidence issue having been raised, Supreme Court transferred the proceeding to this Court ( seeCPLR 7804[g] ).

Petitioner contends that the determination was not supported by substantial evidence and was infected by errors of law. Under substantial evidence review, we “defer to the [Town Board's] credibility determinations and resolution of conflicting evidence” ( Matter of Anghel v. Daines, 86 A.D.3d 869, 872, 927 N.Y.S.2d 710 [2011];see Matter of Silberfarb v. Board of Coop. Educ. Servs., Third Supervisory Dist., Suffolk County, 60 N.Y.2d 979, 981, 471 N.Y.S.2d 257, 459 N.E.2d 482 [1983] ). The fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination ( see Matter of Steinberg v. DiNapoli, 93 A.D.3d 1068, 1069, 941 N.Y.S.2d 300 [2012];Matter of Holmstrand v. Board of Regents of Univ. of State of N.Y., 71 A.D.2d 725, 726, 419 N.Y.S.2d 223 [1979] ). Here, Rocchi related at the hearing events surrounding the inspection of the park and conditions observed there. He presented photographs and detailed descriptions of numerous conditions that constituted code violations. Many were serious in nature, ranging from exposed electrical wires to sewage on top of the ground. Petitioner's sole shareholder, Gary Cohn, as well as the park's manager, Shoemaker, testified regarding efforts to address the identified violations. Although some had been repaired, many of the violations remained at the time of the hearing. Petitioner's reliance upon the lack of extensive violations in earlier years or complaints from neighbors was not a particularly relevant factor; the important issue involved the conditions discovered during the inspection and not what may have occurred in prior years. The Town Board credited most of the extensive proof regarding code violations, and such proof provided substantial evidence supporting its determination. Further, in light of such proof,...