People v. NYRA
| Citation | 126 Misc.2d 783,483 N.Y.S.2d 573 |
| Parties | The PEOPLE of the State of New York v. NYRA and Barterama, Inc., Defendants. |
| Decision Date | 31 August 1984 |
| Court | New York City Court |
Cahill, Gordon & Reindel, New York City (Joseph J. Loonan, New York City, of counsel for NYRA), for defendant.
Baron & Vesel, P.C., Forest Hills (Edward Vesel, Forest Hills, of counsel for Barterama Inc.), for defendant.
The defendants are charged with violations of Section 32-41 of the Zoning Resolution of the City of New York by operating an open-air Flea Market on the parking lot of Aqueduct Racetrack in the County of Queens, pursuant to New York City's Administrative Code § 643a-12.0 and § C26-87.0.
The defendants move for a dismissal of the instant accusatory instruments on the following grounds:
1) The defendants' constitutional rights to equal protection of law under the Fourteenth Amendment of the United States Constitution and Art. I, § 11 of the New York State Constitution have been violated by the City's selective prosecution.
2) Sections 32-41 and 32-22 of the New York City Zoning Resolution is unconstitutional in that it is so vaguely written and applied that it violates the defendants' right to due process of law pursuant to the Fourteenth Amendment of the United States Constitution and Art. I, § 6 of the New York State Constitution.
An evidentiary hearing on the equal protection issue was ordered by Tsoucalas, J. on May 26, 1983, and this matter was assigned to this part (AP-7) on October 19, 1983 for the above ordered hearing. The hearing began on that date and continued on October 20, and 21, 1983. At the conclusion of the evidentiary hearing, both defendants and the People entered into a stipulation whereby the extensive record therein was adopted as the People's direct case on the trial of these matters. The defendants then moved to dismiss the information at the conclusion of the People's direct case for failure to present a prima facie case.
Thereafter on or about March 30, 1984, a conference was held by me at which the People and the defense attorneys were present. Counsel for both defendants advised the court that they would not present a defense case and would rest upon the evidence presented in support of its motions to dismiss and the evidence presented by the People on their direct case. Defendants, of course, renewed their motions to dismiss on the grounds previously raised and additionally on the ground that the The decision below not only addresses each of the issues raised by defendants in their motions but also sets forth the court's verdict after trial.
People have failed to establish guilt beyond a reasonable doubt.
During the course of the proceedings before me Sheldon Hills, Charles Segreto, Randy Green, Stanley Bengelsdorf, James Battaglia, Deborah McCord, Martin L. Lieberman, Julia Wager, Cynthia Blank and Roger DiRenzo testified as defense witnesses. Ann Grossberg, Carole Travers and Cornelius F. Dennis testified for the People.
Based upon all of the credible evidence adduced, I find and conclude as follows:
The New York Racing Association, Inc. ("NYRA") is a non-profit racing association incorporated within the State of New York, the stated purpose of which is to conduct racing, parimutuel betting, and wagering and thereby raise reasonable revenues for the State. Although NYRA is a non-profit organization it is permitted to show an annual profit no greater than $1,850,000.00 but is not permitted to pay dividends to its stockholders.
Statutorily, NYRA is permitted to conduct horse racing at Aqueduct Racetrack 362 days a year, but in actuality racing takes place only six days per week during seven months of the year.
At present, NYRA engages in a number of ancillary commercial endeavors. It has entered into myriad contracts, leases, and subleases which permit its facilities to be utilized not only for the flea market which is the subject of the instant violation, but also for political and religious conventions, concerts, carnivals, wine festivals, health fairs, as well as the closed circuit telecasting of prizefights and other major races.
In 1973 NYRA entered into the first of several contracts to provide for the operation of a flea market at the Aqueduct Racetrack. In 1974, the defendant Barterama, Inc. contracted to operate the flea market at Aqueduct, and has done so continuously until the present time. By the terms of its contract Barterama pays NYRA a fee for the use of the racetrack. Thus far, more than $3,000,000 in revenues for the State has been generated as a result of the aforesaid agreement between the defendants.
Pursuant to its contractual agreement with NYRA, the defendant Barterama operated the Aqueduct Flea Market on Sundays from 8:00 a.m. until 4:00 p.m. during the period from May of 1974 until mid-1976. Then in 1976, the parties agreed to operated the flea market during the same hours on Tuesdays, and in 1977, the flea market operated on Saturdays as well. At present, NYRA and Barterama operated the Aqueduct Flea Market on these three days per week between the hours of 8:00 a.m. and 4:00 p.m. during non-winter months.
The complaint which allegedly generated the instant inspection and ultimate violation order and summons was not made by any of the merchants' associations or their operatives but rather by a neighboring resident of the Aqueduct Racetrack, Ms. Carol Travers.
Ms. Travers, who lives directly across the street from the Aqueduct Racetrack at 110-46 108th Street in the Ozone Park area of Queens County, had for sometime been displeased by the noise, odors and dirt which the flea market's operation and cleanup generated. In May, 1980, Ms. Travers filed a complaint with Community Board # 10 because of the alleged unsanitary conditions and health hazards caused by the inadequate cleanup following the flea market's operation. Thereafter, on July 31, 1980 Ms. Travers again sought the assistance of her Community Board in resolving her continuing problems with the flea market. As a result, the following formal complaints were filed: one with the Department of Sanitation (Defendants' Exhibit P-4); another with the Department of Consumer Affairs (Defendants' Exhibit P-5); and the instant complaint with the Department of Buildings (Defendants' Exhibit On September 2, 1980 Buildings Department Inspector DiRenzo received a telephone call from Chief Inspector Perlmutter of the Department who advised him of Ms. Travers' complaint. Perlmutter specifically mentioned to DiRenzo that Ms. Travers was particularly upset by children urinating on her fence and property. Perlmutter directed DiRenzo to promptly answer Ms. Travers' complaint and make an inspection of the Aqueduct Flea Market.
P-3). Although the first two agencies investigated, no formal action was taken as a result. In contrast, the Department of Buildings ("the Department"), without the necessity of Ms. Travers making further complaint, initiated an investigation and subsequently issued the violations which are the subjects of the instant motions.
Shortly thereafter DiRenzo arrived at the Aqueduct Racetrack. After interviewing Ms. Travers for approximately 15-20 minutes, he inspected the flea market which was operating that day. DiRenzo then returned to his office, determined that Aqueduct was in a C-8 zoning district, and examined the track's certificate of occupancy. DiRenzo then discussed the open air retail operation within a C-8 district with the Department's planning examiners, and concluded that NYRA and Barterama were in violation of Section 32-41 of the City's Zoning Resolution and issued the instant violations.
On March 24, 1981 Inspector DiRenzo again visited the Aqueduct Racetrack. Upon observing the operation of the flea market, he issued the subject summonses to each of the named defendants herein.
Inspector DiRenzo testified that the sole basis upon which he issued the instant violation was that the flea market was engaged in open retail use within a C-8 zoning district. DiRenzo was, and still is, of the opinion that the size of the market and whether it was temporary or permanent have no effect on the application of Section 32-41 to the Aqueduct Flea Market. DiRenzo also theorized that virtually all ancillary uses engaged in by NYRA at Aqueduct constitute violations of the Zoning Resolution for engaging in activities not authorized by the certificate of occupancy. Nevertheless he did not charge any other violations nor did he issue any violations to other ancillary uses at Aqueduct at the time of his inspection.
Section 32-41 of the Zoning Resolution of the City of New York, in pertinent part, provides as follows:
Enclosure within Buildings
In the Districts indicated (C1-C6, C8), except as otherwise specifically provided in the use groups permitted in such districts and in Section 36-11 (General Provisions) and Section 36-61 (Permitted Accessory off-street Loading Berths) all permitted uses which are created by new development, or which are enlarged or extended or which result from a change of use shall be subject to the provisions of this Section with respect to enclosure within buildings. With respect to the enlargement or extension of an existing use, such provisions shall apply to the enlarged or extended portion of such use. (emphasis in original)
It is undisputed that the Aqueduct Racetrack is located within a C-8 zoning district and has been continuously so located throughout the period of time that a flea market has been operating at the track.
Furthermore, the stipulated evidence (see Defendants' Exhibit C) indicates that numerous other flea markets have operated and continue to operate within the City of New York, several of which are also located...
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