Sullivan County v. Filippo

• Decision Date: 30 October 1970
• Docket Number: Nos. 1,2,s. 1
• Citation: 315 N.Y.S.2d 519,64 Misc.2d 533
• Parties: The COUNTY OF SULLIVAN, Plaintiff, v. Budd FILIPPO and Orwell Ventures Inc., Defendants. Hollis S. INGRAHAM, As Commissioner of Health of the State of New York, Plaintiff, v. Budd FILIPPO and Orwell Ventures Inc., Defendants. Action
• Court: New York Supreme Court

Page 519

315 N.Y.S.2d 519

64 Misc.2d 533

The COUNTY OF SULLIVAN, Plaintiff, v. Budd FILIPPO and Orwell Ventures Inc., Defendants.

Hollis S. INGRAHAM, As Commissioner of Health of the State

of New York, Plaintiff, v. Budd FILIPPO and Orwell Ventures Inc., Defendants.

Action Nos. 1, 2.

Supreme Court, Sullivan County.

Oct. 30, 1970.

Carl P. Goldstein, County Atty., for County of Sullivan, plaintiff.

Louis J. Lefkowitz, Atty. Gen., Calvin M. Berger, Albany, of counsel for Hallis S. Ingraham as Commissioner of Health, plaintiff.

Krieger, Gerstman & Orseck, Gerald Orseck, Woodridge, of counsel, for defendants.

MEMORANDUM DECISION

HENRY F. WERKER, Justice.

Last papers received October 9, 1970.

These are actions for permanent injunctions brought by the plaintiffs against the defendants upon different grounds but arising out of the same set of facts. Upon motion of the plaintiff, The County of Sullivan, the cases were tried jointly, but not consolidated.

Plaintiff, The County of Sullivan (hereinafter called the 'County') commenced its action by service of a summons and complaint on July 2, 1970, and on July 3, 1970, obtained an order to show cause and a preliminary injunction, and the plaintiff, Commissioner of Health (hereinafter called the 'Commissioner') commenced his action by service of a summons and complaint and order to show cause on July 9, 1970 containing a preliminary injunction both pending a decision at a Special Term of this Court to be held on July 10, 1970. An order continuing the temporary injunction pending the trial of the actions was signed by Honorable Russell G. Hunt, Justice of the Supreme Court, dated July 17th, 1970. Justice Hunt's order provided that if an immediate trial was desired by either party, it would be scheduled for July 28, 1970, but that notice to that effect was to be served upon him before July 20, 1970. Plaintiff County served such a notice within the time limited. The Defendants on July 24, 1970, obtained an order to show cause from the Honorable Michael E. Sweeney, Associate Justice of the Appellate Division, Third Department, returnable on August 3, 1970, wherein they applied for an order vacating or limiting the preliminary injunction and staying the immediate trial pending appeal from the order of Justice Hunt. This application was denied by decision of the Appellate Division, Third Department dated August 10, 1970 upon which an order was entered on August 19, 1970. The trial commenced on August 19th, 1970, at 10 o'clock. Defendants, who had served and filed a demand for a jury trial, waived the same in open court. The timetable upon which this case was brought to trial, while not essential to its resolution, furnishes justification for the length of the trial (22 days) as well as the liberal rulings with respect to the breadth and depth of inquiry and the subsequent amendment of pleadings to conform to proof permitted to all parties since none of them had an opportunity for examinations before trial or discovery and inspection before the actual trial.

These cases arise out of the following facts and circumstances: In April 1970 defendant, Budd Filippo, who is a theatrical producer and promoter, through a friend, approached Mr. Seymour Krieger, an attorney in Woodridge, New York, for the purpose of discussing the possibility of acquiring a site for the purpose of holding a so-called Rock Festival. The result of the initial meeting was to the effect that the Town probably would not be receptive to a Rock Festival, but probably would be interested in a project which would involve not only rock but also classical programs, drama, musical comedy, jazz concerts and film festivals. This apparently was acceptable to Mr. Filippo who subsequently purchased through Orwell Ventures Inc., (hereinafter called Orwell) a corporation of which he is the president, approximately 600 acres of land during early June 1970, near the hamlet of Mountaindale in the Town of Fallsburg, Sullivan County. These transactions were completed with the assistance of Catskill Brokers Inc. which took Mr. Filippo to the site. One property is improved by a resort hotel and outbuildings. All purchases were arranged by cash down payments and purchase money mortgages. The total purchase prices were $156,000 and the amount of the mortgages in the aggregate $106,000. Orwell was originally incorporated on March 30, 1970, as Orwell Festivals Inc. The name was changed on June 3, 1970, at a time when Mr. Filippo had committed Orwell to this project. This change has significance in the light of the definitions given by Mr. Filippo of a festival and concert which incidentally are in accord with Webster's Third New International Dictionary Unabridged which defines a festival as follows:

'A program of cultural events consisting typically of a series of performances of works in the arts sometimes devoted to a single artist or a particular genre and often held annually for a period of several days or weeks' (p. 841)

and a concert:

'(a) a musical performance of some length by several voices or instruments or both * * * (b) a public entertainment made up of a number of short compositions or episodes not joined in an integrated whose' (p. 470).

Orwell acquired rights of way over adjacent properties for travel to and from parking fields and executed leases with options to purchase with respect to other properties.

One property which was to be purchased is in litigation (Diamond). At the same time Orwell hired Stagg Construction Co. of Westchester County as a General Contractor. Construction was started sometime in the latter part of May, or early June, 1970. The plans for the project were made public sometime during May at a public meeting. A short time after Mr. Filippo met Mr. Krieger, he met Mr. Mortimer Michaels, Supervisor of the Town of Fallsburg, Sullivan County, and as such a member of the County Board of Supervisors. Mr. Michaels is a well respected citizen, a former chairman of the County Board of Supervisors who has spent 31 years in service as supervisor of the Town of Fallsburg. Thereafter meetings were held between Krieger, Michaels, Filippo and the other members of the Town Board of the Town of Fallsburg as a result of which the Town Board invited Filippo and Orwell Ventures Inc. to come into the Town of Fallsburg on May 22, 1970.

Orwell, at sometime before the application for a permit or the issuance of the permit, paid to the Town of Fallsburg $5,000 for additional equipment for the Town of Fallsburg police department. A promise of an additional $5,000 was made for the purpose of hiring additional special police on the nights when the rock concerts were to take place. In the meantime petitions were filed with the County Board of Supervisors requesting them to enact legislation which would prohibit the rock festivals without a permit from the County. When it became apparent that there was substantial opposition from other areas of the County, the Town Board of Fallsburg proposed and passed a Local Law No. 1 for 1970 which authorizes mass gatherings upon the presentation of certain plans and information and the issuance of a permit by the Town Board. Specifically, at a meeting of the Town Board held on June 12, the clerk was authorized to set up a hearing with respect to the Local Law No. 1 on June 23, 1970. This notice was published in two newspapers on June 16 and 18, 1970. The hearing was held on the published date. On that date and immediately after the hearing, the Local Law No. 1 of the Town of Fallsburg was passed. It was filed with the Secretary of State on June 29, 1970, and Audit & Control on June 26, 1970. The vote was recorded by 'Ayes', one member of the Town Board (Ruffa) being absent. This local law was designed to take the Town of Fallsburg out of the operation of the proposed County Local Law No. 1 which had been tabled temporarily but which by its terms would not apply to a Town which had a local law for the regulation of mass gatherings. After a public hearing was held with respect to the County of Sullivan's Local Law No. 1, it was passed on June 29, 1970, and filed with the Secretary of State and Audit & Control on July 6, 1970. On the same night the Local Law was passed, the County Attorney was authorized to commence an action to restrain the defendants from holding any performances at the site.

Conferences were held with the Senior Sanitary Engineer of the State Department of Health at the site and at his office. The defendant Orwell made an application to the New York State Labor Department for approval of its plans for the site which were disapproved. An appeal to the Board of Standards and Appeals is now pending regarding certain variations. The State Health Department through its District Health Officer, Michael J. Lipari, M.D., asserted jurisdiction over the project under the Mass Gatherings sections of part 7 as amended May 12, 1970, of the Sanitary Code of the State of New York (10 NYCRR Part 7) and so informed Budd Filippo as president of Orwell by telegram and letter dated June 25, 1970. Orwell denied jurisdiction of the Health Department under part 7 and failed and refused to file an application for a permit under that part of the Sanitary Code.

Orwell had filed an application for a permit with the Town of Fallsburg for a gathering of 50,000 persons and four Rock Festivals at the site in Mountaindale, Town of Fallsburg, Sullivan County.

The application was made by petition verified on June 30, 1970, and expressly reserved Orwell's rights to contest the validity of the Town of Fallsburg's Local Law No. 1 for 1970. A permit was issued to Orwell on June 30, 1970. After these actions were commenced and on July 17, 1970, Orwell filed an amendment of its application for a permit under Fallsburg's Local Law representing that it would limit its advertising to a 150 mile radius from the site, its ticket sales to 25,000 per rock performance and would conduct...