Town of Copake v. 13 Lackawanna Props., LLC

CourtNew York Supreme Court Appellate Division
Citation2012 N.Y. Slip Op. 07008,99 A.D.3d 1061,952 N.Y.S.2d 780
Decision Date18 October 2012
PartiesTOWN OF COPAKE, Respondent, v. 13 LACKAWANNA PROPERTIES, LLC, et al., Appellants.

99 A.D.3d 1061
952 N.Y.S.2d 780
2012 N.Y. Slip Op. 07008

TOWN OF COPAKE, Respondent,
v.
13 LACKAWANNA PROPERTIES, LLC, et al., Appellants.

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

Oct. 18, 2012.


[952 N.Y.S.2d 782]


Sullivan Gardner, PC, New York City (Brian L. Gardner of counsel), for appellants.

Rapport Meyers, LLP, Hudson (Victor M. Meyers of counsel), for respondent.


Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

MERCURE, J.P.

[99 A.D.3d 1061]Appeal from an order and judgment of the Supreme Court (Nichols, J.), entered June 7, 2012 in Columbia County, upon a decision of the court in favor of plaintiff.

[99 A.D.3d 1062]The underlying facts are more fully set forth in our prior decision affirming an order of Supreme Court that held defendants in civil and criminal contempt based upon their violation of a temporary restraining order (hereinafter TRO) issued in this action (73 A.D.3d 1308, 900 N.Y.S.2d 508 [2010];see also Matter of Cascino v. Judges of the Albany County Ct., 95 A.D.3d 1458, 944 N.Y.S.2d 351 [2012] ). Plaintiff seeks to enjoin defendants from violating its local land use laws. The TRO prohibited construction, excavation and depositing of materials on defendants' 310–acre farm located in the Town of Copake, Columbia County,1 except for limited activity in connection with farming and actions necessary to comply with an unrelated consent decree requiring wetlands restoration.

The action ultimately proceeded to trial, at the close of which Supreme Court concluded that defendants had violated Code of Town of Copake §§ 129–9 and 232–7 and chapter 194, which relate to construction undertaken without required building permits, dumping of solid waste and unauthorized use of the property—here, depositing solid waste, operating a recycling business, and unauthorized storage of commercial equipment and construction materials. The court further held that defendants created a public nuisance, and violated a 2003 stipulation, which was entered into between the parties in a prior action and required defendants both to obtain a permit from plaintiff prior to commencing any construction on the property and to use the parcel solely for agriculture. Thereafter, the court issued judgment permanently enjoining defendants from engaging in unauthorized uses of the property and violations of the Town Code, as well as directing defendants to undertake various remedial measures, including the removal of at least 150,000 cubic yards of fill material. Defendants appeal, and we now affirm with certain modifications.

Initially, we reject defendants' argument that Supreme Court abused its discretion in directing the removal of 150,000 yards of fill. Contrary to defendants' assertion that the depositing of the fill was not in violation of the Town Code, chapter 194 of that statute provides that “[n]o person shall cause to be dumped, deposited or thrown any solid waste” on land within the Town (Code of Town of Copake § 194–3). The definition of solid waste encompasses

[952 N.Y.S.2d 783]

“dust and dirt, rock, concrete or other materials, including earth wastes from building operations” and “construction debris” such as “scrap lumber, metal, earth, sand, [99 A.D.3d 1063]brick, stone, plaster, roofing and siding material or other debris of a similar nature which accumulates or is incidental to the construction or renovation of homes, buildings, public works or other projects” (Code of Town of Copake § 194–2[B], [C] ). In our view, Supreme Court properly concluded that defendants violated chapter 194 by depositing solid waste on the premises, including dirt, rebar, rock, concrete, asphalt, bricks, plastic bags and bottles, and leaves.

Defendant Salvatore Cascino admitted that he brought “dead dirt”—which was derived from excavation, construction and public works projects located in and around New York City—to the property without applying for a permit, and that he intended to bring a million yards of that fill material to the property. The testimony and photographs of a neighboring landowner, the zoning...

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6 practice notes
  • Town of N. Elba v. Grimditch, 520007
    • United States
    • New York Supreme Court Appellate Division
    • July 2, 2015
    ...and defy the Town's authority and efforts to enforce its zoning laws and procedures (see Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012], lv. denied 20 N.Y.3d 857, 2013 WL 149680 [2013] ; Matter of Massa v. City of Kingston, 284 A.D.2d 836, 838–839......
  • Oakwood Prop. Mgmt., LLC v. Town of Brunswick
    • United States
    • New York Supreme Court Appellate Division
    • February 28, 2013
    ...deception, or similar affirmative conduct” upon which there is “reasonable reliance” ( Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012] [internal quotation marks and citations omitted], lv. denied20 N.Y.3d 857, 959 N.Y.S.2d 692, 983 N.E.2d 771 [Jan.......
  • Atl. States Legal Found., Inc. v. N.Y. State Dep't of Envtl. Conservation,
    • United States
    • New York Supreme Court Appellate Division
    • July 17, 2014
    ...1209, 1212, 931 N.Y.S.2d 449 [2011] [internal quotation marks and citations omitted]; accord Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012], lv. denied20 N.Y.3d 857, 2013 WL 149680 [2013]; see Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d ......
  • Roberta GG. v. Leon HH.
    • United States
    • New York Supreme Court Appellate Division
    • October 18, 2012
    ...1275, 1276, 878 N.Y.S.2d 814 [2009] ). In making its determination, Family Court could also consider factors such as the “parents' [952 N.Y.S.2d 780]ability to provide a stable home environment for the child, the child's wishes, the parents' past performance, relative fitness, ability to gu......
  • Request a trial to view additional results
6 cases
  • Town of N. Elba v. Grimditch, 520007
    • United States
    • New York Supreme Court Appellate Division
    • July 2, 2015
    ...and defy the Town's authority and efforts to enforce its zoning laws and procedures (see Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012], lv. denied 20 N.Y.3d 857, 2013 WL 149680 [2013] ; Matter of Massa v. City of Kingston, 284 A.D.2d 836, 838–839......
  • Oakwood Prop. Mgmt., LLC v. Town of Brunswick
    • United States
    • New York Supreme Court Appellate Division
    • February 28, 2013
    ...deception, or similar affirmative conduct” upon which there is “reasonable reliance” ( Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012] [internal quotation marks and citations omitted], lv. denied20 N.Y.3d 857, 959 N.Y.S.2d 692, 983 N.E.2d 771 [Jan.......
  • Atl. States Legal Found., Inc. v. N.Y. State Dep't of Envtl. Conservation,
    • United States
    • New York Supreme Court Appellate Division
    • July 17, 2014
    ...1209, 1212, 931 N.Y.S.2d 449 [2011] [internal quotation marks and citations omitted]; accord Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012], lv. denied20 N.Y.3d 857, 2013 WL 149680 [2013]; see Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d ......
  • Roberta GG. v. Leon HH.
    • United States
    • New York Supreme Court Appellate Division
    • October 18, 2012
    ...1275, 1276, 878 N.Y.S.2d 814 [2009] ). In making its determination, Family Court could also consider factors such as the “parents' [952 N.Y.S.2d 780]ability to provide a stable home environment for the child, the child's wishes, the parents' past performance, relative fitness, ability to gu......
  • Request a trial to view additional results

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