Incorporated Vil. of E. Williston v Muzio
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Incorporated Vil. of E. Williston v Muzio 2012 NY Slip Op 30482(U) February 16, 2012 Sup Ct, Nassau County Docket Number: 009064-10 Judge: Vito M. DeStefano Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice INCORPORATED VILLAGE OF EAST WILLISTON, Plaintiff, -against- TRIL PART NASSAU COUNTY Decision and Order MOTIONS SUBMITTED: November 9, 2011 MOTION SEQUENCE:14 INDEX NO. 009064- JOHN AND THERESA MUZIO, as owners of Premises identified as 8 Sumter Avenue within the Incorporated Vilage of East Wiliston, Defendants. The following papers and the attachments and exhibits thereto have been read on the motions: Notice of Motion Affirmation in Opposition Reply Affirmation 382(3), the 714 and Executive Law inter alia Vilage Law In an action pursuat to, Plaintiff, Incorporated Vilage of East Wiliston (" Vilage ), moves for an order granting it inter sumar judgment. Alternatively, the Vilage seeks an order, pursuant to CPLR 3126, Muzios striking the answer of the Defendants , John and Theresa Muzio (the " alia, par and denied in For the reasons that follow , the Vilage s motion is granted in upon searching the record , the cour dismisses certain claims contained in the Vilage complaint as delineated herein. par and, Vilage ("Board" At a hearng held on November 16 , 2009, the Board of Trustees for the directed that a notice of unsafe building be affixed to the premises located at 8 Sumter Avenue, family home , is East Wiliston , New York (Ex. " A" to Motion). The subject premises, a singlewhich owned by the Muzios. The Muzios were afforded a period oftime to abate the problems rendered the premises unsafe and the hearng was scheduled to reconvene on November 30, 2009 (Ex. " A" to Motion). [* 2] At the conclusion of the November 30 , 2009 hearing, after which it was determined that the Muzios did not abate the problems , the Muzios were directed to: 1) make repairs to the roof of the subject premises that would render the roof safe and watertight; 2) retan the services of an electrician to inspect the wiring on the premises and provide a certification regarding its safety; 3) remove unlicensed and unegistered vehicles from the premises; 4) remove the rubbish and debris and unaintaned brush and grass from the premises; and 5) provide a report from a licensed strctual engineer regarding the stabilty of the premises and makng such repairs required to render the structue stable for habitation. The Muzios were required to comply with the Board' s directives by December 15 2009 , at which time the Board was scheduled to reconvene to assess compliance (Ex. " A" to Motion). The Muzios did not comply with the directives and , accordingly, at the December 15 Vilage of East 2009 hearng, pursuant to Chapter 22 of the Municipal Code of the Incorporated , vacated , or demolished Vilage Code ), the Board ordered the house to be repaired Wiliston (" as the facts may warant , with the costs of such (plus a 50% service charge) being charged as a municipal lien or levied as a tax against the propert. The Board also determined to cut, trm such to be biled to and/or remove the brush , grass and refuse on the propert, with the costs of shall the Muzios (Ex. " B" to Motion). The Board concluded the meeting and ordered that it " tae all such fuher steps it deems necessar to effectuate the accomplishment of the determinations as set fort above " (Ex. " B" to Motion at p. 10). Vilage Law Thereafter , the Vilage commenced the instat action pursuant to inter alia, 382(3). 1 The Vilage s complaint , which is inarfully and ~ 7- 714 and Executive Law 1 Vilage Law 714 provides as follows: , reconstrcted, altered , repaired, converted any land is divided into lots, blocks or sites In case any building or strcture is erected, constructed or maintained; or any building, strcture or land is used , or in violation of this act, or of any local law or other regulation made under authority conferred thereby, the proper local authorities of the vilage , in addition to other remedies , may institute any appropriate action or proceedings to prevent such unlawful erection , constrction, reconstrction , alteration, repair, conversion , maintenance , use or division of land , to restrain , correct or abate such violation to prevent the occupancy of said building, structure or land or to prevent any ilegal act, conduct the business or use in or about such premises. All issues in any action or proceeding for any of puroses herein stated have preference over all other civil actions and proceedings. According to Executive Law Where the constrction 382(3): or use of a building is in violation of any provision of the uniform code or any lawful order obtained thereunder, a justice ofthe supreme court at a special term in the judicial distrct in which the building is located , may order the removal of the building or an abatement of the condition in violation of such provisions. An application for such reliefmay be made by the an appropriate municipal offcer , or any other person aggrieved by the violation. secreta, [* 3] confusingly drafted, purorts to assert three causes of action. In the first cause of action, the stabilty and Vilage seeks a preliminar injunction allowing it to enter the premises to assess the strctue stable with the safety of the strcture and that the Vilage be empowered to render the costs of such being assessed against the Muzios. In the second cause of action, the Vilage seeks 714 restraining the Muzios from: continuing a permanent injunction pursuat to Vilage Law to permit the strctue to remain a dangerous condition and in a state of disrepair; continuing the hazds to remain; and not obeying the orders of the Board. In the last cause of action , the Vilage seeks the costs of repair to be incured by the Muzios in accord with the Vilage Code 59- 66). (Ex. " E" to Reply Affrmation at seeking, The Muzios answered the complaint after which the Vilage served the withn motion inter alia summar judgment. With respect to the claims pursuant to Vilage Law ~ 7- 714 and Executive Law ~ 382(3), the Vilage met its prima facie burden on the motion by presenting proof that: the Muzios propert is in violation of section 304. 2 ofthe New York State Propert and Maintenance Code ); the Muzios and chapters 18 and 22 ofthe Vilage Code (collectively referred to as " violations have failed to remedy the violations; and the Muzios continue to maintain their propert in (see Incorporated violation of the applicable codes despite the resolutions passed by the Board Jefferson Indoor Marina, Inc. 162 AD2d 434 (2d Dept 1990)). Vilage of Freeport The Muzios oppose the Vilage s motion and claim that the subject premises is not in violation of any code , regulation or rule. The Muzios also assert that " ( n)o valid Vilage resolutions exit (sic) . . . (A) Board of Trustee resolution is required for any and all of the Vilages actions outside the daily scope of responsibilty. No such resolutions exist. . . . " (Affirmation in Opposition at 44). The Muzios ' conclusory assertions that the subject premises is not in violation of existing codes , etc. , are insufficient to defeat the Vilage s motion. Moreover , the December 15, 2009 resolution of the Board that it "take all such further steps it deems necessar to effectute the accomplishment of the determinations as set fort above , provides authority to bring and (see maintan the claims brought pursuant to Vilage Law ~ 7- 714 and Executive Law ~ 382(3) 200 AD2d 930 (3d Camproni, Vilage of Water ford Vilage Law ~~ 7- 714 and 4- 400(1)(d); Dept 1994) (board of trustees ' resolution ordering defendant to reimburse the vilage and directing the vilage attorney to "tae appropriate steps to achieve the reimbursement" constituted authorization to commence legal action)). Accordingly, it is hereby ordered that the Vilage is granted parial sumar judgment to the extent that: it seeks a judgment permanently enjoining the Muzios from continuing and permitting the violations cited by the Board; that the Vilage is " empowered to enter upon the [* 4] premises " to " assess the stabilty and safety of the strcture and to render such information as can be obtained to assess the same , and that the Vilage be empowered to tae such steps as it deems required to render the strctue stable , including the making of " such repairs and/or directing that the strctue be vacated or demolished as the facts may warant" ; that the potentially dangerous conditions on or about the subject premises requiring an investigation by a qualified licensed engineer be investigated and if necessar repaired , and that the (Muzios) be ordered to provide access upon reasonable notice to any pary of the subject premises for inspection by a quaified licensed engineer selected by the Vilage; and that the Vilage is empowered to remove the "unlicensed and unegistered vehicles from the propert" and make " arangements for the brush, grass and refuse upon the propert to be cut and or trimmed and removed as needed with the Vilage thereafer being empowered to both remove the vehicles and clear the brush grass and refuse on the propert" (Complaint at pp. 22- 25). Pursuat to CPLR 3212(b), the court searches the record and hereby grants the Muzios parial sumar judgment dismissing the complaint to the extent it seeks: "the costs of such repair, vacation (sic) and demolition together with a service charge of 50 percent being charged against the land on which the structure existed as a municipal lien; or cause such costs to be rolls as an assessment or to be levied as a special ta against the and upon which added to the the strctue stads or did stand or to be recovered in a suit oflaw against the (Muzios)"; that the Muzios "be ordered to pay the reasonable cost" of an " engineer for the investigation, report and the engineer s time for supervision of any repair made as a result of said engineer s report" ; and ta that the costs of the removal of the vehicles and clearing of the brush , grass and refuse on the propert be biled to the Muzios and that upon such costs being unpaid for thirt days afer the mailng of a bil, the costs shall become a lien upon the property and shall be added to and become a par of the taes next to be assessed and levied upon such and shall bear interest at the same rate as, and be collected and enforced in the same maner as Vilage taes " (Complaint at pp. 22- 25). In this regard , the court notes that such relief canot be obtained in this proceeding Cole 67 NY2d 65 (1986)). (see Vilage Law ~ 4-414; D 'Angelo fuer It is ordered that the branches of the Vilage s motion to inter alia strke the Muzios ' answer and for additional relief , are denied as academic in light of the provisions of this order which grant the Vilage parial summary judgment. However, the cour notes that the Muzios ' conduct , which includes disobedience of court orders , dilatory conduct and willful and contumacious refusal to appear for depositions , would otherwse have waranted strking their Jeremiah 51 AD3d 975 (2d Dept 2008) (wilful or contuacious Howe answer (CPLR 3126; character of par' s conduct can be inferred from the par' s repeated failure to respond to demands and/or comply with discovery orders)). ,' . - [* 5] Ths constitutes the decision and order of the cour. DATE: Febru 16 2012 ENTERED FEB 22 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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