Town of Riverhead v Taste of Country, Inc.
Annotate this Case
Download PDF
Town of Riverhead v Taste of Country, Inc. 2012 NY Slip Op 32460(U) September 20, 2012 Supreme Court, Suffolk County Docket Number: 37847-10 Judge: Elizabeth H. Emerson 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] COpy INDEX SHORT FORM ORDER NO., 37847-10 SUPREME COURT - STATE OF NEW YORK COMMERCIAL DIVISION TRIAL TERM, PART 44 SUFFOLK COUNTY PRESF:NT: Honorable Elizabeth H. Emerson x TOWN OF RIVERHEAD, MOTION DATE: 2-22-12; 5-17·12 SUBMITTED; 6-21-12 MOTION NO.: 001-1\'10 002-XMOT D Plaintiffs, CAMPOLO, MIDDLETON & MCCORMICK, LLP -against- Attorneys for Plaintiff 3340 Veterans Memorial Highway, Suite 400 TASTE OF COUNTRY, INC-, RENEE CREEVE a/kJa RENEE C KAELIN, JOHN A. Bohemia, New York 11716 REEVE, and JOHN DOES and MARY DOES CIARELLI & DEMPSEY P.C- "I" to "10," said names being fictitious and presently unknown but who arc believed to be tenants, operators, contractors, invitees, and/or licensees of 5506 Sound Avenue, Riverhead, New Attorneys for Defendants 737 Roanoke Avenue Riverhead, New York 11901 York, Defendants. x Upon the following papers numbered 1-47 read on this motion and cross-molion for summar\' judgment; Notice of Motion and supporting papers _1.:.113 Notice of Cross Motion and supporting papers_ 12-42 ; Answering Affidavits and supporting papers 43--45; Replying Affidavits and supporting papers 4647; it is, ORDERED that the motion by the defendants for summary judgment dismissing the complaint and granting judgment in their favor on the counterclaims is denied; and it is further ORDERED that the cross motion by the plaintiff for summary judgment on the first through sixth causes of action is granted on the fourth and fifth causes of action and on the sixth cause or action on the issue of liability only; and it is further [* 2] Index No.: 37847-10 Page 2 ORD/:::RED that the cross motion is othcr. ¢ ¢ ¢. denied; and it is further ise ORDERED that the defendants, their agents, servants, employees, contractors. members. t:::nants, lessees, licensees, representatives. and all other persons acting on their behalf or in concert wIth them are hereby enjoined and restrained from operating a delicatessen and/or take-out restaurant on the premises that is the subject of this action and from preparing and/or selling hot and cold short-order type foods, cooked-to-order foods, as well as catered footis Oil or /j'orn the premises; and it is fUI1her ORDERED that it is hereby adjudged and declared that the defendants' operation or a delicatessen and/or take-out restaurant on the premises that is the subject of this action, including the preparation and/or sale of hot and cold Shol1~order type foods. cooked-to-order roods. and catered foods, violates § 108 of tile Riverhead Town Code as well as the certificate of occupancy for the f~l1lnstand or accessory building on the premises. The defemlants John and Renee Reeve (the "Reeve defendants") are the owners of a 1.837- acre parcel of real property located in the Hamlet of Jamesport, Town of Riverhead. State or New York. When the Reeve defendants purchased the propcrty in 2001, it had on it. inter alia, a housc, a ham, a faml stand, and housing for agricultural workers (the "ag housc'"). In 2002 or 2003. the Reeve defendants applied for a pennit and variances to knock down the ag house and ercct a ncw, prefabricated ag house on the premises. The application was denied, and the Reeve defendants appealed to the Zoning Board of Appeals. By a delemlination dated July 14,2003, the Zoning Board of Appeals granted the application and variances on the conditions, inter alia, that no morc than two fann workers employed by the Reeve defendants occupy the ag house, that the Reeve defendants actively farm at least five acres of land Within three miles ofille prorerty. and that they submit proof thereof to the Zoning Board of Appeals annually. The Reeve defendants failed to erect the new ag house, and the Town of Riverhead subsequently Ch,lIlgcd the zoning of the property from Agriculture A to RA-80, which did not pennit agflcliltural worker housing. In December 2004, the Reeve defendants made a second application ror permISSion to erect a new ag house on the property, which was denied. In March 2005, the Town l10ard adopted a resolution authorizing agricultural worker housing in the RA-80 zoning districts. The Reeve defendants appealed. Bya detennination of the Zoning Board of Appeals daled May 26, 2005, the Reeve defendants were granted pennission to erecl a new, prefabncateJ ag house on the parcel and a variance because the parcel consisted of 1.837 acres instead of the required 5 acres. The second determination, like the first, was granted on the conditions that no more than two fann workers employed by the Reeve defendants occupy the ag house. that the Reeve defendants aclively fann at least five acres ofland within three miles of the property, and [* 3] Index No.: 37847-10 Page 3 that they submit proof thereof to the Zoning Board of Appeals annually. suhsequently erected a new, prefabricatcd ag house on the premIses. I Thc Reeve defendants In 200 I, when the Reeve defendants purchased the propel1y. there was a moveable-cart farm stand on it. fn 2002, they applied for a pennit to construct an accessory building to replace the moveable-cart fann stand. That application was granted and a building permit Issued on February 13,2002. The property was rezoned in 2004. In 2003, prior to the rel-Olllng, the Reeve defendants added some limited cooking facilities to the farmstand to serve hot food and applied to the Suffolk County Hcath Department for a pCn11it. On November 2:1, 2004, the SufTolk County Health Department sent the following e-mail 10 the Riverhead Building Department: Taste of the Country zoning issue. Wc have a fnrm stand that was convcrted to a commercial use and needs the Health Dept. to Issue them a pcrmit for a restaurant. Taste of the Country isn't located 1ll an area that the Town of Riverhead would issue a commercial application to. The Buildillg Dcpartment Administrator responded by the following e-mail dated Novcmber 23, 2004, The above site has pre-existing use status. All zoning districts havc been repealed and replaccd. The Town of Riverhead fc-wrotc a ncw Ag Stand code that has been held for public hearing, but is still not adopted. The Town felt that the code involving fann-stand zOlllng was so weak, it was almost impossible to enforce. Thc ZBA gave this place an area variance, knowing the use, but realized it was such a grey area, it granted relief. Bascd on my prior expericnce III dealing with enforcement issues, r believe, this IS all cxisting use that has bccn Grand-fathered. On February 22, 2005, the Riverhead Building Department issued a temporary eerti ficate of occupancy for the fan11 stand "subject to conditions as set forth in permanent ccrti llcate of occupancy." The following conditions wcrc set forth in the pennanent certificate of occupancy, whIch was issued on March 2, 2005: SUBJECT TO The sale at retail ofhomcgrown or homemade products, provided that all retail uses shaH be subject to the 1'1'0111 'The third condition, that dry wcBs or leaching pools be installed the ag house, if deemcd nccessary, is not at issuc. to maintain watcr runoff [* 4] Index No.: 37847-10 Page 4 provisions of Chapter 108. The famlcr may sell supporting farm products and faml products not grown by the famler, provided that the area devoted to the sale of said products at no time exceeds 40% orthe total merchandising area. Bya leller dated March 16,2005, the Riverhead Building Department Administrator sent the certi ficate of occupancy to the Reeve defendants. The Administrator reitcratcd the conditions found in the certificate ofoecupancy, I.e., that the items sold at retail he homegrown or homemade products and that other products l111ght e sold as long ,ISthey did llot b exceed 4()l;;) afthe merchandising area. The Administrator went on to advise the Reeve defendants lhalno cooked-ta-order or short-order typc foods might be sold on lhe premises. The Town or Rivcrhead commenced this action on Octoher 13,2010, allegll1g lhat the Reeve defendants had 1~Ii1ed comply with the conditions set forlh in the certificate of to occupancy lor the t~lrlllstand and the conditions set Forth in the Zoning Board of Appeals' determination for the ag house. Specifically, the Town alleged that the Reeve defendants were operating a restaurant out orthe fann stand and that the ag house was occupied hy the Reeve defendants' daughter and not agricultural workers. The Town also alleged that the Reeve delendants had failed to submit annual prooF to the Zoning Board of Appeals that they were ran11lllgfive acres within three miles of the property. The first, second, and third causes of action seck declaratory relief, injunctive relief, and civil penalties, respectively, in connection with the ag housc. The fOL1l1h, Oh, and sixth causes of action seek injunctive relieF, declaratory rdief, fi and civil penalties, respectively, in connection with the fann stand. The sevcnth cause of action seeks lIlJullctive relief in eonlleetlOn with alleged fire code violations. The defendants' answer contains three counterclaims for declaratory relief and money damages. Both SIdes move for summary judgment. In support of their motion for summary judgment, the defendants h,lve produced ,I cerfi llcate of"compliance from the Riverhead Buikfing Department dated JaJluary 31, 20 II, certifying that the Town's yearly inspection orthe ag house had been completed and that it cOlllplied \I/llh, mter al ia, the Agricultural Housing Code of lhe Town of Riverhead. The defendants argue that this document conclusively establishes their entitlement to judgment as a maHer of law on the first three causes of action. The proponent ofa motion for summary judgment carries thc initial burden of the productlOll of evidence, as well as the burden of persuasion. The moving party must tender sufficient evidence to demonstrate, as a matter of law, the absence of a material issue of f~lCt. Failure 10 make that initial showing requires denial of the motion regardless of the sufficiency of the opposing papers (Kuang v Board of Managers of the Biltmore Towers Condominium Assoc .. 22 Mise 3d 854, 864 [and cases cited thereinJ, affd 70 AD3d 1004). The court finds that the defendants have failed to establish. prima j~lcle, their cnlitlcmcntto judgmcnt as a mattcr of law on the first threc causes of action. While the January [* 5] Index No .. 37847-10 Page 5 31, 201 L certiricate of compliance may be sufficicnt to establish that the ag house complied with the Rivcrhead Agricultural Housing Code during the year 2011, it fails to estahlish sllch compliance during any prior years, specifically the years 2005 through 2010. and continued compliance in the present year. Accordingly, the defendants' motion is denied as to the first three causes of action. In supPOl1 of its cross motion, the Town has produced two lellers fi'ol11Brad Rl'eve, Sr., to the Town. The first letter, which is dated December 13,2004, adVised the Town that the Reeve defendants had leased 5 acres of farmland from Brad & Lorraine Reeve & Son for the growlllg of vegetables. The second letter, which was received by the Town on Octoher 25, 20 I0, advised the Town thM the Reeve defendants had leased 5 acres of farmland fi'om Brad & Lorraine Reeve & Son and would be leasing an additional 17 acres from [hem for the growing or vegetahles. Relying on the defendants' failure to produce any additional proof that they have compiled with thc condition that they notify thc Zoning Board of Appeals annually that they arc ~lctlvcly famling at \cast five acres ofland within three miles of the propcrty, the Tow11 contends that it has cstablished as a matter ofiaw that the defendants have failed to comply therewith. A party docs not carry its burden in moving for summary judgment by pointing oul gaps in its opponent's proof(see, Corrigan v Spring Lake Building Corp., 23 AD3d 604, 605 [and cases cited therein]). Moreover. there arc triable issues of fact regarding whether the defendants have complied with thc condition that no more than two fann workers employed by the Reeve defendants occupy the ag house. Accordingly, the plaintifTs cross motion is denied as to the first three causes ofactioll. In support of summary judgment on the fourth through sixth causes of action. the defendants rely on the 2002 building penn it issued by the Town lor the construction or1he fanll stand and the 2003 determination of tile Zoning Board of Appeals, which the defendants contend declares the farm stand to be build in con[onllance with the Zoning Code except for the location or a walk-in refrigerator. The defendants argue that these doculllents, as well as the c-mail elated November 23, 2004, from the Building Department Administrator, conclusively establish that the 1:\1"111 slillld is a legal, non-conforming use. In opposition and in support of its cross motion, the Town acknowledges that the I:tnn stand becamc a pellnittcd, pre-existing, non-confomling use upon thc rcvision of the Town Code in 2004. The Town contends that the defendants have enlarged the manner in which the f<1nnstand operates well beyond the continuance ofa prior, non-confonning use. The Town has submilled evidence in admissible foml that the famI stand was operated by the defendant Renee Reeve until August 2009; that the goods sold included homemade baked goods, fann-raised fruits and vegetahles. as well as cooked foods such as eggs and prepared foods sllch as sandwiches: that the Reeve defendants then leased the faml stand to tenants who operated it first as a delicatessen and then as a MeXIcan restaurant; and that the fann stand 110longer sells allY faml products. In opposition 10 the Town's cross motion and 111 further support of their own [* 6] Index No.: 37847-10 Page () molion. the defendants do not dispute any of the foregoing facts, but reiterate their argument that the fann slaml is a legal. pre-existing, non-eonfonning use. The parties agree that the farm stand is a pre-existing, non-confonning use. However, it is not currently being operated as a farm stand, but as a restaurant in violation of the RIverhead Zoning Code. While neither the fomler nor the current Zoning Code explicitly prohibit the sale of cooked-to-order or shoJi-order type foods at farm stands. both reqUIre that the goods sold at f:tnn stands be homegrown or homemade products mainly raiscd or produced on the premises (Riverhead Zoning Code § 108-22 [el [2]); fanner § 108-21 [CJ LID. Moreover, the current Riverhead Zoning Code further restricts the sale of supporting fann products and fann products not grown by the famler to no more than 40% of the total merchandising area (§ 108-22 [C] [2])_ Thc Town has produced evidence in admissible fonn that the Reeve defendants' fann stand no longer sells any faml products and that it is currently being operated exclusively as a restaurant. In fact. the Suffolk County Department of Health Services issued a pennit for a 16scat food estahlishmcnt on the premises on October 29, 20 I O. Accordingly, the court fInds tl1at the Town has established, prima facie, its entitlement to judgmcnt as a maller of law on the founh through sixth causes of action. [n opposItion to the Town's prima facie showing, the dcfendants have produced only an attorncy's affinnation, which is of no probativc valuc in opposing a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 563; Hasbrouck v Cit.y of Gloversville, 102 AD2d 905, (!/Jd 63 NY2d 91 G). Accordingly, the Town is cntitled to sUll1mary judgment on the fourth cause of action for injunctive relief, on the fifih cause of action for declaratory relief, and on the sixth cause of action for civil penalties on the issue of liability. The issue of the amount of such penalties is referred to the trial or other disposition of this action. Thc defendants have failed to establish, prima facie, their entitlemcnt to summary judgment all lhe sevcnth causc of action, which seeks illJunctive relief in connection with allegcd fire code violations. The conelusory and self-serving assertions of the defendant John Reevc that all orthe violations have been cured and that, if they were not, the Health Department woulclnot have issucd a pCl111itor thc premises, are insufficient to establish as a mailer or law that the f violations havc, m fact, hccn cured. Accordingly, the defendants' motion is denied as to the seventh cause of action. Finally. it is unclear whether the defendants' counterclaims ror declaratory relief alld money damages refer to the ag house, the farm stand, or both. In any event, tile defendants arc not entitled to a declaration in their favor with regard to the farm stand. The remail1lng issues arc referrcd to the trial or other disposition of this action. Dnted: -l:!.eptcmhcr 20, 2012 HON.1!lllA8Enf HAZlJTTEMERSC»< J.S.c.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
