People v Della Femina Rest.

[*1] People v Della Femina Rest. 2007 NY Slip Op 50984(U) [15 Misc 3d 139(A)] Decided on May 9, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 9, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2006-738 S CR.

The People of the State of New York, Respondent,

against

Della Femina Restaurant/ JDF Enterprises, LLC, Appellant.

Appeal from a judgment of the Justice Court of the Village of East Hampton, Suffolk County (Lisa R. Rana, J.), rendered March 14, 2006. The judgment convicted defendant, after a nonjury trial, of 10 counts of violating section 121-7 (C) of the East Hampton Village Code.

Judgment of conviction reversed on the law, fines, if paid, remitted and accusatory instrument dismissed.

Defendant was tried by information charging 10 counts of violating section 121-7 (C) of the East Hampton Village Code (Code). Section 121-7 (C) of the Code provides, in relevant part, that "no additional use shall be installed or permitted in an existing building or structure without the approval of the Design Review Board."

The evidence adduced at trial established that, in 2001, defendant obtained approval from the Village of East Hampton Design Review Board (Board) to construct a patio adjacent to its restaurant. The Board restricted the use of said patio to 16 seats during the summer season. The code enforcement officer testified that on the 10 dates and times alleged in the information, he visited the patio and determined that defendant had placed seats on the patio in excess of the limit imposed by the Board. At the conclusion of the People's case, defendant moved for a trial order of dismissal on the ground that the evidence failed to establish that it "installed or permitted" an "additional use . . . in an existing building or structure." Defendant then rested without presenting any evidence. Defendant was found guilty on all 10 counts and, on appeal, asserts the same arguments as raised in said motion.

We note that the term structure is not defined in Chapter 121 of the Code. However, even if it be assumed that the patio was a structure for purposes of section 121-7(C), since the increase in the number of chairs placed on the patio did not change the basic character of the use [*2]of the structure or result in the variation or alteration of the specific type of use, it did not constitute an "additional use" (see Inc. Vil. of Laurel Hollow v Owen, 247 AD2d 585 [1998]; Matter of Tartan Oil Corp. v Board of Zoning Appeals of Town of Brookhaven, 213 AD2d 486 [1995]). In view of the foregoing,
the judgment of conviction is reversed, the fines, if paid, remitted and the accusatory instrument dismissed.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: May 9, 2007