Hejna v Planning Bd. of the Vil. of Amityville
Annotate this CaseDecided on September 11, 2006
Supreme Court, Suffolk County
Angelika Hejna and Louis MacCarone, Petitioners,
against
Planning Board of the Village of Amityville; John J. Lauria, as Building Inspector of the Village of Amityville; and Jamm Holding, Inc., d/b/a Richmond Auto Body, Respondents.
2005-18938
Law Offices of Richard Handler
Attorneys for Petitioners
50 Broadway, PO Box 427
Amityville, New York 11701
Bruce Kennedy, PC
Attorneys for Respondents AMITYVILLE
31 Greene Avenue
Amityville, New York 11701
Paul J. Margiotta, Esq.
Attorneys for Respondent JAMM
1045 Route 109, Suite 106
Lindenhurst, New York 11757
Jeffrey Arlen Spinner, J.
It is, ORDERED, that the first application of Petitioners is hereby granted to the extent set forth herein below; and the second application of Petitioners is also hereby granted to the extent set forth herein below.
Petitioners move this Court for an Order, pursuant to CPLR Article 78:
1.Vacating and annulling the decision of Respondent AMITYVILLE (PLANNING BOARD) dated August 12, 2005, which granted the application of Respondent JAMM to construct an addition containing five vehicle paint spraying booths and seven work bays in the "B-2 Retail Business District", without conditioning such approval upon a special exception or use variance to be granted by the Board of Appeals and a use modification by the Board of Trustees; and
2.Granting an injunction pendente-lite enjoining Respondent AMITYVILLE (BUILDING INSPECTOR) from permitting construction of an addition containing five vehicle paint spraying booths to be built in accordance with plans submitted by Respondent JAMM, dated July 6, 2005 et seq, until such time that a variance or special exception to conduct such use at 91 Merrick Road, Amityville, is approved by the Board of Appeals and a modification of Village Code § 183-140 is granted by the Board of Trustees; and
3.Granting an injunction pendente-lite enjoining Respondent JAMM from constructing an addition [*2]containing five vehicle paint spraying booths and additional work bays to be built in accordance with plans dated July 6, 2005, submitted by said Respondent to Respondent AMITYVILLE, until such time that a variance or special exception to conduct such use at 91 Merrick Road, Amityville, is approved by the Board of Appeals and until the Board of Trustees grants a modification to Village Code § 183-140.
Petitioners further move this Court for an Order;
1.Pursuant to CPLR 6301 for a preliminary injunction against Respondent JAMM enjoining said Respondent from constructing the 7,700 sq ft extension approved by Respondent AMITYVILLE (PLANNING BOARD), pending a determination herein, as well as a preliminary injunction against Respondent AMITYVILLE (BUILDING INSPECTOR) from issuing a Building Permit or from permitting such construction pursuant to a Building Permit issued therefor; and
2.Pursuant to CPLR 7805, staying further proceedings or the enforcement of Respondent AMITYVILLE (PLANNING BOARD) decision granting Respondent JAMM approval to construct a 7,700 sq ft addition to 91 Merrick Road, Amityville, until a determination of the proceeding under review.
Petitioners seek vacature and annullment of the decision of Respondent AMITYVILLE (PLANNING BOARD) upon the grounds that:
1.Pursuant to the Village Code, permitting construction of five vehicle paint spray booths, without a use variance or special exception from the Board of Appeals, is unlawful and beyond the scope of the authority delegated to Respondent AMITYVILLE (PLANNING BOARD);
2.Pursuant to the Village Code, approving any construction plans or issuance of Building Permits, without conditioning same upon a modification to be granted by the Board of Trustees, since Respondent JAMM's business is a Public Garage, as defined in the Village Code, and is located within 200 feet of a Residence District, is unlawful and beyond the scope of the authority delegated to Respondent AMITYVILLE (PLANNING BOARD);
3.The description of the relief sought in Respondent JAMM's application was vague, confusing, conflicting, and failed to disclose any information about the five vehicle paint spray booth operation, and therefore the hearing of Respondent AMITYVILLE (PLANNING BOARD) should have been postponed or adjourned to permit the public and Petitioners an opportunity to evaluate the application and prepare comments;
4.The determination of Respondent AMITYVILLE (PLANNING BOARD) was arbitrary and capricious in that it failed to articulate the rationale for its decision;
5.The determination of Respondent AMITYVILLE (PLANNING BOARD) was arbitrary and capricious in that it failed to require an objective professional report weighing the environmental impact of such spray paint stations and the necessity of an adequate air filtration system, especially in light of its proximity to residential facilities, considering the volume of the proposed expansion;
6.The requirements of the Village Code are inadequate in that the minimum five foot buffer set forth therein at § 183-91.1 is insufficient to provide adequate insulation between the business operations and residential properties.
Petitioners further seek injunctive relief herein until:
[*3]
1.A determination of the within Article 78 proceeding is rendered;
2.A determination by the Board of Appeals regarding a use variance or special exception as to Respondent JAMM's request for the addition of five vehicle paint spraying booths and additional vehicle repair stations, as set forth in the plans submitted to Respondent AMITYVILLE (PLANNING BOARD);
3.A determination by the Board of Trustees regarding a modification pursuant to Village Code § 183-140, as to Respondent JAMM's request for permitting a public garage servicing more than three vehicles to operate within 200 feet of a Residential District.
The parcel that is the subject of the underlying application before Respondent AMITYVILLE (PLANNING BOARD) lies on the south side of Merrick Road, in the Village of Amityville, consisting of an area of 45,646 sq ft, with a street frontage of 139.22 feet and a depth of 335 feet. The northerly 200 feet of the parcel is zoned B-2 Retail Business District, and the southerly 135 feet is zoned BB Residential District. All portions of the parcel which abut neighboring BB Residential District zoned property are improved by residential premises, numbering six in close proximity.
Petitioners allege, and it is uncontroverted by Respondents, that since 1976 uses at the premises have been the subject of eight Board of Appeals applications, regarding either physical changes or mere ownership changes, with the Board of Appeals consistently imposing conditions and stipulations, due to the proximity of the residential premises, regulating use, fencing, licensing, appearance, environmental effects, pollution containment, building construction, aesthetics, hours of operation, outside storage, number of vehicles parked, plantings and screening, number of vehicles serviced, operations in the interior and exterior of the premises, ventilation and air filtration, fire inspection, use expirations, etc.. None of these previous Board of Appeals decisions were presented to the Court in the Record submitted by Respondent AMITYVILLE (PLANNING BOARD), and it must therefore be presumed that same was not placed before said Respondent for consideration in rendering their decision herein appealed.
When Respondent JAMM made their previous application to Respondent AMITYVILLE (PLANNING BOARD) and the Amityville Boards of Appeals in 1998, they asserted before the Board of Appeals that this location had been used for automotive business since 1950, in supporting his request for a special exception for "...an auto body repair and service facility with the addition of an exterior paint spray booth...". Throughout that decision, the Board of Appeals makes constant reference to the justification and granting of one spray booth. The totality of the building to be used for said services in the 1998 application which was granted by the respective Boards in 1998, as to the diverse subject matters of their jurisdiction, was just in excess of 4,000 sq ft.
The application before Respondent AMITYVILLE (PLANNING BOARD) proposed construction of an addition to the existing building well in excess of 7,000 sq ft, adjacent to residential premises, housing five vehicle paint spraying booths, seven work bays and additional parking (in the residentially zoned portion of property), but one would glean little, if any, of that from the application filed and advertised, and would find it difficult to determine the full scope of the application even from the filed plans.
[*4]
In fact, the Notice that was sent to nearby property owners stated that approval was sought for "...construction of addition to existing building and adjacent parking...". Furthermore, the application also failed to set forth the extent of the requested relief, failing to state:
1.That the building expansion would nearly triple the size of the building;
2.That the building addition would house facilities, systems and mechanisms for the simultaneous spray painting of five vehicles, instead of one;
3.That the air filtration and mechanical system would provide for external venting of the five spray paint booths through 25 foot stacks discharging five feet from Petitioners' residential property;
4.That the interior of the building, between the existing and additional structure, would be renovated to provide for additional vehicle storage areas and seven new bays for additional collision repair work and wash-down areas, increasing capacity to at least twelve vehicles being serviced simultaneously.
Furthermore, the application cited the wrong section of the Village Code from which relief was sought.
The prior grant of the Board of Appeals restricted operations to space for three vehicles to be repaired and one to be painted, therefore the present application resulting in five spray booths and seven repair bays, totaling allowance 12 simultaneous operations, represent a tripling of the operations, as well as the size of the building.
From the start, it should be noted that it is well settled law in the State of New York that a Court may not substitute its own judgment for that of the reviewing board (see: Janiak v. Planning Board of the Town of Greenville, 159 AD2d 574, 552 NYS2d 436 [2nd Dept], appeal denied, 76 NY2d 707, 560 NYS2d 989, 561 NE2d 889 [1990]; Mascony Transport and Ferry Service v. Richmond, 71 AD2d 896, 419 NYS2d 628 [2nd Dept 1979], aff'd, 49 NY2d 969, 428 NYS2d 948, 406 NE2d 803 [1980]). Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (see, Castle Properties Co. v. Ackerson, 163 AD2d 785, 558 NYS2d 334 [3rd Dept 1990]). It is, therefore, indisputable that the standard of review for determinations of Respondent AMITYVILLE (PLANNING BOARD) is whether the decision rendered is, first, within the scope of the authority delegated to it, and second, whether said decision is arbitrary, capricious and/or unlawful.
Petitioner HEJNA asserts standing to bring the underlying litigation as the legal owner of two parcels of residential real property directly abutting the premises that is the subject of the application before Respondent AMITYVILLE (PLANNING BOARD). Petitioner MACCARONE asserts said standing as the equitable owner of the improvements to real property located at 11 Richmond Avenue, Amityville. In both its Verified Answer and its Amended Verified Answer, Respondent AMITYVILLE takes the position that Petitioner MACCARONE has no standing to bring this action, as he is not within the "...zone of interest intended to be provided by law, rules or regulations affecting the application...". Thereafter, nothing is presented to support this contention, which, when coupled with Petitioner HEJNA's undisputed standing, is clearly a non-issue.
All sides present a multitude of legal arguments to the Court, effectively covering all of their [*5]bases, but the within matter distills itself to a few, succinct legal issues upon which the entire matter is resolved.
As to Petitioners' argument that, pursuant to the Village Code, permitting construction of five vehicle paint spray booths, without a use variance or special exception from the Board of Appeals, is unlawful and beyond the scope of the authority delegated to Respondent AMITYVILLE (PLANNING BOARD), Petitioners proffer the argument that Respondent AMITYVILLE (PLANNING BOARD) is duly constituted pursuant to Village Law § 7-718; that its limited power and duties are set forth in Village Code § 24-1, et seq; and that nowhere therein has the Board of Trustees of Respondent AMITYVILLE delegated to Respondent AMITYVILLE (PLANNING BOARD) any authority to grant special use permits or special exceptions. The Court notes that said Board of Trustees could lawfully have delegated the legal authority to grant such a special use permit or special exception to Respondent AMITYVILLE (PLANNING BOARD), pursuant to Village Law § 7-725-b, but did not.
That being said, Village Code § 183-1 defines a Public Garage as "Any garage other than a private garage, available to the public, operated for gain, including the use of land or building for the sale of new or used cars or for the storage, repair, rental or servicing of automobiles or motor vehicles, or for gasoline filing station". It is, given the application recited herein above, indisputable that the use of these premises is that of Public Garage. Thereafter, Village Code § 183-82 states, in relevant part, the following: "In a B-2 General Business District, a building may be erected, altered or used and a lot or premises may be used for any of the following purposes and none other: A. No building or premises shall be used, and no building or part of building shall be erected, which is arranged, intended or designed to be used, in whole or in part, for any purpose, except the following: ... (13) The following when, and only when, approved by and subject to safeguards imposed by the Board of Appeals as a special exception: (a) Public or minor garages...".
Clearly, pursuant to the Village Code, said Board of Trustees determined, that such a use in said zoning district would be a special exception (special permit, special use permit, special conditional use permit, etc.), and not a use variance. Furthermore, said Board of Trustees determined to delegate the authority to consider and grant such special exception for Public Garages to the Board of Appeals, not Respondent AMITYVILLE (PLANNING BOARD), and therefore said Respondent AMITYVILLE (PLANNING BOARD) acted beyond the scope of their authority in granting this application.
Respondents take the position that the prior grant of the Board of Appeals makes an additional application pursuant to the proposed application unnecessary, and therefore Respondent AMITYVILLE (PLANNING BOARD) was within its authority. As adeptly pointed out by Petitioners, the prior grant of relief to Respondent JAMM, in their 1998 application before the Board of Appeals, obviously contemplated a small auto repair shop and service facility, as set forth herein above, including the ability to repair three vehicles and spray paint one other, simultaneously. The underlying application herein represents a dramatic expansion from the 1998 grant, as well documented by Respondent JAMM's own presentation to Respondent AMITYVILLE (PLANNING BOARD),and indicated in the Transcript submitted to the Court by Respondent AMITYVILLE (PLANNING BOARD).
[*6]
To begin with, as stated above, this is a special exception and not a use variance, and therefore the prior grant must be strictly interpreted as to the relief granted. Furthermore, whether use variance or special exception, the scope of the present application could not have been anticipated by the Board of Appeals in their prior grant, so they certainly could not have addressed the safeguards the Board of Trustees required them to consider and regulate the special exception they granted subsequent thereto. That aside, this unconvincing argument isn't even reachable, in any respect, as the plain language of the Village Code, as recited herein above, clearly requires a special exception application to the Board of Appeals when the present circumstances would be"altered" by the substance of the relief requested, and there can not be any rational argument put forth that can support a conclusion the underlying application does not require the site to be "altered". Respondent AMITYVILLE (PLANNING BOARD) had no authority to grant this application absent conditioning same upon the granting of a special exception, or the prior granting of a special exception by the Board of Appeals.
In point of fact, the Board of Appeals, when considering the scope of the intensification requested, which requires a special exception, and the additional request for a variance of parking in the residential portion of the parcel, the Board may deem the change so great that variance relief, rather than special exception relief, is mandated (See Richard Herricks Properties, Inc v Amelkin, 133 AD2d 746, 520 NYS2d 35 [2nd Dept 1987]; and Rudolf Steiner Fellowship Foundation v DeLuccia, 90 NY2d 453, 662 NYS2d 411 [1997]). Furthermore, when a municipal board imposes conditions on the grant of relief, the Board impliedly exercises particular concerns which should not be thwarted by unrestricted expansion, requiring that continued review by that Board is essential to preserve those protections which were implemented by the conditions imposed in the initial approval (See Albert Kemperle, Inc v. Gunther, 131 AD2d 269, 519 NYS2d 58 [2nd Dept 1987]; Appeal Denied 72 NY2d 804 [1988]).
McKinney's Practice Commentaries, by Terry Rice, regarding Village Law § 7-725-b, are a great source of instruction on this, as well as the following point. As is set forth therein, a board entertaining a special permit application possesses no authority to waive or modify any of the explicit conditions set forth in the village's zoning code (See, Jewish Reconstructionist Synagogue v Levitan, 34 NY2d 827, 359 NYS2d 55, 316 NE2d 339 [1974]; Wisoff v Amelkin, 123 AD2d 623, 506 NYS2d 778 [2nd Dept 1986]; Knadle v ZBA of the Town of Huntington, 121 AD2d 447, 503 NYS2d 141 [2nd Dept 1986]; McMahon v ZBA of the Town of Wappinger ZBA, 121 AD2d 451, 503 NYS2d 142 [2nd Dept 1986]; Cathedral of the Incarnation v Glimm, 97 AD2d 409, 467 NYS2d 241 [2nd Dept 1983], affirmed 61 NY2d 826, 473 NYS2d 972, 462 NE2d 149 [1984]). Since a board does not possess the authority to alter the requirements for a special permit nor grant a variance or waiver from special permit criteria, it must deny an application which fails to comply with all legislatively mandated conditions (See, Vergata v Town Board of the Town of Oyster Bay, 209 AD2d 527, 618 NYS2d 832 [2nd Dept 1994], leave to appeal denied 85 NY2d 802, 624 NYS2d 372, 648 NE2d 792 [1995]; Multi-Stage Developers v Village of Great Neck, 149 AD2d 414, 539 NYS2d 764 [2nd Dept 1989]; Cappadoro Land Development v Amelkin, 78 AD2d 696, 432 NYS2d 513 [2nd Dept 1980]. At the very heart of the rationale for classifying a use as a special exception is the inherent potentially disruptive nature of that use, making the review process for such a special exception a necessary element for the board to probe the specific characteristics of the proposed use and, if all the criteria are satisfied, the ability to impose conditions it deems necessary to minimize the impact on [*7]surrounding areas (Green v LoGrande, 96 AD2d 524, 464 NYS2d 831 [2nd Dept 1983], appeal dismissed 61 NY2d 758 [1984]).
As to Petitioners' argument that, pursuant to the Village Code, approving any construction plans or Building Permits, without conditioning same upon a granted by the Board of Trustees for an expanded Public Garage located within 200 feet of a Residence District, is unlawful and beyond the scope of the authority delegated to Respondent AMITYVILLE (PLANNING BOARD), Petitioners proffer the argument that the restrictions imposed by Village Code § 183-140(A) constitute an absolute prohibition unless the Board of Trustees modifies such limitations imposed therein through an application for an exception accompanied by the written consent of adjoining residential property owners, and that approval by said Board of Trustees is pre-requisite to the granting of any Building Permit or Certificate of Occupancy to operate such a Public Garage in the B-2 Retail Business District in such proximity to residential property as the within situation.
The Court notes that Village Code § 183-140(A) states, "In any district no public garage for more than three (3) motor vehicles and no gasoline vending station shall be erected or altered and used within two hundred (200) feet of the premises in any Residence District or any premises used for a school, public or private library, hospital or church. Said distance of two hundred (200) feet shall be measured by the shortest distance between the premises, provided, however, that the Board of Trustees may modify such limitation, upon an application for an exception to this limitation where said application is accompanied with a consent in writing from the affected school, library, hospital, church or residential property owners".
This Court is constrained to point out that, although informed that the Board of Trustees was considering amendment of that portion of this provision that requires written consent of the various entities stated, based upon an opinion of the Village Attorney that it was unconstitutional, no party hereto had the respect for the Court, or the ensuing waste of judicial resources caused thereby, to inform this Court whether such an amendment was adopted. The Court chooses to pass on the issue of constitutionality, as once again the clear language of the Village Code renders the decision of Respondent AMITYVILLE (PLANNING BOARD) a nullity without even reaching the issue of written consent.
The underlying application clearly demonstrates that the relief requested includes plans for a Public Garage:
1.For more than three motor vehicles;
2.Proposing the present Public Garage be "altered';
3.Within two hundred feet of a Residential District (no matter what way one measures it).
Therefore, clearly, without even approaching the issue of the constitutionality of the requirement of written consent of numerous parties, Respondent AMITYVILLE (PLANNING BOARD) had no authority to grant this application absent conditioning same upon the granting of modifications to the limitations imposed by Village Code § 183-140(A), or the prior granting of said modifications by the Board of Trustees.
As to Petitioners' argument that the description of the relief sought in the application, and the manner in which it was advertised and noticed, was vague, confusing, conflicting, and failed to [*8]disclose requisite information, depriving the public and Petitioners of an adequate opportunity to evaluate and address the application, the Court concurs. As properly cited by Plaintiffs, inadequate notices deprive Petitioners of the very benefit prior notice is intended to bestow (See, Burke v Village of Colonie, 199 AD2d 611, 604 NYS2d 343 [3rd Dept 1993]); and where notice to adjacent property owners and the public fails to describe the nature of the application, omitting references to the type of relief sought, a new hearing is required (See, Steiner v. Board of Appeals of Village of Great Neck, 64 AD2d 1005, 406 NYS2d 126 [2nd Dept 1978]). As stated by this Court earlier, one would glean little, if any, of the nature and extent of the relief requested in the underlying application as filed and advertised, and therefore same was totally inadequate as a matter of law.
As to Petitioners' argument that the determination of Respondent AMITYVILLE (PLANNING BOARD) was arbitrary and capricious in that it failed to articulate the rationale for its decision, the Court again concurs. A planning board is required to render findings of fact supporting its site plan determination (See, Dean Tarry Corp v Friedlander, 78 AD2d 546, 432 NYS2d 35 [2nd Dept 1980]; Sherman v Frazier, 84 AD2d 401, 446 NYS2d 372 [2nd Dept 1982]; Highland Brooks v White, 40 AD2d 178, 338 NYS2d 709 [4th Dept 1972]; Asma v Curcione, 31 AD2d 883, 298 NYS2d 286 [4th Dept 1972]; Lemir Realty v Larkin, 8 AD2d 970, 190 NYS2d 952 [2nd Dept 1959]). Furthermore, these requisite findings must be supported by substantial evidence in the record (See, Berg v Michaelis, 21 AD2d 322, 250 NYS2d 824 [2nd Dept 1984]; affirmed 16 NY2d 822, 263 NYS2d 163, 210 NE2d 454 [1965]; Van Wormer v Planning Board of the Town of Richland, 158 AD2d 995, 551 NYS2d 145 [4th Dept 1990]; Plato's Retreat v Granito, 80 AD2d 889, 437 NYS2d 112 [2nd Dept 1981]; Silvernail v Rago, 62 AD2d 1144, 404 NYS2d 457 [4th Dept 1978]). Administrative decisions must be accompanied by findings of fact supporting the determination of the reviewing agency, therefore if the decision rendered by a planning board or zoning board regarding a special exception application fails to be supported by findings of fact substantiating its determination it is likely to be invalidated (See, Highland Brooks v White, supra ).
For all the reasons stated herein above, it is, therefore,
ORDERED, that the application of Petitioners for an Order, pursuant to CPLR Article 78:
1.Vacating and annulling the decision of Respondent AMITYVILLE (PLANNING BOARD) dated August 12, 2005, which granted the application of Respondent JAMM to construct an addition containing five vehicle paint spraying booths and seven work bays in the "B-2 Retail Business District", without conditioning such approval upon a special exception or use variance to be granted by the Board of Appeals and a use modification by the Board of Trustees; and
2.Granting an injunction pendente-lite enjoining Respondent AMITYVILLE (BUILDING INSPECTOR) from permitting construction of an addition containing five vehicle paint spraying booths to be built in accordance with plans submitted by Respondent JAMM, dated July 6, 2005 et seq, until such time that a variance or special exception to conduct such use at 91 Merrick Road, Amityville, is approved by the Board of Appeals and a modification of Village Code § 183-140 is granted by the Board of Trustees; and
3.Granting an injunction pendente-lite enjoining Respondent JAMM from constructing an addition containing five vehicle paint spraying booths and additional work bays to be built in accordance with plans dated July 6, 2005, submitted by said Respondent to Respondent AMITYVILLE, until [*9]such time that a variance or special exception to conduct such use at 91 Merrick Road, Amityville, is approved by the Board of Appeals and until the Board of Trustees grants a modification to Village Code § 183-140.
is hereby granted to the following extent:
A.The decision of Respondent PLANNING BOARD is hereby found to be a nullity, as the relief granted by said Respondent was beyond the scope of the authority granted thereto by New York State Village Law and the Board of Trustees of the Village of Amityville arbitrary, in that if failed to condition said approval on the granting of a special exception by the Board of Appeals of the Village of Amityville and modifications by the Board of Trustees of the Village of Amityville, as set forth herein above;
B.The decision of Respondent PLANNING BOARD is hereby found to be a nullity, as the application, notice and advertisement setting forth the relief requested was vague, confusing, conflicting, and failed to disclose adequate information, depriving Petitioners an opportunity to evaluate the application and have their concerns properly addresses;
C.The decision of Respondent PLANNING BOARD is hereby found to be a nullity, as it is arbitrary and capricious in that it failed to articulate findings of fact substantiating their determination;
D.The Affirmative Defenses and Objections in Points of Law of all Respondents are hereby dismissed, as they are unsupported and unsubstantiated;
and it is further
ORDERED, that the application of Petitioners for an Order;
1.Pursuant to CPLR 6301 for a preliminary injunction against Respondent JAMM enjoining said Respondent from constructing the 7,700 sq ft extension approved by Respondent AMITYVILLE (PLANNING BOARD), pending a determination herein, as well as a preliminary injunction against Respondent AMITYVILLE (BUILDING INSPECTOR) from issuing a Building Permit or from permitting such construction pursuant to a Building Permit issued therefor; and
2.Pursuant to CPLR 7805, staying further proceedings or the enforcement of Respondent AMITYVILLE (PLANNING BOARD) decision granting Respondent JAMM approval to construct a 7,700 sq ft addition to 91 Merrick Road, Amityville, until a determination of the proceeding under review;
is hereby granted in light of the decision of this Court as set forth herein above.
Dated: September 11, 2006
Riverhead, New York
______________________________________
HON. JEFFREY ARLEN SPINNER, J.S.C.
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