People v 490 W. Jericho Realty Corp.

[*1] People v 490 W. Jericho Realty Corp. 2008 NY Slip Op 52233(U) [21 Misc 3d 1125(A)] [21 Misc 3d 1125(A)] Decided on November 5, 2008 Suffolk Dist Ct Bergson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 7, 2008; it will not be published in the printed Official Reports.

Decided on November 5, 2008
Suffolk Dist Ct

People of the State of New York Town of Smithtown PEO'S/PLTF'S/PET'S ATTY

against

490 West Jericho Realty Corp. TJS OF NEW YORK INC. DBA OASIS DEFT'S/RESP'S/ATTY, Defendants.



SMTO 549-08, 550-08, 602-08, 604-08

Howard M. Bergson, J.

ORDERED that this motion is granted and defendants, its employees, agents, servants, successor and assigns are enjoined during the pendency of the proceeding from using and/or occupying the premises known as 490 West Jericho Turnpike, Smithtown, New York for adult entertainment activities. The Clerk of the Court is also directed to serve a copy of this order upon defendants' principal, Thomas Murray, at 1087 Washington Avenue, Pelham Manor, New York 10803.

Defendant 490 West Jericho Realty Corp.(490), is the owner of the subject premises located at 490 West Jericho Turnpike, Smithtown, New York and defendant TJS of New York Inc. d/b/a "The Oasis" operates an adult entertainment business at the site which is located in a Neighborhood Business zoning district (NB). Prior to 490's acquisition of the premises in 2002, an adult entertainment business had been in operation at that location for many years. However, in 1994, the Town enacted an adult use ordinance limiting adult use to three zoning districts: shopping center business (SCB), light industry (LI) and heavy industrial (HI). Pursuant to an amortization schedule set forth in the 1994 ordinance, all adult entertainment uses in zones other than the above three zones would be eliminated after January 1, 1998. Nevertheless, the prior owner continued to operate adult entertainment at the subject premises. In 1999, the prior owner filed a constitutional challenge to the 1994 ordinance in Federal Court claiming the ordinance was an unlawful restriction on free speech. In response, the Smithtown Code was amended in 2000 and providing, among other things, that any building used for adult entertainment shall be located "at least 500 feet from any residence district, park, playground, school, church or similar place of public [*2]assembly" (Code of the Town of Smithtown § 322-30.2[A]). Thereafter, the Town and the prior owner entered into a stipulation of settlement in which the prior owner agreed to relocate but was allowed to continue operating an adult entertainment business until September 1, 2003. Defendant 490, which admittedly continues to operate an adult entertainment business at the subject location, filed a Federal action seeking a permanent injunction and declaration that the adult use ordinance was unconstitutional because it failed to provide a suitable number of alternative locations for adult entertainment business to open and operate.

On May 13, 2008, United States District Court Judge Sandra J. Feuerstein denied 490's application finding that the Town of Smithtown met its burden of establishing sufficient alternative locations for adult entertainment and that section 322-30.2 was constitutional on its face and as applied.

In the instant proceedings, based upon observations made by the Smithtown Building Inspector at the subject premises on August 28, 2008 and on October 2, 2008, defendants are each charged with two counts of violating section 322-8(A), using the premises for adult entertainment in violation of the table of use regulations, two counts of violating section 322-30.2, which it makes it unlawful to operate an adult entertainment business within 500 feet from a park and two counts of violation section 322-89 which provides the procedures for site plan approval.

Initially, before addressing the Town's application, the Court must determine whether the accusatory instruments filed herein are facially sufficient. It is well established that in order for an accusatory instrument to be sufficient on its face, every element of the offense charged must be supported by nonhearsay allegations of fact that establish, if true every element of the offense (CPL 100.15; 100.40[1]; People v. Casey, supra). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense . . . they should be given a fair and not overly restrictive or technical reading" (supra, at 360).

The Court finds the accusatory instruments charging each defendant with violating two counts of section 322-8(A) and 322-30.2 are facially sufficient as they are based upon the personal knowledge of the Building Inspector and provide reasonable cause to believe that defendant committed the offenses charged and contain the necessary evidentiary allegations supporting or tending to support the charges (CPL 100.15[3]; 100.40[1][c]; People v. Casey, supra). However, the Court finds the accusatory instruments charging defendants with violating section 322-89 jurisdictionally defective as that section is merely information and does not create an offense (see, People v. Kalooedas Realty Enter., Inc., 18 Misc 3d 128[A] [App. Term, 9th & 10th Jud. Dists.]). [*3]

With respect to the application for a preliminary injunction, the affidavit of Building Inspector Lorenzo D'agostino clearly establishes that adult entertainment as defined by section 322-3 of the Code of the Town of Smithtown is being conducted on the subject premises which is not permitted in an NB zoning district. In addition, the affidavit of the Town Planning Director Frank DeRubeis and the documentary submitted herein establishes that the premises are located within 500 feet of a park. Consequently, the Town has overwhelmingly established prima facie that defendant has violated sections 322-8(A) and 322-30.2(A) of the Code of the Town of Smithtown. The defendants do not dispute these allegations but claim that the application for the preliminary injunction should be denied as there is a substantial likelihood that defendants will prevail in their appeal from the decision and judgment of the United States District Court. Defendants also claim that by forcing defendant to close down, they would suffer extreme financial damage and the People have not shown how operation of the business jeopardizes the health, safety and welfare of the public.

Pursuant to section 209(2-a) of the Uniform District Court Act, the District Court is authorized to issue a preliminary injunction where "the activity complained of has as its basis a violation of local law or ordinance relating to land use, building regulation or fire prevention ..." The Town has authority to obtain a preliminary injunction to strictly enforce its zoning ordinances without resort to the three prong test for injunctive relief or an allegation of special damages or damage to the public or the nonexistence of an adequate remedy at law based upon the commission of the prohibited act (Town Law § 268[2]; City of Albany v. Feigenbaum, 204 AD2d 842; City of New York v. Bilynn Realty Corp., 118 AD2d 511, 512). All the Town need show is that it has a likelihood of success on the merits and that equities are balanced in its favor (see, First Franklin Sq. Assoc., LLC v. Franklin Sq. Prop. Account, 15 AD3d 529).

Since it is unrefuted that defendants' conduct is in violation of the aforementioned sections of the Smithtown Code, the Town has demonstrated a likelihood of success on the merits. In addition, the equities are balanced in the Town's favor as it is also undisputed that 490 acquired the premises with full knowledge that adult entertainment conducted on the premises would have to cease as of September 1, 2003 based upon the agreement reached with 490's predecessor and the Town. Furthermore, whether or not defendants may prevail on their Federal appeal is speculative at best and cannot be considered as a factor weighing in defendants' favor. In addition, since defendants' were aware that there was a time limit for conducting adult entertainment at the subject premises, defendants cannot now claim severe economic hardship as a basis for denying the Town's application. In this regard, the Court notes that the premises are not being completely closed down as urged by defendant as the Town concedes that it may operate as a tavern, bar or inn as defined by section 322-3 of the Smithtown Code. In any event, any purported loss of income would be short term since the injunction is extinguished upon [*4]termination of the instant proceeding. Finally, the fact that the current use may pose no threat to the community is irrelevant since "the commission of the prohibited act is sufficient to warrant granting the injunction" (Incorporated Village of Freeport v. Jefferson Indoor Marina, Inc., 162 AD2d 434, 436). To the extent defendant claims that the Town should be estopped from seeking the instant relief because of a letter from defense counsel dated September 18, 2003 allegedly reflecting the Town's position that they agreed not to take any steps to close the business during the pendency of the federal litigation, that letter was clearly rebuked by the Town in a letter dated September 18, 2008 whereby the Town specifically stated that they were not waiving any right to enforce its zoning regulations.

New Court Date:

Dated:

J.D.C.