Hunter Sports Shooting Grounds, Inc. v Foley

Annotate this Case

Download PDF

Hunter Sports Shooting Grounds, Inc. v Foley 2012 NY Slip Op 31721(U) June 21, 2012 Supreme Court, Suffolk County Docket Number: 07-493 Judge: Joseph Farneti 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] INDEX No. SIJCJIH FORM ()RIli'R 07-493 SUPREME COURT - STATE OF NEW YORK IAS. PART 37 - SUEFOLK COUNTY PRESENT: Hon JOSEPH FARNETI Acting JustJ(;c Supreme Court MOTION DATE 1-18-12 (#010 & #01 I) MOTION DATE 2-27-12 (#012) MOT[ON DATE 5-)-12 (#013 & #0(4) ADJ. DATE 3-8-12 (#010, #011 & #(12) ADJ. DATE 5-)-12 (#01) & #014) Mot.Seq #OIO-MD #Oll-XMD # 012 - XMD # 013 - MD # 014 - MD ---------------------------------------------------------------X HUNTER SPORTS SHOOTING GROUNDS, INC. Plaintiff, ANDREW L. CRABTREE, ESQ. Attorney for Plaintiff 225 Broad Hollow Road, Suite 303 Mclville, New York 11747 - against BRIAN X. EOLEY, STEVE FIOREROSENEELD, KEVIN T. MCCARRICK, KATHLEEN WALSH, CONNIE KEPERT, CAROL BISSONETTE, and TIMOTHY P. MAZZEI, Constituting the Town Board of the Town of Brookhaven, and the COUNTY OF SUFFOLK, as a nccessary party pursuant to Civil Practice Law and Rules 1001 (a), SINTOW KANEER HOLTZER & MILLUS LLP Attorney for all Defendants except Suffolk County 575 Lexington Avenue New York, New York 10022 DENNIS M. COHEN, ESQ. Attomey for Defendant Suffolk County 100 Veterans Memorial Highway, P.O. Box 6100 Hauppauge, New York 11788 Defendants. ---------------------------------------------------------------X Upon the following papers numbered 1 to 120 read on this motion and cross motions for summary judgment; Notice of Motiou) Order to Show Cause and supporting papers 1 - 38; 39 - 53; 54 - 59 , Notice of Cross Motion and supporting papers 6070; 71 - 87; Answering Affidavits and sUPPOltingpapers 88 - 101; 102 - 105; Replying Affidavits and supporting papers 106 - I 13; 114 - 120 ; Othcr_; (and after he;!1ilIg eOtlUse1in $UppOd and opposed to the lIlotion) it is, ORDERED that this motion (#010) by defendant Town Board of the Town of Brookhaven, these motions (#0] 1 and #014) by defendant County of Suffolk, and these motions (#012 and #013) by plaintiff are consolidated for purposes of this determination; and it is fmiher ORDERED that this motion (#010) by defendant Town Board ofthc Town of Brookhaven for summary judgment dismissing the complaint of plaintiff against it is denied; and it is further ORDERED that this cross-motion (#011) by defendant County of Suffolk for, inter alia, an Order granting summary judgment against defendant Town Board of the Town of Brookhaven on the first, fifth a~ sixth causes of action set forth in the complaint is denied; and it is further ~ 0(\[ \ [* 2] IllInter Sports v Foley Index No. 07-4l)] Page NO.2 ORDERED that this cross-motion (#012) by plaintiff for an Order granting summarY.Judg11lcnt on Its lirst, second, tlmd and sixth causes of action against defendant Town Board of the Town of Brookhaven IS denied; and it IS further ORDERED that this motion (#013) by plaintlff for an Order, pursuant to CPLR 6301, enjoining defendant Town Board of the Town of Brookhaven from enforcing, or further proceeding on, noise Violations heretofore issued pursuant to Chapter 50 of the Brookhaven Town Code, mcluding the accusatory instruments cun-entiy pcndmg in the District Court ofSuJ:lolk County, Sixth District is denied; and it IS further ORDERED that this motion (#014) by defendant County of Suffolk, inter alia, for an Order, pursuant to CPLR 630 I, enjoining the parties from proceeding to trial on the underlying alleged violations of Chapter 50 of the Brookhaven Town Code, pending the hearing and determination of the parties' motions for summary judgment cunently pending before this Court is denied; and it is further ORDERED that counsel for the parties shall appear before the undersigned on August 9,2012 at 9:30 a.m. for a preliminary conference. Plaintiff Hunter Sports Shooting Grounds, Inc. ("HSSG") operates a trap and skeet shooting range on County-owned lands as the licensee of the County of Suffolk ("County"). In November and December 2006, the Town of Brookhaven ("Town") commenced a series of proceedings in the District Court of Suffolk County, Sixth District ("District Court"), alleging that HSSG was in violatIon of the Town's noise ordinance (i.e., Chapter 50 of the Brookhaven Town Code) at various times. HSSG then commenced this action, inter alia, for a Judgment declaring that the Town's actions in enforcmg the nOlse ordinance agamst it were unconstitutional. HSSG's verified supplemental complaint alleges ten causes of action against the Town predicated on the following legal theories: prior non-conforming use; unlawful confiscation; unlawful taking; due process and equal protection violations; public interest immunity; pre-emption and Municipal Home Rule Law violation; exemption under Brookhaven Code §§ 50-6 (a) and 50-7 (b); unconstitutionality of Brookhaven Code § 50-6 (a); improper enforcement of time limitation under Brookhaven Code § 50-9 (b); and citations numbered 90022 and 90023 being facially defective as they did not comply with Criminal Procedure Law §§ J 00. J 5 and 170.35 (l) (a). By Order dated October 6,2011, this Court denied HSSG's cross-motion for summary judgment WIthout prejudice to timely renewaL upon submission of proper papers, and granted the branch of the Town's motion for summary judgment on the Issue of its noise ordinance's constitutionality. By the same Order, the Court declared that the ordinance is constitutional and must be sustained. The Court, however, denied the branch of the Town's motion for summary judgment on the issue of whether the noise ordinance was lawfully and properly applied to HSSG. The Town now moves again for summary judgment dismissing the complaillt and all cross-claims insofar as asserted against it. It is well-established that multiple summary judbrrnent motions by the same party are disfavored absent a showing of newly discovered eVIdence or sufficient cause (see Sutter v Wake/em Food Corp . ¢ 69 AD3d 844. 892 NYS2d 764 [2d Dept 2010]; Lapodllia v SallgShillg Kwok. 304 AD2d 798. 757 NYS2d 869 [2d Dept 2003]; Marille Midland Balik v Fisher. 85 AD2d 905, 447 NYS2d 186 [4th Oept 1981J). Here, the Town seeks the same relief as it sought in its prior motion for summary [* 3] Hunter Sports v Foley Index No, 07-493 p:J.ge NO.3 Judgment, but fails to show newly discovered evidence or other good cause for making a second summary judgment The Town's motion, therefore, is denied, as it violates the general proscnption against filing successive motions far summary judgment {see Ferguson v Sllu Ham Lam, 74 AD3d 870, 903 NYS2d 101 [2d Dept 20 IOJ; Tolpygilla v Teper, 63 AD3d 722, 880 NYS2d 326 [2ei Dept 2009]; S'lltter v Wake/nn Food Corp., supra; Rocky Point Drive-In, L.P. v Town o/Brookhaven, 37 AD3d 805, 83] NYS2d 456 [2d Dcp! 200T]). The County cross-moves for an Order granting summary Judgment agamst the Town on the first, fifth and sixth causes of action set forth lJ1the complaint. The First Cause of Action: Prior Non-Conforming Use The County alleges that since it and its licensees operated the subject range for over twenty-five years before the Town enacted Its noise ordinance, the range is exempt from enforcement of the Town's noise ordinance as a prior eXisting nonconforming use. It is well-established that a prior nonconforming use does not make the landowners Immune from laws, ordinances and regulations of a police nature (see Concerued Citizens of Perinton, Inc. v Town of Perinton, 261 AD2d 880, 689 NYS2d 812 [4th Dept 1999]; Plaattekill v Dutchess Sanitation, Jnc., 56 AD2d 150, 391 NYS2d 750 [3d Dept 1977J; Hempstead v Goldblatt, 19 Misc2d ] 76, 189 NYS2d 577 [Sup Ct, Special Term, Nassau County 1959]). Here, by Order dated October 6, 2011, this Court concluded that the Town's noise ordinance is a reasonable exercise of its police power and, thus, a prior nonconforming use is not immune from the operation of the ordinance. Accordingly, the branch of the cross-motion for summary judgment against the Town on the first cause of action is denied. The Fifth Cause of Action: Public Interest Immunitv The County alleges that a "balancing of public interests" weighs in favor of its interest in continuing to operate the subject range. The County alleges that, while the range serves an important public benefit by provlding recreational shooting activity to thousands of its residents, the Town's interest in enforcmg its noise ordinance against the range is limited ta mOllifying the residents of approximately twenty homes that are adjacent to the range. In support, the County submits a copy of the pleadings, appellate briefs submitted by plaintiff and the County to the Appellate DiVision, and a decision from an unrelated action. A dispute between governmental entities regarding whether one entity is exempt from the local regulations of the other is resolved by balancing the public interests (see Matter o.{Crown Communication N.Y., Inc. v Department of Transp. of State o.fN. Y., 4 NY3d 159, 791 NYS2d 494 [2005J; Town of Fenton v Towll o/Chenango, 91 AD3d 1246, 937 NYS2d 677 [3d Dept 2012]). A non-exhaustive list of potential factors to be weighed mcludes the nature and scope of the instrumentality seeking Immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect lacalland use regulation would have upon the enterprise concemed and the impact upon legitimate local interests, as well as the applicant's legislative grant of authority, alternative locations for the facility in less restrictive ZOl1lng areas, altemative methods of providing the needed improvement, intergovernmental participation in the [* 4] IILlnter Sports v Foley Index No. 07-493 Page No.4 project development process and an opportunity to be heard (see Matter OfCOllllfy o.f,Monroe, 72 NY2d 338,533 NYS2d 702 1988J; Town of Hempstead v State of New York, 42 AD3d 527, 840 NYS2d 123 [2d Dept 2007]) r Here, the record submitted by the County does not support an award of summary judgment IIIthe County's favor. Under the circumstances, a more complete record, including the depositions oCthe witnesses wIth knowledge of the facts relevant to the balancing test, must be developed to infonn that inqUlry. At this stage, summary judgment would be premature absent depositions of the parties (see Town of River liead v County of Suffolk, 66 AD3d 1004,887 NYSld 650 [ld Deptl009J). Thus, the branch of the cross-motion for summary judgment against the Town on the fifth cause of action is denied. The Sixth Cause of ActlOn: Pre-emption and Municipal Home Rule Law Violation The County alleges that, by enacting County Law § 221, the State Legislature authorized counties to create a county park commission which "shall have the supervision and management of all county parks \vithin the county," and that the enforcement of the Town's noise ordinance agamst the subject range impairs the po\ver of the County and, thus, violates the New York State Constitution and New York Municipal Home Rule Law. The County further alleges that the Town's noise ordinance cannot apply to the subject shooting range, when the County expressly intended the property to be exempted from its own noise ordinance. New York's constitutional home rule provision (see NY Canst, art IX, § 1 [cD confers broad police power upon local governments relating to the welfare of its citizens, and local governments are authOrized to legislate in enumerated areas ofloeal concern. However, local governments cannot adopt laws that are lllconsistent with the Constitution or with any general law of the State, and this local power is subject to a fundamental limitation by the preemption doctrine, which embodies the untrammeled primacy of the Legislature to act with respect to matters of State concem (see id.; Municipal Home Rule Law § 10 [1] [i], liiJ; Matter of Cohen v Board of Appeals of Vii.of Saddle Rock, 100 NY2d 395, 764 NYS2d 64 [2003J; Sunrise Check Cashing & Payroll Servs. v Towlt of Hempstead, 91 AD3d 126,933 NYS2d 388 [2d Dept 2011]). A town has the authority to adopt a noise control ordinance which imposes criminal liability upon violators (see People v New York Trap Rock Corp., 57 NY2d 371, 456 NYS2d 711 [1982]). Moreover, the New York Constitution provldes at article IX, § 2 (d) that "a local government shall not have power to adopt local laws which impair the powers of any other local government" (see also MUnICIpal Horne Rule Law j ]0 [5]; Mahler v enlotta, 297 AD2d 712. 747 NYS2d 562 [2d Dept 2002]). Chapter 618 of the Suffolk County Code, which was amended and enacted on May 13, 2003, provides IIIpertinent part as follows: the County's nOIse ordinance shall not apply to "noise emanating from the recreational discharge of tiream1s a1 a County-owned, -operated or -leased shooting range, the site for which was being used as a facilIty for the recreational discharge of firearms prior to January 1, 1980." Here, the Court: finds that the TO\vn has the authority to adopt a noise control ordinance which 1l1lpOSeSriminal liability upon violators. There is nothing 111 County Law § 221 to indicate an intention by c the Legislature, directly or indirectly, to restrict the Town's power to enact a noise ordinance (see aliw People v New York Trap Rock Corp., supra). The Court finds that the Town's noise ordinance is not preempted by state leglslation. Moreover, the Court finds that, while Chapter 618 of the Suffolk County Code exempted [* 5] Iluntcr Sports v Foley Index No. 07-493 Page No.5 the range from the County's noise ordinance, It has no power to impair the Town's nOise ordmance which was enacted in 1987 (see Mahler v Gulotta, supra). Thus, the branch of the cross-motion ror summary Judgment against the Town on the sixth cause of action is denied The County seeks to have the Court declare that the Town's noise ordinance is void and unenforceable as against the County and HSSG. Here, by Order dated October 6, 2011, this Court declared that the Town's noise ordinance is valid. As discussed above, the County has failed to meet its burden of proving beyond a reasonable doubt the Il1validity of the noise ordinance. The County also seeks to have the Court declare that all violations issued by the Town to the County and HSSG based on the sound of gunfire at the subject shooting range are null and void. The County further seeks an Order directing the Town to remove, vacate, cancel and annul all such violations and to cease Issuing any such further violations. The County alleges that, in November 2011, the Town issued seven violations to the County arismg from the sound of gunfire at the range. To the extent that the County seeks prospective lilJunctive relief, the County has not pleaded a cause of action for such relief; as to the remaimng relief requested, such matters are properly within the jurisdiction of the District Court, and any appropriate court having jurisdiction over an appeal from the DIstrict Court. HSSG cross-moves for an Order granting summary Judgment agamst the Town on the first, second, third and sixth causes of action set forth in the complaint. For the same reasons dlscussed above, the branch of HSSG's cross-motion for summary judgment against the Town on the first and sixth causes of actlOn is denied. The Second and Third Causes of Action: Unlawful Confiscation and Unlawful Taking HSSG alleges that the application of the nOise ordinance to its business constitutes unlawful confiscation and taking in violation of its rights under the federal and state Constitution. In support, HSSG submits, inler alia, the copy of the pleadings; a document entitled "Range Concession Proposal" prepared by HSSG; various financial documents, including a balance sheet and comparative income statement; and a document entitled "Initial Environmental Evaluation" of the subject range, prepared by a private consulting company. A local Jaw will not be valid if it interferes with the land owner's beneficial enjoyment of its property (see Matter of MHC Greellwood ViI. NY, LLC v Coullty of Suffolk, 58 AD3d 735, 874 NYS2d 135 [2d Dept 2009]). A municipality may not invoke its police powers solely as a pretext to assuage strident community opposition (see Matter of Belle Harbor Realty Corp. v Kar, 35 NY2d 507, 364 NYS2d 160 974]; Cellular Tel. Co. v Village of Tarrytowll, 209 AD2d 57, 624 NYS2d 170 [1995]). Once it has been established that the regulation at issue is a legitimate exercise of police power, the court must next dctermme whether the regulation results in a taking of the property by depriving the landowner of its property rights (see Gazza v New York State Dept. of Ellvtl. Conservation, 89 NY2d 603, 657 NYS2d 555 [1997]). A mUlllclpal exercise of the police power which interferes with the benefiCIal use of property must be a reasonable and legitimate response to a situation which it is within the police power to correct (see Charles v Diamond, 41 NY2d 318, 392 NYS2d 594 [1977J; 51 St. Nicholas Realty Corp. v City of New York, 218 AD2d 343, 636 NYS2d 300 [1st Ocpt 1996]). Determinations of reasonableness must tU111 pon the facts u rt [* 6] I j unter Spons v Foley Index No. 07-493 Page No.6 and circumstances of particular cases (see Charles v Diamond, supra; 51 St. Nicholas Realty Corp. I' City of New York, supra). What is an unreasonable exercise of the police power depends upon the relevant converging factors. I·knce, the facts of each case must be evaluated In order to determine the private and socia! balance of convenience before the exercise of the power may be condemned as unreasonable (French Investing CO. I' City of New York, 39 NY2d 587, 385 NYS2d 5 [1976]; see 51 St. Nicholas Realty Corp. v City of New York, supra). Here, by Order dated October 6, 2011, this Court concluded that, while the noise ordinance is constitutional and valid, there exists an lSSlIeof fact as to whether the noise ordinance was lawfully and properly applied to HSSG. This Court finds that the constitutional confiscation and taking issues are not ripe for review, since there remain several issues of fact as to whether the noise ordinance was properly applied to the subject shooting range and as to what was the noise level of the range when the Town issued violation tickets. Thus, the branch ofHSSG's cross-motion for summary judgment against the Town on the second and third causes of action is denied. In addition, HSSG moves for an Order, pursuant to CPLR 6301, enjoining the Town from enforcing, or further proceeding on, noise violations issued pursuant to the Town's noise ordinance, including the accusatory instruments currently pending in the District Court. Similarly, the County moves for an Order, pursuant to CPLR 6301, enjoining the parties from proceeding to trial on the underlying alleged violations of the Town's noise ordinance, presently on the trial calendar of the District Court, while the hearing and determination of the parties' motions for summary judgment are pending before this Court. CPLR 6301 provides that a preliminary injunction is only aVailable in a pending action (see Happy Age Shops, Inc. v Matyas, 128 AD2d 754, 513 NYS2d 710 [2d Dept 1987]). CPLR 2201 provides that "[eJxeepl where otherv.-'ise prescribed by law, the court in which an action [or proceeding] is pending may grant a stay of proceedings in a proper case." This section authorizes only courts exercising original civil jurisdiction to grant a general stay ofproceedings (see Schwartz v New York City Hous. Auth., 219 AD2d 47, 641 NYS2d 885 [2d Depl 1996]; RllOdes v Mosher, 115 AD2d 351, 502 NYS2d 558 [4th Dept 1985]). HSSG's request for a preliminary injunction is denied since HSSG has not pleaded a cause of action for such relief in this action, and the Court lacks junsdiction to stay the District Court matter. The County's request for an Order staying further proceedmgs in the District Court is denied without prejudice to apply for the same relief in the pending District Court proceedings (see CPLR 220 I; Rhodes v Mosher, supra). The Court finds that the County's remaining arguments are without merit. Dated: June 21, 2012 FINAL DISPOSITION X NON-FINAL DISPOSITION

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.