Town of Huntington v D'Onofrio

[*1] Town of Huntington v D'Onofrio 2015 NY Slip Op 51305(U) Decided on September 9, 2015 District Court Of Suffolk County, Third District Hackeling, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2015
District Court of Suffolk County, Third District

Town of Huntington, Plaintiff(s)

against

Nicholas D'Onofrio LINDA D'ONOFRIO, Defendant(s).



CV-2883-15/HU
C. Stephen Hackeling, J.

Upon the papers numbered 1-3

Read on this motion/order to show cause

Notice of Motion/Order to Show Cause and supporting papers 1

Verified Answer2

Affidavit in opposition3

On or about June 8, 2015, by way of summons and complaint, the Town of Huntington (hereafter "the Town") commenced this civil action against Nicholas and Linda D'Onofrio. The complaint describes the condition of an unoccupied house located at 4 Carriage Court, Dix Hills, NY, which is the subject of a foreclosure action in Supreme Court, and also the subject of a Huntington Town blight proceeding . The complaint alleges that four notices of violation were issued on June 1st and 2nd of 2015, by the Fire Marshall's Office and the Department fo Public Safety. No violation notices are affixed to the complaint.

Simultaneously with the filing of the pleadings, the Town filed the Order to Show Cause (hereafter "OSC") under present review. Therein the Town requests an order, pursuant to UDCA 203(a), "ordering the defendants to demolish the dwelling and/or permitting the Town the authority to demolish (same) if the defendants fail to do so within 10 days, and permitting the Town to bill defendants for such demolition and if not paid within 30 days, allowing the Town to place such costs on the defendants tax bill. Notices of violation are affixed to the OSC. They allege violations of [*2]Town Code Sections 191-03,191-04,124-54 (unlawful occupation, leasing, subleasing, renting), although it appears to be undisputed that the property is vacant, without electricity, and unoccupied. A notice of violation, of the Fire Marshall, dated 6-1-15 calling for the boarding and securing of the premises, is affixed to the Town' OSC. The affidavit of Chief Fire Marshall McNally describes the structure as partially secured as of 6-8-15 (the date of said affidavit), but as capable of entry. A memorandum of Joseph Cline, Engineering Services, dated 6-5-15, references the Town's "third inspection" of the property, and notes that there was a fire on May 31, 2015.

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The defendants filed papers opposing the Town's application. The defendants' affidavit states that the structure is currently the subject of a blight proceeding, which defendants say seeks "demolition of the main house", and which was scheduled for June 15, 2015, and has been adjourned. The blight proceeding has not progressed at all since June 2015, despite what the Town characterizes as a dangerous situation, demanding immediate judicial intervention. The Town also asserts that the property is subject to a lender's mortgage. The mortgagee has not been made a party to this action. The defendants state that there was a prior blight proceeding seeking removal of outbuildings, which was done at the owners' expense.

Huntington Town Law (hereafter"HTC") provides for a method for a property to be determined to be deemed blighted, for the Town to notify the owners of same and for the Town to offer the owners the chance to enter into a restoration agreement . (See HTC 156-64). In the event owners fail to agree or comply with a restoration agreement, "the Town Board may authorize work to be done and shall provide the cost thereof to be paid from general Town funds...."the Town Board is even permitted to declare the premises a nuisance and thereafter, "the Town shall have the authority to enter onto such premises where such violation exists, to remedy such violation and to charge the cost or expense of such remediation against the owner and establish a lien..."( HTC 156-67). A property can even be deemed a "persistent blighted property" at which time the Town can "take any and all necessary actions to abate the blighted conditions..."(HTC 156-67). Emphasis added.

The Town's instant application asks the Court to issue an immediate order which necessitates a finding by the Court that the defendants are guilty of four Town Code violations. It also seeks a determination that the premises are a "nuisance", based on the limited affidavit of Fire Marshall McNally, who concludes that the vacant premises are an "attractive nuisance" which should be demolished and based on an unsworn engineer's memorandum which broadly concludes that the portion of the house not damaged by fire is "not salvagable" . Inasmuch as the Town is capable of obtaining its desired relief in its pending blight proceeding and may obtain authority in said proceeding to do work to remedy violations, the immediate issuance by this Court of an order of extraordinary equitable relief is unwarranted.

The Court is also concerned that the alleged mortgagee or other lien holders are not a party to these proceedings. Due process requires notice and an opportunity to be heard before the Court could impair other known interested parties rights. See generally, Mullane v. Central Hanover Bank & Trust Co., 339 U.SA. 306 (1950); In re Central Hanover Bank & Trust Co., E 299 NY 697 (NY 1949). The complete demolition of the bank's collateral with the cost of same being added as a "first lien" expense (real estate taxes) which would "prime" (supercede) the bank's lien is constitutionally unpermissible.

Hon. C. Stephen Hackeling

J.D.C.

Dated: 9-9-15

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