Firm Successfully Defeats Motion For Preliminary Injunction Against Town of Babylon In Safety Dispute
Plaintiff filed suit after his home was condemned by the Town of Babylon ("Town") for fire code violations, alleging that he was being unfairly targeted by the Town's inspectors, that Town employees had entered without a warrant, and that the condemnation without due process. The homeowner sought a preliminary injunction mandating that the condemnation be lifted and prohibiting Town employees from further denying him access to his home. The firm filed opposition on behalf of the Town, and the Court denied the preliminary injunction motion as unlikely to succeed on the merits, citing both the Town's documentation that the condemnation was procedurally sound and based on legitimate public safety concerns.
Firm Wins Appeal In Habeas Corpus Case
While litigating the two SCTPVA lawsuits discussed below, the firm also represented the County in a related appeal before the Appellate Division, Second Department. In that case, the lower court had granted a writ of habeas corpus filed by one of the plaintiffs in the federal action. On appeal, the firm argued that the writ should be reversed as a matter of law since (1) a writ of habeas corpus cannot be used in lieu of a direct appeal and (2) when held on multiple convictions, a writ of habeas corpus only lies if the petitioner shows an entitlement to release on all counts of both convictions. As a result, the Second Department, in a decision and order dated June 2, 2017, reversed the lower court's order, denied the petition for a writ of habeas corpus, and directed the motorist to surrender himself to serve the remainder of his sentence.
Firm Obtains Complete Dismissal Of Two Federal Lawsuits Against The County of Suffolk
The firm served as counsel to the County of Suffolk in two federal lawsuits against the Suffolk County Traffic and Parking Violations Agency ("SCTPVA"). The lawsuits, which sought class action certification, alleged racial discrimination, denial of due process when suspending drivers licenses, excessive fines, and illegally issuing arrest warrants for motorists who failed to appear in court. The firm argued in both cases that there was no evidence of unconstitutional conduct by the SCTPVA or its staff, that plaintiffs failed to show an official policy or practice of the County that caused the alleged violations, and that the individual defendants were immune from suit. As a result, U.S. Magistrate Judge Arlene Lindsay issued Report and Recommendations ("R&Rs") that the motions to dismiss be granted in their entirety, and those R&Rs were adopted as the decision of the court shortly thereafter. Copies of the R&Rs in the two cases, 15-cv-3097 and 15-cv-3411, can be found here and here, respectively.
Firm Completes “Unconnected Campus” Economic Benefits Transaction with Town of Babylon Industrial Development Agency (“TOBIDA”)
The firm represented Winters Brothers Waste Systems of Long Island, LLC (“Winters”) in a major economic development transaction with TOBIDA. The transaction involved the TOBIDA’s “unconnected campus” program that allows economic incentives to be granted to multiple sites within the town in one transaction. This transaction involved six properties, including the acquisition of a new parcel for Winters’ operations. The transaction will allow Winters to move its corporate headquarters to West Babylon, retain employees and expand its operations in the Town of Babylon. Winters will be the recipient of economic incentives that include a sales tax exemption, a mortgage tax exemption and a property tax abatement.
Successful Opposition to Constitutional Bid Seeking to Re-Open Condemned Adult Business
In July of 2014, the firm successfully defended the Town of Babylon against an effort to re-open an adult business that had been condemned and closed by order of the Babylon Town Fire Marshal. In B&N Enterprises Inc. v. Town of Babylon, No. 14-CV-4084 (E.D.N.Y. 2014) Plaintiff, owner of a business operating under the name “Teasers,” attempted to launch a Constitutional challenge to the Town’s order closing the establishment. Denying Plaintiff’s request to immediately re-open, the Court held that Plaintiff could not likely show that the Town acted unlawfully in closing the business.
Court Finds Property Owner Not Responsible for Unpaid Taxes
In March 2013, the firm won summary judgment on behalf of plaintiff and property owner Pinelawn Cemetery, which, as a result, will not be required to pay over a half million dollars in unpaid taxes. Specifically, the Suffolk County Supreme Court held that the MTA was required to pay taxes under its lease with Pinelawn, and that the subject property would be tax exempt beginning with the 2010/2011 tax year. The Court's decision is available here.
A multi-faceted transaction which included sale and purchase of a manufacturing facility, including an IRC 1031 Exchange, IDA Benefits and land use approvals
A manufacturer of high quality door hardware is thriving and expanding its retail location facility thanks, in part, to the firm's efforts. The Nanz Company relocated its manufacturing facility from Brooklyn to Deer Park, Long Island. This move allows Nanz to compete and be profitable with the help of benefits from the Town of Babylon Industrial Development Agency and the employee training programs at Suffolk Community College.
Cemeteries, Railroad and Land Use Law all in one case
On June 8, 2010, the Appellate Division, Second Department, decided two related appeals involving our client, Pinelawn Cemetery, and reversed the lower court's grant of summary judgment against Pinelawn, holding that the case should have been stayed pending a "determination by the [U.S. Surface Transportation Board] on the issue of abandonment," and remanding to the Suffolk Supreme Court for further proceedings. See Pinelawn Cemetery v. Coastal Distribution, LLC et al., 74 A.D.3d 938, 906 N.Y.S.2d 565, 568 (App. Div. 2d Dep't 2010).
A Successful Condemnation and Substantial Savings to our Client
Following a lower court's decision to allow the filing of a late notice of claim, the firm brought an appeal in a condemnation proceeding on behalf of our client, the Town of North Hempstead Community Development Agency ("CDA"). On May 11, 2010, the Appellate Division, Second Department, reversed a decision by the lower court granting the condemnee's motion to file late notice of claim and ruling in favor of the CDA and resulting in substantial savings to the agency. See In the Matter of the Town of North Hempstead Community Development Agency v. Geraldine Savage, App. Div. No. 2008-04991 (App. Div. 2d Dep't May 11, 2010). With no issue of valuation, the proceeding was dismissed.
Helping to Close Down an Illegal Strip Bar
After the Long Island Cafe shirked its responsibilities under a negotiated settlement agreement, the firm represented the Town of Babylon in its enforcement proceeding in federal court, successfully enforcing the settlement in the federal district court and opposing a motion to stay pending appeal in the U.S. Court of Appeals for the Second Circuit. See ER & JR Pub, Inc. d/b/a Long Island Cafe v. Town of Babylon, CV 02-6025(JS)(WDW)(E.D.N.Y. September 17, 2010) and Docket No. 10-4080 (2d Cir. October 18, 2010). Left with no hope of success, the illegally operating Long Island Cafe withdrew its appeal and closed its doors.
Defending a Local Zoning Board
After an applicant brought a successful Article 78 petition which reversed the decision of our client, the Town of Brookhaven Zoning Board of Appeals ("ZBA"), the firm appealed from the lower court's decision. On November 10, 2009, the Appellate Division, Second Department, reversed the decision by the lower court and upheld the ZBA's decision, awarding costs to our client. See In the Matter of Raymond Crilly v. Terry J. Karl, et al., App. Div. Nos. 2008-03571 and 2008-09576 (App. Div. 2d Dep't 2009).
A First Amendment Billboard Case in Federal Court
The firm successfully represented the Town of Babylon at trial in federal court in the Eastern District of New York in a case involving the First Amendment and the right of the Town to regulate billboard signs. The case involved a number of novel issues, including the cross-examination of an industrial and systems engineer in the area of driver behavior and the influence of the presence of billboards. The firm was able to completely discredit the testimony of this expert and the Town's billboard regulations were upheld.
The Leading Case in New York on School Residency before New York's Highest Court
Land Use Approval for Long Island's Largest Auto Group
The firm represented Atlantic Auto Group in obtaining land use approval for a new Lexus Sales and Service Center in Farmingdale, New York.
IDA benefits for large local manufacturers
The firm as represented, among others, D'Addario & Co., a manufacturer of musical instrument strings and supplies and Heritage Mechanical Services, a leading local manufacturer of HVAC and mechanical systems for commercial and industrial buildings.
Winning a Motion to Dismiss 1983 Claims Against Local Town in Federal Court
In Felice Rubino v. Town of Babylon, EDNY CV 09-5187, which is still pending, the plaintiff was the owner and operator of the Zodiac Lounge, which was closed by the Town for various Code violations including illegally operating an adult entertainment establishment within a certain distance from a residential area. Plaintiff brought a civil action under 42 U.S.C. 1983 against the Town and the Suffolk County Police Department alleging discrimination. On November 12, 2010, the Court granted the Town's motion to dismiss the complaint and permitted the Plaintiff to file an amended complaint.
Negotiated Dismissal of Police Officer and Village in 1983 Case
The Plaintiff in Elliot Zomber v. Village of Garden City, el al., EDNY CV 09-4637, brought a Section 1983 action against the Village of Garden City and two individual police officers. To date, the Village and one of the police officers have been dismissed with prejudice from the action. In addition, the Court denied a motion to compel the medical records of the remaining defendant. The case is scheduled for trial in the fall.
Land Use Applications
Represented Northport Tasting Room and Wine Cellar in connection with a Zoning Board of Appeals application for variance from restaurant area requirements.
Represented North Shore Urology group in connection with site plan, variance and historic review approvals of Incorporated Village of Northport.
Represented Maroni's Restaurant in connection with several applications to the zoning board of appeals.
Section 1983 Land Use Claims Against Local Town Dismissed Based on Ripeness Doctrine
A property owner in the Town of Babylon claimed that the Town unlawfully prevented her from operating a deli in a residential neighborhood, and sought over a million dollars in damages in a federal action filed in the Eastern District of New York. The firm filed a motion for summary judgment on the basis of the constitutional ripeness doctrine. The Court granted the motion in its entirety and dismissed all section 1983 claims filed against the Town.
Successful Defense of an Article 78 Challenge
Law Offices of Mark Cuthbertson has successfully defended Town of Brookhaven against an Article 78 challenge. Please see this article and decision for details on how the Court ruled in favor of the Town and the developer in a case brought by opponents of the 335-acre mixed-use Meadows at Yaphank project.
Town of North Hempstead Opened Its New Community Center
The Town of North Hempstead has proudly opened its new community center as part of its urban renewal project in New Cassel. As counsel to the Town's Community Development Agency, the Law Offices of Mark A. Cuthbertson performed the legal work, including acquisitions and condemnations, required for the Town to achieve this goal. Please see article attached.