TOWN OF BABYLON v. ISLAND CONTAINER CORP.

Thursday, May 24, 2001

Supreme Court

Suffolk County

Justice Kitson

TOWN OF BABYLON v. ISLAND CONTAINER CORP. ” Plaintiff seeks injunctive relief as against defendants and further that the TOWN OF BABYLON be authorized to take any lawful measures to alleviate any threat to the health, safety and welfare of the residents together with permitting the TOWN to enter upon the subject property and to remove the trailers and accumulated debris from the premises and charge the expenses to the defendants.

Defendant, 44 REALTY CORP., is the owner of the property located at 263 Merritt Avenue, Wyandanch, New York. Defendant, Island Container Corporation of Suffolk County, is a tenant at said location operating its principal place of business there. Defendant, GARY BERKOWITZ, is the manager in charge of 44 REALTY CORPORATION. STUART KIRSHENBAUM is the manager in charge of COMBINED CONTAINER CORPORATION. ED BERKOWITZ is the manager of ISLAND CONTAINER CORPORATION. Defendant, COMBINED CONTAINER INDUSTRIES, INC., is a tenant and operates a business at said location.

The plaintiff TOWN explains that defendants have been violating Babylon Zoning Code ?§213-175 by storing trailers on the premises, in the designated parking areas and in the side yard. It is also alleged that defendants have debris on the property in violation of Babylon Zoning Code ?§133-25. The TOWN then claims that defendants have failed to obtain Zoning Board approval for the office trailer in violation of Babylon Town Code ?§213-17 and 213-176.

In addition, plaintiff alleges that the defendants have installed a curb cut on N. 19th Street without first obtaining a permit and adequate coverage in the form of insurance and performance bonds from the Department of Public Works and Town Clerk in violation of Babylon Town Code ?§191-5. It is also claimed that defendants have failed to maintain the buffer zone at said premises which violates Planning Board specifications and Babylon Town Code ?§213-177 and that defendants have failed to provide site plans for any work at the above location.

Finally, plaintiff claims that there are outstanding fire violations and that residents of properties located in proximity to the premises have made complaints about the accumulation of debris and the storage of trailers, the environmental effect upon the neighborhood and the interference with the peace and enjoyment of their lands.

The Court notes that this application was originally returnable on June 25, 1999. Since that date, the parties have been attempting to effectuate a settlement in the instant matter.

The defendants’ site plan application was approved on August 21, 2000. The Town of Babylon Zoning Board of Appeals granted variances on October 19, 2000. At the most recent meeting on February 1, 2001, the defendants stated that the cost of the additions and site work required exceeded their means and as such, the approvals have expired and the violations continue to exist at the site. According to defendants, they have removed all permanent storage trailers, spent approximately $40,000 to clean up the property, started a landscaping project which includes building berms, planting trees and installing a sprinkler system, started the installation of a new drywell on the property to take care of the flooding problem and started installing blacktopping throughout the premises.

There is no dispute that the parties have attempted to work out amicably the problems and violations that are alleged to exist on the premises. Defendants claim that a cease and desist order will put employees out of work and that these defendants have been conducting business in the Town of Babylon for many years, employing over 100 individuals.

Because it is evident that the defendants have made substantial attempts at effectuating compliance with the Babylon Town Code, the Court will not grant injunctive relief at this time. The Court does direct the defendants to clean up any and all accumulated debris on the premises within fifteen (15) days after service of a copy of this Order with Notice of Entry upon defendants’ counsel. In the event defendants fail to do so, plaintiff may re-submit an application for injunctive relief, on notice to defendants.

The Court notes that defendants explain through their attorney that they could not comply with the site plan previously submitted because it required them to construct a two (2) million dollar extension. Defendants via their attorney also explain that all storage trailers have been removed from the premises and there are only transit trailers which are temporarily parked on the premises so that they may be stocked and sent off to make deliveries. Defendants’ counsel affirms that a meeting was held between himself and Town officials on April 3, 2001, at which time he was advised to submit a new site plan which eliminates the extension.

The Court hereby directs the defendants to submit a new site plan within sixty (60) days of the date of service of this Order with Notice of Entry upon defendants’ counsel. In the event of non-compliance by defendants or in the event defendants do not complete the work pursuant to the new site plan, plaintiff may re-submit an application for injunctive relief.

Defendants are also directed to correct any and all fire violations within thirty (30) days after service of a copy of this Order with Notice of Entry upon defendants’ counsel. In the event of non-compliance, plaintiff may renew this application for injunctive relief.

The foregoing constitutes the ORDER of this Court.