The following papers filed to NYSCEF as Documents #26-#42, #44-#50, #54-#55, #57-#83 were read on (1) the application of Plaintiffs, brought by Order to Show Cause (sequence #1), for a preliminary injunction; and (2) the cross motion (sequence #3) of Defendants Rockland Cider Works, LLC and Van Houten Farm Market Benefit Trust for an order dismissing the action. DECISION AND ORDER Upon the foregoing papers, the motions are determined as follows: Factual and Procedural Background Defendants Rockland Cider Works, LLC (“RCW”) and Van Houten Farm Market Benefit Trust (“the Trust”) operate a cidery business from a residentially-zoned property (“the Property”) in the Town of Orangetown, Rockland County. The Property includes a hard cider manufacturing facility and an outdoor bar and entertainment business. Plaintiffs are taxpayers who allegedly own residential properties adjacent to the Property. The Property was historically used and operated as a farmstand, nursery, greenhouse and produce business. Since early 2019, alterations have been made to the Property in order to transform it into a cidery business. In July 2019, RCW submitted an application to Defendants the New York State Division of Alcoholic Beverage Control (“the ABC”) and the New York State Liquor Authority (“the SLA”) for an alcoholic beverage control manufacturer license, also known as a farm winery license. In January 2020, RCW’s application was granted, and a farm winery license was issued, effective May 18, 2020 through April 30, 2023. In October 2020, in response to complaints relating to the operation of the cidery business, Christian Catania, a Code Enforcement Officer employed with Defendant the Town of Orangetown Office of Building, Zoning, Planning, Administration and Enforcement (“the OBZPAE”), performed a site inspection of the Property and observed that certain construction work had been done without permits and certificates of occupancy. Consequently, RCW was charged, in October 2020, with violating the Orangetown Town Code (“the Town Code”) by failing to obtain permits and certificates of occupancy for the operation of the cidery business. Via letter dated March 5, 2021, Plaintiffs Susan McWhinney and Gerard Goggin demanded, pursuant to Town Law §268 (2), the Town Board of the Town of Orangetown (“the Town Board”) to take immediate action to stop the ongoing and recurring violations of the Town Code committed by RCW in operating the cidery business. The Town Board allegedly did not provide any response regarding the demand. In April 2021, RCW submitted a building permit application to the OBZPAE. In May 2021, RCW pleaded guilty to failing to obtain appropriate certificates of occupancy for the cidery operation in satisfaction of the October 2020 charges. In June 2021, RCW’s building permit application was denied on the ground that the use of the Property for the cidery business was not permitted as of right under the Town Code and that a use variance must be obtained. RCW neither obtained a use variance nor appealed the OBZPAE’s denial of its building permit application to the Orangetown Zoning Board of Appeals, but continued the cidery operation. In August 2021, Catania, again, inspected the Property and found out that no building permits or certificates of occupancy had been issued for any of the alterations made to the structures on the Property. RCW was subsequently charged, in August 2021, with violating the Town Code by failing to obtain appropriate permits and certificates of occupancy. Later, Michael Acheson, a Building Inspector employed with the OBZPAE, visited the Property and observed that certain electrical work was being performed without the permits required under the New York State Uniform Fire Prevention and Building Code. Acheson therefore issued a Stop Work Order directing that all construction, alteration and repair work on the Property cease immediately. According to an affidavit of Acheson filed in this action, after the issuance of the Stop Work Order, RCW and the Trust never sought or obtained an electrical permit for the work observed by Acheson. In September 2021, Catania issued another Stop Work Order and a Notice of Stop Work (“the NSW”) after observing that certain construction work was being performed on the Property without necessary permits. According to an affidavit of Catania filed in this action, after the issuance of the second Stop Work Order and the NSW, RCW and the Trust never sought or obtained a permit for the work observed by Catania. In September 2021, RCW filed a petition for zoning text amendment with the Town Board, seeking to amend the Town Code to, inter alia, include clear definitions of certain statutory terms that would permit the use of the Property as a cidery. In November 2021, the SLA issued a Notice of Pleading to Cancel or Revoke RCW’s farm winery license, accusing RCW of, inter alia, failing to conform with all applicable building codes, and/or fire, health, safety and governmental regulations. In January 2022, the SLA issued a second Notice of Pleading to Cancel or Revoke RCW’s farm winery license, alleging, inter alia, that, in December 2021, RCW did not conform with all applicable building codes, and/or fire, health, safety and governmental regulations concerning noise. In January 2022, RCW and the Trust commenced a hybrid action for declaratory relief and proceeding pursuant to CPLR article 78, seeking, inter alia, (1) a judgment declaring that the operation of the cidery business constitutes an as-of-right use under the Town Code; (2) a judgment declaring null and void the portions of the NSW which state that the cidery operation violates the Town Code; and (3) injunctive relief rescinding and cancelling the NSW (see Rockland Cider Works, LLC et al. v Town of Orangetown et al., Index No. 30197/2022) (“the RCW case”). In the RCW case, RCW and the Trust moved for a preliminary injunction and a temporary restraining order enjoining the Respondents/Defendants in that case (i.e., Defendant the Town of Orangetown, the OBZPAE and Defendant Jane Slavin, in her official capacity as the Director of the OBZPAE) from taking any further action against RCW and the Trust based upon the NSW and from disturbing in any manner the rights of RCW and the Trust relating to the Property. The Court (Berliner, J.) granted RCW and the Trust the requested temporary restraining order, ordering that, pending determination of their motion for a preliminary injunction, the Respondents/Defendants be temporarily restrained from “taking any further action against [RCW and the Trust] or their rights in and to the [P]roperty…based upon [the NSW].” Via letter dated March 31, 2022, Plaintiffs, pursuant to Town Law §268 (2), demanded the Town of Orangetown take all appropriate action to stop the ongoing violations at the Property. On April 4, 2022, the Town’s attorney allegedly advised Plaintiffs’ attorney that the Town did not intend to seek injunctive relief against RCW and the Trust. In May 2022, the Respondents/Defendants in the RCW case (i.e., the Town, the OBZPAE and Slavin) submitted a motion to dismiss that case. This Court, by Decision and Order dated January 5, 2023, granted the motion to dismiss the RCW case and denied as moot the motion by RCW and the Trust for a preliminary injunction. In June 2022, Plaintiffs commenced this instant action allegedly pursuant to Town Law §268 (2) to, inter alia, enjoin RCW and the Trust from operating the cidery business. Plaintiffs allege that RCW and the Trust violate the Town Code by, inter alia, failing to obtain the requisite permits for the construction work performed on the Property and failing to obtain the necessary approval for the use of the Property as a cidery. Plaintiffs allege that the violative operation of the cidery business is still ongoing and has resulted in diminutions in their respective properties’ values and a reduction in their use and enjoyment thereof. Plaintiffs assert five causes of action, including causes of action seeking judgments declaring that the operation of the cidery business violates the Town Code, that the cidery operation constitutes a nuisance, and that the farm winery license is invalid; a cause of action seeking to recover personal and property damage resulting from the cidery operation; and a cause of action seeking injunctive relief enjoining RCW and the Trust from operating the cidery business. Plaintiffs now move for a preliminary injunction to enjoin RCW and the Trust from operating the cidery business. In support of the motion, Plaintiffs submitted, inter alia, their own affidavits. According to the affidavits, the cidery business is situated in the immediate vicinity of Plaintiffs’ properties and has caused excessive traffic, noise, pollution, safety issues and other disturbances. Specifically, the food trucks, which have been parked adjacent to the property of McWhinney and Goggin, the property of Plaintiff Thomas Reynolds, as well as the property of Plaintiffs John Torpey and Brenda Torpey, created excessive noise and noxious fumes and odors. The noise and odor from the manufacturing facility have interfered with McWhinney’s and Goggin’s use and enjoyment of their kitchen, backyard, rear patios during the evening hours. The loud music and the noise from the Property have interfered with Reynolds’s use and enjoyment of his property. Plaintiffs Christopher Van Houten and Sharon Van Houten have been unable to use and enjoy their backyard due to the loud music and noise created by RCW’s patrons. Plaintiffs Dr. Stuart Rasch and Carolynn Rasch have been unable to use and enjoy their backyard because of the loud music, noise and fumes. The lack of sufficient parking for the use of the Property as a cidery business has caused numerous issues: Reynolds’s property has been improperly used for parking purposes by RCW’s patrons; the Torpeys, at certain points, had to call the police to complain about vehicles parked into the lanes of county roads; and vehicles parked in front of the property of the Van Houtens have, on multiple occasions, blocked their mailbox and prevented them from exiting or entering their own driveway. Disorderly and intoxicated patrons of the cidery business have caused disturbances in the neighborhood: an intoxicated patron once trespassed onto the property of McWhinney and Goggin and attempted to steal a lawn mower; McWhinney was, on one occasion, frightened by a male patron, who was sitting by the front door of her home; McWhinney once encountered a male patron who had trespassed onto her property and urinated into a bag of garden soil; McWhinney encountered another trespasser who was sitting on her walkway talking on his phone; the Van Houtens had to confront patrons who routinely urinated on their yards and driveway; the Van Houtens have observed patrons smoking marihuana behind vehicles that buttressed against their property; and an intoxicated male patron, at a certain point, passed out on the property of the Raschs. Plaintiffs further submitted an affidavit of Sal Mazella, a New York State Certified General Real Estate Appraiser, who opines that the non-residential, commercial use of the Property has negatively impacted the fair market property value of the single-family residences of Plaintiffs. Mazella avers that he has reviewed Plaintiffs’ affidavits and that he also visited the Property and observed the operations of the cidery business. Mazella avers that, based on his review and observations, he opines that the cidery business has caused numerous problems to Plaintiffs’ respective properties, all of which are situated in close proximity to the Property. Mazella avers that the incidents Plaintiffs have experienced (e.g., trespassing patrons) and the business’s interferences with Plaintiffs’ use and enjoyment of their properties (e.g., loud music, noise, odors, as well as parking and traffic safety issues) are not typical in similarly situated residential neighborhoods of Orangetown. Mazella opines that any use of the Property that may include outdoor music, entertainments, sale of hard cider and alcohol, and the like will bring additional people to the area and generate additional traffic; and that, as a result, the quiet use and enjoyment of the residential character of the entire neighborhood will be reduced, and any potential purchaser will pause, look elsewhere, or discount the price they are willing to pay for a property that they view could be negatively impacted by the cidery business. In addition, Mazella specifies the percentage numbers and dollar amounts by which the values of Plaintiffs’ respective properties have been diminished as a result of the cidery business. In opposition to Plaintiffs’ motion and in support of their cross motion to dismiss, RCW and the Trust contend that this action must be dismissed pursuant to CPLR 3211 (a) (4) due to the RCW case, which, they argue, involves the same issues as those raised in the instant action. RCW and the Trust further contend that Plaintiffs did not satisfy the condition precedent to maintaining a cause of action pursuant to Town Law §268 (2) due to their failure to establish the Town’s official lassitude or nonfeasance in the enforcement of the zoning laws. RCW and the Trust also contend that Plaintiffs do not have standing to maintain a private action at common law to enjoin the operation of the cidery business because Plaintiffs failed to demonstrate that special damages were sustained due to the cidery operation or that Plaintiffs’ interests are within the “zone of interest” protected by the zoning laws. RCW and the Trust contend that Plaintiffs likewise failed to establish that the elements required for the issuance of a preliminary injunction are satisfied. Lastly, RCW and the Trust argue that, were this Court to deny their motion to dismiss and grant Plaintiffs’ motion for a preliminary injunction, the grant of a preliminary injunction must be contingent upon Plaintiffs posting an undertaking in an amount to be fixed by this Court to reimburse RCW and the Trust in the event the injunction is ultimately deemed unwarranted. Analysis Initially, this Court finds that the branch of the motion of RCW and the Trust seeking to dismiss this action pursuant to CPLR 3211 (a) (4) based on the RCW case must be denied, since the RCW case was dismissed by Decision and Order dated January 5, 2023. “Town Law §268 (2) permits a town to ‘institute any appropriate action or proceedings’ to ‘restrain, correct or abate’ a violation of its zoning ordinance, or to prevent any illegal uses of land. It further provides that ‘upon the failure or refusal of the proper local officer, board or body of the town to institute any such appropriate action or proceeding for a period of ten days after written request by a resident taxpayer of the town so to proceed, any three taxpayers of the town residing in the district wherein such violation exists, who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do’” (Phair v Sand Land Corp., 56 AD3d 449, 450 [2008], quoting Town Law §268 [2]; see Little Joseph Realty v Town of Babylon, 41 NY2d 738, 741 [1977]). This statute was “intended to create an avenue for direct action by which resident taxpayers, acting in concert, may overcome official lassitude or nonfeasance in the enforcement of zoning laws” (Little Joseph Realty v Town of Babylon, 41 NY2d at 741). Here, this Court finds that Plaintiffs have established the Town’s official lassitude or nonfeasance in the enforcement of its zoning laws, a condition precedent to maintaining a cause of action pursuant to Town Law §268 (2). This action was commenced more than 10 days after the Town allegedly received the March 5, 2021 letter sent by McWhinney and Goggin requesting the Town to take immediate action to stop RCW’s and the Trust’s ongoing and recurring violations of the Town Code but failed to institute an appropriate action or proceeding. Thus, Plaintiffs were entitled to commence this action pursuant to Town Law §268 (2) (see Phair v Sand Land Corp., 56 AD3d at 450; cf. Marlowe v Elmwood, Inc., 12 AD3d 742, 744 [2004]). In addition, this action is not subject to dismissal due to the Town’s subsequent enforcement efforts taken after expiration of the 10-day notice period — including denying RCW’s building permit application, commencing a criminal proceeding in August 2021, and issuing the Stop Work Orders and Notice — none of which constitutes an “appropriate action or proceeding[]” within the meaning of Town Law §268 (2) (see Phair v. Sand Land Corp., 56 AD3d at 450). Furthermore, “[a]lthough municipal officials indeed are tasked with enforcing zoning ordinances within their boundaries, this does not prevent private property owner[s] who suffer[ ] special damages from maintaining an action seeking to enjoin the continuance of the violation and obtain damages to vindicate [their] discrete, separate identifiable interest[s]” (Town of N. Elba v. Grimditch, 131 AD3d 150, 155 [2015] [internal citation, quotation marks and ellipsis omitted]; see Nemeth v. K-Tooling, 100 AD3d 1271, 1273 [2012]). “To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are different in kind and degree from the community generally and that the asserted interests fall within the zone of interest to be protected by the statute or ordinance at issue” (Town of N. Elba v. Grimditch, 131 AD3d at 155 [internal quotation marks omitted]; see Gershon v. Cunningham, 135 AD3d 816, 816 [2016]; Zupa v. Paradise Point Assn., Inc., 22 AD3d 843, 843-844 [2005]). “Where, as here, the offending premises are immediately adjacent to the neighbors’ property, a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the neighbors need not allege specific injury” (Town of N. Elba v. Grimditch, 131 AD3d at 156 [internal quotation marks and brackets omitted]; see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]; Gershon v. Cunningham, 135 AD3d at 816-817; Zupa v. Paradise Point Assn., Inc., 22 AD3d at 844). In deciding the issue of standing, a court should be mindful that “[s]tanding principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules” (Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 413). Here, Plaintiffs’ specific allegations of close proximity to the Property give rise to an inference of damage and injury (see Town of N. Elba v. Grimditch, 131 AD3d at 156). In any event, the affidavit of the certified real estate appraiser is sufficiently detailed to establish diminutions in the values of Plaintiffs’ properties as a result of the cidery business so as to support the element of special damages (cf. Marlowe v. Elmwood, Inc., 12 AD3d at 745). Moreover, Plaintiffs have demonstrated that their interests fall within the zone of interest protected by the Town Code, as the Town Code prohibit, inter alia, a nonresidential use that creates noxious or objectionable noise and odors (see Code of Town of Orangetown §§43-4.1), which Plaintiffs are subject to (see Zupa v. Paradise Point Assn., Inc., 22 AD3d at 844). Therefore, Plaintiffs have standing to maintain a common-law cause of action to enjoin the violations. Turning to Plaintiffs’ motion for a preliminary injunction, to obtain preliminary injunctive relief based on a violation of a zoning ordinance, a movant is not required to show irreparable harm, but is required only to demonstrate a likelihood of success on the merits and that the equities are balanced in the movant’s favor (see Thilberg v. Mohr, 74 AD3d 1055, 902 [2010]; Town of Islip v. Modica Assoc. of NY 122, LLC, 45 AD3d 574, 575 [2007]; Eggert v. LeFever, 222 AD2d 1043, 1044 [1995]). Here, Plaintiffs have made a strong showing that they will prevail on the merits of this action — in view of the OBZPAE’s denial of RCW’s building permit application, the issuance of the Stop Work Orders and Notice, RCW’s guilty plea of failing to obtain appropriate certificates of occupancy, and the proceedings commenced by the SLA seeking to cancel and revoke RCW’s farm winery license on the grounds, inter alia, that RCW failed to conform with all applicable codes and regulations (see Karabatos v. Hagopian, 39 AD3d 930, 931 [2007]; Williams v. Hertzwig, 251 AD2d 655, 656 [1998]). Furthermore, considering the affidavits submitted by Plaintiffs demonstrating that the operation of the cidery business has resulted in diminutions in their respective properties’ values and significant interferences with their use and enjoyment thereof, and in light of the failure of RCW and the Trust to submit any proof that they would be harmed by a preliminary injunction, this Court finds that the balance of equities is in Plaintiffs’ favor (see Karabatos v. Hagopian, 39 AD3d at 931-932). Finally, CPLR 6312 (b) provides, in relevant part, that “prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court [and] the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction.” “The amount of the undertaking must not be based upon speculation and must be rationally related to the amount of potential damages which the defendant might suffer if it is later determined that the injunction was unwarranted” (Hofstra Univ. v. Nassau County, N.Y., 166 AD3d 863, 865 [2018] [internal quotation marks and brackets omitted]; see Congregation Erech Shai Bais Yosef, Inc. v. Werzberger, 189 AD3d 1165, 1168 [2020]). As such, Plaintiffs shall furnish an undertaking in an amount to be fixed by this Court following a hearing. Accordingly, it is hereby ORDERED that Plaintiffs’ motion (sequence #1), to the extent that it seeks a preliminary injunction enjoining RCW and the Trust from operating the cidery business, pending final disposition of this action, is granted. The granting of such preliminary injunction is conditioned upon the posting of a good and sufficient undertaking by Plaintiffs in an amount to be fixed by this Court at a hearing pursuant to CPLR 6312 (b); and it is further ORDERED that the cross motion (sequence #3) by RCW and the Trust to dismiss the action is denied in its entirety; and it is further ORDERED that the parties shall appear for a hearing to determine the amount of the undertaking to be filed by Plaintiffs on January 25, 2023 at 11:00 am before Hon. Christie D’Alessio, JSC. The foregoing constitutes the Decision and Order of the Court. Dated: January 13, 2023
