October 16, 2023 – The firm is pleased to welcome Megan E. Case as Associate Attorney with the firm’s litigation practice group.  Megan is a member of the New York and Maryland bars, a 2022 graduate of the University of Maryland School of Law, and a former clerk for the Hon. Lynn Knight of the Circuit Court for Queen Anne’s County, Maryland.

June 7, 2023 – The Appellate Division, Second Department has annulled two decisions from the Town of Riverhead, in Andes v. Zoning Board of Appeals of the Town of Riverhead and Andes v. Planning Board of the Town of Riverhead.   

The first decision involved an application of the New York rules governing “nonconforming uses,” specifically with respect to a pre-existing, nonconforming marina that was located in a residential zoning district.  Although the Town’s ZBA had found that the marina was a pre-existing, nonconforming use, the Appellate Division concluded that the owners’ failure to obtain site plan approval for changes to the marina made after 2003 “casts doubt on whether any of the new structures built after 2003 fall within the Reeves’ nonconforming use….”  Consequently, the Appellate Division annulled the ZBA’s decision and remitted the matter back to the ZBA for a new determination.

The second decision involved the Town Planning Board’s decision to subdivide the subject property, specifically regarding the board’s failure to comply with the State Environmental Quality Review Act, commonly known as SEQRA.  The Planning Board had incorrectly classified the application as “Type II,” which would have made it exempt from SEQRA review.  The Appellate Division agreed with the lower court that “there was no rational basis in the record before the Planning Board to support its conlusion that the subject application was a Type II action requiring no environmental review pursuant to SEQRA.

EHADP represented the petitioners in both of these proceedings.    

March 27, 2023 – The firm is pleased to announce that Lauren K. Petersen has joined the firm as an Associate Attorney.  Lauren previously worked at at a large national law firm’s Manhattan office and will be working within EHADP’s transactional practice group, focusing primarily on commercial and residential real estate. 

March 10, 2023 – The Village of Westhampton Beach celebrated the completion of a years-long, $16 million sewer project with a “first flush” event. The Westhampton Free Library – the first to officially tie into the new system – had the ceremonial honor of the first flush, in front of a crowd that included Village Mayor Maria Moore, Deputy Mayor Ralph Urban, and fellow Trustees Brian Tymann, Steve Frano and Rob Rubio, as well as Suffolk County Executive Steve Bellone, Deputy County Executive Peter Scully, Southampton Town Supervisor Jay Schneiderman, State Assemblyman Fred W. Thiele Jr. and County Legislator Bridget Fleming.  Together, the Village Board of Trustees became determined to build the first new municipal sewer systems in years after learning that it would reduce nitrogen loading of the bay by over 5,000 pounds per year.  The Village received support from Suffolk County, which agreed to allow the Village to integrate its system into the existing County treatment plant at nearby Gabreski Airport, as well as from the State of New York and Town of Southampton, both of which provided substantial grants to enable the multi-million-dollar project to be completed with little or no expected tax impacts on residents. 

EHADP, which has served as Village Attorneys in Westhampton Beach since 2014, acted as legal counsel to the Village during its creation of the new sewer district, as well as the planning, development, and construction of the sewer system.   

March 9, 2023 – The Supreme Court, Suffolk County (Hon. Paul J. Baisley, Jr.) has dismissed two actions brought by the Town of East Hampton and Town Trustees and rejected their attempt to revisit the Courts’ prior decision to prohibit vehicles on the private beach formerly known as “Truck Beach,” in Town of East Hampton v. Seaview at Amagansett, Ltd., Index Nos. 621830/2021 & 604939/2022.   

The two new actions (which were consolidated and dismissed in one decision) stemmed from a 2009 dispute that was litigated over 13 years and resulted in a February 3, 2021 Appellate Division decision concluding that the beach at issue was privately owned (not publicly owned by the Town) and prohibiting the Town and Trustees from issuing permits allowing vehicles to drive on the beach.  In a June 30, 2022 decision, the Court found the Town in contempt of the Appellate Division’s decision.   

After the 2009 litigation had concluded, the Town and Trustees each commenced new actions in which they claimed a right to relitigate whether vehicles could still be permitted on the private beach, in spite of the Appellate Division’s prior ruling.  In the March 9, 2023 order, the Supreme Court disagreed and granted the owners’ motions to dismiss, concluding that:  “A review of the pleadings in these matters reveals that the Town and Trustees are in fact attempting to relitigate the very same issues that have been litigated in the 2009 matter for thirteen years.  Under the doctrine of res judicata, the Town and Trustees may not institute a new action in order to circumvent an unfavorable decision it received in a previous matter.”  In a further rebuke of the Town’s conduct, the Supreme Court not only dismissed the actions but enjoined the Town and Trustees from filing any more actions on the same subject “without prior court approval….”  

Esseks, Hefter, Angel, Di Talia & Pasca represented four homeowner associations throughout the 2009 litigation, the contempt proceedings, and in the new actions.  

March 2, 2023 – The Honorable James Hudson of the Supreme Court, Suffolk County has dismissed an untimely action brought to enforce $1.55 million in loan guaranties, in BW Patio, LLC v. Barnet, Index No. 202160/2022.   The case was a follow-up to a prior mortgage foreclosure action in which the underlying loans were found to have matured in 2011.  In the 2022 action, the plaintiff was seeking payment on personal guarantees, plus millions in interest.  The defendants moved to dismiss the action on several grounds, including that the action was brought beyond the six-year statute of limitations.  Justice Hudson agreed with the defendants and found that the loans matured in 2011, more than eleven years before the action was commenced on the guarantees, and that the action, having been commenced more than six years after the maturity date, was “time-barred.”  Justice Hudson rejected the plaintiff’s attempt to alter the plain meaning of the parties’ agreements through extrinsic evidence and also found the remaining claims failed to state a viable cause of action.   

February 8, 2023 – The Appellate Division, Second Department, has upheld a dismissal of an easement holder’s claim that the easement was “exclusive” and prohibited the owner of the property from using or widening the road, in Berg v. Cahill.  The action involved an intersection of title and zoning issues, because the plaintiffs were objecting to a proposed residential/golf course development project on the ground that the developer could not use a road to access the property, based on their claim that they held an exclusive easement over the road.  The Court noted that  “truly exclusive” easements are disfavored, and easements “will be deemed nonexclusive ‘unless the opposite intent unequivocally appears,'” before concluding that, in this case, the instruments did “not contain unequivocal language manifesting an intent to create an easement which excluded the fee owner of the trust property.”  The court also rejected the plaintiffs’ arguments that the owner was prohibited from widening the road or that the plaintiffs could claim that the development would interfere with the plaintiffs’ use of the road before the development was put into effect.