Opinion
Index No. EC2021-32963
11-30-2023
Town of Hartford, Plaintiff, v. David J. Swezey, Defendant.
Michael A. Brandi, Saratoga Springs, for plaintiff. Jeffrey E. McMorris, Glens Falls, for defendant.
Unpublished Opinion
Michael A. Brandi, Saratoga Springs, for plaintiff.
Jeffrey E. McMorris, Glens Falls, for defendant.
ROBERT J. MULLER, J.S.C.
Defendant is the owner of real property located at 301 Gibbs Road in the Town of Hartford, Washington County. Upon learning of a 1991 mobile home located on the property and personally inspecting the same, Mark Miller - plaintiff's Code Enforcement Officer - served defendant with a Notice of Violation. The Notice - served on April 22, 2021 - states as follows:
"You are hereby notified that you have been found to be in violation of the following provisions of Hartford Town Code [hereinafter the Town Code]: §§ 79-4; 79-5; 79-6; 79-7; 79-9; 79-14.
"Specifically, I observed an uninspected and unpermitted mobile home in excess of 10 years of age placed on a non-compliant base pad at property owned by [you] at 301 Gibbs Road.... This mobile home lack[s] an independent and adequate supply of potable water.... [It] also lack[s] electrical service [and] the lot upon which [it is] placed was not subject to a pre-inspection. These observations were made by [me] on March 24, 2021.
"The following corrective measures should be taken no later than May 20, 2021 or penalties may be assessed: the removal of the mobile home from the Town of Hartford.
"For the purposes of applying the penalties described in § 79-14 of the... Town Code, your first violation shall be deemed to have occurred as of March 24, 2021.
" Please Note... the above detailed violations may result in a civil penalty of up to $500[.00] per day in addition to a declaratory action seeking removal of the mobile home" [NYSCEF document No. 25, at p 1].
On May 31, 2021, plaintiff's Town Board held a meeting and defendant appeared, advising that "he sold the mobile home on May 1, 2021... and the new owners were supposed to remove it on May 20, 2021 but they had issues with the moving company." Defendant further advised that the new owners hoped to move it within the next week. This notwithstanding, a resolution was passed whereby plaintiff's Town Supervisor was "authorized to retain legal counsel to commence and pursue legal action... to compel the removal of the [mobile home] and to recover applicable civil penalties." The mobile home was subsequently removed from defendant's property on June 8, 2021 and, on June 9, 2021, plaintiff commenced this action seeking to recover $37,000.00 in civil penalties. Presently before the Court is plaintiff's motion for summary judgment for the relief requested in the complaint.
"'Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action'" (Taylor v Appleberry, 214 A.D.3d 1142, 1144 [3d Dept 2023], quoting Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks, brackets, and citation omitted]; accord Davis v Zeh, 200 A.D.3d 1275, 1278 [3d Dept 2021]; see CPLR 3212 [b]). "'When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations'" (Taylor v Appleberry, 214 A.D.3d at 1144, quoting Carpenter v Nigro Cos., Inc., 203 A.D.3d 1419, 1420-1421 [3d Dept 2022] [internal quotation marks and citation omitted]; see Vega v Restani Constr. Corp., 18 N.Y.3d at 503, 505; Facteau v Mediquest Corp., 162 A.D.3d 1386, 1388 [3d Dept 2018]).
The Court finds that plaintiff has established its entitlement to summary judgment insofar as liability for the penalties is concerned. There is no question that defendant's placement of the mobile home on his property constituted a violation of the Town Code, which provides that "[n]o mobile home may be more than 10 years old" (Town Code § 79-4 [B]); "[e]ach mobile home shall have an adequate and independent supply of potable water" (Town Code § 79-4 [E]); "[e]ach mobile home shall have its own septic system" (Town Code § 79-4 [F]); "[e]ach mobile home shall have its own electrical service" (Town Code § 79-4 [G]); and "[e]ach mobile home lot shall have a base pad" (Town Code § 79-5). The Town Code further provides that an application for a permit must be filed for all mobile homes (see Town Code § 79-6), and "[n]o mobile home shall be brought into the Town prior to the issuance of a permit" (Town Code § 79-7).
While defendant contends that the resolution authorizing plaintiff to commence this action is somehow improper because two Town Board members abstained, this contention is wholly unavailing. The resolution was passed by three of the five Town Board members and notably would have passed even if the members who abstained had voted against it.
Insofar as the amount of penalties is concerned, § 79-14 (B) of the Town Code provides, in pertinent part:
"[T]he violation of this chapter or any of the provisions thereof shall subject any person to a civil penalty in the amount of $500[.00]. When a violation of this chapter or any of the provisions thereof is continuous, each such 24 hours thereof shall constitute a separate and distinct violation."
Here, plaintiff has submitted the affidavit of Miller who indicates that "on March 26, 2021, [he visited] the property and observed that [the] mobile home had been placed on the property." He further indicates that "[o]n June 8, 2021, [he] visited the property again and confirmed that the mobile home was removed." Plaintiff thus contends that defendant was "in violation of the... Hartford Town Code for a period of 74 continuous days" beginning on March 26, 2021 and continuing through June 7, 2021, and must pay a penalty of $500.00 per day for a total of $37,000.00.
Although the March 26, 2021 date set forth in Miller's affidavit conflicts with the March 24, 2021 date in the Notice of Violation, the Court nonetheless finds that plaintiff has succeeded in establishing its entitlement to summary judgment on the issue of penalties. Indeed, to the extent that plaintiff is seeking penalties based on the March 26, 2021 date, the amount sought is reduced by $1,000.00.
In opposition, defendant has submitted an affidavit stating as follows:
"On April 14, 2021, the subject mobile home was delivered to my property. [Miller] followed it through Town to my house.
"After inspecting it, he told me to get an application from the Town to approve it.
"He also advised me that there would be no violation if I placed the mobile home across the road adjacent to my cow barns.
"Based on that conversation, I began looking at moving the mobile home across the road as the intent was always to use the mobile home for a farm worker, an approved use under the Town Code.
"I was also advised by [Miller] that I had until May 20, 2021 before there would be any enforcement action.
"On or after April 22, 2021, I received a written notice from the Town giving me until May 20, 2021 to correct the issues with the mobile home" [NYSCEF document No. 28, at ¶¶ 2-7].
Defendant thus contends that plaintiff is only entitled to penalties in the amount of $9,500.00, or $500.00 per day from May 20, 2021 to June 8, 2021 - a period of 19 days.
§ 79-9 of the Town Code - also listed in the Notice of Violation - provides that mobile homes are permissible for farm workers under certain circumstances.
The Court concludes that defendant has failed to raise a triable issue of fact relative to whether the violation period should begin to run on May 20, 2021. The Notice of Violation plainly states that "[f]or the purposes of applying the penalties described in § 79-14 of the... Town Code, your first violation shall be deemed to have occurred as of March 24, 2021" [NYSCEF document No. 25, at p 1] - when Miller observed the mobile home placed on the property. Moreover, § 79-14 (B) of the Town Code states that "[w]hen a violation... is continuous, each such 24 hours... shall constitute a separate and distinct violation."
That being said, defendant's contention that the mobile home was delivered to his property on April 14, 2021 is in direct conflict with both the March 24, 2021 and March 26, 2021 dates provided by plaintiff. Further, if the April 14, 2021 date of delivery is accurate, then defendant was in violation of the Hartford Town Code for a period of 55 days - resulting in a reduced penalty of $27,500.00.
While cognizant that self-serving statements may be disregarded where they refute prior sworn testimony (see Price-Linden v State of New York, 119 A.D.3d 1192, 1192-1193 [3d Dept 2014]; O'Leary v Saugerties Cent. School Dist., 277 A.D.2d 662, 663 [3d Dept 2000]), that does not appear to be the case here. Depositions have not been held and the interrogatories served by plaintiff do not explore when the mobile home was placed on defendant's property. Further, in his answer defendant denied paragraph "7" of the complaint, which alleges that "[o]n or about March 26, 2021, [d]efendant placed a mobile home upon his property." Perhaps most notably, plaintiff failed to address this issue in its reply papers. Viewing the evidence in a light most favorable to defendant and according him the benefit of every reasonable inference (see Taylor v Appleberry, 214 A.D.3d at 1144; Carpenter v Nigro Cos., Inc., 203 A.D.3d at 1420-1421), the Court finds that defendant has succeeded in raising a triable issue of fact relative to whether the violation period should begin to run on April 14, 2021.
Based upon the foregoing, plaintiff's motion for summary judgment is granted to the extent that liability is established and the motion is otherwise denied.
Counsel for the parties are hereby directed to appear for a status conference on January 29, 2024 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York.
Therefore, having considered NYSCEF document Nos. 15 through 26, 28, 30 and 31, and oral argument having been heard on November 29, 2023 with Michael A. Brandi, Esq. appearing on behalf of plaintiff and Jeffrey E. McMorris, Esq. appearing on behalf of defendant, it is hereby
ORDERED that plaintiff's motion for summary judgment motion is granted to the extent that liability is established; and it is further
ORDERED that the motion is otherwise denied; and it is further
ORDERED that counsel for the parties shall appear for a status conference on January 29, 2024 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York.
This Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to serve with notice of entry.