Opinion
8846/08.
Decided June 27, 2008.
Bridget Eichinger, Esq., Corporation Counsel, New York, New York, Counsel for plaintiffs.
Vincent M. Gerardi, Esq., Mineola, New York, Counsel for defendants.
Upon the foregoing papers, in this action by plaintiffs the City of New York (the City) and John Doherty, in his capacity as the Commissioner of the New York City Department of Sanitation (the DSNY) (collectively, plaintiffs) alleging claims of violations of Administrative Code of the City of New York § 16-119, § 16-130(b), and § 24-604, a violation of 16 RCNY 3-02, trespass, private nuisance, public nuisance, and liability under the Navigation Law, defendants Darren Miller, in his individual capacity, and Darren Miller d/b/a Darren Miller Trucking a/k/a D Miller Trucking a/k/a DM Trucking and Parking a/k/a DM Trucking (collectively, defendants) move, by order to show cause, for a preliminary injunction, pursuant to CPLR 6301, enjoining plaintiffs, their agents, employees and/or representatives, and any and all persons acting individually or in concert with them: (1) from permitting or authorizing the entry and/or entering upon the vacant parcel known as Block 4452, Lots 570, 530 area, located at Erskine Street, in Brooklyn, New York, and (2) from removing or in any manner interfering with defendants' trucks and movable property located in the area known as Block 4452, Lots 570, 530.
Defendants, in their motion, also seek an order vacating the temporary restraining order signed on April 10, 2008 and the preliminary injunction issued on April 11, 2008 based upon the purported ground of a lack of service of process. In addition, defendants, by their motion, request that the court order sanctions against the New York City Corporation Counsel's office for allegedly failing to follow the court's April 10, 2008 order as to service of the order to show cause with respect to the preliminary injunction, and that the City be compelled to pay attorney's fees to them for allegedly wrongfully obtaining the preliminary injunction to circumvent existing ongoing litigation.
The property at issue in this action is located west of Erskine Street and south of Vandalia Avenue, and lies just north of the Gateway Plaza Shopping Mall. It includes four parcels: Block 4586, Lot 1 and Block 4452, Lots 170, 400, and 570. The property was acquired by the City through condemnation in 1968, and dedicated for the public purpose of the Fresh Creek Urban Renewal Project. The City presently owns two of these four parcels, i.e., Block 4586, Lot 1 and Block 4452, Lot 170. The City-owned parcels are managed by the New York City Department of Housing Preservation and Development (HPD), which has plans to sell portions of the parcels to a developer for, among other things, the construction of affordable housing. Home Depot and the State of New York own the other portions of the property. Defendants do not hold legal title to any portion of the property.
Defendants' complaint in an earlier adverse possession action by them ( Miller v City of New York, Sup Ct, Kings County, index No. 28504/05) requests the determination of their claim to Block 4586, Lots 530 and 570 in Kings County, which, according to plaintiffs, is not the area that defendants are actually occupying. Defendants' instant order to show cause in the present action requests that plaintiffs be enjoined from Block 4452, Lots 570 and 530. While Block 4452, Lot 570 is part of the property at issue, Block 4452, Lot 530, is not at issue in this action.
Defendant, Darren Miller states that he is a minority businessperson doing business as Darren Miller Trucking, and that his principal place of business is at the property, i.e., the vacant parcel of land on Erskine Street. Mr. Miller further states that he enclosed the property with a chain link fence in 1995 and has been parking trucks and construction equipment at the site since that time.
In the summer of 2005, the DSNY allegedly became aware of illegal dumping on the property when environmental police officers from its permit and inspection unit (PIU Officers) noted piles of fill on the property. Thereafter, the DSNY began to monitor the property for changes. The PIU Officers noted that an increasingly large portion of Block 4586, Lot 1, had been graded with asphalt millings each time they visited, and that the graded portion of the property began to be used to park a large number of vehicles, including tractor trailers.
On August 19, 2005, PIU Officer Christopher Misciagna allegedly witnessed a truck owned by a company called Bhola Hauling, Inc. illegally dumping on the property, and he issued a summons and impounded the truck. PIU Officers continued to monitor the property. The amount of material, consisting mostly of construction and demolition debris, that had been dumped at the property gradually increased with each of the PIU Officers' visits, and the PIU Officers issued summonses to deter future use of the property for illegal dumping.
Darren Miller states that in September 2005, a group of people from the City broke down the chain link fence gate at the property and demanded that he cease doing business and leave the premises. On September 15, 2005, Darren Miller d/b/a Darren Miller Trucking filed an action against the City and the HPD ( Miller v City of New York, Sup Ct, Kings County, index No. 28504/05) seeking adverse possession of the property (the adverse possession action). Vincent M. Gerardi, Esq. is the attorney for Darren Miller d/b/a Darren Miller Trucking in the adverse possession action.
On November 15, 2006, PIU Officers Emma and Delardi witnessed Darren Miller's employee, Robert Dyke, use a truck registered to Darren Miller, with "D M Trucking" printed on its side, to dump approximately 10 cubic yards of dirt and rock onto the ground of the property without a permit from the DSNY Commissioner to operate a dump or conduct a fill material operation as required by Administrative Code § 16-130(b). The PIU Officers issued summonses to Darren Miller and his employee, Robert Dyke, for violations of the Administrative Code, and impounded the vehicle. At a hearing held on November 28, 2006 before the Environmental Control Board of the City of New York (the ECB), the ECB found Darren Miller and Robert Dyke in violation of Administrative Code § 16-119(a), which prohibits "any person [or] his or her . . . employee . . . to . . . permit any dirt . . . rocks . . . or debris of any sort . . . being transported in a dump truck or other vehicle to be dumped . . . in or upon any . . . lot . . . or other area whether publicly or privately owned."
On August 27, 2007, PIU Officers Coca and McClernon allegedly witnessed the driver of a dump truck, David Loja, dump approximately 18 cubic yards of dirt and rock at the property and Darren Miller immediately begin to grade the material into the property. When questioned, David Loja allegedly told the PIU Officers that he had paid Darren Miller $200 per load and had dumped on the property on more than one occasion. Darren Miller also allegedly informed the PIU Officers that he was accepting loads of dirt and rock because the soil at the property was too soft and he needed to construct a heavy road on which heavy trucks could drive. Darren Miller was issued a summons for violating Administrative Code § 16-130(b) due to his operation of a dump site and fill operation without a permit. He was also issued a summons for violating 16 RCNY 3-02(h) which prohibits the acceptance of fill at a landfill operation which is not clean fill, based upon his changing the grade of the site with unacceptable fill material (i.e., asphalt). David Loja was issued a summons for violating Administrative Code § 16-119 due to his illegal dumping. A videotape taken by PIU Officer McClernon, which showed asphalt being layered in the ground, was produced at a hearing before the ECB. After the hearing, the ECB found both Darren Miller and David Loja in violation of the aforesaid laws.
On January 23, 2008, PIU Officers allegedly observed a vehicle, registered to JBS Construction and driven by Satwant Singh, dump approximately 16 cubic yards of dirt and rock on the property. Satwant Singh allegedly informed the PIU Officers that Darren Miller charged his company $200 per load to dump at the property in order to provide him with fill, and $1,500 per month to store its containers (which appeared to contain construction and demolition debris) on Block 4452, Lot 170.
On January 25, 2005, PIU Officers stopped a car carrier, whose driver had a receipt for a payment of $150 to DM Trucking and Parking to park the carrier on the property, and, on February 14, 2008, PIU Officers witnessed a backhoe, with an attachment, being used on the property to chop and crush vehicles. As a result, automotive fluids, including motor oil, transmission fluid, and antifreeze, were being spilled onto the ground. According to the PIU Officers, the area surrounding the backhoe was filled with piles of automobile parts, including metal, tires, and batteries.
Darren Miller challenges the continuous surveillance of the property by the PIU Officers, claiming that ever since he directed his attorney, Vincent M. Gerardi, to bring the adverse possession action against the City, the City has conducted an ongoing campaign of harassment, intimidation, and racial discrimination against him, using the DSNY police and various City employees and agencies. Specifically, Mr. Miller states that the DSNY PIU Officers continuously enter the property without a search warrant, at any time of the day or night, and have admitted that the property has been under constant surveillance since 2005. Mr. Miller asserts that on occasion, the DSNY PIU Officers have even entered the property with their guns drawn. Darren Miller claims that these actions of the City and the PIU Officers are racist and discriminatory, and would never be used against a white businessman.
According to PIU Officer Joseph Coca, piles of solid waste, consisting of dirt, rock, construction and demolition debris, asphalt millings, and putrescible waste, have been dumped at and often graded into the property. The DSNY estimates that as a result of Darren Miller's solicitation for fill material and his construction of a stable surface on the property by grading in dirt, rock, and asphalt millings, 1,500 cubic yards of construction and demolition debris and 7,923 cubic yards of asphalt have been illegally graded into the property since 2005. While there has been illegal dumping and grading throughout much of the property, the northern half of Block 4452, Lot 170 alone has had over 1,500 cubic yards of construction and demolition debris graded into it, and the graded area in Lot 170 stands six to eight feet above its former height. The gradual expansion of the graded area has allowed an increase in the number and weight of vehicles that can park at the property.
According to plaintiffs, since February 14, 2008, the property is also being used as a location to crush and dismantle vehicles resulting in the discharge of motor oil, transmission fluid, antifreeze, and other liquids onto the property and into the soil in such amounts that puddles of those materials were observed underneath the demolition equipment. In addition, defendants have recently stored an oil drum and a leaking oil tanker on the property and have burned high grasses on a portion of the property that was previously undisturbed. Plaintiffs assert that the City will need to clean-up and restore the soil and remove the construction and demolition debris that was graded into the City-owned parcels, and that this will cause the City to incur substantial clean-up and related costs. Plaintiffs also point out that since February, 2008, defendants have begun closing the Erskine Street gate at the entrance of the property, posting an individual to guard the entrance during the day and locking the gate at night. In addition, defendants have erected dozens of concrete barriers, along the northern and western edges of the property, to prevent entry onto the property from these directions. Defendants have also placed a sign on the front gate of the property, which reads "DM Truck Parking."
On March 18, 2008, plaintiffs filed this action against defendants. Plaintiffs' first cause of action alleges a violation of Administrative Code § 16-119 (c)(1) for defendants' dumping on the property without a DSNY permit. Plaintiffs' second cause of action claims a violation of Administrative Code § 16-130 (b) for operating an unpermitted dumping or fill operation on the property. Plaintiffs' third cause of action asserts that because defendants conducted landfill operations with fill that was not entirely "clean fill," they have violated 16 RCNY 3-02. Plaintiffs' fourth cause of action alleges that defendants are strictly liable under Administrative Code § 24-604 for the total cost incurred by the City to remedy defendants' discharge of petroleum and other hazardous substances onto the property. Plaintiffs' fifth cause of action asserts a claim of trespass, alleging that defendants have willfully entered upon, parked vehicles upon, and deposited debris upon City-owned parcels without the City's authorization. Plaintiffs' sixth cause of action asserts a claim of private nuisance. Plaintiffs' seventh cause of action alleges a claim of public nuisance on the basis that defendants' dumping, filling, grading, and discharge of petroleum and other hazardous waste unreasonably interfered and continues to unreasonably interfere with the health, safety, comfort, environment, and property of the City. Plaintiffs' eighth cause of action seeks recovery under Navigation Law § 181 due to defendants' discharge of petroleum. Plaintiffs' complaint requests applicable penalties under the aforementioned statutes, regulations, and rules; compensatory and punitive damages; and injunctive relief to abate the alleged trespass and public nuisance, including an order that defendants remediate the portion of the property owned by the City.
Plaintiffs' process server made attempts to effectuate service of the summons and complaint in this action on defendants at the actual dwelling place of Darren Miller on March 21, 2008 at 8:50 P.M., March 22, 2008 at 8:14 A.M. and 7:30 P.M., and April 8, 2008 at 12:40 P.M., and at the address of the property on April 1, 2008 at 5:40 P.M. and April 4, 2008 at 12:40 P.M. The process server's affidavit of attempted service dated March 24, 2008 describes his attempts at service on March 21 and 22, 2008. The process server's April 1, 2008 affidavit states that a person on the property refused to accept service on Darren Miller's behalf, and his April 4, 2008 affidavit states that he went up to the gate and knocked, and waited for 15 minutes, but no one answered. The process server's April 8, 2008 affidavit states that when he attempted service at Darren Miller's house on that day, no one responded when he knocked on the door and rang the bell. In addition, according to the process server's April 8, 2008 affidavit, he, after making these attempts at service, pursuant to CPLR 308 (1) and (2), affixed the summons and complaint to the door of Darren Miller's dwelling place and mailed the summons and complaint by first class mail to Darren Miller at his last known residence on April 8, 2008, effectuating "nail and mail" service on defendants, pursuant to CPLR 308 (4), on that date. All of the process server's affidavits of service were filed with the court.
By letter dated April 9, 2008, which was hand-delivered to the last known residential address of Darren Miller and to the property and mailed to the last known residential address of Darren Miller, plaintiffs notified defendants that they planned to bring an order to show cause for a preliminary injunction and request a temporary restraining order on April 10, 2008 at 10:30 A.M.
On April 10, 2008, plaintiffs, pursuant to CPLR 2214 (d), moved, by order to show cause, supported by the affidavit of PIU Officer Joseph Coca, the affirmation of Bridget Eichinger (an Assistant Corporation Counsel), and the previously filed and served verified complaint) for a preliminary injunction, enjoining defendants with respect to their actions on the property. Justice David I. Schmidt signed the order to show cause and granted a temporary restraining order pending the hearing of plaintiffs' motion for the preliminary injunction, which was made returnable on April 11, 2008, the next day. The order to show cause ordered plaintiffs to serve "a copy of this [o]rder to [s]how [c]ause, summons, [and] complaint, together with the papers on which it is based, . . . upon the [d]efendants personally and upon their attorneys on or before [April] 10[, 20]08 and that this be deemed good and sufficient service on the [d]efendants."
On April 10, 2008 (the same day as the order to show cause was signed and the temporary restraining order was issued), plaintiffs attempted personal service by delivery of the temporary restraining order to defendants or a person of suitable age and discretion at both defendants' dwelling place and the property pursuant to CPLR 308 (1) and (2). The process server's affidavit of attempted service sets forth that at 4:50 P.M. on April 10, 2008, after ringing the bell and knocking on the front door of defendants' residence many times with no answer, he posted the order to show cause and accompanying papers, as well as additional copies of defendants' summons and complaint, to the door of defendants' residence (i.e., his actual dwelling place). A second affidavit of attempted service by the process server sets forth that at 5:45 P.M. on April 10, 2008, after pounding many times on the gate of the property, which is the actual place of business of defendants, he affixed the order to show cause and accompanying papers, as well as additional copies of defendants' summons and complaint, to the gate of the property. In addition, copies of the temporary restraining order, accompanying papers, and summons and complaint were mailed to Darren Miller's residence. The process server's affidavits of attempted service were filed with the court.
On April 11, 2008, the return date of the order to show cause, defendants did not appear. By order dated April 11, 2008, this court granted, on default of defendants, plaintiffs' motion for a preliminary injunction, enjoining defendants, their agents, customers, employees and/or representatives from: (1) discharging antifreeze and any and all petroleum products, including but not limited to motor oil and transmission fluid discharged from abandoned or dismantled vehicles, onto the property, (2) trespassing, parking vehicles, and/or storing any material or equipment on the property, and (3) any grading, dumping, or filling on the property. The court, in its April 11, 2008 order, further ordered defendants to remediate all such discharges of antifreeze, petroleum products, motor oil, and other hazardous products on the property within 72 hours.
Plaintiffs, after making several attempts to serve the preliminary injunction upon defendants on April 14, 15, and 17, 2008, pursuant to CPLR 308 (1) and (2), effectuated service by "nail and mail" service, which was completed on April 17, 2008. The process server's affidavits of attempted service were filed with the court.
On April 17 and 18, 2008, PIU Officer Joseph Coca observed a large number of vehicles entering the property, hauling loaded containers commonly used to transport solid waste, box trailers, and construction equipment, and leaving the property without these containers. These vehicles included a car carrier trailer and the same tanker truck, which he had previously seen leaking petroleum onto the property on February 14, 2008.
According to Darren Miller, he encountered two PIU Officers on April 17, 2008, and called his attorney, Vincent M. Gerardi, and gave the PIU Officers his cell phone to speak to Mr. Gerardi, but they refused. According to PIU Officer Joseph Coca, this encounter occurred on April 18, 2008, when he and PIU Officer Liotta were handed a cell phone by Darren Miller's brother, Gary Miller. While the PIU Officers refused to take the cell phone, Gary Miller allegedly turned on the speaker phone and the unidentified person on the phone told them to stop harassing his client, and stated that he already had a lawsuit against the City and would file another one if he believed what they were doing was racially motivated.
According to plaintiffs, after hearing about this incident, Barbara Rosi, an Associate Attorney for the DSNY, based upon the statements made by the caller, determined that he was Vincent M. Gerardi, the attorney representing defendants in the adverse possession action that they had brought against the City in September 2005. Barbara Rosi, therefore, telephoned Mr. Gerardi's office on April 21, 2008, but he did not answer, and she left a message on his answering machine. Thereafter, by letter dated April 21, 2008 Bridget Eichinger, (who, as noted above, is an Assistant Corporation Counsel), wrote to Mr. Gerardi and attached a certified copy of the court's order granting the preliminary injunction "in the event that [he was] also planning to represent Mr. Miller in this matter." Vincent M. Gerardi states that he was out of the country on vacation during the week of April 21, 2008. Plaintiffs, after further attempts at service, pursuant to CPLR 308 (1) and (2), on April 21, 22, and 23, 2008 "nailed and mailed" a certified copy of the preliminary injunction, pursuant to CPLR 308 (4), on April 23, 2008, and filed affidavits of attempted service with the court.
According to the sworn affidavit of PIU Officer Joseph Coca, on April 29, 2008, he observed no visible reduction in the number of vehicles, containers, or construction equipment on the property. On May 7, 2008, PIU Officer Joseph Coca observed a backhoe filling a container with automobile parts and a driver unloading tanks of the type that are used for welding purposes on the property. He also observed a parked tractor trailer full of automobile parts, a car carrier with cars parked on it, and a car lift on the property. On May 8, 2008, PIU Officer Joseph Coca observed a pile of asphalt millings being graded into the property.
By order to show cause dated May 16, 2008, defendants brought the instant motion to, among other things, vacate the April 11, 2008 preliminary injunction based on a lack of service of process, and seeking their own preliminary injunction restraining plaintiffs from entering upon the property and from removing or interfering with their truck and equipment on the property. In support of their motion, defendants do not dispute the underlying factual allegations with respect to the use of the property which supported the granting of the temporary restraining order and the preliminary injunction. Instead, defendants, by their motion, seek to vacate these orders solely on the grounds of an allegation of improper service.
Defendants' attorney, Vincent M. Gerardi, Esq., asserts that this action is part of an illegal, unconstitutional, and racially discriminatory campaign of harassment by City officials against defendants. Mr. Gerardi argues that in furtherance of this harassment scheme, plaintiffs knowingly and maliciously disregarded the service provision of this court's April 10, 2008 order to show cause, which (as noted above) ordered that "service of a copy of this [o]rder to [s]how [c]ause, summons and complaint, together with the papers on which it is based, be served upon the [d]efendants personally and upon their attorneys on or before [April] 10[, 20]08 and that this be deemed good and sufficient service on the [d]efendants."
It is well settled that the method of service provided in an order to show cause is jurisdictional in nature and requires strict compliance ( see Matter of Marcoccia v Garfinkle, 307 AD2d 1010, 1010; Matter of McGreevy v Simon, 220 AD2d 713, 713). Mr. Gerardi contends that in contravention of the service provision in the order to show cause, plaintiffs failed to personally serve him, as defendants' attorney, with a copy of the order to show cause and supporting papers.
Pursuant to CPLR 321 (a), a party may defend a civil action in person or by an attorney. CPLR 321 permits a defendant to appear by an attorney through the same methods set forth in CPLR 320 (a), i.e., "by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer" ( see New England Log Homes v Moody, 194 AD2d 846, 847; Kimple v Auble, 87 Misc 2d 997, 999). CPLR 2103 governs the service of papers in an action and provides, in CPLR 2103 ©, that "[i]f a party has not appeared by an attorney . . . service shall be upon the party." It is only after an attorney has appeared for a defendant that the plaintiff is required to serve papers on the attorney in the manner prescribed in CPLR 2103 ( see Kimple, 87 Misc 2d at 999).
Here, Mr. Gerardi did not identify himself as defendants' attorney in this action after plaintiffs' summons and complaint were filed and personally served upon defendants. In fact, no attorney appeared for defendants in this action until Mr. Gerardi filed an order to show cause on May 16, 2008. Thus, pursuant to CPLR 2103, defendant were not represented and therefore, plaintiffs were not required to serve Mr. Gerardi.
Mr. Gerardi argues, however, that plaintiffs, nevertheless, were required to personally serve him with a copy of the signed order to show cause, as he claims that plaintiffs were fully aware that he represented defendants because plaintiffs noted on their Request for Judicial Intervention (RJI) that there was a pending related action before the court (i.e., the adverse possession action). This argument must be rejected.
Plaintiffs' RJI does not list any attorney for defendants in this action, and leaves blank the space for the attorneys for defendants, but simply lists, as a related case, the adverse possession action regarding the same property. This mere identification of a related case on the RJ I form is inconsequential to service requirements, and is requested solely for the court's administrative purposes pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.3. These Rules do not, in any way, require that an attorney representing a party in one action be served if another action is initiated ( see 22 NYCRR 202.6). In fact, "the only rational purpose for requiring identification of related actions [within the Individual Assignment System, a system which assigns actions and related actions to particular justices], is to ensure that related proceedings are resolved most expeditiously by assignment to the Justice most familiar with the proceedings" ( United Community Ins. Co. v State Farm Fire Cas. Co., 143 Misc 2d 954, 956).
A plaintiff is not required to serve papers on an attorney in an action merely because that attorney is representing the defendant in another related action ( see generally CPLR 2103; Long v Long, 196 Misc 982, 984). "[S]ervice or appearance [by an attorney] in a cause gives jurisdiction of the person with respect to that cause only" ( Long, 196 Misc at 984). A subsequent action must "be regarded as entirely new, independent and collateral" ( id.). Every action (even if it involves the same parties and property) is separate, and a party cannot assume that the defendant will retain the same attorney in a subsequent action. Indeed, Mr. Gerardi did not consistently represent Darren Miller at all of his appearances before the ECB concerning the instant property. Thus, service of the signed order to show cause upon Vincent M. Gerardi, Esq. was not required ( see CPLR 2103 [c]).
With respect to service upon defendants, the April 10, 2008 order to show cause (as noted above), directed that the order to show cause and the summons and complaint, together with the papers on which the order to show cause was based, be served upon defendants "personally" on or before April 10, 2008. Where an order to show cause states that it is to be served by personal service, any of the four methods of personal service enumerated on CPLR 308 are sufficient to confer jurisdiction over a defendant ( see Corpuel v Galasso, 240 AD2d 531, 532; Rothkopf v Rothkopf, 191 AD2d 685, 686; Matter of Weill v Erickson, 49 AD2d 895, 897, affd 37 NY2d 851).
Here, as discussed in detail above, plaintiffs accomplished service upon defendants by the CPLR 308 (4) "nail and mail" method. Since the Legislature has specifically enumerated the CPLR 308 (4) "nail and mail" procedure among the methods of "[p]ersonal service upon a natural person," service by this method constituted the requisite "personal service" upon defendants ( see CPLR 308). Furthermore, based upon plaintiffs' two attempts at service on April 10, 2008 (the same day the order to show cause was signed and the day before the April 11, 2008 return date of the order to show cause), the requirement of due diligence, set forth in CPLR 308 that service be attempted pursuant to CPLR 308 (1) and (2), before utilizing "nail and mail" service pursuant to CPLR 308 (4), was met ( compare Matter of Hennessey v DiCarlo , 21 AD3d 505 , 506).
Darren Miller, in his affidavit, generally avers that "[t]he City failed to serve [him] personally with the court papers which [he] only received after the preliminary injunction was obtained by default." However, Mr. Miller does not specifically contradict the process server's attempts at service and provides no explanation as to why he would not have received the papers affixed to his residence, affixed to the gate of the property, or mailed to him. Mr. Miller states that on April 29, 2008, he was in Jamaica West Indies to explain the significant time lapse between the granting of the preliminary injunction and his moving, on May 16, 2008, to vacate the preliminary injunction, but that does not explain why he defaulted on April 10 and 11, 2008. Mr. Miller, therefore, fails to allege specific facts to rebut the statements in the process server's affidavit ( see Silverman v Deutsch, 283 AD2d 478, 479; Remington Invs. v Seiden, 240 AD2d 647, 647; Sando Realty Corp. v Aris, 209 AD2d 682, 682). The affidavits of the process server constitute prima facie evidence of proper service pursuant to CPLR 308 (4), and Darren Miller's bare conclusory denial of service is insufficient to refute the contents of these affidavits or to raise any issue of fact ( see 425 East 26th St. Owners Corp. v Beaton , 50 AD3d 845 , 845; General Motors Acceptance Corp. v Grade A Auto Body , 21 AD3d 447 , 447; Carrenard v Mass , 11 AD3d 501 , 501; Silverman, 283 AD2d at 479; Wieck v Halpern, 255 AD2d 438, 438; Simmons First Nat. Bank v Mandracchia, 248 AD2d 375, 375; Remington Invs., 240 AD2d at 647; Sando Realty Corp., 209 AD2d at 682).
Vincent M. Gerardi, at oral argument, contended, that service was improper as the two affidavits of attempted service dated April 10, 2008 do not state what papers were served. However, the affidavits of attempted service both state "see attached page," and the attached page lists all of the documents, including the order to show cause, the affirmation of Bridget Eichinger in compliance with Uniform Rules for Trial Courts (22 NYCRR) § 202.7 (f), the memorandum of law in support of the City's motion, the affidavit of PIU Officer Joseph Coca in support of the City's motion, the summons, and the verified complaint.
Mr. Gerardi further asserted, at oral argument, that the attempted affidavits of service do not list an index number, and, therefore, cannot be filed. The record of the Kings County Clerk's office, however, reflects the filing of the affidavits of service.
Mr. Gerardi also pointed to the fact that the affidavits of attempted service incorrectly cite the venue of this action as New York County, rather than Kings County. However, the fact remains that these affidavits were filed in the Kings County Clerk's office. This minor technical defect does not render these affidavits of service ineffective and may be overlooked by the court ( see CPLR 2001; Russo v Besidine, 93 AD2d 790, 791).
Furthermore, Mr.Gerardi argued that the process server did not check the box on the affidavits of service, indicating that there was a mailing. Bridget Eichinger, Esq., however, has attested to her personal knowledge that there was a mailing on April 10, 2008 of a copy of the temporary restraining order, papers, and summons and complaint to Darren Miller's residence, and there is no specific denial of this April 10, 2008 mailing by Darren Miller, who only generally states that he did not personally receive the court papers until after the preliminary injunction was obtained on April 11, 2008 ( see 425 East 26th St. Owners Corp., 50 AD3d at 845; Silverman, 283 AD2d at 479; Remington Invs., 240 AD2d at 647; Sando Realty Corp., 209 AD2d at 682).
Mr. Gerardi also argued that the affidavits of attempted service do not state that the RJI was served upon defendants. The RJI, however, was filed on April 10, 2008 and (as noted above) the affidavits of attempted service refer to the attached page, which lists all of the supporting documents, including the order to show cause. Moreover, proof of service of an RJI is not required where an application is ex parte (as in the case of a temporary restraining order) ( see 22 NYCRR 202.6 [a]).
In defendants' motion, counsel contends that the Corporation Counsel's office should be sanctioned for not following the direction in the court's April 10, 2008 order as to the service of the order to show cause. Such contention is without merit as the court, as discussed above, finds that the Corporation Counsel's office complied with the service requirement as set forth in the April 10, 2008 order.
Defendants also contend that plaintiffs have wrongfully obtained the preliminary injunction, asserting that defendants have been parking trucks and placing construction equipment at the property since 1995 and that plaintiffs' action seeks relief contrary to the relief sought in defendants' pending adverse possession action, thus wrongfully attempting to circumvent defendants' existing adverse possession action. This argument lacks merit. The present action, which seeks to halt alleged environmental degradation, public nuisance, and violations of the Administrative Code and Navigation Law, raises separate and distinct issues from those raised in Darren Miller's adverse possession action, which concerns the ownership of the property.
Moreover, dumping without a permit is not allowed "upon any street, lot, park, public place or other area whether publicly or privately owned" (Administrative Code § 16-119 [a]). The ownership of the property upon which dumping occurs is irrelevant to the violation ( see id.). Similarly, the use of other than clean fill is prohibited "at any landfill operation," not just those situated on land owned by the City ( see 16 RCNY 3-02 [h]). Additionally, pursuant to Administrative Code § 24-604 (a), dischargers of hazardous substances are liable to the City for any costs it incurs for its response in connection with any emergency involving the release of a hazardous substance anywhere in the environment; the City must respond and this section applies regardless of whether the discharge is on privately-owned land or City-owned land.
Defendants allegedly have dumped and continue to dump on the property without a permit, and have operated and continue to operate an unpermitted dump or fill operation on the property. Indeed (as discussed above), the ECB has already found Darren Miller in violation of Administrative Code § 16-119 and § 16-130 (b) for events that occurred on November 15, 2006 and August 27, 2007, respectively. In addition, according to PIU Joseph Coca's affidavit, defendants have also graded asphalt millings and construction and demolition debris (materials that are not clean fill) into the property. PIU Officer Joseph Coca also describes, in his affidavit, how defendants have released and continue to discharge petroleum and other hazardous substances on the property. All of the foregoing violations of the Administrative Code would remain violations regardless of whether they occurred on property owned by the violator. Thus, Darren Miller's claim of ownership of the property in the adverse possession action does not have any direct bearing upon plaintiffs' entitlement to the relief requested by them in this action or the preliminary injunction granted to plaintiffs on April 11, 2008.
Furthermore, while Mr. Gerardi asserts that the adverse possession action has been pending for the last three years and that there are outstanding discovery demands, plaintiffs point out that the adverse possession action has not been diligently prosecuted and that Mr. Gerardi did not make a discovery request in that case until April 2008. The Kings County Clerk's records reflect that following the City's service of an answer, the only activity in the adverse possession case was an order granting the City's motion to compel Darren Miller d/b/a Darren Miller Trucking to comply with the City's discovery demands. Thus, contrary to defendants' argument, plaintiffs' commencement of this action and the preliminary injunction obtained by plaintiffs do not wrongfully circumvent the adverse possession action.
Mr. Gerardi, also argues that there is a question as to whether the property is owned by the City, and that this calls into doubt the propriety of the preliminary injunction obtained by plaintiffs. The City, however, has submitted deeds showing its ownership of a portion of the property, and defendants' lack of ownership of any portion of the property. In any event (as previously discussed), the City's ownership of the property is irrelevant to the issue of the enforcement of environmental laws, which apply to any property, not just City-owned property. A permit to dump and operate a landfill operation is legally required irrespective of the ownership of the property ( see Administrative Code §§ 16-119 [a], 16-130 [b]).
Defendants' motion additionally demands that the City be compelled to pay attorney's fees as a sanction for wrongfully obtaining the preliminary injunction. Since the court (as discussed above) does not find that plaintiffs wrongfully obtained the preliminary injunction, this relief must be denied.
The court now turns to that branch of defendants' motion which seeks a preliminary injunction against plaintiffs, restraining them from entering upon the property or from removing or in any manner interfering with defendants' trucks and removable property. In order to obtain a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) irreparable injury in the absence of the granting of the preliminary injunction, and (3) that a balance of the equities favors the granting of the injunctive relief ( see CPLR 6301; Aetna Ins Co. v Capasso, 75 NY2d 860, 862; State of New York v Fine, 72 NY2d 967, 968-969; W.T. Grant Co. v Srogi, 52 NY2d 496, 517).
Defendants have not shown a likelihood of success on the merits in this action. Defendants do not dispute their activities on the property, which are alleged to be in violation of the Administrative Code and the Navigation Law, and to constitute a public nuisance ( see Navigation Law §§ 171, 173, 181; Administrative Code §§ 16-119, 16-130 [b]; § 24-604; 16 RCNY 3-02).
The Commissioner of the DSNY and his authorized representatives are allowed access, at any time, to property within the City where a landfill operation is being conducted to inspect the property for compliance with local laws ( see 16 RCNY 3-02 [f]). A "landfill operation" is defined as the "[f]inal disposition, grading, leveling and/or compacting of fill materials for the purpose of land improvement, or change of the existing property grade . . ." (16 RCNY 3-02 [g]). Vehicles that are used to dump or fill unlawfully or without a permit, or to operate a business without a license, may be impounded by the DSNY ( see Administrative Code §§ 16-119 [e], 16-131.4 [a], 20-105 [b] [4]).
As noted above, pursuant to Administrative Code § 16-130 (b), landfill operations may not be conducted anywhere within the City without operators first obtaining a permit. In addition, under Administrative Code § 20-321 (a), it is "unlawful for any person to maintain, operate or conduct a garage or parking lot without a license therefor issued by the commissioner." All businesses, like parking lots, which need licenses to operate, must post the licenses conspicuously on the premises, and they are subject to inspection at all times by any interested person ( see Administrative Code § 20-114 [b]). Furthermore, after notice and a hearing, businesses operating without the appropriate license, and the equipment utilized in the operation of those businesses, may be sealed or otherwise made inoperable by the Commissioner of the Department of Consumer Affairs (s ee Administrative Code § 20-105 [a], [b] [3], [4]).
The affidavits submitted and accompanying photographs contain evidence in appropriate form, that defendants have significantly changed the grade of the property with the vast quantities of unclean fill that they have allegedly graded into the property. Thus, there is proof that defendants are engaging in landfill operations without the required permit. Defendants also concede that they are using the property to park trucks and construction equipment, and are, thus, operating a parking lot on the property without a license from the Department of Consumer Affairs ( see Administrative Code § 20-321).
The preliminary injunction requested by defendants, which would prevent plaintiffs from entering onto the property, would prevent the City from inspecting for the permit required to operate a landfill operation and the license required to operate a parking facility. More significantly, since defendants are operating without the required licenses and permits, such a preliminary injunction would prevent the City from enforcing the law. Such a preliminary injunction, therefore, would effectively allow defendants to operate without the requisite permits, in contravention of the law, whereas all other operating parking facilities and landfill operations within the City must obtain and comply with the required permits.
Furthermore, if the preliminary injunction requested by defendants were granted, inspections could not occur, which would leave this alleged landfill operation, in a busy section of Brooklyn, unregulated, and would endanger the environment, as well as the health and safety of those in the surrounding community.
Defendants have not shown any irreparable injury in the absence of the granting of the preliminary injunction they request. The only hardship defendants will experience in the absence of the preliminary injunction is that they will be unable to prevent plaintiffs from enforcing the law, and they will be hampered in any attempt to carry on any illegal activities at the property or to gain income therefrom.
In balancing the equities, the court "must weigh the interests of the general public as well as the interests of the parties to the litigation" ( De Pina v Educational Testing Services, 31 AD2d 744, 745 [internal quotation marks and citation omitted]). The preliminary injunction sought by defendants would impair plaintiffs' ability to enter the property to exercise their police powers to protect public health and safety, and would enable defendants to operate their landfill and parking facility without the required permits, to continue dumping construction and demolition debris and putrescible waste on the property, and to continue discharging hazardous waste on the property with no consequences. Thus, the equities balance in favor of plaintiffs, who have been legally charged with enforcing the law for the benefit of the community and will be required to remediate the property.
Defendants argue that the preliminary injunction sought by defendants is necessary because the PIU Officers have violated and continue to violate defendants' rights under the Fourth and Fourteenth Amendments to the United States Constitution by conducting random searches of defendants' enclosed property without a search warrant or exigent circumstances, however, these allegations are not legally supported.
In order to claim a Fourth Amendment violation under the United States Constitution with respect to searches and seizures on property, one must have a legitimate privacy interest in that property ( see generally New York v Burger, 482 US 691, 700). An individual conducting commercial operations in a closely regulated industry has a diminished expectation of privacy to claim Fourth Amendment violations ( see Burger, 482 US at 700; see also People v Quakenbush, 88 NY2d 534, 541-542). Consequently, warrantless searches of commercial property used in a heavily regulated industry are permissible, provided that there is a substantial government interest informing the regulatory scheme that allows the warrantless search, that the inspections are necessary to further the regulatory scheme, and that the regulations provide a "constitutionally adequate substitute for a warrant" ( see Burger, 482 US at 703).
Here, defendants' solid waste activities are heavily regulated by federal, state, and local laws ( see Resource Conservation and Recovery Act, 42 USC § 6901 et seq.; Environmental Conservation Law § 27-0701 et seq.; 6 NYCRR Part 360; Administrative Code § 16-119; 16 RCNY 3-01 et seq.). The DSNY is expected to safeguard against violations of these laws by having its PIU Officers undertake spot inspections, issue summonses, and impound vehicles ( see 16 RCNY 3-02 [f]). PIU Officers are statutorily authorized "peace officers" with the power to carry out warrantless searches ( see Criminal Procedure Law § 2.20 [c]; [2]).
Furthermore, Administrative Code § 16-131.2 (b) authorizes the DSNY to "seal, secure and close" premises where a dump that poses an imminent threat to the public health and safety is being operated, and to impound vehicles and equipment located on that premises. To follow this mandate, PIU Officers are authorized to conduct warrantless searches to immediately stop unauthorized dumping giving rise to irreparable harm to human health and the environment.
In this case, the evidence submitted discloses that on the occasions that the PIU Officers have entered upon the property, such entry has been in response to their own observations of violations of the Administrative Code and for the limited purpose of enforcing municipal ordinances prohibiting illegal dumping, filling, and dismantling of vehicles. Contrary to Mr. Gerardi's arguments, exigent circumstances did exist since, as detailed in PIU Officer Joseph Coca's affidavits, the Officers observed material being dumped and immediately graded into the property. Defendants have not claimed that the PIU Officers searched for anything on the property other than the materials illegally dumped and discharged there.
Moreover, to assert a valid claim against a search under the Fourth Amendment to the United States Constitution, defendants have the burden of demonstrating "that [they] personally ha[ve] an expectation of privacy in the place searched, and that [t]his expectation is reasonable; i.e., one that has a source . . . either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society'" ( Minnesota v Carter, 525 US 83, 88, quoting Rakas v Illinois, 439 US 128, 143 n 12 [1978]; see also People v Ramirez-Portoreal, 88 NY2d 99, 108). While defendants claim an ownership interest in the property by virtue of adverse possession (as claimed by them in their adverse possession action), real property held by a municipality for a public purpose cannot be lost by adverse possession ( see Litwin v Town of Huntington, 208 AD2d 905, 906; City of Tonowanda v Ellicott Creek Homeowners Assn., 86 AD2d 118, 125). "It is axiomatic that a private citizen can gain no adverse title or interest in public property" ( Matter of County of Erie v Marjorie's Grove Catering Serv., 97 Misc 2d 329, 331; see also Litwin, 208 AD2d at 906). Here (as noted above), the property was condemned in 1968, and dedicated for the public purpose of the Fresh Creek Urban Renewal Project, and part of the property is presently owned by the City.
Furthermore, it is well settled that a defendant cannot acquire a prescriptive right to continue an illegal activity or acts which may constitute a public nuisance ( see Iannucci vCity of New York, 2006 WL 13029, *3-4 [ED NY 2006]; State of New York v Schenectady Chems., 117 Misc 2d 960, 967, affd as mod on other grounds 103 AD2d 33; State of New York v Waterloo Stock Car Raceway, 96 Misc 2d 350, 358) Thus, defendants lack the requisite legitimate property interest in the property to have a reasonable expectation of privacy sufficient to support a Fourth Amendment claim ( see Minnesota, 525 US at 88).
Defendants further argue that plaintiffs have violated their equal protection rights under the Fourteenth Amendment to the United States Constitution. However, in order to establish an equal protection claim, defendants must prove that they have been treated differently than others who are similarly situated ( see W.J.F. Realty Corp. v Town of Southampton, 261 AD2d 609, 611). Although Darren Miller claims that plaintiffs treated him differently because he is black, and that plaintiffs' acts "are racist" and "would never be used against a white businessman," he has not alleged any facts to support his claim that plaintiffs treated him differently from any other violator, nor has he shown that the DSNY does not take enforcement measures against others who unlawfully, dump, fill, or discharge petroleum within the City. Thus, defendants have not shown any constitutional violation is occurring which would necessitate the granting of the preliminary injunction they request.
Accordingly, defendants' motion is denied in all respects.
This constitutes the decision and order of the court.