Bears Watching

Monday, August 25, 2008

Bears Watching

A legal development at the other end of Long Island should provoke the interests of the In­corporated Villages of Westhampton Beach and Quogue and Southampton Town.

From the August 21st edition of Newsday:

"More than a year after losing a federal ha­rassment lawsuit against the Village of Sea Cliff and several officials, the owner of a multimillion-dollar gourmet popcorn com­pany was ordered to reimburse them more than $900,000 in attorney's fees."

U.S. District Judge Leonard Wexler ordered plaintiff Robert Ehrlich to cough up that sum to be paid to sundry current and former members of the Village of Sea Cliff Boards of Trustees, Zoning and Planning, as well as the Village At­torney and Building Inspector.

In brief, champerty, or "sport-suing," has its costs, something the Sol and Robert Muchnick and their 1983 Civil Rights Attorney Andrew J. Campanelli might like to keep in mind.

Mr. Ehrlich had charged that municipal officials had harassed him "because he is Jewish." At issue was the operation of a sushi restaurant in the center of the Village when he only had municipal approval for his daytime coffee bar.

(Sounds kinda like the Sea Cliff version of Angelo de la Fuente or Elyse Richman.)

A year ago the Federal lawsuit had been dis­missed when Judge Wexler found the plaintiff's claims "groundless" and that "there was no evidence whatsoever of unlawful or discrimina­tory conduct by these defendants."

Earlier this Summer Supreme Court Justice Joseph Spinola ordered the restaurant closed.

Mr. Ehrlich, who operates also Robert's Amer­ican Gourmet Food Inc., producer of Pirate's Booty specialty foods, is no stranger to prob­lems with authorities... not that that makes him a bad guy.

(Are ya running with me, Andy?)

Comments

1. vel said...

If the bears are watching, what are the deer doing?

[rimshot] I'll be here all week. Try the veal.
Dean

2. Hampton West said...

Calling Mr. Lettieri;
about time there was a court ruling that might discourage this type of intimidation!

It's not simply a matter of "intimidation," HW. A case can be made for "bribery" as defined by Article 200 of the NYS Penal Law.
"A person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced."
But, yes, it's good to see that a stand has been made in at least one instance where someone has attempted to abuse the law.
Dean

3. Elyse Richman said...

Reading this blog I am curious as to why you are painting me into this with the same brush. Because I am Jewish? Can you please explain? Thanks.

Why would you think that? Are you claiming that Señor de la Fuente is Jewish as well?

This is one of your sillier statements, Elyse.

You have pushed the ordinance envelope at every opportunity, and then, when cited, cried "What about all the others who are in violation?!?" Angelo at different times has stated that a municipal official used an ethnic slur in dealing with him, but could never quite settle on whether it was the Building Administrator, the Code Enforcer or a Fire Marshal, or exactly which offensive word was used.
Dean

4. 'amme said...

Señor de la Fuente's favorite saying is, "the whell that squeaks the loudest gets the most oil." I think he lives by that.

5. 'amme said...

The Court in considering sanctions against both Plaintiffs and their counsel. Court Rule 22 NYCRR 130-1.1(a) provides: "The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part."

Frivolous conduct includes action "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another." 22 NYCRR 130-1.1(c)(2).

In determining whether the conduct was frivolous, the court is to consider, inter alia, "whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party."

As the Appellate Division recently stated, "[o]nce there is a finding of frivolousness, sanction is mandatory . . . ." Nyitray v. New York Athletic Club in City of New York, ___ A.D.2d ___, 712 N.Y.S.2d 89, 90 (1st Dept. 2000).

One goal of imposing sanctions is to prevent "the waste of judicial resources" and deter "vexatious litigation and dilatory or malicious litigation tactics." Levy v. Carol Management Corp., 260 A.D.2d 27, 34 (1st Dept. 1999) (citing Kernisan v. Taylor, 171 A.D.2d 869 (2d Dept. 1991).

This is well worth Frick and Frack Kamutler to wise up to.

Thank you for the cites, but what do the last two mentioned have to do with anything?
Dean

6. 'amme said...

I am sure what you mean either one; "Frick and Frack" has become an English slang term used in two ways. One is to refer to two people so closely associated as to be indistinguishable; the other way is as a term of derision for any two people, on par with calling one person a "Bozo" or three people "Stooges." and two is ; look at the Unified Court System to see how well they play the system.

Glad it has significance to you... it sure doesn't to me, or, I imagine, many of the OtBB visitors.
Dean

7. A. Campanelli said...

It was this type of "cheerleading" which nearly bankrupted the Town of Southampton in 2004. Despite obvious evidence of wrongdoing on the part of the Town, those controling the Town were determined to fight because they were "offended" that the Town had been sued. Three days into the trial, when the Federal judge had heard some of the most damming evidence, he "strongly suggested" to the Town that it settle to avoid the award of a multimillion dollar judgment. Having litigated over 1,000 cases, with a 98% success rate, I remain convinced that, if forced to proceed to trial, both Mr. Lettieri and Mr. Muchnick will prevail and obtain multimillion dollar awards against the respective defendants. Time will tell If I am correct.

It certainly will, Andy.

I'm unclear as to your reference in respect to "cheerleading," but I'm taking it as a pejorative.

No one likes to litigate... except certain attorneys, of course, whose fee structure escalates past the courthouse steps.

At the same time, no one likes to be bullied by an aggressive lawyer who thunders in The Press:
"This case is not going away and neither are the Muchnicks. I am cautiously optimistic that we will prevail in the lawsuit and that the village will have to pay the damages."
I understand that when you're a hammer, everything looks like a nail, but your "victory" in Southampton (Stop'n'Shop) has no relation to the Muchnicks in Westhampton Beach.

And if the Mayor of Quogue was stupid enough to say something such as Mr. Lettieri alleges, then that might be why they're at the table with you.

As for the local case, well, further, the affiant sayeth not.
Dean

8. A. Campanelli said...

Despite the fact that you're not the first person to have referred to me as "a hammer," the fact is that I view litigation purely as a measure of last resort. It is not to be taken lightly under any circumstances. The Muchnicks didn't ask for this fight. They were constrained to resort to litigation, only after they had spent three long years trying to pursue a project which they were entitled to pursue "as a matter of right" under the Village Code. If prosecuting federal actions to enforce the rights of property owners, such as the Muchnicks, makes me a "bully" in your book, then give me the black hat, and I will proudly wear it while I protect property owners whose rights have been deliberately trampled by local zoning authorities. As for the "sanctions" issue raised at the beginning of this thread, I have handled a cumulative total of over 3,000 lawsuits, with at least 1,000 cases having been litigated to conclusion. In 3,000 cases, neither I, nor any client of mine, has ever been sanctioned by any federal, state or local court.

- still running with ya, Dean

C'mon, Andy, instead of all this posturing as the valiant defender of down-trodden developers being water-boarded by abusive "local zoning authorities," 'fess up and acknowledge that your truer "view (of) litigation" is that it a sword you brandish in an effort to make municipal gonads shrivel and settle to your clients' advantage.

Who knows, you may be successful with the Muchnicks pere et fils, but never doubt that in this instance you do wear the "black hat" and kick little kids to the curb.

Just as your client can as a matter of right pursue development of their property, the Village has, not just as a matter of right, but the obligation to have the Muchnicks undergo the review process... just as Suffolk County did.

It is noteworthy, I think, that you have elected to not sue the County where much of the delays occurred. Could this be because the County would laugh at all the posturing, and send you packing?

I'm not an attorney; you are. But I know a ten day old tuna when I smell it.
Dean

9. A. Campanelli said...

The answer to your query is that there was no basis to sue the County. Ordinary delays in processing a zoning application are no basis for a claim. Unlike with the County, however, the 3-year delay by the Village was an intended means to an ends. As a representative of the Village has admitted to the Muchnicks, the Village's plan was to "delay and delay until you went away." How would you feel if an elected Village official made such a statement to you as a property owner?

PS if you don't keep tuna for ten days, you won't have to smell it.

Yes, I've read that this is one of the bases of the Muchnick's 1983 Action, and if Tim Laube was stupid enough to make such a statement, as a Municipal Official, and in the context such as you allege, then that would be a strong chip on the Muchnick/Campanelli side of the table.

I don't find such an allegation credible, however, and as y'all in the legal profession like to say at the end of a press session: "I'm confident that when all the facts are known, a different story will emerge."

In respect to "tuna," move to strike as non-responsive.
Dean

10. Hampton West said...

The whole purpose is intimidation - scare them into doing what you want. "...protect property owners whose rights have been deliberately trampled by local zoning authorities." Yeah right!, if you truly believe that I have a bridge for you to buy in New York.

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