Mahopac Marine Suit

8/13/2019 Mahopac Marine Suit

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1 Pages

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - xCHARLES MELCHNER and LILLIAN MELCHNER, Case No. 13CV8164KPF

COMPLAINT

Plaintiffs,

PLAINTIFFS DEMAND A

TRIAL BY JURY - against -

THE TOWN OF CARMEL, FRANK DELCAMPO,CONNIE MUNDAY, KENNETH SCHMITT, NORMANMARINO, CARMINE DIBATTISTA, FRANKLOMBARDI, RICHARD OKEEFE, SUSAN

McDONOUGH, ROBERT RAVALLO, DORISSTAHL, MICHAEL CARNAZZA, JAMESMAXWELL, WILLIAM B. SPAIN, JR., ESQ.and CHARLES COMPTON SPAIN, ESQ.

Defendants.- - - - - - - - - - - - - - - - - - - x

Plaintiffs, Charles Melchner and Lillian Melchner, by their

attorneys, The Law Offices of Daniel W. Isaacs, PLLC, complaining

of the defendants, The Town of Carmel, Frank Delcampo, Connie

Munday, Kenneth Schmitt, Norman Marino, Carmine DiBattista, Frank

Lombardi, Richard OKeefe, Susan McDonough, Robert Ravallo, Doris

Stahl, Michael Carnazza, James Maxwell, William B. Spain, Jr.,

Esq. and Charles Compton Spain, Esq., allege as follows:

NATURE OF THE ACTION

1. This action is brought to recover for the violation of

plaintiffs civil and property rights, their right to free speech,

equal protection, due process, just compensation for the taking of

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 1 of 37


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property and, the tortuous interference with business, abuse of

process, selective enforcement of laws, breach of contract and

intentional infliction of emotional distress

committed by the defendants during a fifteen year

campaign by the Town of Carmel, its elected officials and

certain private citizens, acting in concert in a

continuous series of discriminatory acts, to punish

plaintiffs and drive them out of business by maliciously

and repeatedly initiating frivolous, unnecessary and

extraordinarily costly civil lawsuits and criminal

prosecutions that they knew were without merit.

Defendants engaged in said conduct in retaliation for

plaintiff Charles Melchners support of political

candidates not supported by defendants and the Putnam

County Conservative Party and, in an attempt to

impermissibly restrict public access to Lake Mahopac by

forcing plaintiffs out of business.

2. This action seeks damages brought pursuant to

the United States Constitution and 42 U.S.C. Section 1983

to redress Defendants intentional violation of

Plaintiffs constitutional rights to free speech, due

process, equal protection of law and just compensation

for the taking of property under the First, Fifth and

Fourteenth Amendments to the United States Constitution

as well as various state law claims.



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JURISDICTION

3. This Court has jurisdiction over this action

pursuant to 28 U.S.C. Sections 1331 (federal question

jurisdiction) and 1343(a)(civil rights jurisdiction)

because this action is filed to obtain relief for the

deprivation, under color of state law, of the rights of

citizens of the United States secured by the United States

Constitution and federal law pursuant to 42 U.S.C. Section 1983.

4. This Court also has supplemental jurisdiction

over plaintiffs state law claims pursuant to 28 U.S.C.

Section 1367.

VENUE

5. As the acts complained of occurred in the County

of Putnam, venue is proper in the District pursuant to 28 U.S.C.

Section 1391(b).

THE PARTIES

6. That at all times hereinafter mentioned the

plaintiffs, Charles Melchner and Lillian Melchner

(hereinafter collectively the Melchners) were and still

are residents of The Town of Carmel, County of Putnam, State of

New York.


defendant, The Town of Carmel (hereinafter Carmel), is a

municipal entity duly organized and existing under the



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laws of the State of New York.


defendant, Frank Delcampo (hereinafter Delcampo), was

Carmels Supervisor and a member of the Town Board between 1996

and 2003.


defendant, Connie Munday (hereinafter Munday), was

Carmels Supervisor and a member of the Town Board between 2006

and 2007.


defendant, Kenneth Schmitt (hereinafter Schmitt), was

Carmels Supervisor and a member of the Town Board from

2008 to the present.


defendant, Norman Marino (hereinafter Marino), was a member of

the Town Board between 1997 and 2005.


defendant, Carmine Dibattista (hereinafter Dibattista),

was a member of the Town Board between 2006 and 2009.


defendant, Frank Lombardi (hereinafter Lombardi), was

a member of the Town Board from 2010 to the present.


defendant, Richard OKeefe (hereinafter OKeefe), was a member of




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defendant, Susan McDonough (hereinafter McDonough), was

a member of the Town Board from 2010 to the present.


defendant, Robert Ravallo (hereinafter Ravallo), was a member of



defendant, Doris Stahl (hereinafter Stahl), was a member of the

Town Board between 2000 and 2003.


defendant, Michael Carnazza (hereinafter Carnazza), was

employed as the Director of Code Enforcement for Carmel.


defendant, James Maxwell (hereinafter Maxwell) was the

Chairman of the Putnam County Conservative Party.


defendant, William B. Spain, Jr., Esq. (hereinafter

William Spain) was a local attorney who had previously served

as Carmels Town Attorney, the Putnam County Attorney and

Carmels Zoning Board Chairman.

21. That all times hereinafter mentioned the

defendant, Charles Compton Spain, Esq. (hereinafter Compton

Spain) was William Spains law partner and the Vice Chairman of

the Putnam County Conservative Party.



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FACTUAL ALLEGATIONS

LAKE MAHOPAC

22. Lake Mahopac is an inland lake comprising approximately

583 acres with a shore length of 3.8 miles. It was originally

part of the Philipse Manor Crown Grant that was forfeited to the

State of New York during the American Revolution. The State

thereafter retained title to the bed of the Lake and the waters

therein until 1877, when the State conveyed title to Lake Mahopac

to the City of New York for purposes of water supply. The City

maintained title to the bed and waters of the Lake until April

27, 1961, when the Citys Board of Estimate abandoned Lake

Mahopac as part of its water supply system, and by deed dated

July 5, 1961, conveyed title to Lake Mahopac back to the State of

New York. The State of New York has held title to Lake

Mahopac since that time.

23. As early as 1966, the State maintained and Carmel

acknowledged that the State held title to the lands underneath the

waters of Lake Mahopac. On February 17, 1966, Carmel Town Attorney

Milton E. Lacina petitioned the State to acquire title to land

adjacent to the Lakes outlet that governed the Lakes water level

since the State was the owner of the waters of the Lake and the

lands thereunder. In response, the Office of the Attorney General

stated that mere ownership by the State, in such proprietary

capacity, of the water and land under the water of Lake Mahopac,



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did not confer authority to regulate the level of the water

involved.

24. Thereafter, by letter dated January 11, 1968 to

New York State Conservation Commissioner R. Stewart

Kilborne, Carmel Supervisor William C. Mathers petitioned

the State to transfer title to Lake Mahopac to Carmel in

order to permit the Town to implement appropriate controls and

regulations and govern activity and construction on the lake. In

response, DEC Deputy Commissioner Benjamin Frank advised

Commissioner Kilborne that it was their opinion that these problems

could be regulated by Carmel, under the law at the time or by the

introduction of legislation authorizing Carmel to act,

reserving title to the bed of the lake in the State. No

further action was taken by Carmel to either assume

jurisdiction over Lake Mahopac or to enact any local laws

or regulations to establish town control over the lake.

25. On August 22, 1983, the Office of General

Services (hereinafter OGS), responded to an informational

request by the defendant, William Spain, seeking an informal

opinion as to whether the State could grant to Carmel the lands

under the waters of Lake Mahopac pursuant to Public Lands Law

Section 75 for the establishment of a park district to maintain

control over the lake. Lawrence F. Kinney, Chief of the Bureau

of Land Management of the OGS, confirmed the States ownership of

the lands under Lake Mahopac and indicated that the State could



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grant its interests to Carmel under Town Law Section 198 for the

formation of a park district. No action was ever taken by Carmel

to transfer the States ownership of the lands beneath the waters

of Lake Mahopac to Carmel for that purpose.

26. On February 9, 1989, the State of New Yorks Department

of Environmental Conservation (hereinafter DEC) responded to an

inquiry by Carmels Town Attorney, Joseph D. Cerreto, as to

whether any town agency had authority to issue permits with

respect to Lake Mahopac, which was owned by the State. Marc S.

Gertsman, Deputy Commissioner and General Counsel, advised that

Carmel could have concurrent jurisdiction of wetlands within its

boundaries; Carmel could seek approval for local regulation of

wetlands through the DEC, and that, even if local regulation was

approved, the DEC retained authority to review permit

applications.

27. He further advised Carmel that [s]tate lands under water

are generally regulated and controlled by the Office of General

Services (OGS) which has the authority to give grants, leases or

easements to such lands under certain circumstances. Any land-

based activity not involving use of lands under water would

continue to be regulated by the Town. No further action was taken

by Carmel to seek approval for local regulation of wetlands

through the DEC.

THE MELCHNERS

28. The Melchners own various properties upon which is a



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commercial enterprise known as the Mahopac Marina

(hereinafter the Marina), located and having a principle place of

business at 897 Route 6N, Mahopac, New York. The properties are

located on or about Route 6N in the Town of Carmel, County of

Putnam and State of New York, as delineated below. The Marina

provides recreational access to Lake Mahopac as well as the

selling, storing and/or repairing of boats. Plaintiffs

purchased the business in 1969, when it consisted of a

boathouse containing about thirty (30) boat slips on two

parallel piers that extended from a single lakefront

parcel designated as Tax Lot #75.44-1-43 (hereinafter

Lot 43). Although Lot 43 was located in a

residentially zoned district, the property had been used

as a commercial marina before the Melchners purchased it.

In 1985 they purchase Tax Lot #75.44-1-40 (hereinafter

Lot 40).

29. A second marina and approximately a dozen home

owner associations and individuals were and continue to be

engaged in the commercial leasing of boat slips and approximately

750 boats were located on Lake Mahopac during the relevant time

period.

30. In the early 1980s Carmel issued for a fee permits to

residents and non-residents who wished to use a boat on Lake

Mahopac but discontinued this practice after a year or two

because it lacked the jurisdiction to do so.



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1991 CIVIL ACTION

31. In 1991, Carmel filed its first civil action

against the Melchners (the 1991 Civil Action) challenging their

operation of a commercial marina in a residential district. The

Melchners hired an attorney and third-partied the former owners,

who in turn brought in another former owner. There was a change

in the town board and town attorney and the matter was not

pursued.

32. In 1997, the Melchners purchased the adjoining lakefront

parcels designated as Tax Lots #75.44-1-41 (hereinafter Lot 41)

and #75.44-1-42 (hereinafter Lot 42). In the spring of 1998,

the Melchners repaired and extended an existing pier with boat

slips extending into the water from Lots 41 and 42 and repaired an

existing walkway along the shoreline that connected the piers on

their properties.

1998 CRIMINAL ACTION

33. In response to this activity, on June 15, 1998,

Carmel initiated its first criminal action against the

Melchners (hereinafter the 1998 Criminal Action).

34. On July 7, 1998, the Melchners were accused of

criminally violating Carmels Zoning Code. Specifically,

they were accused of Thirty-Six (36) violations relating

to (1) erection of the wood walkway along the shorefront

of lots 40 through 42, (2) the expansion of docks on lots



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39, 40, 41 and 42 and (3) the commercial use of lots 39,

40 and 41.

35. On February 20, 1999, plaintiffs responded to a

request by the OGS to submit an application for a license

to use State owned land under the waters of Lake Mahopac

for the purpose of the operation and maintenance of a

marina.

36. On June 2, 1999, during the pendency of the

1998 Criminal Action, the Melchners applied to the Zoning

Board of Appeals of Carmel (hereinafter the Zoning

Board) for a determination that the Marina was a

preexisting, nonconforming use or, alternatively, for use

and area variances, which stayed the criminal

proceedings. After several Zoning Board meetings the

Melchners withdrew their application prior to receiving a

determination.

37. An amended charge, dated March 7, 2000, setting

forth eighteen (18) counts of violating various

provisions of Carmel Town Code, including provisions of

Carmels Zoning Ordinance (chapter 156 of the Town Code),

was served and filed.

2000 CIVIL ACTION

38. While the 1998 Criminal Action was pending, by

Order to Show Cause dated July 24, 2000, Carmel commenced a second

civil action (hereinafter the 2000 Civil Action) to enjoin the



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Melchners from operating the Marina or engaging in any other

commercial use on lots they acquired subsequent to the original

Lot 43. A preliminary injunction was issued without objection on

January 12, 2001, at which time the Court directed the Melchners

to file applications for site plan approval and variances with the

Zoning Board.

39. The Melchners filed a second application with

the Zoning Board on January 26, 2001.

40. On March 13, 2001 the Melchners obtained from OGS an

Amendment to their Submerged Land License authorizing the

inclusion of Existing docks and slips located on Tax Lots 40 and

41 as part of a marina facility previously licensed under document

LUW 00293 for a period of nine years.

41. On May 24, 2001, the Zoning Board ruled that the site

plan had to include Lots 41 and 42 and a commercial property

across the street that was utilized by the Melchners as a boarding

house, repair shop and boat storage property.

42. On January 10, 2002, the Zoning Board ruled that the

Melchners had not established a legal non-conforming, pre-existing

use of the lakefront lots. The Zoning Board then considered the

request for use and area variances and on January 31, 2002, it

voted to grant use and area variances permitting the commercial

expansion of the marina with the new pier and

walkway.

43. On May 1, 2002, the Melchners received from OGS



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a Submerged Land License for the operation and

maintenance of an existing marina with sixty-four rental

slips, two service/transient slips and five moorings for a

term of ten years from the date of the Commissioners

approval.

44. Notwithstanding the Zoning Boards decision and

Submerged Land Lease the 1998 Criminal Action went to a

jury trial before Judge Joseph Spofford in Carmel on

October 8, 2002.

45. During the course of the trial Judge Spofford,

who was the jogging partner of defendant William Spain

and ran with support of the Conservative Party,

inexplicably denied the introduction into evidence of the

Submerged Land License issued by the OGS.

46. On October 11, 2002, Lillian Melchner was

acquitted of all eighteen (18) counts and Charles

Melchner was convicted of three (3) violations of the

Town Code for (1) nonresidential use of Lot 40; (2)

failure to obtain site plan approval for the walkway on

Lot 41, and (3) failure to obtain a building permit for

the walkway on Lot 41. The Melchners were found not to

have violated the Town Code relating to their alleged

commercial use or expansion of the docks appurtenant to

Lots 39, 40, 41 or 42.

47. On November 8, 2002, Friends of Lake Mahopac, an



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unincorporated association of residents who resided in and around

Lake Mahopac, together with, inter alia, defendants William Spain

and Maxwell, commenced a proceeding pursuant to CPLR article 78,

seeking to annul the Zoning Boards determination granting use and

area variances. The Attorney of Record was Spain & Spain,

P.C., the law firm of defendants William Spain and

Compton Spain.

48. On January 27, 2003 Judge Spofford imposed

fines in the sums of $52,000, $51,000 and $51,000,

respectively, for these counts, totaling $154,000.00,

which represented the legal fees paid to a special town

counsel for prosecuting the 1998 Criminal Action. An

Appeal was taken.

49. On April 22, 2003, the Supreme Court granted

the petition and annulled the Zoning Boards

determination, finding that the Melchners failed to show

that their alleged hardship was not self-created. On

appeal to the Appellate Division Second Department the

judgment was affirmed.


50. On August 8, 2003, Carmel filed a second criminal action

charging the Melchners with nine (9) violations of the Town Code

related to their use of Lots 40 and 41 (hereinafter the 2003

Criminal Action). At that arraignment the Melchners objected to

the continued participation of Judge Spofford and on December 23,



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2003, both Judge Spofford and Judge Reitz of the Town of Carmel

Justice Court recused themselves from further participation in the

criminal matter citing the appearance of impropriety and by

Decision and Order dated February 4, 2004, this matter was

administratively transferred to the Justice Court of the Town of

Southeast.

51. On July 1, 2004, the Appellate Term vacated Charlie

Melchners conviction of the 1998 criminal actions violation of

Zoning Code Section 63-9 (commercial use of Lot 40) as that count

was jurisdictionally defective and modified the January 27,

2003 sentence imposed by Judge Spofford to the extent that it

reduced the fines for the remaining two violations from the sums

of $51,000 each to $250 each, on the ground that each of the two

counts in the accusatory instrument charged, a single violation,

not a continuing violation.

2006 CIVIL ACTION

52. On January 27, 2006, Carmel commenced a third

civil action to enjoin the Melchners commercial use of

Lots 41 and 42 (hereinafter the 2006 Civil Action).

53. On August 23, 2006, the OGS responded to an

informational request by the Melchners attorney, Michael

Sirignano, Esq., confirming that the State of New York

retained exclusive jurisdiction over the construction,

placement, maintenance and use of the docks adjoining

Lots 40 and 41 of the Melchners property. On March 6, 2007, this



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letter was provided to Carmels attorney, Gregory Folchetti, Esq.

(hereinafter Folchetti), who had been retained to prosecute the

2003 criminal action.

54. Shortly thereafter, in April of 2007, settlement

discussions were entered into between the Melchners and Carmel.

Folchetti incorrectly believed that Carmels jurisdiction extended

twenty-five (25) feet from the shoreline into Lake Mahopac when in

fact its jurisdiction stopped at the shoreline. He related that

incorrect belief to Melchner, and conceded that Carmel lacked

jurisdiction to enforce its Zoning Code beyond twenty-five (25)

into the lake. The parties subsequently agreed that Plaintiffs

could build any dock they wanted with impugnity from Carmel

provided (1) that the dock was more than twenty-five (25) feet

from the shoreline and (2) the dock was not attached to any

preexisting docks that were attached to the shoreline. In

reliance upon that representation from Folchetti, the parties

fashioned a settlement intended to bring this longstanding dispute

to a close to the satisfaction of all parties.

55. Prior to its entry, the Town Board was provided with the

specific provisions of the settlement, and by unanimous vote

agreed to accept the stipulation in full satisfaction of the

pending 2003 Criminal and 2006 Civil Actions and on April 20,

2007, the Melchners appeared with counsel before Judge Richard

Vercollone of the Town of Southeast Justice Court. While present

with Folchetti and prior to the entry of a settlement, the



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specifics of the settlement were discussed. Folchetti again

acknowledged that Carmels jurisdiction into the lake did

not extend beyond twenty-five (25) feet. Charles

Melchner produced a diagram showing a reconfigured dock,

which contained a lateral dock running parallel to the

shoreline thirty-five feet off the shoreline, and

additional docks extending from the lateral dock into the

lake. All parties agreed that the reconfigured dock

would be legal and would not violate the Town zoning

code, provided it did not connect to the pre-existing

dock appurtenant to Lot 43.

56. Thereafter, in reliance thereon, under extreme

duress (both financially and emotionally) and in an

effort to conclude the financially crippling litigation

Charles Melchner entered a plea of guilty to one count

contained in the criminal information, to wit: failure to

seek site plan approval for repairs to the pre-existing

wood walkway on lot 40. The sentence took the form of a

stipulation, which required that plaintiffs would remove

all boat slips on lots 40 and 41 and, the payment of a

$35,000.00 fine. In return, Carmel agreed to terminate

the criminal and civil proceedings.

57. On April 21, 2007, one day after the entry of

the stipulation, the Melchners began removing the boat

slips on lots 40 through 42, and began constructing the



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reconfigured docks that would move the slips that were on

lots 40 through 42 beyond thirty-five feet (35) into the

lake, therefore removing them beyond the agreed-upon

jurisdiction of Carmel. This reconfiguration was

discussed in detail with Carmels attorney and agreed to

by all parties.

58. More importantly, the newly reconfigured docks

were not attached to the pre-existing docks located on

lot 43 and the Melchners complied in all respects with

every term of the stipulation entered into before Judge

Vercollone on April 20, 2007.

59. Plaintiffs also notified the OGS regarding the

reconfiguration of the docks, and received permission

from OGS to build the newly reconfigured docks.

60. By letter dated May 30, 2008, Anthony R. Mole,

Carmels Special Counsel, requested an informal opinion

as to whether the State of New York had exclusive

jurisdiction over permitting construction and placement

of floating docks within Lake Mahopac; if the State did

not maintain such exclusive jurisdiction then did Carmel

have jurisdiction to regulate and enforce the extension

of docks into Lake Mahopac that were within twenty-five

(25) feet of the high water mark; if so could Carmel

prohibit the extension of docks into Lake Mahopac beyond

twenty-five (25) of the high water-mark; and, was a dock



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that is positioned beyond twenty-five (25) of the high-water mark,

and which was not structurally connected to a dock or other

structure that extends from the high-water mark within the

jurisdiction of Carmel.

61. The New York State Attorney Generals Office responded

by providing Mr. Mole with copies of OGSs August 22, 1983 and

DECs February 9, 1989 opinion letters.


62. Despite Moles receipt of these letters, the fact that

the Melchners fully complied with the Stipulation agreed to by

Carmel and, Folchetti advising Carmel that the April 7, 2007,

Stipulation was a binding contract, on September 3, 2008, Carmel

maliciously and without cause commenced a third criminal action

against the Melchners (hereinafter the 2008 Criminal Action),

alleging that they violated four counts of Carmels Zoning Code,

which included unlawful expansion of the marina without site plan

approval or a building permit in violation of sections 156-61 and

156-72 of the zoning ordinance in the Town Code, respectively, and

unlawful expansion of dock structures or mooring facilities beyond

those that existed on September 1, 1962, in violation of Town Code

Section 55-5.

63. The Melchners were first notified via mail shortly

thereafter regarding the 2008 Criminal Action and appeared with

counsel for arraignment on December 8, 2008 in the Town Court.

64. They were charged that day with four separate



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allegations encompassed in a series of superceding

informations relating to two distinct properties.

Specifically, with respect to the Marina property, Carmel

alleged three (3) distinct violations of the Town Code, to wit:

(1) a violation of section 156-72 of the Town Code entitled

Building Permits for erecting dock structures within the Town of

Carmel without first obtaining building permits from the Building

Inspector; (2) a violation of section 156-61 of the Town Code

entitled Site Plan Approval by erecting wooden docks

without first obtaining site plan approval from the

Planning Board; and (3) violation of section 55-5 of the

Town Code entitled Boats, Waterways and Water Related

Activities, Expansion of Existing Facilities by erecting wooden

dock structures and attaching same to existing dock facilities on

the property located at Route 6N, Mahopac, plaintiffs expanded the

dock structures or mooring facilities beyond the capacity as

lawfully existed on September 1, 1962.

2009 CIVIL ACTION

65. Despite Folchettis previous statement regarding the

binding terms of the April, 2007 Stipulation, by complaint dated

June 30, 2009, Carmel maliciously and without cause commenced a

fourth civil action seeking to enjoin the Melchners from using the

reconfigured docks and from using Lots 39, 40, 41 and 42 for

commercial use of the docks extending into the water from the

original marina property, Lot 43 (hereinafter the 2009 Civil



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Action). Said complaint set forth two causes of action: (1) that

the reconfigured docks violated the zoning ordinance in the Town

Code, which Carmel could enforce by civil action pursuant to Town

Law Section 268 and (2) that the reconfigured docks violated the

terms of the April 2007 settlement. The complaint did not set

forth any alleged violation of the Uniform Building Code Act.

Carmels attorney of record was Joseph A. Charbonneau, Esq.

66. By Order to Show Cause dated July 13, 2009, Carmel moved

to preliminary enjoin the Melchners from using the subject docks

and to compel their removal. Pending a hearing on the motion, the

Supreme Court temporarily restrained the Melchners from using the

subject docks. In support of the motion for a preliminary

injunction, Carmel submitted the affidavits of Schmitt and

Carnazza, falsely attesting that the Melchners had enlarged the

marina in violation of the Town Code.

67. Specifically, Carnazza averred that the Melchners were

using Lots 39, 40, 41 and 42 for commercial purposes in a

residential district without a building permit, site plan

approval, or proper authorization for a commercial use, and the

reconfigured docks affected an impermissible enlargement,

structural alteration, or extension of the prior nonconforming use

on Lot 43, in violation of Town Code Section 156-47(A)(1).

68. Carmel also submitted the affidavit of William

Spain, in which he falsely averred that the Melchners had

illegally expanded the marina, contributing to



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overcrowding, dangerous boating conditions, and increased

garbage and noise on the lake. Aerial photographs annexed to

Spains affidavit showed the configuration of the docks on four

dates from August 1989 to July 2007.

69. On July 17, 2009, Carmel served the Melchners with the

complaint and motion papers. On the extended return date for the

motion, Friday August 14, 2009, the Melchners served Carmel with

their papers in opposition. However, Melchners counsel was

unable to file the papers in court that day due to the early

summer closing of the clerks office. Counsel sent the papers to

the court by overnight mail and left telephone messages advising

that the papers would be one day late, requesting an extension for

filing to Monday, August 17, 2009. Shortly thereafter, by order

dated August 19, 2009, the Supreme Court (ORourke, J.), granted

Carmels motion for a preliminary injunction as unopposed,

without considering the Melchners papers. The court

enjoined the Melchners from using the subject docks and

ordered their removal forthwith.

70. At the Melchners request on January 26, 2010,

this matter was added to the Calendar and conferenced

with Supreme Court Justice Francis A. Nicolai, who ordered that

the parties meet with the OGS to elicit the States position on

the question of Carmels jurisdiction to regulate the size,

location and configuration of the plaintiffs docks.

71. On February 5th, 2010, the parties met with OGS



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officials, which included Thomas Pohl, its General

Counsel (hereinafter Pohl). Present were, inter alia,

defendants Schmitt and Carnazzi as well Carmels attorney, Joseph

A. Charbonneau, Esq. Pohl advised the parties that Carmel lacked

authority to enforce its zoning ordinance because it had

not sought enabling legislation pursuant to Navigation

Law Section 46-a(2), which was the sole avenue for the

enforcement of local laws concerning the construction of

moorings and docks in State-owned navigable waters.

72. Following the meeting defendant Schmitt acknowledged to

the plaintiff, Charlie Melchner, that he was right with respect to

Carmels lack of jurisdiction but was prevented from making any

further comments by Carmels counsel.

73. On March 29, 2010, after obtaining leave of the

Supreme Court and a stay of enforcement of the Order dated August

19, 2009, the Melchners moved for leave to renew their opposition

to Carmels motion for a preliminary injunction and thereupon, to

deny the motion and to dismiss the complaint pursuant to CPLR

Section 3211(a)(7) for failure to state a cause of action. The

Melchners submitted their original opposition papers and a

supplemental affirmation in which their attorney recounted his

attempts to file those papers with the court. The Melchners

contended that Carmel was not entitled to a preliminary injunction

because the reconfigured docks did not violate the Town Code or

the April 2007 settlement.



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74. Specifically, Charles Melchner averred that, during the

settlement negotiations, Carmel conceded that its jurisdiction

extended only twenty-five (25) feet into the lake from the

shoreline and approved a diagram of the proposed reconfigured

docks, placing them in the water thirty-five (35) feet away from

shore, provided that those docks were not connected to the

preexisting docks on Lot 43. Charles Melchner further averred

that he did not attach the reconfigured docks to the docks on Lot

43, and he obtained permission for the reconfigured docks

from OGS.

75. In addition, the Melchners submitted the ten-year

submerged land license issued by the OGS and the

concurrent, nine-year amendment to that license granting the

Melchners permission to use and occupy State-owned submerged land

for the purpose of operating their marina on the original site

and as expanded by the docks on Tax Lots 40 and 41.

76. The Melchners further contended that, as was

made clear during the February 5th, 2010 meeting and subsequently

acknowledge by defendant Schmitt, because Carmel lacked authority

to enforce its zoning ordinance, the preliminary injunction had

to be vacated and the complaint dismissed.

77. In opposition, Carmel conceded timely receipt of the

Melchners original papers in opposition to its motion for a

preliminary injunction and did not object to the courts

consideration of those papers or of the Melchners new argument in



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support of dismissing the complaint pursuant to CPLR Section 3211.

Carmel conceded that Lake Mahopac fell within the definition

of navigable waters under Navigation Law Section 2(4),

and that Carmel was not designated under Navigation Law

Section 46-a(2)as one of the localities authorized to

regulate the construction and location of moorings and

docks in navigable waters. Nevertheless, Carmel

contended that the Navigation Law did not confer

exclusive jurisdiction upon the State to regulate

navigable waters.

78. For the first time in nearly twelve (12) years

since the commencement of its first litigation against

the Melchners, Carmel raised the argument that it had the

authority to regulate the construction of docks in Lake

Mahopac pursuant to the Uniform Building Code Act. It

contended that the Executive Law required all

municipalities to enforce the Uniform Building Code

Act, which regulates building construction and safety,

while the Navigation Law regulates navigation. Carmel

further argued that the construction of docks was more

logically regulated by the Uniform Building Code Act

rather than pursuant to an expansive reading of the

Navigation Law.

79. However, Carmel did not identify any

particular code provision that allegedly was violated



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(the Melchners have never been accused of violating any

provision of the Uniform Fire Prevention and Building

Code Act). Indeed, the docks in dispute did not have any

electrical components; were water-level open-air

structures with no roof, ceiling, walls, entrances,

exits, stairs, windows, doorways, closed spaces or

confined spaces; were made entirely of DEC approved wood;

were secured to the bottom of Lake Mahopac by concrete

footings with metal posts; no building inspector had ever

inspected the docks for Fire and Building Code

violations, nor questioned the Melchners regarding Fire

and Building Code provisions, and had never sought

compliance with any fire code regulation adopted by

Carmel.

80. By order dated July 21, 2010, the Supreme

Court (Nicolai, J.), in effect, upon renewal and

consideration of the Melchners opposition papers,

adhered to the prior determination granting Carmels

motion for a preliminary injunction. The court also

denied that branch of the Melchners motion that was

pursuant to CPLR Section 3211(a)(7) to dismiss the

complaint for failure to state a cause of action. The

Court reasoned that the Navigation Law governs only the

navigation of vessels and use of waterways, over which

Carmel has no jurisdiction. However, the Court found



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that Carmel had the authority to regulate the

construction of docks and slips pursuant to the Uniform

Building Code and the Executive Law.

81. The Melchners appealed the Courts ruling to

the Appellate Division Second Department contending,

inter alia, that Carmel had been aware for decades that

it lacked jurisdiction over the lands beneath the waters

of Lake Mahopac, which were owned and regulated by the

State of New York, nor had it sought permission to

regulate the construction and locations of docks

thereon.

82. In opposition, Carmel argued that Executive

Law Section 373 conferred jurisdiction upon Carmel to

regulate construction of docks and slips in the navigable

waters of Lake Mahopac pursuant to the Uniform Fire

Prevention and Building Code.

83. On May 6, 2011 defendant William Spain wrote a

letter to New York State Senator Greg Ball complaining

that the OGS would move the Appellate Division, Second

Department for permission to file an Amicus Curiae brief

on behalf of the Plaintiffs. Said defendant falsely

claimed that the OGS summoned the attorneys and defendant

Schmitt to Albany on February 5th, 2010 after demanding a

a meeting (when in fact he knew that said meeting had

been ordered by the Court) and that the OGSs support of



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the Melchners was due to improper political influence

that was exerted, accepted and acted upon.

84. Oral argument was held on January 13, 2012,

during which Carmels attorney conceded that the Town

lacked the jurisdiction to regulate the construction and

location of docks in accordance with Navigation Law

Section 46-a(2) and, selectively enforced the Towns

zoning law against the Melchners. He further

acknowledged that Carmel purposefully did not seek

jurisdiction to regulate all the docks in Lake Mahopac

because it did not have the resources or personnel to do

so.

85. In a Decision and Order issued February 27,

2013, the Appellate Division Second Department concluded

that Carmel was not entitled to a preliminary injunction

because it failed to establish a likelihood of ultimate

success on the merits, and that its first cause of action should

have been dismissed pursuant to CPLR Section 3211(a)(7)

because it failed to state a cause of action pursuant to the

Uniform Building Code Act or the Towns Zoning Ordinance and

where, as in the instant matter, the State owns a navigable body

of water and the submerged land beneath that water, the

State has exclusive authority to regulate construction

on that submerged land absent a delegation of that

authority to a municipality.



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86. Thus, despite multiple criminal and civil actions

spanning over a period of fifteen years the Melchners were never

convicted of any zoning code violation relating to the existence,

creation or expansion of any docks in the waters appurtenant to

their property.

87. Both the 2008 Criminal Action and 2009 Civil Action are

still pending and Defendants have not resumed prosecution of

either case following the February 27, 2013 Decision nor filed

dismissals for fear of creating aprima faciecase of malicious

prosecution.

88. Although Carmel and the individual defendants, both

town officials and private citizens, knew that the Town

did not have jurisdiction over the submerged lands of

Lake Mahopac and never sought permission to regulate the

construction and location of docks in accordance with

Navigation Law 46-a(2), they maliciously pursued an

organized assault by the repeated use of frivolous court

actions both criminal and civil to retaliate against

the Plaintiffs for their free speech right to support

political candidates of their own choosing and, in an

attempt to drive the Marina out of business so as to

reduce access to the lake by members of the general

public.

89. Throughout the time period set forth above

defendants Maxwell and Compton Spain required that



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candidates for public office who desired the support of

the Conservative Party agree to pursue the litigations

against the Melchners in retaliation for Plaintiff

Charles Melchners support of political candidates

who they opposed (Plaintiff is a prominent member of the

community who previously served as President of the

Chamber of Commerce). If such a promise was not

obtained from the prospective candidate then defendants

Maxwell and Compton Spain would withhold the Partys

endorsement.

90. That due to the multiplicity of criminal and

civil court actions maliciously commenced by Carmel with

the support of the individual defendants, Plaintiffs

business was severely damaged due to their inability to

utilize the docks that they were lawfully entitled to

use, losing a significant number of customers who would

have rented seasonal slips and used other ancillary

services including but not limited to winter storage, boat

purchases and repairs.

91. Plaintiffs had a cognizable property interest by virtue

of their right to use the submerged lands of Lake Mahopac

pursuant to the Submerged Land License issued by OGS.

92. Plaintiffs were also intentionally treated differently

from others similarly situated as was conceded during the oral

argument held in January of 2012 and there is no rational basis



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to support the difference in treatment by Defendants.

WATER BILL

93. That in addition to the litigation detailed above Carmel

and the individual defendants further harassed and

otherwise engaged in unlawful discriminatory acts by

wrongfully billing plaintiffs for water usage despite the

fact that plaintiffs advised Carmel in February of 2003

that they were no longer using Town water.

94. That despite having been notified and provided

proof that plaintiffs were no longer using Town water Carmel

persisted in pursuing charges for water usage thereby requiring

plaintiffs to retain counsel at great cost and expenses.

AS AND FOR A FIRST CAUSE OF ACTION FOR THE VIOLATIONOF PLAINTIFFS CIVIL RIGHTS

95. Plaintiffs repeat, reiterate and reallege each

and every allegation set forth in paragraphs 1 to 94

of this complaint with the same force and effect as if

set forth at length herein.

96. That as a result of the illegal and improper

acts alleged, all of which were done intentionally and

with deliberate and undue callous disregard of

plaintiffs rights, plaintiffs were deprived of their

Constitutional Rights secured under the 1st, 5thand 14th

amendments of The Constitution of The United States and 42 U.S.C.

Section 1983.

97. Defendants conduct was taken under color of



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state law and deprived the plaintiffs of their

constitutional rights to freedom of speech, civil and

property rights as guaranteed by the First, Fifth and

Fourteenth Amendments to the United States Constitution

in violation of 42 U.S.C. Section 1983.

98. Defendants intended to violate Plaintiffs

constitutional rights, knew their actions violated the

Plaintiffs rights and/or acted with reckless disregard

for whether their actions violated the Plaintiffs

rights.

99. Defendants acted in their official capacities

in ordering the continuous prosecution of plaintiffs for

arbitrary, irrational and/or constitutionally

impermissible reasons.

100. The Plaintiffs have suffered and will in the

future suffer economic loss as a result of Defendants

impermissible conduct.

101. Plaintiffs have suffered and will in the

future suffer emotional distress as a result of

Defendants impermissible conduct.

102. Pursuant to 42 U.S.C. Section 1983

Defendants, in their individual capacity are jointly and

severally liable to the Plaintiffs for damages

representing any financial losses they may suffer as

well as compensatory damages for the emotional harm they



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have suffered.

103. Since Defendants acted intentionally and in a

wanton and reckless disregard of the Plaintiffs

constitutional rights, the Plaintiffs are entitled to

punitive damages against Defendants jointly and

severally.

104. Plaintiffs are entitled to reasonable

attorneys fees, costs and disbursements incurred in the

prosecution of this action.

AS AND FOR A SECOND CAUSE OF ACTION FOR TORTIOUSINTERFERENCE WITH BUSINESS


and every allegation set forth in paragraphs 1 to 104 of

this complaint with the same force and effect as if set forth at

length herein.

106. That plaintiffs had a business relationship

with members of the general public who leased dock slips

and/or otherwise purchased goods and services from the

Marina; Defendants knew of these relationships;

Defendants intentionally interfered with these

relationships by the malicious use of frivolous court

actions that caused injury to the plaintiffs who were

caused to lose substantial business.

107. That as a result of the foregoing, the

Plaintiffs have been damaged in the amount of Five

Million ($5,000,000.00) Dollars.



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AS AND FOR A THIRD CAUSE OF ACTION FORBREACH OF CONTRACT__________


and every allegation set forth in paragraphs 1 to 107

of this complaint with the same force and effect as if

set forth at length herein.

109. That the April 2007 Stipulation of Settlement

entered into between the plaintiffs and Carmel was a

valid, binding and enforceable contract.

110. That the plaintiffs fully complied with the

terms and conditions of said Stipulation.

111. That Carmel breached the terms of said

Stipulation notwithstanding plaintiffs compliance by

commencing the 2008 Criminal Action and 2009 Civil

Action.

112. That due to Defendants breach by commencement of the

aforementioned legal actions Plaintiffs have been caused to both

incur and sustain damages.




AS AND FOR A FOURTH CAUSE OF ACTION FORABUSE OF PROCESS

114. Plaintiffs repeat, reiterate and reallege

each and every allegation set forth in paragraphs 1 to

113 of this complaint with the same force and effect as



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if set forth at length herein.

115. That as set forth above Defendants caused the

issuance of process consisting of three criminal and four

civil actions over a thirteen year period that they knew

to be without merit.

116. That Defendants did so with the intent to do

harm to plaintiffs without excuse or justification.

117. That Defendants used the legal process as

aforementioned in a perverted manner to obtain a

collateral objective, to wit, closure of the Plaintiffs

business.




AS AND FOR A FIFTH CAUSE OF ACTION FORSELECTIVE ENFORCEMENT OF LAWS_____





120. That Plaintiffs were selectively treated as

compared to others similarly situated as Carmel did not

attempt to enforce its zoning laws against any other of

the dozens of docks owners on Lake Mahopac and that such

enforcement was based on impermissible considerations

including the punishment of Plaintiffs for exercising



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their constitutional rights, maliciousness and bad faith

intended to injure plaintiffs.




AS AND FOR A SIXTH CAUSE OF ACTION FOR INTENTIONALINFLICTION OF EMOTIONAL DISTRESS





123. The Defendants deliberate and malicious

campaign of harassment and intimidation as set forth

above was extreme and outrageous and beyond the

reasonable bounds of decency tolerated by decent society.

124. That Defendants intended to cause and/or

disregarded a substantial probability of causing severe

emotional distress.

125. That there exists a causal connection between

Defendants unlawful conduct and Plaintiffs emotional

distress.

126. That Plaintiffs have suffered severe emotional

distress.


Plaintiffs have been damaged in the amount of Five Million

($5,000,000.00) Dollars.



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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demand judgment directing Defendants to

pay Plaintiffs compensatory damages for the damages and associated

expenses suffered in the sum of Five Million ($5,000,000.00)

Dollars on the First Cause of Action; Five Million ($5,000,000.00)

Dollars on the Second Cause of Action; Five Million ($5,000,000.00)

Dollars on the Third Cause of Action; Five Million ($5,000,000.00)

Dollars on the Fourth Cause of Action; Five Million ($5,000,000.00)

Dollars on the Fifth Cause of Action; Five Million ($5,000,000.00)

Dollars on the Sixth Cause of Action; punitive damages; and the

costs of this action together with reasonable attorneys fees; such

other and further relief as this Court deems necessary and proper.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil

Procedure Plaintiffs demand a trial by jury in this action.

Dated: New York, New York November 15, 2013

Yours, etc.,

LAW OFFICES OF DANIEL W. ISAACS, PLLC

By:________/s/____________________ DANIEL W. ISAACS, ESQ. (DI-5179)

Attorneys for Plaintiffs 305 Broadway Suite 202 New York, New York 10007 (212) 925-3000


Documents

Mahopac Marine Suit