i rather deal with a lawyerOriginally Posted by SafeWNY
i rather deal with a lawyer
Well I guess the only thing else to do is hire a lawyer and take the business to supreme court. Thats problem gonna cost About $5,000 but they can shut the business down or arrest them for not complying with the village code and violation, then sue the villlage for doing nothing . Now you need to find a good lawyer who will not drain all your money and will help you. Any one know a good lawyer?
Why would the village of Depew, population 15,000, go out of their way to protect what you are calling "Big Business," which is in reality a small business? What is their motivation for this? It doesn't make any sense.
mikenold...can you shed any light on this problem? What is the village's side on this? Just wondering, don't mean to put you on the spot.
If it weren't for the United States Military, there would be NO United States of America !
KFC is a franchise. So some local guy is running the show there. It's not like Colonel Sanders is screwing over the little guy or anything like that. Its the same issue as if it were a small local pizzaria. I just wonder why its Depew trying to screw over the residents in this case, and not some lazy or overworked building inspector that has too much stuff going on to deal with this or chooses not to deal with it.
From your statements it appears the business is not complying with code. The Village says it took thm to court and they were fined and there is nothing more they can. Why can't thy take away they're occupancy permit if they don't comply. Surely the business can find someway to redirect the exaust upward.
In my opinion it is the Village that is not protecting the welfare and quality of life of the residents and should be held accountable.
At leat you have a code in place that warrants pushing back. Other towns are no better in using any excuse not to get involved. There is no cat code in Cheektowaga. You can have as many as you want. Until the house reeks with smell and/or the house is littered with dead or sick animals and where feces are all over the place, no action is taken. And once there is action, they care not if the home stinks for eternity as long as no own official or employee lives next to that stink.
And the wise-asses that live no where near the problem will tell you it can't be that bad or you should have known better when you moved there. Don't you sometimes wonder what we pay taxes for and why other's have property rights that trump ours?
The issue wasn't there, now is there because of remodeling and you are told to live with it. Sweet!
I was told they are up to code. I don't know how to verify this.
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They are not up to code. I have the order of Remedy violation paper work infront of me. from the village of depew . They are in violation of depew municipal code chapter article II, section 55-5 , nothing done because the business pleated no contest to violation.
Off topic question
Did the Village of Depew approve a 2012-13 budget? Their minutes on the website don't go past March 12. I was just wondering if they were under the cap or not. Ther is nothing published regarding it. The Bees (Lancaster/Depew and Cheektowaga) had an article mentioning the budget but the article's contents was about basketball.
Just curious.
Yes, there are FOUR on the town board
$5,000 would barely cover the cost of the expert opinions needed. I'd suggest a budget of $12,000 for attorney fees and $6,000 for expenses, and that's on the low side.
Santulli v. Drybka, 196 A.D.2d 862 (3rd 1983)
In an action to enjoin the defendants from performing construction on a building, the defendants appeal from an order of the Supreme Court, Queens County (Rosenzweig, J.), dated June 13, 1991, which granted the plaintiffs' motion for a preliminary injunction enjoining the defendants from violating a stop work order during the pendency of the action and denied the defendants' cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion is denied, and the defendants' cross motion for summary judgment dismissing the complaint is granted.
The plaintiffs, who owned residential property adjacent to the defendants' property, complained to the New York City Department of Buildings (hereinafter the Department of Buildings) that the construction the defendants were undertaking on a building on the defendants' property violated various provisions of the Administrative Code of the City of New York. The Department of Buildings issued a stop work order. The plaintiffs commenced this action and moved for a preliminary injunction enjoining the defendants from violating the stop work order. The Supreme Court issued the requested relief. We now reverse.
In order to maintain a private action to enjoin a zoning violation, a plaintiff must establish that he has standing to do so by demonstrating that special damages were sustained due to the defendant's activities (see, Guzzardi v Perry's Boats, 92 AD2d 250, 253, 460 N.Y.S.2d 78). The plaintiffs failed to establish that they sustained special damages because they failed to show, through specific, detailed, evidence, that they actually suffered a diminution of the value of their home and property and that there was some depreciation in its value which arose from the defendants' conduct (see, Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 218, 282 N.Y.S.2d 259, 229 N.E.2d 44). The plaintiffs' unsupported assertions are insufficient to demonstrate the existence of special damages, and the plaintiffs therefore lacked standing to bring this action.
We also note that the Supreme Court's issuance of the preliminary injunction was improper because the plaintiffs, who lacked standing to bring the instant action, did not demonstrate a likelihood of ultimate success on the merits (see, Buegler v Walsh, 111 AD2d 206, 207, 489 N.Y.S.2d 241). Furthermore, the plaintiffs did not demonstrate that they would suffer irreparable injury if injunctive relief were to have been denied (see, Merrill Lynch Realty Assocs. v Burr, 140 AD2d 589, 593, 528 N.Y.S.2d 857).
And this:
Cullen v Neuman (Sup Ct, Suffolk County, 2008):
With regard to plaintiffs' claims alleging private nuisance, to recover damages based upon the tort of private nuisance, a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by defendant's conduct (see, Copart Industries, Inc. v Consolidated Edison Co., 41 NY2d 564, 362 N.E.2d 968, 394 NYS2d 169 [1977]; Mangusi v Town of Mount Pleasant, 19 AD3d 656, 799 NYS2d 67 [2005]).
Here, the Court finds, as a matter of law, that plaintiffs have failed to establish that defendants' use of their property interferes substantially, or otherwise, with plaintiff's use and enjoyment of their own property. "To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient" (Campbell v Seaman, 63 NY 568, 577). The disturbances to plaintiff must not be "fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinary reasonable person" (Dugway, Ltd. v Fizzinoglia, 166 AD2d 836 563 NYS2d 175 [1990]). Plaintiffs have failed to adduce evidence that their use and enjoyment of their land has been substantially and unreasonably interfered with (see, Ruscito v Swaine, Inc., 17 AD3d 560, 793 NYS2d 475 [2005], Kaplan v Inc. Village of Lynbrook, 12 AD3d 410, 784 NYS2d 586 [2004]; Adams v Berkowitz, 212 AD2d 557, 622 NYS2d 565 [1995]). Nor have plaintiffs provided any proof, in admissible form, of the monetary damages they claimed to have sustained as a result of the claimed nuisance (see, Camarda v Vanderbilt, 147 AD2d 607, 538 NYS2d 16 [1989]; Guzzardi v Perry's Boats, Inc., supra). Consequently, defendant Neuman's request for summary judgment dismissing plaintiffs' private nuisance claim is granted and plaintiffs' corresponding request for summary judgment on this claim is denied.
Great post, very informative. Thanks.
gorja: The village of Depew will be approving the 2012-2013 budget on Monday at the regularly scheduled board meeting. The budget will be in compliance with the states 2% cap.
Last edited by mikenold; April 11th, 2012 at 07:48 AM. Reason: added info
"The most terrifying words in the English language are: I'm from the government and I'm here to help."
---Ronald Reagan---
disolve the village
This is your opinion, correct?
"The most terrifying words in the English language are: I'm from the government and I'm here to help."
---Ronald Reagan---
yes it is. why pay taxes to both town .and village when village does nothing.
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