Preview
FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019
NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023
SUPREME COURT - STATE OF NEW YORK
PRESENT:
Honorable James P. McCormack
Justice of the Supreme Court
TRIAL/IAS, PART 8
In the Matter of the Application of JEFFREY B. NASSAU COUNTY
CLANCY and JENNIFER CLANCY,
Petitioner(s)-Plaintiff(s),
Index No.: 373-19
for a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules and for Other Relief, Motion Seq. 009 & 010
Motion Submitted: 5/18/23
-against-
JOHN BORTOLIS, TOWN OF HEMPSTEAD,
THOMAS E. DOHENY, COMMISSIONER TOWN OF
HEMPSTEAD DEPARTMENT OF CONSERVATION
AND WATERWAYS,
Respondent(s)-Defendant(s),
The following papers read on this motion:
Notice of Motion/Supporting Exhibits.
Notice of Cross Motion/Supporting Exhibits/Opposition.
Reply Affirmation/Opposition to Cross Motion/ Supporting Exhibits.
Petitioners/Plaintiffs Jeffrey B. Clancy and Jennifer Clancy (the Clancys), move
this court (Motion Seq. 009) for an order, inter alia, finding Respondent/Defendant, John
Bortolis (Bortolis), in civil contempt for failure to comply with the March 29, 2022
Decision After Trial and the August 2, 2022 order of this court, pursuant to Judiciary Law
§753. Bortolis opposes the motion and cross moves (Motion Seq. 010) for leave to
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extend the deadline to complete the modifications to his dock and pier. The Clancys
oppose the cross motion.
The parties are neighbors whose properties abut Merrick Cove. They have been
involved in an extended litigation over a pier and dock that Bortolis built. The pier and
dock extended out 75 feet out from Bortolis’ property into the cove. After a nonjury trial,
the court found that the pier and dock violated the Clancys’ riparian rights. In particular,
it impacted the Clancys’ ability of ingress and egress from their own dock.
The time line of events in this case is relevant to the outcome of this order. On
March 29, 2022, this court issued the order finding the Clancys’ riparian rights had been
violated, and directing Bortolis to shorten the pier and dock to not more than 55 feet. The
court gave Bortolis six months to complete this work. On April 13, 2022, Bortolis filed a
motion to set aside the verdict. He did not seek a stay of the March 29, 2022 order. By
short form order dated August 2, 2022, the court denied the motion to set aside the
verdict. That order also provided a process for Bortolis to take to stay the March 29,
2022 order if he would be unable to finish the work in time. Bortolis ignored this order,
and brought an order to show cause to the Appellate Division, Second Department, which
sought a stay of this court’s March 29, 2022 and August 2, 2022 orders. On September
23, 2022, the Appellate Division issued a temporary restraining (TRO) order staying the
March 29, 2022 and August 2, 2022 orders while the motion was pending. On November
4, 2022, the Appellate Division denied the motion and lifted the TRO. On April 21,
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2023, the Clancys filed the within motion for contempt. On May 11, 2023, Bortolis cross
moved to enlarge the time to complete the work on the dock and pier. After reviewing
the motion and cross motion, it became clear that Bortolios took no actions whatsoever to
comply with the March 29, 2022 order until his motion to set aside the verdict was denied
on August 2, 2022. Further, Bortolis ignored the court’s direction to move to stay the
March 29, 2022 order should he be unable to complete the work by the deadline of
September 29, 2022.
By short form order dated June 16, 2023, this court held a decision on these
motions in abeyance to give Bortolis the opportunity to answer the following questions:
1) Why did he wait until August 2022 to begin the process of
getting approvals? 2) Why did he not follow the explicit,
clear instructions in the August 2, 2022 order to seek an
extension of this court’s deadline? 3) Are the Clancys
accurate that he could have moved the moveable gangway and
floating dock and been in immediate compliance while he was
awaiting feedback from the applications and approvals he
sought from the various agencies? 4) What is his justification
for the jet ski launch and floating dock on the east side?
5) What is the status of the permit from TOH?
In response to these questions, Bortolis submitted an affidavit which states, in
pertinent part:
Question No. 1. "Why did he wait until August 2022 to begin
the process of getting approvals."
Response to Question No. 1. I was awaiting the Court's ruling
on my motion for a new trial. If the Court granted my motion,
then I would not have to go through the permit process. Upon
receiving the Court's decision denying the motion, we then
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commenced the permit process.
Question No. 2. "Why did he not follow the explicit, clear
instructions in the August 2, 2022 order to seek an extension
of this court's deadline."
R
esponse to Question No. 2. Upon discussing with my counsel,
I decided to exercise my appellate rights and seek a stay in the
Appellate Division, Second Department. While we were
initially successful in obtaining a temporary stay in the
Appellate Division, we were ultimately unsuccessful in
obtaining a stay pending the determination of my appeal. I
refer the Court to the Appellate Division's Orders attached at
Exhibits "1" and "2" that were submitted with the opposition
to the Clancys' motion.
Question No. 3. "Are the Clancys accurate that he could have
moved the moveable gangway and floating dock and been in
immediate compliance while he has awaiting feedback from
the applications and approvals he sought from the various
agencies."
Response to Question No. 3. If I just removed the gangway
and floating dock in place, my boatlift and boat would not be
within 55 feet of my bulkhead as directed by the Court.
Additionally, I refer the Court to the accompanying
Supplemental Affidavit of Adon Austin for further detailed
information regarding the permit process.
Question No. 4. "What is his justification for the jet ski launch
and floating dock on the east side."
Response to Question No. 4. The revised plans approved by
the various state and federal administrative agencies all show
that my new fixed pier will have a boatlift that will remain on
the west side in keeping with the Court's direction. I always
wanted to have a jetski lift at my home, but I was unable to
get the required approval due to the then-pending litigation. In
light of the redesign of my pier as required by the
Court, I decided to incorporate a jetski lift on the east side that
will be located close to my bulkhead. The jetski lift and the
floating dock cannot be placed on the west side along with my
boatlift due to space restrictions. I refer the Court to Mr.
Austin's Supplemental Affidavit for detailed information. My
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NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023
proposed redeveloped pier will be within the 55-foot
boundary as set by the Court.
Question No. 5. "What is the status of the permit from TOH."
Response to Question No. 5. I refer the Court to Mr. Austin's
Supplemental Affidavit. It is my understanding that the Town
will not issue a permit for my revised plans because of my
pending appeal.
Since these questions were answered, it appears Question 5 has been rendered
moot in that the Town has now issued the permit, or has indicated it will do so after a
recent meeting with the parties’ counsel. The question that remains is whether Bortolis’
Answers to Questions | and 2 shield Bortolis from being found in contempt.
To find a party in civil contempt pursuant to Judiciary Law §753, the movant must
establish, by clear and convincing evidence, a lawful order was in effect that was
disobeyed, that the party to be held in contempt knew of the order and the other party’s
rights were prejudiced. (Venables v Rovegno, 195 AD3d 879 [2d Dept 2021]).
As addressed in the June 16, 2023, order, Bortolis meets all these criteria. And his
answers to the court’s questions only confirm that he ignored this court’s orders
knowingly and intentionally. Most frustrating is the fact that after the March 29, 2022
order was issued, he made the unilateral decision to ignore that order until such time as
the court rendered a decision on his motion to set aside the verdict. Again, he could have
sought a stay of the order in the interim, either from this court or the Appellate Division,
but did not. He simply decided to do nothing while he waited for a decision. Only once
that decision was rendered did he gradually start the process of shortening the pier and
dock. Bortolis also ignored this court’s directive to move to stay the March 29, 2022
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NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023
order should he be unable to complete the work by September 29, 2022. Instead, he
“exercised his right” to move before the Appellate Division. While the court does not
question his right to bring a motion before the Appellate Division, the court does question
his right to unabashedly ignore the directives of the orders of this court. To be clear, after
receiving the August 2, 2022 order, Bortolis waited another seven weeks to bring his
order to show cause to the Appellate Division, right on the eve of when the work was to
be completed. All of this only supports the Clancys’ narrative that Bortolis’ real goal here
is to delay these proceedings as much and for as long as possible.
The court finds that Bortolis is in contempt of court. He clearly, intentionally and
willfully ignored two court orders, and delayed the completion of the dock and pier at the
very least by six months by not starting the process until he decided it was time to do so.
Bortolis will reimburse the Clancys for their counsel fees in having to bring the within
motion, and all other actions taken in support of the motion for contempt.
While there is no official beginning and ending to the Long Island boating season,
this court finds that, in general, the season starts April 15 and ends after Labor Day
weekend. Bortolis has until April 15, 2024 to have completed the work on the pier and
dock. For every week after April 15, 2024 that the pier and dock are incomplete, Bortolis
will be fined $1,000.00.
Accordingly, it is hereby
ORDERED, that the Clancys’ motion (Motion Seq. 009) to find Bortolis in
contempt is GRANTED, consistent with the terms of this court; and it is further
ORDERED, that Bortolis’ motion (Motion Seq. 010) to enlarge the time to
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complete the work on the pier and dock is DENIED; and it is further
ORDERED, that within 30 days of the date of this order, the Clancys’ counsel
shall submit an affirmation addressing counsel fees and other costs related to bringing the
contempt motion; and it is further
ORDERED, that Bortolis will have 30 days thereafter to submit an affirmation, if
necessary, challenging any specific charges or items contained in the Clancys’
submission.
The foregoing constitutes the Decision and Order of the Court.
Dated: October 27, 2023
Mineola, N.Y.
>
Hon. Jagheg P. McCormac! SA BLO.
ENTERED
Nov 03 2023
NASSAU COUNTY
COUNTY CLERK'S OFFICE
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Preview
FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 SUPREME COURT - STATE OF NEW YORK PRESENT: Honorable James P. McCormack Justice of the Supreme Court TRIAL/IAS, PART 8 In the Matter of the Application of JEFFREY B. NASSAU COUNTY CLANCY and JENNIFER CLANCY, Petitioner(s)-Plaintiff(s), Index No.: 373-19 for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules and for Other Relief, Motion Seq. 009 & 010 Motion Submitted: 5/18/23 -against- JOHN BORTOLIS, TOWN OF HEMPSTEAD, THOMAS E. DOHENY, COMMISSIONER TOWN OF HEMPSTEAD DEPARTMENT OF CONSERVATION AND WATERWAYS, Respondent(s)-Defendant(s), The following papers read on this motion: Notice of Motion/Supporting Exhibits. Notice of Cross Motion/Supporting Exhibits/Opposition. Reply Affirmation/Opposition to Cross Motion/ Supporting Exhibits. Petitioners/Plaintiffs Jeffrey B. Clancy and Jennifer Clancy (the Clancys), move this court (Motion Seq. 009) for an order, inter alia, finding Respondent/Defendant, John Bortolis (Bortolis), in civil contempt for failure to comply with the March 29, 2022 Decision After Trial and the August 2, 2022 order of this court, pursuant to Judiciary Law §753. Bortolis opposes the motion and cross moves (Motion Seq. 010) for leave to 1of 7 FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 extend the deadline to complete the modifications to his dock and pier. The Clancys oppose the cross motion. The parties are neighbors whose properties abut Merrick Cove. They have been involved in an extended litigation over a pier and dock that Bortolis built. The pier and dock extended out 75 feet out from Bortolis’ property into the cove. After a nonjury trial, the court found that the pier and dock violated the Clancys’ riparian rights. In particular, it impacted the Clancys’ ability of ingress and egress from their own dock. The time line of events in this case is relevant to the outcome of this order. On March 29, 2022, this court issued the order finding the Clancys’ riparian rights had been violated, and directing Bortolis to shorten the pier and dock to not more than 55 feet. The court gave Bortolis six months to complete this work. On April 13, 2022, Bortolis filed a motion to set aside the verdict. He did not seek a stay of the March 29, 2022 order. By short form order dated August 2, 2022, the court denied the motion to set aside the verdict. That order also provided a process for Bortolis to take to stay the March 29, 2022 order if he would be unable to finish the work in time. Bortolis ignored this order, and brought an order to show cause to the Appellate Division, Second Department, which sought a stay of this court’s March 29, 2022 and August 2, 2022 orders. On September 23, 2022, the Appellate Division issued a temporary restraining (TRO) order staying the March 29, 2022 and August 2, 2022 orders while the motion was pending. On November 4, 2022, the Appellate Division denied the motion and lifted the TRO. On April 21, 2 of 7 FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 2023, the Clancys filed the within motion for contempt. On May 11, 2023, Bortolis cross moved to enlarge the time to complete the work on the dock and pier. After reviewing the motion and cross motion, it became clear that Bortolios took no actions whatsoever to comply with the March 29, 2022 order until his motion to set aside the verdict was denied on August 2, 2022. Further, Bortolis ignored the court’s direction to move to stay the March 29, 2022 order should he be unable to complete the work by the deadline of September 29, 2022. By short form order dated June 16, 2023, this court held a decision on these motions in abeyance to give Bortolis the opportunity to answer the following questions: 1) Why did he wait until August 2022 to begin the process of getting approvals? 2) Why did he not follow the explicit, clear instructions in the August 2, 2022 order to seek an extension of this court’s deadline? 3) Are the Clancys accurate that he could have moved the moveable gangway and floating dock and been in immediate compliance while he was awaiting feedback from the applications and approvals he sought from the various agencies? 4) What is his justification for the jet ski launch and floating dock on the east side? 5) What is the status of the permit from TOH? In response to these questions, Bortolis submitted an affidavit which states, in pertinent part: Question No. 1. "Why did he wait until August 2022 to begin the process of getting approvals." Response to Question No. 1. I was awaiting the Court's ruling on my motion for a new trial. If the Court granted my motion, then I would not have to go through the permit process. Upon receiving the Court's decision denying the motion, we then 3 of 7 FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 commenced the permit process. Question No. 2. "Why did he not follow the explicit, clear instructions in the August 2, 2022 order to seek an extension of this court's deadline." R esponse to Question No. 2. Upon discussing with my counsel, I decided to exercise my appellate rights and seek a stay in the Appellate Division, Second Department. While we were initially successful in obtaining a temporary stay in the Appellate Division, we were ultimately unsuccessful in obtaining a stay pending the determination of my appeal. I refer the Court to the Appellate Division's Orders attached at Exhibits "1" and "2" that were submitted with the opposition to the Clancys' motion. Question No. 3. "Are the Clancys accurate that he could have moved the moveable gangway and floating dock and been in immediate compliance while he has awaiting feedback from the applications and approvals he sought from the various agencies." Response to Question No. 3. If I just removed the gangway and floating dock in place, my boatlift and boat would not be within 55 feet of my bulkhead as directed by the Court. Additionally, I refer the Court to the accompanying Supplemental Affidavit of Adon Austin for further detailed information regarding the permit process. Question No. 4. "What is his justification for the jet ski launch and floating dock on the east side." Response to Question No. 4. The revised plans approved by the various state and federal administrative agencies all show that my new fixed pier will have a boatlift that will remain on the west side in keeping with the Court's direction. I always wanted to have a jetski lift at my home, but I was unable to get the required approval due to the then-pending litigation. In light of the redesign of my pier as required by the Court, I decided to incorporate a jetski lift on the east side that will be located close to my bulkhead. The jetski lift and the floating dock cannot be placed on the west side along with my boatlift due to space restrictions. I refer the Court to Mr. Austin's Supplemental Affidavit for detailed information. My 4 ob 7 FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 proposed redeveloped pier will be within the 55-foot boundary as set by the Court. Question No. 5. "What is the status of the permit from TOH." Response to Question No. 5. I refer the Court to Mr. Austin's Supplemental Affidavit. It is my understanding that the Town will not issue a permit for my revised plans because of my pending appeal. Since these questions were answered, it appears Question 5 has been rendered moot in that the Town has now issued the permit, or has indicated it will do so after a recent meeting with the parties’ counsel. The question that remains is whether Bortolis’ Answers to Questions | and 2 shield Bortolis from being found in contempt. To find a party in civil contempt pursuant to Judiciary Law §753, the movant must establish, by clear and convincing evidence, a lawful order was in effect that was disobeyed, that the party to be held in contempt knew of the order and the other party’s rights were prejudiced. (Venables v Rovegno, 195 AD3d 879 [2d Dept 2021]). As addressed in the June 16, 2023, order, Bortolis meets all these criteria. And his answers to the court’s questions only confirm that he ignored this court’s orders knowingly and intentionally. Most frustrating is the fact that after the March 29, 2022 order was issued, he made the unilateral decision to ignore that order until such time as the court rendered a decision on his motion to set aside the verdict. Again, he could have sought a stay of the order in the interim, either from this court or the Appellate Division, but did not. He simply decided to do nothing while he waited for a decision. Only once that decision was rendered did he gradually start the process of shortening the pier and dock. Bortolis also ignored this court’s directive to move to stay the March 29, 2022 5 7 FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 order should he be unable to complete the work by September 29, 2022. Instead, he “exercised his right” to move before the Appellate Division. While the court does not question his right to bring a motion before the Appellate Division, the court does question his right to unabashedly ignore the directives of the orders of this court. To be clear, after receiving the August 2, 2022 order, Bortolis waited another seven weeks to bring his order to show cause to the Appellate Division, right on the eve of when the work was to be completed. All of this only supports the Clancys’ narrative that Bortolis’ real goal here is to delay these proceedings as much and for as long as possible. The court finds that Bortolis is in contempt of court. He clearly, intentionally and willfully ignored two court orders, and delayed the completion of the dock and pier at the very least by six months by not starting the process until he decided it was time to do so. Bortolis will reimburse the Clancys for their counsel fees in having to bring the within motion, and all other actions taken in support of the motion for contempt. While there is no official beginning and ending to the Long Island boating season, this court finds that, in general, the season starts April 15 and ends after Labor Day weekend. Bortolis has until April 15, 2024 to have completed the work on the pier and dock. For every week after April 15, 2024 that the pier and dock are incomplete, Bortolis will be fined $1,000.00. Accordingly, it is hereby ORDERED, that the Clancys’ motion (Motion Seq. 009) to find Bortolis in contempt is GRANTED, consistent with the terms of this court; and it is further ORDERED, that Bortolis’ motion (Motion Seq. 010) to enlarge the time to 6&7 FILED: NASSAU COUNTY CLERK 1170372023 03:55 PM INDEX NO. 000373/2019 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 11/01/2023 complete the work on the pier and dock is DENIED; and it is further ORDERED, that within 30 days of the date of this order, the Clancys’ counsel shall submit an affirmation addressing counsel fees and other costs related to bringing the contempt motion; and it is further ORDERED, that Bortolis will have 30 days thereafter to submit an affirmation, if necessary, challenging any specific charges or items contained in the Clancys’ submission. The foregoing constitutes the Decision and Order of the Court. Dated: October 27, 2023 Mineola, N.Y. > Hon. Jagheg P. McCormac! SA BLO. ENTERED Nov 03 2023 NASSAU COUNTY COUNTY CLERK'S OFFICE 7 of 7