Motion for Substituted Service in Jeffrey B. Clancy, Jennifer Clancy v. John Bortolis, Town Of Hempstead, Thomas E. Doheny Jr., Commissioner Town Of Hempstead Department Of Conservation & Waterways| Trellis.Law

On April 05, 2019 a Notice of Appeal was filed involving a dispute between Jeffrey B. Clancy, Jennifer Clancy, and Commissioner Town Of Hempstead Department Of Conservation & Waterways, John Bortolis, Thomas E. Doheny Jr., Town Of Hempstead, for Special Proceedings - CPLR Article 78 in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 11/27/2023 04:10 PM INDEX NO. 000373/2019
NYSCEF DOC. NO. 243 RECEIVED NYSCEF: 11/27/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
In the Matter of the Application of

JEFFREY B. CLANCY and JENNIFER CLANCY, NOTICE OF APPEAL

Index Nq.: 000373/2019
Petitioners-Plaintiffs,
Assigned Justice:
for a Judgment pursuant to Article 78 of the Civil Hon. James P. McCormack
Practice Law and Rules and for Other Relief

- against -

JOHN BORTOLIS, TOWN OF HEMPSTEAD,
THOMAS E. DOHENY, JR. COMMISSIONER TOWN
OF HEMPSTEAD DEPARTMENT OF
CONSERVATION & WATERWAYS,

Respondents-Defendants.

PLEASE TAKE NOTICE, that Respondent-Defendant, JOHN BORTOLIS, hereby

appeals to the Appellate Division of the Supreme Court for the Second Judicial Department from

each and every part of the Decision and Order of the Honorable James P. McCormack, Justice of

the Supreme Court, County of Nassau, dated October 27, 2023 and entered in the Office of the

Nassau County Clerk on November 3, 2023.

Dated: Uniondale, New York
November 27, 2023

SAHN WARD BRAFF KOBLENZ PLLC

By 41+ i>r��k
Ralph Branciforte, Esq.
333 Earle Ovington Boulevard, Suite 601
Uniondale, New York 11553
(516) 228-1300

Attorneys for Respondent-Defendant
John Bortolis

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TO:

.JOHN C. ARMENTANO, ESQ. (VIA NYSCEF)
FARRELL FlUTZ P.C.
100 Motor Parkway, Suite 300
Hauppauge, New York 11788
Attorneys for Petitioners-Plaintiffs

TOWN OF HEMPSTEAD (VIA NYSCEF)
OFFICE OF THE TOWN ATTORNEY
Heather Crosley, Esq.
Deputy Town Attorney
1 Washington Street
Hempstead, New York 11550
Attorneys for the Town Respondents-Defendants

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SUPREME COURT- STATE OF NEW YORK

PRESENT:
Honorable James P. McCormack
Justice of the Supreme Court

------------------�x
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),
____________________x

The following papers read on this motion:

Notice of Motion/Supporting Exhibits.........................................................X
Notice of Cross Motion/Supporting Exhibits/Opposition............................X
Reply Affirmation/Opposition to Cross Motion/ Supporting Exhibits .........X

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 !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
infonnation 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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proposed redeveloped pier will be within the 55-foot
boundary as set by the Court.

Question No. 5. "What is the status of the pennit from TOH. 11

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 1 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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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 affinnation 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.

ENTERED
Nov 03 2023
NASSAU COUNTY
COUNTY CLERK"S OFFICE

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§uµr.em.e Qrourt of t4.e §tat.e of N.ew fork
l\pp.ellat.e iliutsion: Second �uhicial il.epartm.ent
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil

Case Title: Set forth the title of the case as it appears on the summons, notice of petition or order to For Court of Original Instance
show cause by which the matter was or is to be commenced, or as amended.

In the Matter of the Application of JEFFREY B. CLANCY and JENNIFER CLANCY,

Petitioners-Plaintiffs,

for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules and for Other Relief
Date Notice of Appeal Filed
- against -
JOHN BORTOLIS, TOWN OF HEMPSTEAD, THOMAS E. DOHENY, JR.
COMMISSIONER TOWN OF HEMPSTEAD DEPARTMENT OF CONSERVATION & WATERWAYS, For Appellate Division
Respondents-Defendants.

Case Type Filing Type

l!!I Civil Action D CPLR article 78 Proceeding � Appeal D Transferred Proceeding
D CPLR article 75 Arbitration D Special Proceeding Other D Original Proceedings □ CPLR Article 78
D Executive Law§ 298
D Habeas Corpus Proceeding D CPLR Article 78
D Eminent Domain □ CPLR 5704 Review
D Labor Law 220 or 220-b
D Public Officers Law§ 36
D Real Property Tax Law§ 1278

Nature of Suit: Check up to three of the following categories which best reflect the nature of the case.

D Administrative Review D Business Relationships D Commercial D Contracts
l!!I Declaratory Judgment D Domestic Relations D Election Law D Estate Matters
D Family Court D Mortgage Foreclosure � Miscellaneous D Prisoner Discipline & Parole
D Real Property D Statutory D Taxation □ Torts
(other than foreclosure)

Informational Statement - Civil

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Appeal
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
D Amended Decree □ Determination � Order D Resettled Order
D Amended Judgement D Finding D Order & Judgment D Ruling
D Amended Order D Interlocutory Decree □ Partial Decree D Other (specify):
D Decision D Interlocutory Judgment □ Resettled Decree
D Decree D Judgment D Resettled Judgment
Court: Supreme Court County: Nassau
Dated: 10/27/2023 Entered: November 3, 2023
Judge (name in full): Hon. James P. McCormack Index No.:00373/2019
Stage: D Interlocutory D Final � Post-Final Trial: □ Yes � No If Yes: D Jury □ Non-Jury
Prior Unperfected Appeal and Related Case Information

Are any appeals arising in the same action or proceeding currently pending in the court? � Yes □ No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Yes. Docket Nos. 2022-03191 and 2022-07526
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:

Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
This matter relates to a riparian rights dispute between the Plaintiffs, Jeffrey B.Clancy and Jennifer Clancy, and the Defendant, John Bortolis. A bench trial was held on October 27. 28
and November 4, 2021. By Decision and Order After Trial, dated March 29, 2022, the Trial Court directed the Defendant, John Bortolis, to shorten his pier and move his dock so that
neither the pier nor the dock extends beyond 55 feet where the pier currenfly extends from his property line by September 29, 2022. Thereafter, the Plaintiffs filed a motion to hold Mr.
Bortolis in civil contempt for failing to comply with the September 29, 2022 deadline contained in the Decision and Order After Trial. Mr. Bortolis filed a cross-motion to extend the time
to complete the modification of his pier so as to comply with the deadline contained in the Court's Decision and Order After Trial. The Trial Court granted the Plaintiffs motion and
denied Mr. Bortolis' cross-motion.

Informational Statement - Civil

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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
Whether the Trial Court erred in granting the Plaintiffs' motion and denied Mr. Bortolis' cross- motion.

Party Information

Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this
court.

No. Party Name Original Status Appellate Division Status
1 Jeffrey 8. Clancy Plaintiff Respondent
2 Jennifer Clancy Plaintiff Respondent
3 John Bortolis Defendant Appellant
4 Town of Hempstead Defendant
5 Thomas E. Doheny, Jr. Commissioner Town of Hempstead Department or Conservation and Waterways Defendant
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Informational Statement - Civil

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Attorney Information

Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
himself, the box marked "Pro Se" must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.

Attorney/Firm Name: John C. Armetano, Esq./Farrell Fritz PC
Address: 100 Motor Parkway, Suite 300
City: Hauppauge I State: New York I Zip:11788 I Telephone No:631-547-8400
E-maii Address: jcarmentano@farrellfritz.com
Attorney Type: � Retained D Assigned □ Government D Pro Se D Pro Hae Vice
Party. or Parties Represented
. (set forth party number(s). from
. table above):1,2
Attorney/Firm Name: Ralph Branciforte, Esq./ Sahn Ward Braff Koblenz PLLC
Address:333 Earle Ovington Boulevard, Suite 601
City: Uniondale I State: New York I Zip:11553 I Telephone No:516-228-1300
E-mail Address: rbranciforte@sahnward.com
Attorney Type: � Retained □ Assigned □ Government D Pro Se D Pro Hae Vice
Party or Parties Represented (set forth pa!iy number(s) from table above):3
_ _
Attorney/Firm Name: Heather Crosley, Esq. / Hempstead Town Attorney's Office
Address: 1 Washington Street
City: Hempstead I State: New York I Zip:11550 I Telephone No:516-801-5658
E-mail Address:
Attorney Type: D Retained D Assigned � Government □ Pro Se □ Pro Hae Vice
Party .or Parties
. Represented 5
. ·., (set
,,, forth party number(s)
,. from. table
. . above):4,
.
Attorney/Firm Name:
Address:
City: IState: I Zip: I Telephone No:
E-mail Address:
Attorney Type: D Retained D Assigned D Government D Pro Se D Pro Hae Vice
Party _or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: IState: I Zip: I Telephone No:
E-mail Address:
Attorney Type: □ Retained □ Assigned D Government □ Pro Se D Pro Hae Vice
Party or Parties Represented (set forth party number(s)
. . from table above):
, ." ., ·. , ·., . . .
Attorney/Firm Name:
Address:
City: IState: I Zip: I Telephone No:
E-mail Address:
Attorney Type: D Retained D Assigned D Government D Pro Se D Pro Hae Vice
Pa_rty or Parti�s Represented (set forth party number(s) from table above):

Informational Statement - Civil

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Case Info

Judge

James Mccormack Track Judge’s New Case

Case No.

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Document Filed Date

November 27, 2023

Case Filing Date

April 05, 2019

County

Parties

ARMENTANO, JOHN C. Attorney for the Plaintiff
BRANCIFORTE, RALPH Attorney for the Defendant
BRANCIFORTE, RALPH Attorney for the Defendants
BROWNE, CHRISTIAN P Attorney for the Defendants
BUTLER, PHILIP ARTHUR Attorney for the Plaintiff
COMMISSIONER TOWN OF HEMPSTEAD DEPARTMENT OF CONSERVATION & WATERWAYS Defendant
CROSLEY, HEATHER D. Attorney for the Defendants
Jeffrey B. Clancy Plaintiff
Jennifer Clancy Plaintiff
John Bortolis Defendant
STELLAKIS, JOHN CHARLES Attorney for the Plaintiff
Thomas E. Doheny JR. Defendant
TOWN OF HEMPSTEAD Defendant
CHARLES KOVIT Attorneys for Defendants
FERN MEHLER Attorney
JOSEPH BJARNSON Attorney
JOSEPH NOCELLA Attorneys for Defendants
JOHN CASSILLO Attorney
JOSEPH JOHN Attorneys for Defendants
EUGENE FERENCIK Attorneys for Defendants
THOMAS DENNY Attorney

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Notice of Appeal: Jeffrey B. Clancy, Jennifer Clancy v. John Bortolis, Town Of Hempstead, Thomas E. Doheny Jr., Commissioner Town Of Hempstead Department Of Conservation & Waterways

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