Motion for Temporary Restraining Order in North River Shipyard, K Graefe And Sons Corp-Dba, Van Houten Holding Corp v. Upper Nyack Village Of| Trellis.Law

On December 28, 2022 a No Value was filed involving a dispute between K Graefe And Sons Corp-Dba, K. Graefe And Sons Corp., D B A North River Shipyard, North River Shipyard, Van Houten Holding Corp, and Upper Nyack Village Of, Village Of Upper Nyack, for Real Property - Other (Declaratory Judgement) in the District Court of Rockland County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
---------------------------------------------------------------------X
K. GRAEFE AND SONS CORP., d/b/a NORTH RIVER Index No.:
SHIPYARD, and VAN HOUTEN HOLDING CORP,
AFFIRMATION IN
Plaintiffs, SUPPORT OF ORDER TO
SHOW CAUSE AND
-against- TEMPORARY
RESTRAINING ORDER
VILLAGE OF UPPER NYACK, and BOARD OF
TRUSTEES OF THE VILLAGE OF UPPER NYACK,

Defendants.
---------------------------------------------------------------------X

LAWRENCE A. GARVEY, ESQ., an attorney duly admitted to practice law before the

Courts of the State of New York, hereby affirms that the following statements are true under the

penalties of perjury pursuant to CPLR R 2106:

1. I am the principal of the Law Offices of Lawrence A. Garvey & Associates, P.C.,

Counsel for Plaintiffs K. GRAEFE AND SONS CORP., d/b/a NORTH RIVER SHIPYARD, and

VAN HOUTEN HOLDING CORP (“Plaintiffs”) in the above captioned action, and am familiar

with the facts and circumstances set forth herein based upon my review of the litigation file and

my involvement in this matter.

I. PRELIMINARY STATEMENT

2. I submit the Affidavit Kenneth Graffe, this Attorney Affirmation, and the annexed

exhibits in support of Plaintiffs’ application for an Order that Defendants Show Cause why this

Court should not grant Plaintiffs’ request for a Temporary Restraining Order and a Preliminary

Injunction restraining, enjoining, and prohibiting the Defendants Village of Upper Nyack and the

Board of Trustees of the Village of Upper Nyack (“Defendants”), and any of its land use boards,

officers, agents, servants, employees or representatives, from enforcing § 9.4.2.1.2 of the Village

of Upper Nyack Zoning Law against Plaintiffs, concerning the use of the property and operation
1

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of the business located at 1 Van Houten Street in the Village of Upper Nyack (the “Property”)

pursuant to a previously granted Special Use Permit, and restraining, enjoining and prohibiting

Defendants from declaring Plaintiffs’ Special Use Permit to be expired, and instead, permitting

Plaintiffs to operate their business and make use of the Property under the previously granted

Special Use Permit, without any prohibition, expiration, or restriction, not contained in the

previously issued Special Use Permit.

3. By resolution dated, April 15, 2015, the Village of Upper Nyack Planning Board

granted a revised Special Use Permit and Revised Site Plan Approval to Plaintiffs, permitting the

use of the Property in the Village’s MB (Marine Business) Zoning District for various marine-

related uses, including its present use as a shipyard.

4. The revised Special Use Permit did not contain, or provide for an expiration date.

5. The Village of Upper Nyack Zoning Law in effect when the revised Special Use

Permit was granted in 2015 did not provide for the expiration of Special Use Permits.

6. Plaintiffs have operated the business at the Property in compliance with the

Permit since it was granted in 2015.

7. Plaintiffs respectfully request that, pending a determination of Plaintiffs’

Complaint seeking a Declaratory Judgment that the enforcement of § 9.4.2.1.2 of the Village of

Upper Nyack Zoning Law against them is an unconstitutional taking under the Fifth Amendment

to the United States Constitution, applicable to the states through the Fourteenth Amendment to

the United States Constitution, this Court grant the requested Temporary Restraining Order and

Preliminary Injunction to preserve the status quo and prevent irreparable injury to the Plaintiffs.

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II. FACTUAL AND PROCEDURAL BACKGROUND

8. On August 18, 2010, the Planning Board of the Defendant Village of Upper

Nyack unanimously approved Plaintiffs' application for the site plan and granted them a special

use permit to operate as a yard for building, storing, repairing, selling and servicing boats.

9. By resolution dated, April 15, 2015, the Village of Upper Nyack Planning Board

granted Plaintiffs a revised Special Use Permit, permitting the use of the Property in the

Village’s MB (Marine Business) Zoning District for various marine-related uses, including

“Marina, Boatyard/Shipyard”, “Docks, slips, piers, moorings and wharves”, “Shipyard for

building, storing, repairing, sailing and servicing boats”. (“Permit” p. 3, Exhibit 1.)

10. At the time of the resolution and issuance of the Permit, neither the Resolution

nor the Special Use Permit contained any expiration date, sunset provisions, term limitations, or

expiration provisions of any kind, concerning the Special Use Permit or Plaintiffs’ uses of the

Property pursuant to the Special Use Permit.

11. After the approval of the Special Use Permit in 2015, the Defendants made

significant efforts to frustrate or limit Plaintiffs’ approved operations, including but not limited

to, Defendants’ issuance of Stop Work Orders, violations, and the enactment of the Village of

Upper Nyack 2021 Sound Law – which nominally seeks to “regulate sound” in the Village of

Upper Nyack but is intended to, and does, frustrate Plaintiffs’ use of equipment and restricts

Plaintiffs operations pursuant to the Special Use Permit.

12. Section 4(C)(iii) of the Sound Law restricts Plaintiffs' use of their heavy

equipment, specifically including their crane, to two hours at a time followed by a half-hour

cessation of work regardless of the decibel level produced. This restriction does not reduce the

noise volume in the Village of Upper Nyack, other than during random half-hour time periods.

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13. The restriction on the use of Plaintiffs’ heavy equipment to two hours at a time, is

arbitrary and capricious, irrational, and unrelated to a legitimate governmental purpose. The

Sound Law is intended to, and does, virtually prohibit Plaintiffs’ crane operations, which

Defendants unsuccessfully attempted to prohibit directly.

14. The Sound Law is the subject of a Complaint filed on or about August 6, 2021, by

Plaintiffs against these Defendants, and other defendants, in the United States District Court for

the Southern District of New York, under Civil Docket No.: 7:21-cv-06644 (CS).

15. Apparently dissatisfied with their motion to dismiss the federal action, on or about

February 10, 2022, Defendants BOARD OF TRUSTEES OF THE VILLAGE OF UPPER

NYACK adopted and enacted Village of Upper Nyack Local Law # 5 of 2022, “A Local Law

repealing and replacing the Zoning Ordinance of the Village of Upper Nyack” with the “2022

Zoning Law of the Village of Upper Nyack”, targeting Plaintiffs’ business.

16. Local Law # 5 of 2022, the “2022 Zoning Law of the Village of Upper Nyack”

includes in its provisions, § 9.4.2.1.2, “Special Use Permits granted between June 11, 2008 and

June 27, 2017 shall expire on a date that is the later of: (a) 5 years from the date that such Special

Use Permit was granted or last renewed, or (b) May 30, 2022.”

17. Plaintiffs were not notified of the retroactive application of Local Law # 5 of 2022

to Plaintiffs’ Special Use Permit until they received a letter from the Defendants on or about

November 18, 2022, but dated November 1, 2022, notifying Plaintiffs that, pursuant to Village of

Upper Nyack Zoning Law § 9.4.2.1.2, their Special Use Permit expired on May 30, 2022.

18. This letter further directed Plaintiffs to “[a]pply for a Special Use Permit if the

marine uses will continue” and to “[s]ubmit a complete application for a Special Use Permit to

the Planning Board by December 31, 2022.” (“Notice Letter”, Exhibit 2.)

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19. At the time of issuance of the Special Use Permit in 2015, Defendant did not have

this Local Law # 5, § 9.4.2.1.2. in place and effect. This Local Law seeks to deprive Plaintiffs of

vested property rights and frustrates Plaintiffs’ lawful use of the Property.

20. The intent to obstruct Plaintiffs’ business operations is further evidenced by the

fact that, according to Defendants, Plaintiffs’ Special Use Permit expired in May; but the

Defendants waited until November to notify Plaintiffs, and then gave them one month to submit

an application for a new permit.

21. In conjunction with the retroactive application of an expiration date to Plaintiffs’

Special Use Permit, Defendants enacted the new § 9.6.6.6 applicable to “Marine Business Use 4:

Docks, Slips, Piers, Moorings, and Wharves…” and the new § 9.6.7.6 applicable to “Marine

Business Use 5: A yard for the building, storing, repairing, selling or servicing of Boats”.

22. The two new sections, 9.6.6.6 and 9.6.7.6 are identical and state, “Actions

Prohibited As a Part of Use: Application of spray paint outdoors; Boat Breaking.” Plainly this

new law is directed at Plaintiffs, the only such operation in the Village, and would render most or

all of Plaintiffs’ contracts and business operations commercially and practically impossible.

Pages 55 - 65 of the 2022 Zoning Law of the Village of Upper Nyack, “Section 9: Special Use

Permits” is annexed hereto as Exhibit 3, for the Court’s convenience.

23. These new prohibitions would virtually eliminate Plaintiffs’ legitimate business

operations, and render Plaintiffs’ investment in the Property worthless.

24. Upon information and belief, these prohibitions were not in effect at the time of

Plaintiffs’ receipt of the Special Use Permit, which allowed Plaintiffs to engage in the now

prohibited activities. However, Defendants have not provided a copy the zoning law in effect at

the time the Special Use Permit was granted, despite Plaintiffs’ Freedom of Information request.

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25. If Defendants are permitted to enforce the new sunset provision (§ 9.4.2.1.2)

under Local Law # 5, Plaintiffs will be required to re-apply for a Special Use Permit, which will

then be subject to §§ 9.6.6.6 and 9.6.7.6, prohibiting the Plaintiffs from engaging in spray

painting and boat breaking, activities that are an integral and essential part of their everyday

business operations as well as other new Zoning Laws targeting Plaintiffs business.

26. For the reasons stated herein, and as further detailed in Plaintiffs’ Complaint

seeking a Declaratory Judgment that § 9.4.2.1.2 of Local Law #5 of 2022 (adopted February 10,

2022) of the Village of Upper Nyack Zoning Law is unconstitutional, ultra vires, and null and

void, Plaintiffs request that this Court grant the interim relief in the accompanying Order to

Show Cause and Temporary Restraining Order. (“Complaint”, Exhibit 4.)

III. TEMPORARY RELIEF REQUESTED

27. Plaintiff is requesting that this Court grant the accompanying Order that

Defendants Show Cause why a Preliminary Injunction should not be granted pursuant to CPLR §

6301, along with a Temporary Restraining Order to restrain, enjoin, or otherwise prohibit

Defendant Village of Upper Nyack, or any of its land use boards, officers, agents, servants,

employees or representatives from enforcing the Village of Upper Nyack Zoning Law § 9.4.2.1.2

sunset provision against Plaintiffs concerning the Special Use Permit, and restraining, enjoining,

and prohibiting Defendants from declaring Plaintiffs’ Special Use Permit to be expired, or taking

any other adverse action against Plaintiffs on the basis of the expiration of the Special use

Permit.

A preliminary injunction may be granted in any action where it appears that the
defendant threatens or is about to do, or is doing or procuring or suffering to be
done, an act in violation of the plaintiff’s rights respecting the subject of the
action, and tending to render the judgment ineffectual, or in any action where the
plaintiff has demanded and would be entitled to a judgment restraining the
defendant from the commission or continuance of an act, which, if committed or

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continued during the pendency of the action, would produce injury to the plaintiff.
A temporary restraining order may be granted pending a hearing for a preliminary
injunction where it appears that immediate and irreparable injury, loss or damage
will result unless the defendant is restrained before the hearing can be had.

CPLR § 6301.

28. In addition, in order to prevent irreparable injury, Plaintiffs must be permitted to

continue to operate their business, fulfill existing contracts, and make use of their Property

pursuant to the existing Special Use Permit without expiration, restriction, or obstruction, until

this case is adjudicated.

IV. LEGAL ARGUMENT IN SUPPORT OF PRELIMINARY INJUNCTION

A. FACTORS TO BE WEIGHED

29. The Court of Appeals has enumerated three factors to be weighed in

determination of a Plaintiff’s application for a preliminary injunction: “to be entitled to a

preliminary injunction, plaintiffs had to show a probability of success, danger of irreparable

injury in the absence of an injunction, and a balance of the equities in their favor…” Aetna Ins.

Co. v. Capasso, 75 N.Y.2d 860, 552 N.E.2d 166, 552 N.Y.S.2d 918, 1990 N.Y. LEXIS 283.

B. PLAINTIFFS PROBABILITY OF SUCCESS

30. Plaintiffs have a property right in the continued use of the Property in compliance

with the Special Use Permit, protected by the Fifth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment to the United States

Constitution.

31. The Court of Appeals has distinguished between land use pursuant to a variance,

and land use pursuant to a special use permit. While a use variance authorizes activity that

would be otherwise unlawful, a special use permit merely imposes conditions on activity that is

already lawful and presumptively reasonable.

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A variance is an authority to a property owner to use property in a manner
forbidden by the ordinance while a special exception allows the property owner to
put his property to a use expressly permitted by the ordinance. The inclusion of
the permitted use in the ordinance is tantamount to a legislative finding that the
permitted use is in harmony with the general zoning plan and will not adversely
affect the neighborhood (2 Rathkopf, Law of Zoning and Planning, Ch. 54, pp.
54-3 -- 54-4; Matter of Reed v. Board of Stds. & Appeals, 255 N. Y. 126; Matter
of Syosset Holding Corp. v. Schlimm, 4 A D 2d 766; Matter of Bar Harbour
Shopping Center v. Andrews, 23 Misc 2d 894).

North Shore Steak House, Inc. v. Board of Appeals, 30 N.Y.2d 238, 243, 282 N.E.2d 606, 609,

331 N.Y.S.2d 645, 649, 1972 N.Y. LEXIS 1382, *11-12.

The classification of a particular use as permitted in a zoning district is
“tantamount to a legislative finding that the permitted use is in harmony with the
general zoning plan and will not adversely affect the neighborhood” (Matter of
North Shore Steak House v Thomaston, 30 NY2d 238, 243) as opposed to a
variance which would allow an otherwise prohibited use. While the Town Board
still retains some discretion to evaluate each application for a special use permit,
to determine whether applicable criteria have been met and to make
commonsense judgments in deciding whether a particular application should be
granted, such determination must be supported by substantial evidence (Matter of
Market Sq. Props. v Town of Guilderland Zoning Bd. of Appeals, 66 NY2d 893,
895; Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028, 1029).

Although scientific or expert testimony is surely not in every case required to
support a zoning board determination, the board may not base its decision on
generalized community objections (Matter of Pleasant Val. Home Constr. v Van
Wagner, supra). (Emphasis added.)

Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002, 688 N.E.2d 501, 502, 665

N.Y.S.2d 627, 628, 1997 N.Y. LEXIS 3229, *2-3.

32. Even the more restricted use variance, once granted, is binding on a Zoning Board

of Appeals. “[W]here the Board of Appeals has previously determined that the development is

limited only to a certain extent by the terms of the variance, the Board of Appeals is not free to

later disregard that determination (see Matter of Kogel v Zoning Bd. of Appeals of Town of

Huntington, 58 AD3d 630, 632, 871 NYS2d 638 [2009]).” Matter of Scarsdale Shopping Ctr.

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Assoc. v. Bd. of Appeals on Zoning for New Rochelle, 64 A.D.3d 604, 606, 882 N.Y.S.2d 308,

310, 2009 N.Y. App. Div. LEXIS 5631, *5, 2009 NY Slip Op 5783, 2

33. It is clearly established under New York State Court of Appeals, and Second

Circuit Court of Appeals, precedent that a property owner can acquire a vested property right

pursuant to a special use permit by making substantial investment in the Property in reliance on

the permit.

Under New York law, a property owner has no right to an existing land-
use benefit unless that right has “vested.” “In New York, a vested right can be
acquired when, pursuant to a legally issued permit, the landowner demonstrates a
commitment to the purpose for which the permit was granted by effecting
substantial changes and incurring substantial expenses to further the
development.” Town of Orangetown v. Magee, 88 N.Y.2d 41, 47, 665 N.E.2d
1061, 643 N.Y.S.2d 21 (1996). In order to gain the vested right, “[t]he
landowner's actions relying on a valid permit must be so substantial that the
municipal action results in serious loss rendering the improvements essentially
valueless.” Id. at 47-48; see also Sterngass v. Town Bd. of Clarkstown, 10 A.D.3d
402, 405, 781 N.Y.S.2d 131 (2d Dep't 2004); cf. DLC Mgmt. Corp., 163 F.3d at
130-31 (recognizing that, under New York law, a property owner can gain a
property right in the former zoning status of his land when that right vests as a
result of the owner having made substantial expenditures and undertaken
substantial construction prior to the enactment of the more restrictive zoning
ordinance).

Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 784-785, 2007 U.S. App. LEXIS 25970, *15-

16.

34. Prior to the issuance of a Special Use Permit, a landowner can establish a property

interest in a particular land-use merely by showing a clear entitlement to the issuance of a permit.

“In order for an interest in a particular land-use benefit to qualify as a property interest for

purposes of the substantive due process clause a landowner must show a ‘clear entitlement’ to

that benefit. Id. at 152 (quotation marks omitted).” O'Mara v. Town of Wappinger, 485 F.3d

693, 700, 2007 U.S. App. LEXIS 8608, *17-18. “’However, where a permit ‘has already been

granted, the clear entitlement test’ no longer applies ‘because the test applies only to permits

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being sought. The special permit, once issued, unquestionably [is] the property of [the

recipient].’ Soundview Assocs. v. Town of Riverhead, 725 F. Supp. 2d 320, 334 (E.D.N.Y.

2010) (alterations in original) (internal quotation marks omitted) (quoting Villager Pond, 56 F.3d

at 379).” Essex One, LLC v. Town of Essex-Town of Essex Planning Bd., 2020 U.S. Dist. LEXIS

151553, *24, 2020 WL 4924576.

35. “The retroactive application of a zoning ordinance to existing uses such as

appellant's raises substantial constitutional questions (see, e.g., Harbison v City of Buffalo, 4

NY2d 553; People v Miller, 304 NY 105); accordingly, it is incumbent upon the courts, if the

statutory language permits, to adopt that construction of a statute that will bring it into harmony

with the Constitution. (Spahn v Julian Messner, Inc., 21 NY2d 124; 8 NY Jur, Constitutional

Law, § 63.)” Coeymans v. Malphrus, 100 Misc. 2d 589, 592, 419 N.Y.S.2d 833, 835, 1979 N.Y.

Misc. LEXIS 2511, *7.

36. Plaintiffs have acquired a vested property right pursuant the Special Use Permit

by making substantial investment in the Property, for example the purchase and installation of a

crane capable of lifting boats from the water, in reliance on the permit, as attested in the

supporting Graffe Affidavit. Plaintiffs do not believe that Defendants can even dispute the fact

of Plaintiffs’ substantial investment in the Property.

37. The imposition of an expiration date on Plaintiffs’ permit, thereby forcing

Plaintiffs to apply for a new special use permit that would be subject to the new restrictions

under Zoning Law § 9.6.6.6, would result in a complete shutdown of Plaintiffs’ business. For

one example, there is no possibility of indoor spray painting the large boats that Plaintiffs

service.

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C. IRREPARABLE HARM

38. For irreparable harm, a plaintiff must show an “injury that is neither remote nor

speculative, but actual and imminent.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d

60, 66 (2d Cir. 2007) (citations and internal quotation marks omitted); see also L.A. v. Lyons, 461

U.S. 95, 111–12, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that a court cannot find

injunctive relief if the claimed injury is speculative or remote). “The relevant [irreparable] harm

is the harm that (a) occurs to the parties’ legal interests and (b) cannot be remedied after a final

adjudication, whether by damages or a permanent injunction .... Harm might be irremediable, or

irreparable, for many reasons, including that a loss is difficult to replace or difficult to measure,

or that it is a loss that one should not be expected to suffer.” Salinger v. Colting, 607 F.3d 68, 81

(2d. Cir. 2010).

39. Plaintiffs’ reputation, client relationships, and goodwill will be permanently

harmed or destroyed if the requested injunctive relief is not granted. Plaintiff is not selling

widgets. Plaintiffs’ business is highly specialized and dependent upon relationships with clients.

The breaching of Plaintiffs’ contracts to service and repair ships and boats, even for a short time,

will result in their clients obtaining those services elsewhere, and some, or all of them, will not

return. The loss to Plaintiffs’ business, even if they were to eventually be awarded a monetary

judgment against the municipal defendants, is not readily quantifiable, and almost certainly

irreplaceable. “[T]he loss of goodwill not being readily quantifiable…” FTI Consulting, Inc. v.

PricewaterhouseCoopers LLP, 8 A.D.3d 145, 146, 779 N.Y.S.2d 56, 58, 2004 N.Y. App. Div.

LEXIS 8654, *3.

Plaintiff also demonstrated that it will suffer irreparable harm absent an injunction
and that the balance of equities tips in its favor. If a preliminary injunction is not
granted, plaintiff's restaurant, situated at a prime retail location, will be closed, its
19 employees will lose their jobs, and plaintiff will lose its substantial investment

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in improvements (see Waldbaum, Inc. v Fifth Ave. of Long Is. Realty Assoc., 85
NY2d 600, 607, 650 NE2d 1299, 627 NYS2d 298 [1995] [forfeiture of “valuable
improvements” and the good will built up by the plaintiff at the store location
warranted a preliminary injunction]; Second on Second Café, Inc. v Hing Sing
Trading, Inc., 66 AD3d 255, 272-273, 884 NYS2d 353 [1st Dept 2009] [“the loss
of the goodwill of a viable, ongoing business” constitutes “irreparable harm
warranting the grant of preliminary injunctive relief”]; FTI Consulting, Inc. v
PricewaterhouseCoopers LLP, 8 AD3d 145, 146, 779 NYS2d 56 [1st Dept
2004] [loss of goodwill constitutes irreparable harm because it is not "readily
quantifiable”]).

Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 A.D.3d 430, 432, 33 N.Y.S.3d 43, 46, 2016 N.Y.

App. Div. LEXIS 4213, *4-5, 2016 NY Slip Op 04331, 2.

D. BALANCE OF THE EQUITIES

40. The balance of the equities weighs heavily in favor of granting the requested

injunctive relief.

41. “The purpose of a preliminary injunction is to maintain the status quo pending

determination of the action. The decision to grant or deny a preliminary injunction rests in the

sound discretion of the Supreme Court.” Hercules Corp. v Linx Communications, Corp., 2012

N.Y. Misc. LEXIS 356, *4, 2012 NY Slip Op 30203(U), 3.

42. Plaintiffs have been operating their business and making use of their property

under this Special Use Permit for at least eight (8) years. Defendants waited eight months after

the passage of Local Law # 5 of 2022, to notify Plaintiffs that their special use permit would

thereafter be deemed to have an expiration date.

43. Defendants permitted Plaintiffs to continue their operations for five months after

the Special Use Permit ostensibly expired, before notifying Plaintiffs that they had one month to

apply for a new permit. Requiring the defendants to forebear enforcement of the new law until

the Court can properly consider the matter will impose no hardship, on the Defendants, nor any

injury to the public interest.

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44. Plaintiffs have invested heavily in their business based on the reasonable

expectation that they would continue to operate their business under the conditions of the Special

Use Permit, and that investment will be lost if temporary relief is not granted.

45. As such, Plaintiffs respectfully request that their application for a Temporary

Restraining Order and a Preliminary Injunction be granted.

46. Absent the injunctive relief, the Defendants will continue their arbitrary,

capricious enforcement against Plaintiffs, as evidenced by the arbitrary and capricious issuance

of five “stop work” orders to Plaintiffs, which were subsequently dismissed by the Village

Zoning Board of Appeals, on July 16, 2019, finding that there was no evidence to support any of

the alleged violations.

47. Pursuant to Uniform Court Rule 202.7, I have made a good faith effort to resolve

this matter. On December 22, 2022, I contacted Defendants’ Counsel Deanna Collins, Esq., and

requested consent that Defendants voluntarily stay enforcement of the recent amendments to the

zoning law against the Plaintiffs, pending the determination of this motion, but Defendants did

not consent, and Defendants’ Counsel has not further responded.

48. I further affirm that I notified Defendants’ Counsel, Deanna Collins, Esq., of

Plaintiff’s intention to seek the annexed Order to Show Cause and interim relief. (See

Notification Letter, Exhibit 5.)

49. Plaintiffs previously requested a stay of the enforcement of Local Law # 5 of

2022, regarding the expiration of the Special Use Permit, in the United States District Court

action; however, the Plaintiffs’ Complaint regarding Local Law # 5 of 2022 was not before that

Court and the request was denied.

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WHEREFORE, based on the foregoing, Plaintiffs respectfully request that this Court

grant Plaintiffs’ application, and sign the proposed Order that Defendants Show Cause

why this Court should not

1) Grant a Preliminary Injunction pursuant to CPLR § 6301, restraining, enjoining, and

otherwise prohibiting, the Defendants, or any of Defendants’ land use boards,

officers, agents, servants, employees, or representatives from enforcing the Village of

Upper Nyack Zoning Law § 9.4.2.1.2, § 9.6.6.6, and § 9.6.7.6 against Plaintiffs

concerning Plaintiffs’ April 15, 2015 Special Use Permit, and restraining, enjoining,

and prohibiting Defendants from declaring Plaintiffs’ April 15, 2015 Special Use

Permit to be expired, and instead, permitting Plaintiffs to continue to operate their

business and use their Property in accordance with the April 15, 2015 Special Use

Permit as issued, without any prohibition, expiration, restriction, or obstruction until

the underlying action is adjudicated; and,

2) Grant a Temporarily Restraining Order pursuant to CPLR § 6301, restraining,

enjoining, and otherwise prohibiting, the Defendants, or any of Defendants’ land use

boards, officers, agents, servants, employees, or representatives from enforcing the

Village of Upper Nyack Zoning Law § 9.4.2.1.2, § 9.6.6.6, and § 9.6.7.6 against

Plaintiffs concerning Plaintiffs’ April 15, 2015 Special Use Permit, and restraining,

enjoining, and prohibiting Defendants from declaring Plaintiffs’ April 15, 2015

Special Use Permit to be expired, and instead, permitting Plaintiffs to continue to

operate their business and use their Property in accordance with the April 15, 2015

Special Use Permit as issued, without any prohibition, expiration, restriction, or

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FILED: ROCKLAND COUNTY CLERK 12/29/2022 02:10 PM INDEX NO. 035433/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/29/2022

obstruction, until Plaintiffs’ application for a Preliminary Injunction can be

determined by the Court; and,

3) Grant Plaintiffs such other and further relief as the Court deems just, reasonable and

proper.

Dated: New City, New York
December 28, 2022
Respectfully submitted,

By: /s/ Lawrence Garvey__________________
LAWRENCE A. GARVEY, ESQ.
The Law Offices of Lawrence A. Garvey &
Associates, PC
Attorney for Plaintiffs
317 South Little Tor Road
New City, New York 10956
(845) 634-6404
lgarvey@lahlawfirm.com

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Case Info

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Amy Puerto Track Judge’s New Case

Case No.

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Document Filed Date

December 29, 2022

Case Filing Date

December 28, 2022

County

Parties

GARVEY, LAWRENCE A Attorney for the Plaintiff
K GRAEFE AND SONS CORP-DBA Plaintiff
K. GRAEFE AND SONS CORP., d/b/a NORTH RIVER SHIPYARD Plaintiff
NORTH RIVER SHIPYARD Plaintiff
UPPER NYACK VILLAGE OF Defendant
VAN HOUTEN HOLDING CORP Plaintiff
VILLAGE OF UPPER NYACK Defendant
WOLFSON, NOELLE CRISALLI Attorney for the Defendant
DONALD TRACY Attorney
ALTHEA GARVEY Attorney
DEANNA COLLINS Attorney
ADAM WEKSTEIN Attorneys for Defendants

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No Value: North River Shipyard, K Graefe And Sons Corp-Dba, Van Houten Holding Corp v. Upper Nyack Village Of

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