Preview
FILED: SUFFOLK COUNTY CLERK 01/30/2023 09:24 PM INDEX NO. 611504/2022
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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Francesco Cuffaro and Ashley Cuffaro, (St. George, J.)
Plaintiffs,
-against- AFFIRMATION OF
LINDA U. MARGOLIN
Village of Bellport; Ray Fell, in his capacity as the Mayor IN OPPOSITION
of the Village of Bellport; Zoning Board of Appeals TO DEFENDANTS’
of the Village of Bellport; Jim Wood, James Jankowski, PRE-ANSWER MOTION
Michael Cohen and Judy Harvey in their capacity as TO DISMISS THE
members of the Village of Bellport Zoning Board of COMPLAINT
Appeals; and Mary Lou Bono in her capacity as Building
Inspector of the Village of Bellport,
Defendants.
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Linda U. Margolin, an attorney duly admitted to practice before the courts of the State of
New York, affirms under the penalty of perjury as follows:
1. I am a partner of the law firm MARGOLINBESUNDER LLP, attorneys for
Plaintiffs Francesco Cuffaro and Ashley Cuffaro (the “Cuffaros”). As such, I am fully familiar
with the facts and circumstances of this matter. I make this affirmation in opposition to
Defendants’ pre-answer motion to dismiss the Complaint pursuant to CPLR 3211(a)(1) and
3211(a)(7), and for the purpose of providing the Court with copies of certain documents.
2. Exhibit 1 is a copy of the deed from Macaroon Co., Inc. to the Cuffaros for the
vacant lot owned by the Cuffaros in the Defendant Village of Bellport (“Village”), which was
assigned Suffolk County Real Property Tax Service tax map number 202-11-3-7.2 (Lot “7.2”).
3. Exhibit 2 is a copy of the Affidavit of Plaintiff Francesco Cuffaro, dated
February 10, 2022, with Exhibits A and B annexed thereto, submitted in support of the Cuffaros’
Petition/Complaint in the hybrid Article 78 special proceeding/declaratory judgment action
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FILED: SUFFOLK COUNTY CLERK 01/30/2023 09:24 PM INDEX NO. 611504/2022
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023
before this Court, Index No. 620453/2021, which is currently pending and undecided (the
“Article 78 proceeding”) (NYSCEF Docs. 33, 34 and 35).
4. Exhibit 3 is an excerpt from the Village’s Return submitted to the Court in an
Article 78 special proceeding commenced by the Cuffaros in 2019, under Index No. 19-03783,
which consists of: (a) the index to the Return and (b) the certification of single and separate
ownership for Lot 7.2. The certification of single and separate ownership was a part of Exhibit J
to the Return.
5. Exhibit 4 is a copy of the Cuffaros’ 2021 application for a building permit, which
included a letter from their counsel stating that Lot 7.2 has been in single and separate ownership
since its creation in 1978.
The Cuffaros’ 2021 application for a building permit is Exhibit B to the Village’s Return
in the Article 78 proceeding (NYSCEF Doc. 19).
6. Exhibit 5 is a copy of the Defendant Building Inspector’s denial of the Cuffaros’
2021 application for a building permit.
The Building Inspector’s denial is Exhibit C to the Village’s Return in the Article 78
proceeding (NYSCEF Doc. 20).
7. Exhibit 6 is the transcript of the September 30, 2021 public hearing of the Zoning
Board of Appeals of the Village of Bellport concerning the Building Inspector’s denial of the
Cuffaros’ 2021 application for a building permit.
8. Exhibit 7 is a copy of the letter dated October 17, 1988 from the Village’s
Building Inspector, Mort Czaja, to Ms. Kathy Heins of Bay Area Properties. The Village
provided this letter to the Cuffaros in response to Plaintiff Francesco Cuffaro’s FOIL request
dated December 26, 2018. This FOIL request is Exhibit A to Plaintiff Francesco Cuffaro’s
Affidavit made Exhibit 2 to this Affirmation.
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023
9. Exhibit 8 is a copy of letter dated January 18, 1991 from the Village’s Building
Inspector, John E. Rogers, to Mr. Harvey McChesney, in connection with Kevin Chamier’s
efforts to obtain approval for the construction of a single-family dwelling on his property.
As the deed to the Cuffaros (Exhibit 1 hereto) and the certification of single and separate
ownership (Exhibit 2 hereto) indicate, Lot 7.2 was deeded from Kevin Chamier to Macaroon
Co., Inc. in April 1991. In 2018, Macaroon Co., Inc. deeded Lot 7.2 to the Cuffaros. As
indicated in the Cuffaros’ deed, Harvey McChesney III was the president of Macaroon Co., Inc.
Mr. Rogers’ letter and its enclosures were discovered by Plaintiff Francesco Cuffaro and
myself when we inspected the Village’s file on Lot 7.2.
10. Exhibit 9 is a copy of a letter dated August 19, 2022 from the Village’s Building
Department Supervisor, Marylou Bono, to Mr. Francesco Cuffaro, enclosing minutes of a
November 29, 1990 meeting of the Village’s Architectural Board in response to Mr. Cuffaro’s
FOIL request dated August 1, 2022. Harvey McChesney is identified in the minutes as being
present at the meeting and as residing next door to applicant Kevin Chamier’s lot.
11. Exhibit 10 is a copy of a letter dated January 31, 2022 from the Village’s
Building Department Supervisor, Marylou Bono, to me, responding to my January 18, 2022
FOIL request, and attaching minutes of a hearing before the ZBA on October 11, 1977 related to
the creation of Lots 7.1 and 7.2.
Dated: Islandia, New York
January 30, 2023
Linda U. Margolin
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023
WORD COUNT STATEMENT
I hereby certify that the foregoing document complies with the word count limit as set
forth in Part 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court.
The total number of words in the foregoing document, exclusive of the caption, signature
block, and this Statement, is 726.
Dated: Islandia, New York
January 30, 2023
Linda U. Margolin, Esq.
MARGOLINBESUNDER LLP
Attorneys for Plaintiffs
3750 Express Drive South, Suite 200
Islandia, New York 11749
(631) 234-8585
lmargolin@margolinbesunder.com
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Preview
FILED: SUFFOLK COUNTY CLERK 01/30/2023 09:24 PM INDEX NO. 611504/2022 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------X Index No. 611504/2022 Francesco Cuffaro and Ashley Cuffaro, (St. George, J.) Plaintiffs, -against- AFFIRMATION OF LINDA U. MARGOLIN Village of Bellport; Ray Fell, in his capacity as the Mayor IN OPPOSITION of the Village of Bellport; Zoning Board of Appeals TO DEFENDANTS’ of the Village of Bellport; Jim Wood, James Jankowski, PRE-ANSWER MOTION Michael Cohen and Judy Harvey in their capacity as TO DISMISS THE members of the Village of Bellport Zoning Board of COMPLAINT Appeals; and Mary Lou Bono in her capacity as Building Inspector of the Village of Bellport, Defendants. --------------------------------------------------------------------X Linda U. Margolin, an attorney duly admitted to practice before the courts of the State of New York, affirms under the penalty of perjury as follows: 1. I am a partner of the law firm MARGOLINBESUNDER LLP, attorneys for Plaintiffs Francesco Cuffaro and Ashley Cuffaro (the “Cuffaros”). As such, I am fully familiar with the facts and circumstances of this matter. I make this affirmation in opposition to Defendants’ pre-answer motion to dismiss the Complaint pursuant to CPLR 3211(a)(1) and 3211(a)(7), and for the purpose of providing the Court with copies of certain documents. 2. Exhibit 1 is a copy of the deed from Macaroon Co., Inc. to the Cuffaros for the vacant lot owned by the Cuffaros in the Defendant Village of Bellport (“Village”), which was assigned Suffolk County Real Property Tax Service tax map number 202-11-3-7.2 (Lot “7.2”). 3. Exhibit 2 is a copy of the Affidavit of Plaintiff Francesco Cuffaro, dated February 10, 2022, with Exhibits A and B annexed thereto, submitted in support of the Cuffaros’ Petition/Complaint in the hybrid Article 78 special proceeding/declaratory judgment action 1 of 4 FILED: SUFFOLK COUNTY CLERK 01/30/2023 09:24 PM INDEX NO. 611504/2022 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023 before this Court, Index No. 620453/2021, which is currently pending and undecided (the “Article 78 proceeding”) (NYSCEF Docs. 33, 34 and 35). 4. Exhibit 3 is an excerpt from the Village’s Return submitted to the Court in an Article 78 special proceeding commenced by the Cuffaros in 2019, under Index No. 19-03783, which consists of: (a) the index to the Return and (b) the certification of single and separate ownership for Lot 7.2. The certification of single and separate ownership was a part of Exhibit J to the Return. 5. Exhibit 4 is a copy of the Cuffaros’ 2021 application for a building permit, which included a letter from their counsel stating that Lot 7.2 has been in single and separate ownership since its creation in 1978. The Cuffaros’ 2021 application for a building permit is Exhibit B to the Village’s Return in the Article 78 proceeding (NYSCEF Doc. 19). 6. Exhibit 5 is a copy of the Defendant Building Inspector’s denial of the Cuffaros’ 2021 application for a building permit. The Building Inspector’s denial is Exhibit C to the Village’s Return in the Article 78 proceeding (NYSCEF Doc. 20). 7. Exhibit 6 is the transcript of the September 30, 2021 public hearing of the Zoning Board of Appeals of the Village of Bellport concerning the Building Inspector’s denial of the Cuffaros’ 2021 application for a building permit. 8. Exhibit 7 is a copy of the letter dated October 17, 1988 from the Village’s Building Inspector, Mort Czaja, to Ms. Kathy Heins of Bay Area Properties. The Village provided this letter to the Cuffaros in response to Plaintiff Francesco Cuffaro’s FOIL request dated December 26, 2018. This FOIL request is Exhibit A to Plaintiff Francesco Cuffaro’s Affidavit made Exhibit 2 to this Affirmation. 2 2 of 4 FILED: SUFFOLK COUNTY CLERK 01/30/2023 09:24 PM INDEX NO. 611504/2022 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023 9. Exhibit 8 is a copy of letter dated January 18, 1991 from the Village’s Building Inspector, John E. Rogers, to Mr. Harvey McChesney, in connection with Kevin Chamier’s efforts to obtain approval for the construction of a single-family dwelling on his property. As the deed to the Cuffaros (Exhibit 1 hereto) and the certification of single and separate ownership (Exhibit 2 hereto) indicate, Lot 7.2 was deeded from Kevin Chamier to Macaroon Co., Inc. in April 1991. In 2018, Macaroon Co., Inc. deeded Lot 7.2 to the Cuffaros. As indicated in the Cuffaros’ deed, Harvey McChesney III was the president of Macaroon Co., Inc. Mr. Rogers’ letter and its enclosures were discovered by Plaintiff Francesco Cuffaro and myself when we inspected the Village’s file on Lot 7.2. 10. Exhibit 9 is a copy of a letter dated August 19, 2022 from the Village’s Building Department Supervisor, Marylou Bono, to Mr. Francesco Cuffaro, enclosing minutes of a November 29, 1990 meeting of the Village’s Architectural Board in response to Mr. Cuffaro’s FOIL request dated August 1, 2022. Harvey McChesney is identified in the minutes as being present at the meeting and as residing next door to applicant Kevin Chamier’s lot. 11. Exhibit 10 is a copy of a letter dated January 31, 2022 from the Village’s Building Department Supervisor, Marylou Bono, to me, responding to my January 18, 2022 FOIL request, and attaching minutes of a hearing before the ZBA on October 11, 1977 related to the creation of Lots 7.1 and 7.2. Dated: Islandia, New York January 30, 2023 Linda U. Margolin 3 3 of 4 FILED: SUFFOLK COUNTY CLERK 01/30/2023 09:24 PM INDEX NO. 611504/2022 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/30/2023 WORD COUNT STATEMENT I hereby certify that the foregoing document complies with the word count limit as set forth in Part 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court. The total number of words in the foregoing document, exclusive of the caption, signature block, and this Statement, is 726. Dated: Islandia, New York January 30, 2023 Linda U. Margolin, Esq. MARGOLINBESUNDER LLP Attorneys for Plaintiffs 3750 Express Drive South, Suite 200 Islandia, New York 11749 (631) 234-8585 lmargolin@margolinbesunder.com 4 4 of 4