SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER TOWN OF ULSTER, Plaintiff, DECISION/ORDER -against- Index No, 15-2755 RII. No. 55-16-1284 Richard Mott, S.C. DON MACKENZIE, Defendant. - x Motion Return Date: December 15, 2016. Final submission received December 23, 2016. APPEARANCES: Plaintiff: Jason J. Kovacs, Esq. Rusk, Wadlin, Heppner & Martuscello, LLP 255 Fair Street P.O, Box 3356 Kingston, NY 12402 Defendant: Richard M. Mahon, Il, Esq. Catania, Mahon, Milligram & Rider, PLLC One Corwin Court P.O. Box 1479 Newburgh, NY 12550 Mott, J. Plaintiff seeks summary judgment permanently enjoining Defendant from operating a junkyard on his property without a license in violation of the Ulster Town Code (hereinafter, "UTC") and from continuing to create a public nuisance thereby. Defendant opposes. Background Plaintiff alleges a violation of Ulster Town Law (hereinafter, “UTL”) § 101-4 which requires site plan approval and a junkyard license issued by the Ulster Town Board(hereinafter, “UTB") in order to operate or maintain a junkyard. It further alleges that Defendant's operation of the junkyard without a license constitutes a public nuisance. Defendant owns the subject property and operates a junkyard thereon. This action. commenced following Defendant's failure to comply with the Town of Ulster Building Department's November, 2012 Order to Remedy, (hereinafter, “Order”) requiring Defendant to obtain a junkyard license to cure his violation of UTC § 101-4(A). Said Order was upheld on appeal to the Ulster Town Zoning Board of Appeals (hereinafter, “ZBA"), and again upon Defendant's challenge thereto by way of a CPLR Article 78 proceeding, Decision and Order, dated July 16, 2014, (Zwack, }.). Said ZBA determination also concluded that the subject property's use as a junkyard was not a pre-existing non-conforming use, due toa more than two-year hiatus in junkyard operations prior to Defendant's acquisition thereof in 2007. Said Order issued following Defendant's failure to comply with a May, 2011 Stipulation of Settlement (hereinafter, “Stipulation”), whereby Plaintiff withdrew, without prejudice, a prior Order to Remedy citing the identical violation, dated in January, 2011. ‘The Stipulation provided that Defendant was to apply for and obtain site plan approval and thereafter, a junkyard license within a designated amount of time. Subsequently, Defendant applied for and obtained a conditional site plan approval. However, Defendant's late application for a junkyard license was denied in October, 2012 following a hearing, for his failure to comply with the site plan approval conditions, as detailed in Judge Zwack’s above-cited Decision and Order. Defendant did not appeal the UTB determination denying the junkyard license.This proceeding commenced on September 2, 2015, and the note of issue was filed on October 14, 2016. Defendant continues to operate the junkyard without a license. Parties’ Contentions Plaintiff contends that Defendant's operation of the junkyard without a license in violation of its zoning law is ongoing despite the latter's ample opportunity to correct this deficiency. Further, it claims to have no other remedy at law and therefore, seeks as equitable relief, a permanent injunction. In support thereof, Plaintiff cites its prior efforts at obtaining Defendant's compliance over a six-year period and the affidavit of Kathryn Moniz, Town of Ulster Code Enforcement Officer, (hereinafter, “CEO”) verifying Defendant's failure to obtain a junkyard license for said property after conducting site visits over the three years prior to August, 2016, Defendant claims that Plaintiff has failed to meet its evidentiary burden with respect to the irreparable harm and equitable balancing tests for a grant of permanent injunctive relief. He cites the failure to submit proof of any actual danger of irreparable harm. In support thereof, he cites the fact that the junkyard operations have been ongoing, albeit without a license, for an extended period of time without any evident harm. Further, Defendant contends that no actual evidence of any interference with a public right has been demonstrated, thereby precluding summary judgment on the public nuisance cause of. action. Moreover, he claims that the equities militate against injunctive relief because he would be denied an income should the injunction issue, after having invested his life savings, approximately $47,000.00, in this business.Discussion Summary Judgment Summary judgment is a drastic remedy and should be granted only when no material facts are sufficiently disputed as to warrant a trial. Gaddani v. Dormitory Auth. of State of N-Y., 43 A.D.3d 1218, 1219 (3d Dept. 2007) citing Matter of LaBier v. LaBier, 291 A.D.2d 730, 732 (3d Dept. 2002). The totality of the evidence should be viewed in the light most favorable to the non-moving party and the Court should accord it the benefit of every reasonable inference. Tenkate v. Tops Mkts,, 38 A.D.3d 987, 989 (3d Dept. 2007). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Suffolk Co. Dept. of Soc. Servs. v. james M., 83 NY2d 178, 182 (1994); Staunton v Brooks, 129 AD3d 1371 [3d Dept. 2015}; Lacasse v Sorbello, 121 AD3d 1241 [3d Dept, 2014], First Cause of Action - Violation of Ulster Town Code 101-4, A town is entitled to a permanent injunction to enforce its building and zoning laws upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law. Town of Brookhaven v Mascia, 38 AD3d 758, 759 [2d Dept 2007]; Town of Nassau v Nalley, 52 AD3d 1013, 1015 [3d Dept 2008] (ongoing nature of defendant's violations of Junkyard Ordinance and disregard for the terms of the parties’ stipulations sufficient to sustain court's discretionary issuance of a permanent injunction), see also, Town of Greenville Orange County v McComb, 94 Misc 2d 930 [Sup Ct 1978] (street vendor operations properly enjoined pending grant of license required by town law).Here, Plaintiff has established entitlement to judgment as a matter of law by demonstrating Defendant's continued operation of a junkyard in violation of Ulster Town Law § 101-4(A), through the CEO affidavit demonstrating that Defendant's violation thereof continues unabated and the ZB4’s final determination concluding that Defendant's use of the subject property as a junkyard requires a license to conform to zoning law. Defendant has failed to submit any competent evidence in rebuttal or to demonstrate any palpable effort to correct the cited deficiencies in order to obtain a junkyard license, Accordingly, Plaintiff is entitled to summary judgment on its first cause of action, Standard of Proof - injunctive Relief While it is not necessary that plaintiff show irreparable harm as a condition of obtaining injunctive relief for the violation of a zoning ordinance, “whether immediate relief of this nature should be extended is still a matter governed by equitable principles.” Town of Esopus v Fausto Simoes and Assoc, 145 AD2d 840, 841-42 [3d Dept 1988]. Thus, where, as here, Plaintiff has demonstrated a likelihood of success on the merits as to this first cause of action, the question remains whether a balancing of the equities discloses any prejudice to Plaintiff fit is left to await an adjudication on the merits. Id, at 842. Where, as here, itis solely within Defendant's power to remedy his non-compliance and he has failed to do so for an extended period of time or to broadcast any future plan in that regard, the Court finds that the equities weigh in favor of the grant of the permanent injunction to Plaintiff, Second Cause of Action ~ Public Nuisance A public nuisance consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to 5offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons. Copart Indus, Inc. v Consol. Edison Co. of New York, Inc, 41 NY2d 564, 568 [1977]; 532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr, Inc, 96 NY2d 280 [2001]. Here, Plaintiff has failed to ‘meet its burden of demonstrating such offense, interference or endangerment based upon the absence of a junkyard license alone, thus precluding summary judgment on Plaintiff's second cause of action. Tenkate v. Tops Mkts, 38 A.D.3d 987, 989 (3d Dept. 2007). Accordingly, the motion is granted as to the first cause of action and denied as to the second. The parties’ remaining contentions have been rendered academic by this determination or have been considered and determined to lack merit. This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to the Plaintiff, who is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk. Dated: Hudson, New York i February 16, 2017 RICHARD MOTT, J.C Papers Considered: 1. Notice of Motion and Affirmation of Jason J. Kovacs, Esq., dated November 8, 2016 with Exhibit A-K, Affidavit of Kathryn Moniz, dated October 20, 2016; 2. Opposition Affirmation of Richard M. Mahon, Esq,, dated December 8, 2016, Affidavit of Don MacKenzie, dated November 30, 2016; 3. Reply Affirmation of Jason J. Kovacs, Esq,, dated December 22, 2016. 6