Judge Declines To Dismiss Suit Filed By Dock Owner

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A state judge has declined to dismiss a lawsuit filed against the Southampton Town Trustees by a Bridgehampton homeowner who has embroiled the town in more than five years of legal jousting rather than shorten the dock in front of his house by 4 feet.

The judge, State Supreme Court Acting Justice Andrew G. Tarantino, refused to throw out the claims filed by the homeowner, Peter L. Hoffman, that he was “maliciously prosecuted” by former Town Trustee Fred Havemeyer, because he does not have a Trustees-issued permit for his dock.

The judge said the abuse of power allegation filed against Mr. Havemeyer could not be dismissed until a court decides whether Mr. Hoffman’s claims that his dock does not sit within Trustees’ jurisdiction is valid. He also left open the possibility that Mr. Havemeyer could be held personally liable, not protected by his official position, if Mr. Hoffman’s claim was found to be valid.

Judge Tarantino did dismiss, however, parallel claims of malicious prosecution against former Bay Constable Ted Sadleir and former Assistant Town Attorney Joe Lombardo.

The lawsuit is the second brought by Mr. Hoffman against the Town Trustees over the permitting of his dock. The first, brought in federal court, was dismissed by a federal district court judge in 2012, and again by a federal appeals court later that same year.

Town Trustees attorney Richard Cahn said Mr. Hoffman has taken an unnecessarily litigious stance, rather than negotiating with the Trustees and possibly striking an agreement that would allow his dock to remain.

“I’ve never seen anything like this,” Mr. Cahn said. “If he had come to the Trustees with an application for a conforming dock, they would have granted it. He was told that in 2007. But instead he got stubborn and decided to say, ‘Screw you.’”

A call to Mr. Hoffman’s attorney, Cohen Law Group in New York City, seeking comment was not immediately returned.

In the lawsuit, Mr. Hoffman claims that his title says the property included the underwater lands extending into the shallow waters of Sam’s Creek behind his house, and that the Trustees have no right to require him to get a permit for the dock. He also has charged that the Trustees cannot require him to conform with their bylaws, which limit the size of docks, if his was built prior to their enforcing dock permitting requirements.

The dock was built by a previous owner in the 1960s, according to the lawsuit documents. Mr. Hoffman bought the property at 474 Jobs Lane in 2005.

The portion of the dock that sits in the water is 10 feet wide and 20 feet long. Trustees regulations limit docks to 6 feet in width.

The Trustees claim authority to regulate all naturally occurring freshwater and tidal bays, creeks and harbors in the town. Man-made boat basins do not fall within their jurisdiction.

In their legal response to Mr. Hoffman’s allegations, the Trustees state that they have been issuing permits for docks dating as far back as the 1920s, and that Mr. Hoffman’s dock should have had a permit when it was originally built.

Sam’s Creek is a natural but non-navigable cove at the eastern end of Mecox Bay, with only a narrow inlet, about 8 feet wide, leading from the creek to the main bay. Nonetheless, most of the houses fronting on the creek have docks, which are adorned with kayaks, canoes and small sailboats in the summer.

In 2007, Mr. Hoffman was issued two tickets for “illegal dock construction and maintenance without Trustee permit.” A year later, with the tickets not addressed, the town filed a criminal complaint against Mr. Hoffman. The town and Mr. Hoffman submitted competing title interpretations of whether his property included underwater lands or not.

In 2011, the attorney for the Trustees, Mr. Lombardo, asked the Southampton Town Justice Court to dismiss the charge on the basis that the criminal standard of “beyond reasonable doubt” could not be met until a legal determination was made on Mr. Hoffman’s jurisdiction claim.

The suit alleges that when Mr. Hoffman’s attorney approached the Trustees about the violation, he was informed that the dock must be removed unless Mr. Hoffman agreed to reduce its width. When the attorney informed the Trustees’ legal counsel, Assistant Kathryn Garvin, of the situation, the lawsuit states that Ms. Garvin “improperly threatened to issue additional summonses solely to coerce and pressure plaintiffs …”

Typically, town officials are protected from individual liability in the performance of their duties, unless a plaintiff can prove in court that an official’s actions were malicious, negligent or fraudulent.

Mr. Hoffman’s attorneys have argued that the Trustees, and Mr. Havemeyer specifically, should have known they had neither the jurisdiction to regulate Mr. Hoffman’s dock nor the authority to demand that it be made to comply with their regulations since it predated current codes. For that reason, their pursuit of charges against Mr. Hoffman was unduly malicious, the lawsuit alleges.

In his ruling, Judge Tarrantino allowed the court to consider the claim, saying it could potentially be proven based on the facts discussed in the case thus far.

“Regarding the element of malice, a plaintiff need not demonstrate a defendant’s intent to do him or her harm but need only show a reckless or grossly negligent disregard for his or her rights,” the judge wrote. “It is undisputed that the defendants commenced and continued criminal proceedings against the plaintiff for four years … If [Mr. Hoffman’s claims of the Trustees lack of jurisdiction] are proven true, then the plaintiffs would establish that the defendants never had probable cause to initiate the criminal proceedings.”

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