After winning a New York State appeal of a $4,000 fine leveled against him in Southold Town Justice Court, a Mattituck homeowner has filed a notice of claim, alleging the town prosecuted him maliciously and without cause.
But the town attorney has said those allegations “[aren’t] much” and that, after re-examining the case, the town may consider fining the homeowner again.
According to a Sept. 18 decision by the state’s second department Supreme Court Appellate Term, Richard Martino of Hallock Lane was charged in November 2006 with violating Southold’s wetlands and shoreline codes. The town had alleged that Mr. Martino built a series of stairs within 100 feet of his property’s bluff line without a permit from the town Board of Trustees.
After a non-jury trial in Southold Town Justice Court, Mr. Martino was found liable and fined $4,000, according to the appellate court decision.
However, the state court found that the town did not prove the stairs were within 100 feet of the bluff, noting that a bay constable “merely ‘guess[ed]’ that the stairs were within the jurisdiction of the Board of Trustees,” the decision reads.
Though the constable showed photographs of the stairs, he never testified as to where the bluff line was, the court determined. The court also found that the chairman of the Trustees, a prosecution witness, also failed to testify that the incline off the beach on Mr. Martino’s property was “steep enough to constitute a bluff.”
“Viewing the evidence in the light most favorable to the prosecution … we find that the elements of a violation of section 275-5 of the Code of the Town of Southold were not established,” the court ruled. “Thus, defendant’s conviction of violating … the Code of the Town of Southold was based on legally insufficient evidence.”
The state court decision reversed the conviction, dismissed the charge and ordered the fine, if paid, to be returned.
But now, a month after that decision, Mr. Martino has filed the notice of claim, the precursor to a potential lawsuit, against the Town.
“The matter of People v. Martino was commenced and prosecuted with malice and without probable cause,” the notice of claim states.
Mr. Martino is seeking damages for “stress, humiliation, embarrassment and mental anguish,” according to the notice.
Speaking at their home, Mr. Martino and his wife declined to provide details about any upcoming legal action, citing the advice of their attorney, Eric Bressler of Mattituck.
“It’s been 10 years. We got a judgment. They haven’t paid us,” Mr. Martino said. “That’s my no comment.”
But town attorney Bill Duffy said he expects the town will defend itself and win any potential lawsuit.
“I don’t think there’s much to the notice of claim,” Mr. Duffy said. “I don’t see the damages. Just because you’re found not guilty doesn’t mean malicious prosecution.”
Mr. Duffy, who was not the town attorney at the time of the initial prosecution, said he’s reviewed the minutes and seen “ample evidence” to support the original charges against Mr. Martino. It was certain testimony that didn’t hold up in court, he said.
The town attorney’s office may now review the case to see if it will attempt to prosecute the homeowner again.
“Every day you violate the town code is a new violation,” Mr. Duffy said.
Representatives from the Board of Trustees did not respond to a request for comment this week.
Mr. Martino’s lawsuit would be the second in recent years filed against the town over a waterfront staircase. In 2010, a Brooklyn couple filed a federal civil rights lawsuit against the town, alleging that charges related to a masonry staircase at their Cutchogue home were racially motivated.
Hui Hui Yu and Cheng Kai Yu accused the town of discrimination and excessive use of force by the police; the town said the couple had built the cement block staircase without any town approvals, including a wetlands permit from the Board of Trustees.
By 2013, all the charges against the town had been dismissed by a federal judge, who said the claims lacked proof and weren’t legally sufficient.
Photo caption: These stairs behind Richard Martino’s Mattituck property were allegedly built without a Town Trustee permit and are at the center of a potential lawsuit against the Town. (Credit: Paul Squire)