A hearing in State Supreme Court in Riverhead this week may have been the beginning of the end of an ongoing battle between East Hampton Town and the owners of Cyril’s Fish House, the popular eatery and bar on Napeague, but the case is not over yet. The town is seeking a preliminary injunction to prevent the owners, Michael Dioguardi and Cyril Fitzsimons, from operating a business in any other form than existed in 1984, when it was a small roadside cafe. They, in turn, have brought suit against the town for what they say is malicious prosecution and abuse of process.
Friday’s hearing on the request for a preliminary injunction cuts to the heart of a controversial issue: how to regulate businesses that predate zoning and are grandfathered as legal in areas where they are no longer permitted. Both sides agree that Cyril’s is a business on a site zoned for residences. The dispute is whether it has been expanded, which would be a violation of the zoning code. The owners contend the bar and restaurant was always there in some form, while the town argues the use was expanded in 1990. The owners’ suit is being held in abeyance until the current matter is settled.
The hearing got off to a rocky start when the attorneys for the owners, Dianne K. Le Verrier and Conrad Jordan, were not present at 10 a.m., as scheduled. Mr. Jordan explained he had been involved in two trials in Queens, but Acting Supreme Court Justice Joseph Farneti was clearly unhappy. He scolded Mr. Jordan, saying that because there was no jury involved, he would have been able to be flexible in handling the case. “You denied me that flexibility by not being here at 10 a.m.,” he said.
Joseph W. Prokop, representing the town, told the court that he had subpoenaed several witnesses for that morning. Because the hearing did not get underway until after the lunch break, he had time to call only one: William J. Walsh, who surveyed the property several times, beginning in 1984. The other witnesses were to have been a former owner of the site, a representative of the State Liquor Authority, and an aerial photographer. Also present as potential witnesses was Tom Preiato, the town’s chief building inspector, and other officials.
Mr. Walsh told the court that, according to his survey as well as original notes, there was no exterior bar or awning there in 1984. When asked if there was anything different when he revised the survey in 1990, his answer was, “Yes. The deck and the bar, and a walking ramp to step up to the deck level.” Mr. Jordan’s cross-examination quickly became adversarial. He pressed Mr. Walsh about whether an exterior counter might have been there in 1984. “If there was a counter, it would have been in the survey,” Mr. Walsh answered.
Mr. Jordan then questioned Mr. Walsh about a phone conversation he had with Debra Choron, another attorney with the Le Verrier firm, asking whether Mr. Walsh had expressed concern that he could be legally liable if he had left anything off the original survey. “I returned a phone call. I didn’t expect to be interrogated,” Mr. Walsh responded, saying the call upset him, and he didn’t recall all the details of the conversation.
Justice Farneti told Mr. Walsh that he should not take any of Mr. Jordan’s questions personally, saying it was just part of the process. That process will continue either on Tuesday or July 7, depending on the status of Mr. Jordan’s Queens trials.