A temporary restraining order issued against Cyril’s Fish House in State Supreme Court last month prohibits the Napeague hot spot from using its outdoor bar and patio pending electrical and structural inspections of the site.
In a finding issued on April 11 following a two-day hearing, Justice Joseph Farneti ruled that the owners of the restaurant and bar and their employees may not open the premises to the public in any form except that which existed in 1984, which is itself based on a certificate of occupancy from 1969. Justice Farneti’s ruling allows Cyril’s to use only 40 seats in a 300-square-foot structure with a 120-square-foot deck.
Further, a stop-work order issued by the town on Jan. 28, when two 2,000-gallon underground fuel storage tanks were removed without permits, essentially freezes any work being done in front of the bar and restaurant. Cyril’s owners appealed that order to the town’s zoning board, which held a hearing on on April 22.
Justice Farneti gave three conditions that could cause him to lift his temporary order — an electrical inspection of the site, a structural inspection report of the front patio area near where the underground tanks were removed, and a structural inspection of the roadside bar — “so that nobody is sitting up at night wondering if this building is going to fall on top of people or if I’m going to be seeing a picture in Newsday of a giant sinkhole with revelers with their umbrellas in their little drinks 10 feet underground. Just a point I’d like to make on the record.”
Joseph W. Prokop acted as special counsel for the town at both hearings. In front of Justice Farneti, he called three witnesses, the town’s chief building inspector, Tom Preiato, David Browne, the town’s fire marshal, and Scott Rodriguez, a code enforcement officer. Dianne Le Verrier, attorney for the landowners, Michael Dioguardi, Robert Dioguardi, Cyril’s Fish House, and Debra Lakind, did not call any witnesses but did present an affadavit from the contractor who removed the tanks and then filled the holes.
Mr. Preiato, whose testimony and cross-examination took a full day at Supreme Court, expressed concern for the safety of the public during the hearing. According to a court transcript, he said that when he arrived on Jan. 28, the tanks, which had been used to storegasoline when the site had a gas station on it decades ago, were already out of the ground.
“I have not had an opportunity to see that the soil is properly compacted, that it is capable of bearing weight,” Mr. Preiato told Mr. Prokop during questioning.
“And with regard to the easterly side of the premises, is there anything that you described that you considered to be a danger to public health and safety?” Mr. Prokop asked.
“Well, the structure itself. I don’t know how it is actually standing,” Mr. Preiato responded.
Mr. Preiato said the existing restaurant is much larger than the 300-square-foot one that the site’s certificate of occupancy describes.
In the second day of the hearing, Ms. Le Verrier attempted to demonstrate that the town had allowed the operation to continue under present-day conditions for many years. The justice cut her off.
“I have a building falling into a hole, based on the uncontested testimony from chief Preiato yesterday,” Justice Farneti said.
“Any of the fire, health, and safety hazards that have been raised have not been addressed by the town’s own officials in the form of issuing any violations with regard to these items,” Ms. Le Verrier responded.
The justice also cited Mr. Preiato’s testimony to Ms. Le Verrier regarding possibly dangerous wiring, concluding, “I haven’t heard anything from the defense to contradict one syllable of that testimony.”
Ms. Le Verrier had argued that town permits were not needed for the removal of the tanks because Suffolk County and New York State permits would supersede the need for town permits.
“I understand there was a county permit,” the justice said, adding that he had heard “very clear testimony from chief inspector Preiato yesterday with respect to the other commercial tank removal sections under the town code. No permit, no application. That very activity caused what I perceive to be the imminent danger.”
“You may have become aware for the first time during Mr. Preiato’s testimony yesterday that apparently as a result of the excavation of the tanks, the structure of the bar . . . the facade has moved,” Justice Farneti told Ms. Le Verrier. “It tilted into the depression created from the excavation from the tank.”
Justice Farneti pointed out that the proper legal path for removal of the stop-work order would be to first go before the town’s zoning board, which the owners did on April 22.
During his final argument, Mr. Prokop said, “With these defendants, the goal every day is just get to the next day. Just to have the premises there off-season, have it there during the season, have it open and get to the next day. The next day turns into the next day that turns into a week, we get to the next week, we get to the next month, and that is their goal.”
Ms. Le Verrier pointed out that many items the town had objected to on the property had been removed. The justice also allowed a direct, off-the-record exchange between Ms. Le Verrier and Mr. Preiato to determine the exact steps needed to obtain permits for the patio and brick deck.
The justice told Ms. Le Verrier he was familiar with the long, contentious history between the town and the restaurant. He said he wished he could examine the East Hampton Justice Court file “so that I could actually see what happened with the six-month conditional discharge,” referring to a stop work order issued last year.
“We have a longstanding business that either makes or breaks itself in June, July, and August,” he said, adding that he had to balance economics against public safety.
Ms. Le Verrier said via email yesterday that there is a conference scheduled with the justice today to update him on what has been done since the hearing, and that she could only comment after the conference.