Federal Courts: Jerry's Suits Dismissed

   A Federal District Court judge has dismissed two suits stemming from Jerry Della Femina's display of pumpkins three years ago outside his Red Horse Market - and his ensuing arrest on East Hampton Village zoning charges.

   The dismissal does not spell victory for either side. In fact, rather than base his decision on the merits of the cases, Judge Arthur D. Spatt dismissed the suits last Thursday because they were so confusing.

   "The Court, which is . . . frequently involved with litigation of a far more complex nature than the present two actions, is frankly confused by the plethora of criss-crossing and sometimes undelineated papers," Judge Spatt wrote.

Will Forge Ahead

   New legal papers are already in the works, according to William Esseks, Mr. Della Femina's attorney. Mr. Esseks said yesterday he expected them to be ready to file by early next week. They will have to conform to very specific instructions detailed in Judge Spatt's decision.

   He was not considering dropping the suits, Mr. Della Femina said yesterday. "They owe me money for my legal fees," he said.

   Mr. Della Femina has lodged two Federal suits against East Hampton Village. One challenges the constitutionality of its sign law, which prohibits advertising outside an establishment without a Design Review Board permit. The village contended unsuccessfully in local court that the pumpkin display constituted such advertising.

Jury Trial?

   In that suit he is joined by Della Femina's Red Horse Food Co., Bernhard G. Kiembock, the owner of Village Hardware, The East Hampton Independent News Company Inc., and Dan's Papers Inc.

   The second, a civil rights suit, pursued solely by Mr. Della Femina, seeks half a million dollars in damages for what the Manhattan ad man, local entrepreneur, and unsuccessful Village Board candidate claims was a false arrest and malicious prosecution. He has asked for a jury to decide his case.

   After being accused of 27 violations of the village zoning code for a pumpkin display in front of Jerry and David's Red Horse Market in October 1993, Mr. Della Femina and his partner in the Red Horse Market, David Silver, were arrested, handcuffed, and eventually prosecuted for the alleged violations.

First, The Federal

   Retired East Hampton Town Justice James R. Ketcham dismissed 23 of those charges, and the remaining four were thrown out by Southampton Town Justice Edward Burke after a change of venue.

   Mr. Silver is a former alternate member of the Village Zoning Board of Appeals. He was not reappointed in July 1995, Mayor Paul F. Rickenbach Jr. said at the time, because of his business relationship with Mr. Della Femina. Mr. Silver is not a party to the lawsuits.

   A separate case brought by Mr. Della Femina in State Supreme Court was discontinued in February of 1995, so that Mr. Della Femina and Mr. Esseks, of the Water Mill and Riverhead firm Esseks, Hefter & Angel, could concentrate on the Federal suits.

   Both Federal cases are being reviewed by Judge Spatt together, since his decision on the question of the sign law's constitutionality may decide the outcome of the civil rights suit.

   Arguments and affidavits crossing over from one legal motion to another seem to be what confused the judge. Nearly four pages of his 10-page decision are spent reviewing the history of the various motions made by both sides.

   "At this point this tangled procedural morass gets worse," Judge Spatt wrote at one point, before continuing his history of the cases' paperwork.

   "The parties have intermingled the papers and the arguments presented in their respective motions to a degree that undermines the clarity of the issues and frustrates resolution by the court," he wrote.

Not Over Yet

   "[T]he court will not exhaust any additional time or resources to attempt to discern the arguments in support of and in opposition to the issues presented in the various motions," Judge Spatt concluded. "In this Court's view, this burden should be borne by the parties."

   Mr. Esseks stressed yesterday that Judge Spatt's decision last week did not dismiss the suits themselves. "He's saying resubmit the papers," Mr. Esseks said, adding that they will be "the same papers, just put in different piles."

   Mr. Esseks also said the confusing paperwork was an "indication of the conduct of the attorney representing the village," Jeannine Bloomhall of the East Meadow firm Ciovacco & Campanella, who through her secretary yesterday said she would not speak to the news media on the matter. The judge's written decision seems to indicate he felt the confusion was both parties' fault, however.

   Johanna Caleca, the village attorney, declined to comment as well, citing pending litigation.

Village Stands Firm

   In a related issue, Mr. Esseks said yesterday that he and his client "still haven't gotten" transcripts of executive sessions in which board members discussed Mr. Della Femina. A Federal magistrate in June ordered the Village Board to turn them over.

   "I think they'll be coming in due time," Mr. Esseks added, however. "No one's going to resist this judge." The village has appealed the magistrate's ruling, and that matter is still pending as well.

   And is the village considering rewording its sign law, in light of Mr. Della Femina's lawsuits? No, according to Ms. Caleca, who did say yesterday, "We have reviewed it. At this point, we don't see anything glaring that needs to be amended."

   Mr. Esseks thinks the village should change it, however. "I've told them that before, in 1993, in 1994, in 1995," he said.

   When he dismissed the remaining charges against Messrs. Della Femina and Silver in December 1994, Justice Burke agreed. The village's sign law was lacking in "definition and standards" to such an extent that it was "subject to discriminatory enforcement," Justice Burke wrote in his ruling.

   Mr. Della Femina has claimed all along that he was singled out as an example. "There's been no other instance of anyone being prosecuted for vegetables," Mr. Esseks offered yesterday.

Not Again!

   An autumn display of pumpkins set up in front of the Red Horse Market last Thursday, when Judge Spatt's decision was dated, was pure "coincidence," Mr. Della Femina said.

   "I've had a display of pumpkins every year since that year," Mr. Della Femina said yesterday, acknowledging that he had not asked for permits, nor had he been charged with violating the zoning code.