Town Fights Mechanic’s Claim

Oral arguments are expected on Tuesday in United States District Court in Central Islip on a motion to dismiss a $40 million federal lawsuit against the Town of East Hampton and 10 town officials. The suit was brought two years ago by Tom Ferreira, a Montauk mechanic, whose property at 63 Navy Road in Montauk was cleared of vehicles and equipment on two occasions in 2009 in what his attorneys claim were illegal raids.

In April, the town’s attorneys asked the court for summary judgment, which would effectively have ended the matter. Thomas Horn and Lawrence Kelly, Mr. Ferreira’s Sag Harbor attorneys, submitted a 50-page brief earlier this summer to Justice Joseph F. Bianco, which they say includes new information that substantiates their claim that Mr. Ferreira was deprived of his right to judicial process. They want the case go to trial.

In addition to John Jilnicki, the chief town attorney at the time who is still in the attorney’s office, and then-Supervisor William McGintee, the Ferreira suit names Thomas Grenci, an East Hampton Town police lieutenant still with the department, a former assistant town attorney, Madeleine Narvilis, Dominic Schirripa and Kenneth Glogg, former code enforcement inspectors, and four members of the town board at the time. The allegations particularly focus on Ms. Narvilis, who left East Hampton Town government in 2010.

Citing documents that came to light after an administrative change at Town Hall and during the discovery process, Mr. Ferreira’s attorneys claim they can prove that a conspiracy took place to force Mr. Ferreira’s auto repair business off his Fort Pond Bay property. They allege that Ms. Navrilis, an assistant town attorney, and other officils created false documents and forged a fire marshal’s signature, in order to conceal the conspiracy from a State Supreme Court justice, the public, and other town officials.

Mark Radi, an attorney with Sokoloff Stern in Carle Place who is representing Mr. McGintee and three former members of the town board, said in an email this week that the “allegations of conspiracy are completely speculative and not supported by any evidence.” He wrote that “Mr. Ferreira was operating a junkyard without a permit,” and said he had pleaded guilty to violations of local law in East Hampton Town Justice Court. Mr. Radi further claimed that Mr.Ferreira’s attorneys had “produced no evidence demonstrating that anybody falsified or forged documents.”

In their motion to dismiss the suit, the defendants’ attorneys claimed their clients are protected by “qualified immunity.” Such immunity is granted government officials unless the facts are so stark that no reasonable actor could have thought the actions legitimate. Mr. Ferreira’s team contends that junior town employees refused to participate in what they considered unconstitutional enforcement.

The story goes back to May of 2009, when Mr. Ferreira was in East Hampton Town Justice Court facing charges that he was operating a business in an area zoned for residences. The mechanic claimed that he had a pre-existing, nonconforming right to pursue his business, Automotive Solutions.

Mr. Ferreira’s lawyers say calls from real estate interests and other citizens had influenced the town to close him down, and that they did so by subverting judicial process. Once in June and again in September 2009, in the presence of East Hampton Town police, but without a warrant, the tools of Mr. Ferreira’s trade were seized. He was charged a total of $19,700 to pay the independent contractor that removed the cars and equipment. When he could not come up with the money, a lien was placed on his property.

Mr. Ferreira’s attorneys allege that the town originally intended to nullify Mr. Ferreira’s pre-existing, nonconforming defense. But after that was found to be legitimate, officials changed tactics, claiming that Mr. Ferreira’s business was a threat to health and safety.

Mr. Ferreira’s attorneys also allege that town officials knew their client’s business did not pose a health and safety threat. They assert that the town acted via an illegal bill of attainder, that is, punishment through legislative rather than judicial process.

Mr. Radi, on the other hand, stated that “the town acted as the guardian of the public’s health and safety, as the law permits.”

Mr. Horn said “the town had developed over time a court procedure, perpetuated by attorney’s office, in which a person would have to ‘fix’ a condition they are accused of creating prior to getting a trial.” He said this continues to this day.

According to Mr. Ferreira’s attorneys, a coverup followed after James Dunlop, a town fire marshal who inspected the property on May 15, 2009, filed a report stating that he found no problems except for an expired fire extinguisher. The report praised Mr. Ferreira for attention to the “fire safety in your place of business.”

According to Mr. Ferreira’s attorneys, Mr. Dunlop’s report was withheld from the mechanic, who received what they allege was a doctored report on the afternoon of June 18, the same day the town board passed a resolution to remove the cars and equipment.

According to Mr. Ferreira’s lawyers, the report was altered to include language qualifying Mr. Dunlop’s thumbs up. Furthermore, they allege that documents submitted to the town board contained a signature that Mr. Dunlop has told them is not his. In a paragraph added to the report, the attorneys allege that Mr. Dunlop’s responsibility was shifted to the Code Enforcement Department, apparently to further the health and safety rationale.

Neither Mr. Ferreira nor his then attorney, Austin Manghan, knew the matter would be on the town board’s agenda that day.

In the brief filed with the court, the attorneys say they uncovered a paper trail that includes a letter, sent on June 10, from Ms. Narvilis to Mr. Ferreira, giving him 10 days to clear his property of dangerous material. According to the attorneys, the letter stated that the town board had decided to take action.

The attorneys go further to allege that Ms. Narvilis realized her June 10 warning letter was a problem because the town board had not yet formally resolved to have Mr. Ferreira’s property cleared. They therefore allege that the letter was a falsified government instrument. Falsifying a government document would be a potential felony.

Mr. Ferreira’s lawyers say the letter might have gone unnoticed except that Mr. Ferreira’s attorney at the time planned to go to Suffolk Supreme Court to obtain a temporary restraining order to stop the removal of the cars and equipment. Mr. Horn said Ms. Narvilis would then have been expected to appear in court to defend the order, and her June 10 letter. Instead, Mr. Horn alleges, she was able to have the hearing on a restraining order delayed. The town had the property cleared the following week.

John Shields and Anne Leahey of Devitt Spellman Barrett, a Smithtown firm, are the attorneys representing Mr. Jilnicki, Ms. Narvilis, Mr. Grenci, Mr. Schirrippa, and Mr. Glogg. Pat Mansir, a town councilwoman at the time, has independent counsel.