Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 1 of 37 1 Pages

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - x CHARLES MELCHNER and LILLIAN MELCHNER, Case No. 13CV8164KPF COMPLAINT Plaintiffs, PLAINTIFFS DEMAND A TRIAL BY JURY - against THE TOWN OF CARMEL, FRANK DELCAMPO, CONNIE MUNDAY, KENNETH SCHMITT, NORMAN MARINO, CARMINE DIBATTISTA, FRANK LOMBARDI, RICHARD OKEEFE, SUSAN McDONOUGH, ROBERT RAVALLO, DORIS STAHL, MICHAEL CARNAZZA, JAMES MAXWELL, WILLIAM B. SPAIN, JR., ESQ. and CHARLES COMPTON SPAIN, ESQ. Defendants. - - - - - - - - - - - - - - - - - - x Plaintiffs, Charles Melchner and Lillian Melchner, by their attorneys, The Law Offices of Daniel W. Isaacs, PLLC, complaining of the defendants, The Town of Carmel, Frank Delcampo, Connie Munday, Kenneth Schmitt, Norman Marino, Carmine DiBattista, Frank Lombardi, Richard OKeefe, Susan McDonough, Robert Ravallo, Doris Stahl, Michael Carnazza, James Maxwell, William B. Spain, Jr., Esq. and Charles Compton Spain, Esq., allege as follows: NATURE OF THE ACTION 1. This action is brought to recover for the violation of

plaintiffs civil and property rights, their right to free speech, equal protection, due process, just compensation for the taking of

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 2 of 37 property and, the tortuous interference with business, abuse of
process, selective enforcement of laws, breach of contract and intentional infliction of emotional distress committed by the defendants during a fifteen year campaign by the Town of Carmel, its elected officials and certain private citizens, acting in concert in a continuous series of discriminatory acts, to punish plaintiffs and drive them out of business by maliciously and repeatedly initiating frivolous, unnecessary and extraordinarily costly civil lawsuits and criminal prosecutions that they knew were without merit. Defendants engaged in said conduct in retaliation for plaintiff Charles Melchners support of political candidates not supported by defendants and the Putnam County Conservative Party and, in an attempt to impermissibly restrict public access to Lake Mahopac by forcing plaintiffs out of business. 2. This action seeks damages brought pursuant to

the United States Constitution and 42 U.S.C. Section 1983 to redress Defendants intentional violation of Plaintiffs constitutional rights to free speech, due process, equal protection of law and just compensation for the taking of property under the First, Fifth and Fourteenth Amendments to the United States Constitution as well as various state law claims.

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Case 1:13-cv-08164-KPF Document 1

JURISDICTION 3.

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This Court has jurisdiction over this action

pursuant to 28 U.S.C. Sections 1331 (federal question jurisdiction) and 1343(a)(civil rights jurisdiction) because this action is filed to obtain relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the United States Constitution and federal law pursuant to 42 U.S.C. Section 1983. 4. This Court also has supplemental jurisdiction

over plaintiffs state law claims pursuant to 28 U.S.C. Section 1367. VENUE 5. As the acts complained of occurred in the County

of Putnam, venue is proper in the District pursuant to 28 U.S.C. Section 1391(b). THE PARTIES 6. That at all times hereinafter mentioned the

plaintiffs, Charles Melchner and Lillian Melchner (hereinafter collectively the Melchners) were and still are residents of The Town of Carmel, County of Putnam, State of New York. 7. That at all times hereinafter mentioned the

defendant, The Town of Carmel (hereinafter Carmel), is a municipal entity duly organized and existing under the

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Case 1:13-cv-08164-KPF Document 1 laws of the State of New York.

8.

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That at all times hereinafter mentioned the

defendant, Frank Delcampo (hereinafter Delcampo), was Carmels Supervisor and a member of the Town Board between 1996 and 2003. 9. That at all times hereinafter mentioned the

defendant, Connie Munday (hereinafter Munday), was Carmels Supervisor and a member of the Town Board between 2006 and 2007. 10. That at all times hereinafter mentioned the

defendant, Kenneth Schmitt (hereinafter Schmitt), was Carmels Supervisor and a member of the Town Board from 2008 to the present. 11. That at all times hereinafter mentioned the

defendant, Norman Marino (hereinafter Marino), was a member of the Town Board between 1997 and 2005. 12. That at all times hereinafter mentioned the

defendant, Carmine Dibattista (hereinafter Dibattista), was a member of the Town Board between 2006 and 2009. 13. That at all times hereinafter mentioned the

defendant, Frank Lombardi (hereinafter Lombardi), was a member of the Town Board from 2010 to the present. 14. That at all times hereinafter mentioned the

defendant, Richard OKeefe (hereinafter OKeefe), was a member of the Town Board between 2006 and 2009.

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 5 of 37 15. That at all times hereinafter mentioned the
defendant, Susan McDonough (hereinafter McDonough), was a member of the Town Board from 2010 to the present. 16. That at all times hereinafter mentioned the

defendant, Robert Ravallo (hereinafter Ravallo), was a member of the Town Board between 1988 and 2011. 17. That at all times hereinafter mentioned the

defendant, Doris Stahl (hereinafter Stahl), was a member of the Town Board between 2000 and 2003. 18. That at all times hereinafter mentioned the

defendant, Michael Carnazza (hereinafter Carnazza), was employed as the Director of Code Enforcement for Carmel. 19. That at all times hereinafter mentioned the

defendant, James Maxwell (hereinafter Maxwell) was the Chairman of the Putnam County Conservative Party. 20. That at all times hereinafter mentioned the

defendant, William B. Spain, Jr., Esq. (hereinafter William Spain) was a local attorney who had previously served as Carmels Town Attorney, the Putnam County Attorney and Carmels Zoning Board Chairman. 21. That all times hereinafter mentioned the

defendant, Charles Compton Spain, Esq. (hereinafter Compton Spain) was William Spains law partner and the Vice Chairman of the Putnam County Conservative Party.

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Case 1:13-cv-08164-KPF Document 1

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FACTUAL ALLEGATIONS LAKE MAHOPAC 22. Lake Mahopac is an inland lake comprising approximately It was originally

583 acres with a shore length of 3.8 miles.

part of the Philipse Manor Crown Grant that was forfeited to the State of New York during the American Revolution. The State

thereafter retained title to the bed of the Lake and the waters therein until 1877, when the State conveyed title to Lake Mahopac to the City of New York for purposes of water supply. The City

maintained title to the bed and waters of the Lake until April 27, 1961, when the Citys Board of Estimate abandoned Lake Mahopac as part of its water supply system, and by deed dated July 5, 1961, conveyed title to Lake Mahopac back to the State of New York. The State of New York has held title to Lake

Mahopac since that time. 23. As early as 1966, the State maintained and Carmel

acknowledged that the State held title to the lands underneath the waters of Lake Mahopac. On February 17, 1966, Carmel Town Attorney

Milton E. Lacina petitioned the State to acquire title to land adjacent to the Lakes outlet that governed the Lakes water level since the State was the owner of the waters of the Lake and the lands thereunder. In response, the Office of the Attorney General

stated that mere ownership by the State, in such proprietary capacity, of the water and land under the water of Lake Mahopac,

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 7 of 37 did not confer authority to regulate the level of the water
involved. 24. Thereafter, by letter dated January 11, 1968 to

New York State Conservation Commissioner R. Stewart Kilborne, Carmel Supervisor William C. Mathers petitioned the State to transfer title to Lake Mahopac to Carmel in order to permit the Town to implement appropriate controls and regulations and govern activity and construction on the lake. response, DEC Deputy Commissioner Benjamin Frank advised Commissioner Kilborne that it was their opinion that these problems could be regulated by Carmel, under the law at the time or by the introduction of legislation authorizing Carmel to act, reserving title to the bed of the lake in the State. further action was taken by Carmel to either assume jurisdiction over Lake Mahopac or to enact any local laws or regulations to establish town control over the lake. 25. On August 22, 1983, the Office of General No In

Services (hereinafter OGS), responded to an informational request by the defendant, William Spain, seeking an informal opinion as to whether the State could grant to Carmel the lands under the waters of Lake Mahopac pursuant to Public Lands Law Section 75 for the establishment of a park district to maintain control over the lake. Lawrence F. Kinney, Chief of the Bureau

of Land Management of the OGS, confirmed the States ownership of the lands under Lake Mahopac and indicated that the State could

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 8 of 37 grant its interests to Carmel under Town Law Section 198 for the
formation of a park district. No action was ever taken by Carmel

to transfer the States ownership of the lands beneath the waters of Lake Mahopac to Carmel for that purpose. 26. On February 9, 1989, the State of New Yorks Department

of Environmental Conservation (hereinafter DEC) responded to an inquiry by Carmels Town Attorney, Joseph D. Cerreto, as to whether any town agency had authority to issue permits with respect to Lake Mahopac, which was owned by the State. Marc S.

Gertsman, Deputy Commissioner and General Counsel, advised that Carmel could have concurrent jurisdiction of wetlands within its boundaries; Carmel could seek approval for local regulation of wetlands through the DEC, and that, even if local regulation was approved, the DEC retained authority to review permit applications. 27. He further advised Carmel that [s]tate lands under water

are generally regulated and controlled by the Office of General Services (OGS) which has the authority to give grants, leases or easements to such lands under certain circumstances. Any land-

based activity not involving use of lands under water would continue to be regulated by the Town. No further action was taken

by Carmel to seek approval for local regulation of wetlands through the DEC. THE MELCHNERS 28. The Melchners own various properties upon which is a

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 9 of 37 commercial enterprise known as the Mahopac Marina
(hereinafter the Marina), located and having a principle place of business at 897 Route 6N, Mahopac, New York. The properties are

located on or about Route 6N in the Town of Carmel, County of Putnam and State of New York, as delineated below. The Marina

provides recreational access to Lake Mahopac as well as the selling, storing and/or repairing of boats. Plaintiffs

purchased the business in 1969, when it consisted of a boathouse containing about thirty (30) boat slips on two parallel piers that extended from a single lakefront parcel designated as Tax Lot #75.44-1-43 (hereinafter Lot 43). Although Lot 43 was located in a

residentially zoned district, the property had been used as a commercial marina before the Melchners purchased it. In 1985 they purchase Tax Lot #75.44-1-40 (hereinafter Lot 40). 29. A second marina and approximately a dozen home

owner associations and individuals were and continue to be engaged in the commercial leasing of boat slips and approximately 750 boats were located on Lake Mahopac during the relevant time period. 30. In the early 1980s Carmel issued for a fee permits to

residents and non-residents who wished to use a boat on Lake Mahopac but discontinued this practice after a year or two because it lacked the jurisdiction to do so.

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Case 1:13-cv-08164-KPF Document 1

1991 CIVIL ACTION 31.

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In 1991, Carmel filed its first civil action

against the Melchners (the 1991 Civil Action) challenging their operation of a commercial marina in a residential district. The

Melchners hired an attorney and third-partied the former owners, who in turn brought in another former owner. There was a change

in the town board and town attorney and the matter was not pursued. 32. In 1997, the Melchners purchased the adjoining lakefront

parcels designated as Tax Lots #75.44-1-41 (hereinafter Lot 41) and #75.44-1-42 (hereinafter Lot 42). In the spring of 1998,

the Melchners repaired and extended an existing pier with boat slips extending into the water from Lots 41 and 42 and repaired an existing walkway along the shoreline that connected the piers on their properties. 1998 CRIMINAL ACTION 33. In response to this activity, on June 15, 1998,

Carmel initiated its first criminal action against the Melchners (hereinafter the 1998 Criminal Action). 34. On July 7, 1998, the Melchners were accused of Specifically,

criminally violating Carmels Zoning Code.

they were accused of Thirty-Six (36) violations relating to (1) erection of the wood walkway along the shorefront of lots 40 through 42, (2) the expansion of docks on lots

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 11 of 37 39, 40, 41 and 42 and (3) the commercial use of lots 39,
40 and 41. 35. On February 20, 1999, plaintiffs responded to a

request by the OGS to submit an application for a license to use State owned land under the waters of Lake Mahopac for the purpose of the operation and maintenance of a marina. 36. On June 2, 1999, during the pendency of the

1998 Criminal Action, the Melchners applied to the Zoning Board of Appeals of Carmel (hereinafter the Zoning Board) for a determination that the Marina was a preexisting, nonconforming use or, alternatively, for use and area variances, which stayed the criminal proceedings. After several Zoning Board meetings the

Melchners withdrew their application prior to receiving a determination. 37. An amended charge, dated March 7, 2000, setting

forth eighteen (18) counts of violating various provisions of Carmel Town Code, including provisions of Carmels Zoning Ordinance (chapter 156 of the Town Code), was served and filed. 2000 CIVIL ACTION 38. While the 1998 Criminal Action was pending, by

Order to Show Cause dated July 24, 2000, Carmel commenced a second civil action (hereinafter the 2000 Civil Action) to enjoin the

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 12 of 37 Melchners from operating the Marina or engaging in any other
commercial use on lots they acquired subsequent to the original Lot 43. A preliminary injunction was issued without objection on

January 12, 2001, at which time the Court directed the Melchners to file applications for site plan approval and variances with the Zoning Board. 39. The Melchners filed a second application with

the Zoning Board on January 26, 2001. 40. On March 13, 2001 the Melchners obtained from OGS an

Amendment to their Submerged Land License authorizing the inclusion of Existing docks and slips located on Tax Lots 40 and 41 as part of a marina facility previously licensed under document LUW 00293 for a period of nine years. 41. On May 24, 2001, the Zoning Board ruled that the site

plan had to include Lots 41 and 42 and a commercial property across the street that was utilized by the Melchners as a boarding house, repair shop and boat storage property. 42. On January 10, 2002, the Zoning Board ruled that the

Melchners had not established a legal non-conforming, pre-existing use of the lakefront lots. The Zoning Board then considered the

request for use and area variances and on January 31, 2002, it voted to grant use and area variances permitting the commercial expansion of the marina with the new pier and walkway. 43. On May 1, 2002, the Melchners received from OGS

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 13 of 37 a Submerged Land License for the operation and
maintenance of an existing marina with sixty-four rental slips, two service/transient slips and five moorings for term of ten years from the date of the Commissioners approval. 44. Notwithstanding the Zoning Boards decision and a

Submerged Land Lease the 1998 Criminal Action went to a jury trial before Judge Joseph Spofford in Carmel on October 8, 2002. 45. During the course of the trial Judge Spofford,

who was the jogging partner of defendant William Spain and ran with support of the Conservative Party, inexplicably denied the introduction into evidence of the Submerged Land License issued by the OGS. 46. On October 11, 2002, Lillian Melchner was

acquitted of all eighteen (18) counts and Charles Melchner was convicted of three (3) violations of the Town Code for (1) nonresidential use of Lot 40; (2) failure to obtain site plan approval for the walkway on Lot 41, and (3) failure to obtain a building permit for the walkway on Lot 41. The Melchners were found not to

have violated the Town Code relating to their alleged commercial use or expansion of the docks appurtenant to Lots 39, 40, 41 or 42. 47. On November 8, 2002, Friends of Lake Mahopac, an

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 14 of 37 unincorporated association of residents who resided in and around
Lake Mahopac, together with, inter alia, defendants William Spain and Maxwell, commenced a proceeding pursuant to CPLR article 78, seeking to annul the Zoning Boards determination granting use and area variances. The Attorney of Record was Spain & Spain,

P.C., the law firm of defendants William Spain and Compton Spain. 48. On January 27, 2003 Judge Spofford imposed

fines in the sums of $52,000, $51,000 and $51,000, respectively, for these counts, totaling $154,000.00, which represented the legal fees paid to a special town counsel for prosecuting the 1998 Criminal Action. Appeal was taken. 49. On April 22, 2003, the Supreme Court granted An

the petition and annulled the Zoning Boards determination, finding that the Melchners failed to show that their alleged hardship was not self-created. On appeal to the Appellate Division Second Department the judgment was affirmed. 2003 CRIMINAL ACTION 50. On August 8, 2003, Carmel filed a second criminal action

charging the Melchners with nine (9) violations of the Town Code related to their use of Lots 40 and 41 (hereinafter the 2003 Criminal Action). At that arraignment the Melchners objected to

the continued participation of Judge Spofford and on December 23,

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 15 of 37 2003, both Judge Spofford and Judge Reitz of the Town of Carmel
Justice Court recused themselves from further participation in the criminal matter citing the appearance of impropriety and by Decision and Order dated February 4, 2004, this matter was administratively transferred to the Justice Court of the Town of Southeast. 51. On July 1, 2004, the Appellate Term vacated Charlie

Melchners conviction of the 1998 criminal actions violation of Zoning Code Section 63-9 (commercial use of Lot 40) as that count was jurisdictionally defective and modified the January 27, 2003 sentence imposed by Judge Spofford to the extent that it reduced the fines for the remaining two violations from the sums of $51,000 each to $250 each, on the ground that each of the two counts in the accusatory instrument charged, a single violation, not a continuing violation. 2006 CIVIL ACTION 52. On January 27, 2006, Carmel commenced a third

civil action to enjoin the Melchners commercial use of Lots 41 and 42 (hereinafter the 2006 Civil Action). 53. On August 23, 2006, the OGS responded to an

informational request by the Melchners attorney, Michael Sirignano, Esq., confirming that the State of New York retained exclusive jurisdiction over the construction, placement, maintenance and use of the docks adjoining Lots 40 and 41 of the Melchners property. On March 6, 2007, this

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 16 of 37 letter was provided to Carmels attorney, Gregory Folchetti, Esq.
(hereinafter Folchetti), who had been retained to prosecute the 2003 criminal action. 54. Shortly thereafter, in April of 2007, settlement

discussions were entered into between the Melchners and Carmel. Folchetti incorrectly believed that Carmels jurisdiction extended twenty-five (25) feet from the shoreline into Lake Mahopac when in fact its jurisdiction stopped at the shoreline. He related that

incorrect belief to Melchner, and conceded that Carmel lacked jurisdiction to enforce its Zoning Code beyond twenty-five (25) into the lake. The parties subsequently agreed that Plaintiffs

could build any dock they wanted with impugnity from Carmel provided (1) that the dock was more than twenty-five (25) feet from the shoreline and (2) the dock was not attached to any preexisting docks that were attached to the shoreline. In

reliance upon that representation from Folchetti, the parties fashioned a settlement intended to bring this longstanding dispute to a close to the satisfaction of all parties. 55. Prior to its entry, the Town Board was provided with the

specific provisions of the settlement, and by unanimous vote agreed to accept the stipulation in full satisfaction of the pending 2003 Criminal and 2006 Civil Actions and on April 20, 2007, the Melchners appeared with counsel before Judge Richard Vercollone of the Town of Southeast Justice Court. While present

with Folchetti and prior to the entry of a settlement, the

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 17 of 37 specifics of the settlement were discussed. Folchetti again
acknowledged that Carmels jurisdiction into the lake did not extend beyond twenty-five (25) feet. Charles

Melchner produced a diagram showing a reconfigured dock, which contained a lateral dock running parallel to the shoreline thirty-five feet off the shoreline, and additional docks extending from the lateral dock into the lake. All parties agreed that the reconfigured dock

would be legal and would not violate the Town zoning code, provided it did not connect to the pre-existing dock appurtenant to Lot 43. 56. Thereafter, in reliance thereon, under extreme

duress (both financially and emotionally) and in an effort to conclude the financially crippling litigation Charles Melchner entered a plea of guilty to one count contained in the criminal information, to wit: failure to seek site plan approval for repairs to the pre-existing wood walkway on lot 40. The sentence took the form of a

stipulation, which required that plaintiffs would remove all boat slips on lots 40 and 41 and, the payment of a $35,000.00 fine. In return, Carmel agreed to terminate

the criminal and civil proceedings. 57. On April 21, 2007, one day after the entry of

the stipulation, the Melchners began removing the boat slips on lots 40 through 42, and began constructing the

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 18 of 37 reconfigured docks that would move the slips that were on
lots 40 through 42 beyond thirty-five feet (35) into the lake, therefore removing them beyond the agreed-upon jurisdiction of Carmel. This reconfiguration was

discussed in detail with Carmels attorney and agreed to by all parties. 58. More importantly, the newly reconfigured docks

were not attached to the pre-existing docks located on lot 43 and the Melchners complied in all respects with every term of the stipulation entered into before Judge Vercollone on April 20, 2007. 59. Plaintiffs also notified the OGS regarding the

reconfiguration of the docks, and received permission from OGS to build the newly reconfigured docks. 60. By letter dated May 30, 2008, Anthony R. Mole,

Carmels Special Counsel, requested an informal opinion as to whether the State of New York had exclusive jurisdiction over permitting construction and placement of floating docks within Lake Mahopac; if the State did not maintain such exclusive jurisdiction then did Carmel have jurisdiction to regulate and enforce the extension of docks into Lake Mahopac that were within twenty-five (25) feet of the high water mark; if so could Carmel prohibit the extension of docks into Lake Mahopac beyond twenty-five (25) of the high water-mark; and, was a dock

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 19 of 37 that is positioned beyond twenty-five (25) of the high-water mark,
and which was not structurally connected to a dock or other structure that extends from the high-water mark within the jurisdiction of Carmel. 61. The New York State Attorney Generals Office responded

by providing Mr. Mole with copies of OGSs August 22, 1983 and DECs February 9, 1989 opinion letters. 2008 CRIMINAL ACTION 62. Despite Moles receipt of these letters, the fact that

the Melchners fully complied with the Stipulation agreed to by Carmel and, Folchetti advising Carmel that the April 7, 2007, Stipulation was a binding contract, on September 3, 2008, Carmel maliciously and without cause commenced a third criminal action against the Melchners (hereinafter the 2008 Criminal Action), alleging that they violated four counts of Carmels Zoning Code, which included unlawful expansion of the marina without site plan approval or a building permit in violation of sections 156-61 and 156-72 of the zoning ordinance in the Town Code, respectively, and unlawful expansion of dock structures or mooring facilities beyond those that existed on September 1, 1962, in violation of Town Code Section 55-5. 63. The Melchners were first notified via mail shortly

thereafter regarding the 2008 Criminal Action and appeared with counsel for arraignment on December 8, 2008 in the Town Court. 64. They were charged that day with four separate

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 20 of 37 allegations encompassed in a series of superceding
informations relating to two distinct properties. Specifically, with respect to the Marina property, Carmel alleged three (3) distinct violations of the Town Code, to wit: (1) a violation of section 156-72 of the Town Code entitled Building Permits for erecting dock structures within the Town of Carmel without first obtaining building permits from the Building Inspector; (2) a violation of section 156-61 of the Town Code entitled Site Plan Approval by erecting wooden docks without first obtaining site plan approval from the Planning Board; and (3) violation of section 55-5 of the Town Code entitled Boats, Waterways and Water Related Activities, Expansion of Existing Facilities by erecting wooden dock structures and attaching same to existing dock facilities on the property located at Route 6N, Mahopac, plaintiffs expanded the dock structures or mooring facilities beyond the capacity as lawfully existed on September 1, 1962. 2009 CIVIL ACTION 65. Despite Folchettis previous statement regarding the

binding terms of the April, 2007 Stipulation, by complaint dated June 30, 2009, Carmel maliciously and without cause commenced a fourth civil action seeking to enjoin the Melchners from using the reconfigured docks and from using Lots 39, 40, 41 and 42 for commercial use of the docks extending into the water from the original marina property, Lot 43 (hereinafter the 2009 Civil

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 21 of 37 Action). Said complaint set forth two causes of action: (1) that
the reconfigured docks violated the zoning ordinance in the Town Code, which Carmel could enforce by civil action pursuant to Town Law Section 268 and (2) that the reconfigured docks violated the terms of the April 2007 settlement. The complaint did not set

forth any alleged violation of the Uniform Building Code Act. Carmels attorney of record was Joseph A. Charbonneau, Esq. 66. By Order to Show Cause dated July 13, 2009, Carmel moved

to preliminary enjoin the Melchners from using the subject docks and to compel their removal. Pending a hearing on the motion, the Supreme Court temporarily restrained the Melchners from using the subject docks. In support of the motion for a preliminary

injunction, Carmel submitted the affidavits of Schmitt and Carnazza, falsely attesting that the Melchners had enlarged the marina in violation of the Town Code. 67. Specifically, Carnazza averred that the Melchners were

using Lots 39, 40, 41 and 42 for commercial purposes in a residential district without a building permit, site plan approval, or proper authorization for a commercial use, and the reconfigured docks affected an impermissible enlargement, structural alteration, or extension of the prior nonconforming use on Lot 43, in violation of Town Code Section 156-47(A)(1). 68. Carmel also submitted the affidavit of William

Spain, in which he falsely averred that the Melchners had illegally expanded the marina, contributing to

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 22 of 37 overcrowding, dangerous boating conditions, and increased
garbage and noise on the lake. Aerial photographs annexed to

Spains affidavit showed the configuration of the docks on four dates from August 1989 to July 2007. 69. On July 17, 2009, Carmel served the Melchners with the On the extended return date for the

complaint and motion papers.

motion, Friday August 14, 2009, the Melchners served Carmel with their papers in opposition. However, Melchners counsel was

unable to file the papers in court that day due to the early summer closing of the clerks office. Counsel sent the papers to

the court by overnight mail and left telephone messages advising that the papers would be one day late, requesting an extension for filing to Monday, August 17, 2009. Shortly thereafter, by order

dated August 19, 2009, the Supreme Court (ORourke, J.), granted Carmels motion for a preliminary injunction as unopposed, without considering the Melchners papers. The court

enjoined the Melchners from using the subject docks and ordered their removal forthwith. 70. At the Melchners request on January 26, 2010,

this matter was added to the Calendar and conferenced with Supreme Court Justice Francis A. Nicolai, who ordered that the parties meet with the OGS to elicit the States position on the question of Carmels jurisdiction to regulate the size, location and configuration of the plaintiffs docks. 71. On February 5th, 2010, the parties met with OGS

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 23 of 37 officials, which included Thomas Pohl, its General
Counsel (hereinafter Pohl). Present were, inter alia,

defendants Schmitt and Carnazzi as well Carmels attorney, Joseph A. Charbonneau, Esq. Pohl advised the parties that Carmel lacked

authority to enforce its zoning ordinance because it had not sought enabling legislation pursuant to Navigation Law Section 46-a(2), which was the sole avenue for the enforcement of local laws concerning the construction of moorings and docks in State-owned navigable waters. 72. Following the meeting defendant Schmitt acknowledged to

the plaintiff, Charlie Melchner, that he was right with respect to Carmels lack of jurisdiction but was prevented from making any further comments by Carmels counsel. 73. On March 29, 2010, after obtaining leave of the

Supreme Court and a stay of enforcement of the Order dated August 19, 2009, the Melchners moved for leave to renew their opposition to Carmels motion for a preliminary injunction and thereupon, to deny the motion and to dismiss the complaint pursuant to CPLR Section 3211(a)(7) for failure to state a cause of action. Melchners submitted their original opposition papers and a supplemental affirmation in which their attorney recounted his attempts to file those papers with the court. The Melchners The

contended that Carmel was not entitled to a preliminary injunction because the reconfigured docks did not violate the Town Code or the April 2007 settlement.

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 24 of 37 74. Specifically, Charles Melchner averred that, during the
settlement negotiations, Carmel conceded that its jurisdiction extended only twenty-five (25) feet into the lake from the shoreline and approved a diagram of the proposed reconfigured docks, placing them in the water thirty-five (35) feet away from shore, provided that those docks were not connected to the preexisting docks on Lot 43. Charles Melchner further averred

that he did not attach the reconfigured docks to the docks on Lot 43, and he obtained permission for the reconfigured docks from OGS. 75. In addition, the Melchners submitted the ten-year

submerged land license issued by the OGS and the concurrent, nine-year amendment to that license granting the Melchners permission to use and occupy State-owned submerged land for the purpose of operating their marina on the original site and as expanded by the docks on Tax Lots 40 and 41. 76. The Melchners further contended that, as was

made clear during the February 5th, 2010 meeting and subsequently acknowledge by defendant Schmitt, because Carmel lacked authority to enforce its zoning ordinance, the preliminary injunction had to be vacated and the complaint dismissed. 77. In opposition, Carmel conceded timely receipt of the

Melchners original papers in opposition to its motion for a preliminary injunction and did not object to the courts consideration of those papers or of the Melchners new argument in

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 25 of 37 support of dismissing the complaint pursuant to CPLR Section 3211.
Carmel conceded that Lake Mahopac fell within the definition of navigable waters under Navigation Law Section 2(4), and that Carmel was not designated under Navigation Law Section 46-a(2)as one of the localities authorized to regulate the construction and location of moorings and docks in navigable waters. Nevertheless, Carmel

contended that the Navigation Law did not confer exclusive jurisdiction upon the State to regulate navigable waters. 78. For the first time in nearly twelve (12) years

since the commencement of its first litigation against the Melchners, Carmel raised the argument that it had the authority to regulate the construction of docks in Lake Mahopac pursuant to the Uniform Building Code Act. contended that the Executive Law required all municipalities to enforce the Uniform Building Code Act, which regulates building construction and safety, while the Navigation Law regulates navigation. Carmel It

further argued that the construction of docks was more logically regulated by the Uniform Building Code Act rather than pursuant to an expansive reading of the Navigation Law. 79. However, Carmel did not identify any

particular code provision that allegedly was violated

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 26 of 37 (the Melchners have never been accused of violating any
provision of the Uniform Fire Prevention and Building Code Act). Indeed, the docks in dispute did not have any

electrical components; were water-level open-air structures with no roof, ceiling, walls, entrances, exits, stairs, windows, doorways, closed spaces or confined spaces; were made entirely of DEC approved wood; were secured to the bottom of Lake Mahopac by concrete footings with metal posts; no building inspector had ever inspected the docks for Fire and Building Code violations, nor questioned the Melchners regarding Fire and Building Code provisions, and had never sought compliance with any fire code regulation adopted by Carmel. 80. By order dated July 21, 2010, the Supreme

Court (Nicolai, J.), in effect, upon renewal and consideration of the Melchners opposition papers, adhered to the prior determination granting Carmels motion for a preliminary injunction. The court also

denied that branch of the Melchners motion that was pursuant to CPLR Section 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The

Court reasoned that the Navigation Law governs only the navigation of vessels and use of waterways, over which Carmel has no jurisdiction. However, the Court found

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 27 of 37 that Carmel had the authority to regulate the
construction of docks and slips pursuant to the Uniform Building Code and the Executive Law. 81. The Melchners appealed the Courts ruling to

the Appellate Division Second Department contending, inter alia, that Carmel had been aware for decades that it lacked jurisdiction over the lands beneath the waters of Lake Mahopac, which were owned and regulated by the State of New York, nor had it sought permission to regulate the construction and locations of docks thereon. 82. In opposition, Carmel argued that Executive

Law Section 373 conferred jurisdiction upon Carmel to regulate construction of docks and slips in the navigable waters of Lake Mahopac pursuant to the Uniform Fire Prevention and Building Code. 83. On May 6, 2011 defendant William Spain wrote a

letter to New York State Senator Greg Ball complaining that the OGS would move the Appellate Division, Second Department for permission to file an Amicus Curiae brief on behalf of the Plaintiffs. Said defendant falsely

claimed that the OGS summoned the attorneys and defendant Schmitt to Albany on February 5th, 2010 after demanding a a meeting (when in fact he knew that said meeting had been ordered by the Court) and that the OGSs support of

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 28 of 37 the Melchners was due to improper political influence
that was exerted, accepted and acted upon. 84. Oral argument was held on January 13, 2012,

during which Carmels attorney conceded that the Town lacked the jurisdiction to regulate the construction and location of docks in accordance with Navigation Law Section 46-a(2) and, selectively enforced the Towns zoning law against the Melchners. He further

acknowledged that Carmel purposefully did not seek jurisdiction to regulate all the docks in Lake Mahopac because it did not have the resources or personnel to do so. 85. In a Decision and Order issued February 27,

2013, the Appellate Division Second Department concluded that Carmel was not entitled to a preliminary injunction because it failed to establish a likelihood of ultimate success on the merits, and that its first cause of action should have been dismissed pursuant to CPLR Section 3211(a)(7) because it failed to state a cause of action pursuant to the Uniform Building Code Act or the Towns Zoning Ordinance and where, as in the instant matter, the State owns a navigable body of water and the submerged land beneath that water, the State has exclusive authority to regulate construction on that submerged land absent a delegation of that authority to a municipality.

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 29 of 37 86. Thus, despite multiple criminal and civil actions
spanning over a period of fifteen years the Melchners were never convicted of any zoning code violation relating to the existence, creation or expansion of any docks in the waters appurtenant to their property. 87. Both the 2008 Criminal Action and 2009 Civil Action are

still pending and Defendants have not resumed prosecution of either case following the February 27, 2013 Decision nor filed dismissals for fear of creating a prima facie case of malicious prosecution. 88. Although Carmel and the individual defendants, both

town officials and private citizens, knew that the Town did not have jurisdiction over the submerged lands of Lake Mahopac and never sought permission to regulate the construction and location of docks in accordance with Navigation Law 46-a(2), they maliciously pursued an organized assault by the repeated use of frivolous court actions both criminal and civil to retaliate against the Plaintiffs for their free speech right to support political candidates of their own choosing and, in an attempt to drive the Marina out of business so as to reduce access to the lake by members of the general public. 89. Throughout the time period set forth above

defendants Maxwell and Compton Spain required that

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 30 of 37 candidates for public office who desired the support of
the Conservative Party agree to pursue the litigations against the Melchners in retaliation for Plaintiff Charles Melchners support of political candidates who they opposed (Plaintiff is a prominent member of the community who previously served as President of the Chamber of Commerce). If such a promise was not

obtained from the prospective candidate then defendants Maxwell and Compton Spain would withhold the Partys endorsement. 90. That due to the multiplicity of criminal and

civil court actions maliciously commenced by Carmel with the support of the individual defendants, Plaintiffs business was severely damaged due to their inability to utilize the docks that they were lawfully entitled to use, losing a significant number of customers who would have rented seasonal slips and used other ancillary services including but not limited to winter storage, boat purchases and repairs. 91. Plaintiffs had a cognizable property interest by virtue

of their right to use the submerged lands of Lake Mahopac pursuant to the Submerged Land License issued by OGS. 92. Plaintiffs were also intentionally treated differently

from others similarly situated as was conceded during the oral argument held in January of 2012 and there is no rational basis

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 31 of 37 to support the difference in treatment by Defendants.
WATER BILL 93. That in addition to the litigation detailed above Carmel

and the individual defendants further harassed and otherwise engaged in unlawful discriminatory acts by wrongfully billing plaintiffs for water usage despite the fact that plaintiffs advised Carmel in February of 2003 that they were no longer using Town water. 94. That despite having been notified and provided

proof that plaintiffs were no longer using Town water Carmel persisted in pursuing charges for water usage thereby requiring plaintiffs to retain counsel at great cost and expenses. AS AND FOR A FIRST CAUSE OF ACTION FOR THE VIOLATION OF PLAINTIFFS CIVIL RIGHTS 95. Plaintiffs repeat, reiterate and reallege each

and every allegation set forth in paragraphs 1 to 94 of this complaint with the same force and effect as if set forth at length herein. 96. That as a result of the illegal and improper

acts alleged, all of which were done intentionally and with deliberate and undue callous disregard of plaintiffs rights, plaintiffs were deprived of their Constitutional Rights secured under the 1st, 5th and 14th amendments of The Constitution of The United States and 42 U.S.C. Section 1983. 97. Defendants conduct was taken under color of

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 32 of 37 state law and deprived the plaintiffs of their
constitutional rights to freedom of speech, civil and property rights as guaranteed by the First, Fifth and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. Section 1983. 98. Defendants intended to violate Plaintiffs

constitutional rights, knew their actions violated the Plaintiffs rights and/or acted with reckless disregard for whether their actions violated the Plaintiffs rights. 99. Defendants acted in their official capacities

in ordering the continuous prosecution of plaintiffs for arbitrary, irrational and/or constitutionally impermissible reasons. 100. The Plaintiffs have suffered and will in the

future suffer economic loss as a result of Defendants impermissible conduct. 101. Plaintiffs have suffered and will in the

future suffer emotional distress as a result of Defendants impermissible conduct. 102. Pursuant to 42 U.S.C. Section 1983

Defendants, in their individual capacity are jointly and severally liable to the Plaintiffs for damages representing any financial losses they may suffer as well as compensatory damages for the emotional harm they

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Case 1:13-cv-08164-KPF Document 1 have suffered.

103.

Filed 11/15/13 Page 33 of 37

Since Defendants acted intentionally and in a

wanton and reckless disregard of the Plaintiffs constitutional rights, the Plaintiffs are entitled to punitive damages against Defendants jointly and severally. 104. Plaintiffs are entitled to reasonable

attorneys fees, costs and disbursements incurred in the prosecution of this action. AS AND FOR A SECOND CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH BUSINESS 105. Plaintiffs repeat, reiterate and reallege each of

and every allegation set forth in paragraphs 1 to 104

this complaint with the same force and effect as if set forth at length herein. 106. That plaintiffs had a business relationship

with members of the general public who leased dock slips and/or otherwise purchased goods and services from the Marina; Defendants knew of these relationships; Defendants intentionally interfered with these relationships by the malicious use of frivolous court actions that caused injury to the plaintiffs who were caused to lose substantial business. 107. That as a result of the foregoing, the

Plaintiffs have been damaged in the amount of Five Million ($5,000,000.00) Dollars.

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 34 of 37 AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT__________
108. Plaintiffs repeat, reiterate and reallege each

and every allegation set forth in paragraphs 1 to 107 of this complaint with the same force and effect as if set forth at length herein. 109. That the April 2007 Stipulation of Settlement

entered into between the plaintiffs and Carmel was a valid, binding and enforceable contract. 110. That the plaintiffs fully complied with the

terms and conditions of said Stipulation. 111. That Carmel breached the terms of said

Stipulation notwithstanding plaintiffs compliance by commencing the 2008 Criminal Action and 2009 Civil Action. 112. That due to Defendants breach by commencement of the

aforementioned legal actions Plaintiffs have been caused to both incur and sustain damages. 113. That as a result of the foregoing, the

Plaintiffs have been damaged in the amount of Five Million ($5,000,000.00) Dollars. AS AND FOR A FOURTH CAUSE OF ACTION FOR ABUSE OF PROCESS 114. Plaintiffs repeat, reiterate and reallege

each and every allegation set forth in paragraphs 1 to 113 of this complaint with the same force and effect as

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Case 1:13-cv-08164-KPF Document 1 if set forth at length herein.

115.

Filed 11/15/13 Page 35 of 37

That as set forth above Defendants caused the

issuance of process consisting of three criminal and four civil actions over a thirteen year period that they knew to be without merit. 116. That Defendants did so with the intent to do

harm to plaintiffs without excuse or justification. 117. That Defendants used the legal process as

aforementioned in a perverted manner to obtain a collateral objective, to wit, closure of the Plaintiffs business. 118. That as a result of the foregoing, the

Plaintiffs have been damaged in the amount of Five Million ($5,000,000.00) Dollars. AS AND FOR A FIFTH CAUSE OF ACTION FOR SELECTIVE ENFORCEMENT OF LAWS_____ 119. Plaintiffs repeat, reiterate and reallege

each and every allegation set forth in paragraphs 1 to 118 of this complaint with the same force and effect as if set forth at length herein. 120. That Plaintiffs were selectively treated as

compared to others similarly situated as Carmel did not attempt to enforce its zoning laws against any other of the dozens of docks owners on Lake Mahopac and that such enforcement was based on impermissible considerations including the punishment of Plaintiffs for exercising

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 36 of 37 their constitutional rights, maliciousness and bad faith
intended to injure plaintiffs. 121. That as a result of the foregoing, the

Plaintiffs have been damaged in the amount of Five Million ($5,000,000.00) Dollars. AS AND FOR A SIXTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 122. Plaintiffs repeat, reiterate and reallege

each and every allegation set forth in paragraphs 1 to 121 of this complaint with the same force and effect as if set forth at length herein. 123. The Defendants deliberate and malicious

campaign of harassment and intimidation as set forth above was extreme and outrageous and beyond the reasonable bounds of decency tolerated by decent society. 124. That Defendants intended to cause and/or

disregarded a substantial probability of causing severe emotional distress. 125. That there exists a causal connection between

Defendants unlawful conduct and Plaintiffs emotional distress. 126. distress. 127. That as a result of the foregoing, the That Plaintiffs have suffered severe emotional

Plaintiffs have been damaged in the amount of Five Million ($5,000,000.00) Dollars.

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Case 1:13-cv-08164-KPF Document 1 Filed 11/15/13 Page 37 of 37 PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demand judgment directing Defendants to pay Plaintiffs compensatory damages for the damages and associated expenses suffered in the sum of Five Million ($5,000,000.00) Dollars on the First Cause of Action; Five Million ($5,000,000.00) Dollars on the Second Cause of Action; Five Million ($5,000,000.00) Dollars on the Third Cause of Action; Five Million ($5,000,000.00) Dollars on the Fourth Cause of Action; Five Million ($5,000,000.00) Dollars on the Fifth Cause of Action; Five Million ($5,000,000.00) Dollars on the Sixth Cause of Action; punitive damages; and the costs of this action together with reasonable attorneys fees; such other and further relief as this Court deems necessary and proper. DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure Plaintiffs demand a trial by jury in this action. Dated: New York, New York November 15, 2013 Yours, etc., LAW OFFICES OF DANIEL W. ISAACS, PLLC By:________/s/____________________ DANIEL W. ISAACS, ESQ. (DI-5179) Attorneys for Plaintiffs 305 Broadway Suite 202 New York, New York 10007 (212) 925-3000

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