TOWN OF HUNTINGTON v. ALBICOCCO (1998)

In an action for a permanent injunction prohibiting the defendants from operating an adult entertainment cabaret within the Town of Huntington, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered July 14, 1997, which, after a nonjury trial, is in favor of the defendants and against it dismissing the complaint.

ORDERED that the order and judgment is modified by deleting the fifth, sixth, and ninth decretal paragraphs thereof and substituting therefore provisions awarding judgment to the plaintiff on its third and fourth causes of action in the complaint and enjoining the defendants from operating the premises until they comply with the provisions of the Code of the Town of Huntington requiring permits for certain signage and a certificate of permitted use;  as so modified, the judgment is affirmed, without costs or disbursements.

The Town of Huntington (hereinafter the Town) established by clear and convincing evidence that the subject premises lacked the proper permits for certain exterior signs and in addition lacked a certificate of permitted use in violation of the Huntington Town Code (see, Code of Town of Huntington §§ 198–98A, 198–119, and 198–120).   Thus, the Town was entitled to enjoin the continuous violation of its duly-enacted zoning ordinance (see, Town of E. Hampton v. Buffa, 157 A.D.2d 714, 549 N.Y.S.2d 813).   Additionally, the Town further established that the defendants were operating the subject premises without a public assembly permit in violation of the Code of the Town of Huntington § 111–306.

The Town's remaining contentions, including those regarding alleged errors by the trial court, are either unpreserved for appellate review, without merit, or constitute harmless error.

MEMORANDUM BY THE COURT.