The Oyster Bay Town Board on Tuesday plans to consider approving additional legal fees for a decade-old code enforcement case that has spawned a series of state and federal lawsuits brought by a Hicksville resident who alleged he was singled out for selective prosecution because he is black.
The dispute centers on whether the house Darren Thomas, 57, a U.S. Postal Service supervisor, purchased in 2007 is a legal two-family home.
A Sept. 10 trial date has been set in Nassau First District Court in Hempstead for Thomas on misdemeanor charges issued in 2008 for violating sections of the town code that require a certificate of occupancy and a special use permit for a two-family home. Oyster Bay prosecutes alleged code violations as criminal charges.
Thomas, through his attorney Harry Kutner Jr. of Mineola, sued the town in state and federal courts alleging discrimination in part based on government documents and sworn testimony by former owners of the house that it had been a two-family home for decades. The difference between those former owners who were not prosecuted and Thomas is that the earlier owners were white, Kutner said.
“They refuse to let Mr. Thomas walk in peace and live in peace,” Kutner said. “It’s just abhorrent to the sense of human decency.”
Nassau County’s land record website lists Thomas’ property on 4th Street as “A two family dwelling constructed to accommodate year-round occupancy. Includes duplex, single owner.”
Town Attorney Joseph Nocella said in a statement Monday that the town doesn't comment on pending litigation.
The town board resolution, according to a draft posted on the town's website Monday, would authorize $25,000 to retain Garden City-based attorney Christopher Kendric to represent the town in the prosecution. Kendric has been representing the town in state and federal cases brought by Thomas. Convicting Thomas would "likely dispense with" the first federal case and shield the town from having to pay his attorney's fees, according to a 2014 letter from the town attorney's office to its insurance company. The town did not provide a total of the legal costs to date in the cases.
In 2011, Thomas sued Oyster Bay in state court to stop prosecution of the code violation case, alleging it was an unconstitutional "racially based selective prosecution." Thomas lost that case and, in 2014, appealed in state court and filed a separate civil case in federal court. In 2017 he lost his appeal, and the state Court of Appeals declined to hear a further appeal, Kutner said. In 2018 Thomas filed a separate case in federal court seeking to overturn the state ruling.
The federal lawsuits named as defendants former Oyster Bay Town Supervisor John Venditto, former planning and development commissioner Frederick Ippolito, former Town Attorney Leonard Genova, town code inspector Christopher Gioia, the judges of the district court in Nassau County, and the Town of Oyster Bay.
Many of the Oyster Bay officials named in Thomas’ lawsuits no longer work for the town: Ippolito died in federal prison serving a sentence for tax evasion; Venditto faces state corruption charges after being acquitted of federal corruption charges; and Genova resigned last year and was given immunity from prosecution in return for testifying against Venditto.
Kutner said last year he spoke with Deputy Town Supervisor Gregory Carman about ending the prosecution but nothing came of it.
“Now you’ve got a new administration that promised me they would take care of it,” Kutner said. “They have to, at some point, realize that they have statements from their own officials that this is a legal two-family house, and they have all the prior owners saying they were never prosecuted.”
Oyster Bay Councilman Anthony Macagnone said Monday in an email that he had tried to assist Thomas years ago and would recuse himself from the vote Tuesday.