A federal judge has dismissed two of three claims in a lawsuit brought by the owner of a Locust Valley tobacco shop against the Oyster Bay Town planning department but allowed the most important property rights issue to proceed to trial.
Judge Joseph Bianco in U.S. District Court in Central Islip ruled last week in a case brought by the owner of Locust Valley Tobacco, which the town shut down two years ago after declaring its building dangerous.
The suit charged planning Commissioner Frederick Ippolito, his assistant Diana Aquiar and inspector Joseph Ciambra with depriving owner Tarik Ahmed and employee Timothy Lester of their property rights under the 14th Amendment.
The town moved to dismiss, saying that the plaintiffs had availed themselves of a legal remedy through the state courts, that Lester lacked legal standing and that the plaintiffs had no guaranteed right to continue operating the store in violation of the building code.
Bianco agreed that Lester, as an employee, had no standing and agreed with the town on the state court procedural issue. But on the property rights issue, he said the owner had "adequately stated a substantive due process claim."
The judge outlined the history of the store at 99 Forest Ave. that sells newspapers, stationery, and prepackaged snacks and drinks. In April 2012, Ahmed bought but never opened an electric griddle and other food preparation equipment. That month, Ciambra told him that preparing food would violate the zoning.
Ahmed removed the items, but Ciambra still issued a notice of violations, and the town filed criminal charges in district court in May 2012. In July 2012, the plaintiffs asked for a hearing before the town board to challenge the planning department's notice of dangerous premises, as stipulated under town code, but the town never scheduled a hearing. The next month, Ahmed and Lester sued in State Supreme Court, and the judge allowed the store to reopen then.
Ahmed's attorney, Michael Sordi of Northport, said "for two years now, my client has suffered emotionally, financially and physically as a result of actions we believe have been unjustified and outrageous."
Town spokeswoman Marta Kane said "that on a motion to dismiss, the court is obligated to accept the statements made by the plaintiffs as fact. The town is confident that once the court hears all the evidence -- including the substandard electrical system that was set up to run commercial-grade food preparation and storage equipment with 70-year-old wiring -- the town will prevail."