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Downey Propane vs. TOW - Planning Board.... ...... . . ....... U -T -CHESS WOU"N"TY CLERK 12/15=25 ::'tkr%x N .'"2"0"2'2 511�-. A NY-SCEF DOC. NO;. 103 RECEIVED NYSCEF: 12/15/2025 Rece�ved DEC 17 2.025 To, vv n of W a p p i n g e r f F -M w P41k Q Ri . . ...... . .... . w A' bif 1, 44 M '001 ik c f h' oe im"di 4 ...... .... 1 of 2 �I .ate 5U5S9 COUNTY LES 12 X5...,.......5....... 7 20 ®� : �� � ,�":.:,� : INDEX NO. 2022-51171-` NISCEF DOC: NO. 103 RECEIVED NYSCEF: 12/15/2025 2 of 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -------------------------X DOWNEY ENERGY and NORTHEAST 90, LLC, Plaintiffs -against- TOWN OF WAPPINGER, PLANNING BOARD OF THE TOWN OF WAPPINGER, BRUCE FLOWER, RALPH MARINACCIO, ROBERT CERU, MARKOS PERATT OS; PAUL FRENO, NICHOLAS MASELLI, THE TOWN BOARD OF THE TOWN OF WAPPINGER and "JOHN DOES AND JANE DOES 1-15", Dcfendants. -------------------------------------------------....___-- -X SUPPORTING AFFIRMATION Index No. 2022.51179 Assigned Judge: Hon. Maria G. Rosa, J.S.C. DENNIS E. A. LYNCH, being duly admitted to practice law in the State of New York hereby affirms under the penalty of perjury as follows: (1) Your Affiant is the Attorney for the Plaintiffs (collectively "Downey Energy") in this Litigation and makes this Affirmation in support of the Order to Show filed herein. This Order to Show Cause Application is to request a Hearing as set forth by this Court in its Decision and Order based upon the already Court established Contempt by the Defendants (collectively the "Town Defendants") which include the Town of Wappinger (the "Town"). (2) This Affirmation is made upon documentary evidence in my possession as well as admissions made by the Town Defendants in this Litigation. This Affirmation is also made upon my personal lmowledge acquired both with my appearances regarding the Land Use Application of Downey Energy before Town Boards prior to this Litigation being filed as well as admissions by Defendant Town Representatives during this Litigation who were involved in reviewing the Downey Energy Application. 1 BASIS FOR THIS APPLICATION TO REQUEST A HEARING (3) As will be more fully set forth in this Affirmation as well as in the Affidavit of Cary Downey, the Downey Energy Representative, supplied herewith this Order to Show Cause Application, this Court found in its February 5, 2024 Decision and Order that the Town Defendants were in Contempt of this Court's directive to process Plaintiff s Application. (4) This Court directivewasthat the Town Defendants "no later than March 15, 2024, Defendants shall process Plaintiffs application pursuant to the terms of the Settlement Stipulation and applicable law" (NYSCEF Doc. No. 87, p. 3). (5) It is now coming on almost two (2) years after this Court's aforesaid Order and Decision, but Town Defendants have failed to comply with this Court's said Decision and Order. (6) Instead, by deception, denial and other delay the Town Defendants have found excuses to not follow this Court's said Decision and Order. As a result, this Application by Order to Show Cause is made since this Court also ruled in its Decision and Order that: Defendants' failure to comply (with) the So Ordered Settlement Stipulation by that date will result in a scheduling of a hearing to determine further penalty for the Defendants' contempt which may include a substantial fine for actual damages sustained by the Plaintiffs, imprisonment, or both. (NYSCEF, Doc. No. 87). (7) This Order to Show Cause Application is to request this Court to set down a date for that Hearing on the Town Defendants' continued. Contempt and for this Court to hear evidence on the substantial damages Plaintiffs'have sustained and potential imprisonment of Defendants. THE TOWN DEFENDANTS' MUNICIPAL MISCONDUCT LEADS TO THIS COUR'T'S CONTEMPT FIXDING (8) After extensive Discovery and detailed Depositions of the Town Defendants coupled with a Trial to be held in the then immediate future, the Town Defendants purportedly agreed in a written Stipulation signed by the Attorneys for all the Parties to process Plaintiff's Land Use Application in a lawful manner as set forth in that Stipulation. (9) That Stipulation of Settlement (NYSCEF Doc. No. 63) contained numerous Project Application processing provisions that were grudgingly agreed to by the Town Defendants so said Defendants' prior delay and denial to lawfully proceed with Plaintiffs Land Use Application to construct a Propane Facility (the "Project") would hopefully coxae to an end. (10) Some of the key provisions in this Stipulation of Settlement was that this Downey Energy Application would be processed in "an expeditious and efficient" manner (NYSCEF Doe. No 63, para. 4); that certain nationally recognized Fire Code'Standards would be applied by the Town, to this Application (Id. para. 5); and that Downey Energy would build as part of its Project a Reserve Water Storage Facility that will address all firefighting needs for this Project as well as other Town firefighting needs in this immediate area. (Id. para. 6). (11) Knowing that the Town Defendants could not be fully trusted with good faith in following this Stipulation of Settlement, the Plaintiff insisted that the Stipulation contain a provision.for this Court to retain jurisdiction and enforce the terms of this Stipulation: This Court shall retain jurisdiction to enforce the terms of this So -Ordered Stipulation and in the event of any breach of this So -Ordered Stipulation this Court shall have reserved all powers permitted under New York State law" (Id., para. 19 (12) This Court So Ordered that Stipulation of Settlement on September 15, 2023 (NYSCEF Doc. 64, p. 9) and the Town Defendants were to process Plaintiff's Application. (13) Before the ink on this So Ordered Stipulation of Settlement was even dry, as part of the Town Defendants deception, delay and denial of this Court's Order the Town Defendants 3 claimed that its Attorney was not authorized to sign this Stipulation of Settlement and that the Defendants would not comply with the Court Ordered Stipulation of Settlement. (14) Accordingly, the Plaintiff filed a Contempt Application against the Town Defendants and this Court found on February 5, 2024 that the Town Defendants were in Contempt of Court. (NYSCEF Doc. No. 87). A courtesy copy of this Court's Contempt Finding in its Decision and Order is annexed as Exhibit "A" to this Affirmation. (15) As earlier noted herein this Affirmation, this Court set a specific time table for the Town Defendants to comply with its Decision and Order or face the consequences at a Court directed Hearing. The Town Defendants still have not complied with this Court's. Order. CONTINUED CONTEMPT OF COURT BY THE MUNICIPAL DEFENDANTS AND THE NEED FOR A HEARING (lb) Plaintiff duly served the Contempt of Court Decision and Order on the Town Defendants. The first steps the Town Defendants did was to hire a new Town Attorney who waited until the last day possible to file a Notice of Appeal of this Court's Decision and Order. (NYSCEF Doc. No. 90). (17) As if to add jurisprudential insult to the Town Defendant's continued injury to the rights of Plaintiff, the Town's new Attorney announced in a Letter to this Court that by filing this Notice of Appeal that any need to comply with this Court's Decision and Order was negated. (18) As the Town Attorney so advised this Court, "Pleased be advised that on March 5, 2024, the undersigned appealed the Order to the Appellate Division, Second Department (the "Appeal"), staying the enforcement of the Order ...... by Judge Rosa (NYSCEF Doc. No. 91) That Town Attorney Letter is annexed as Exhibit "B". In response, by my Letter dated March 25, 2024 (attached as Exhibit "C") I asked the Town's Attorney to "confirm to me when the Statutory Stay no longer applies ....". I was never so advised by the Town Attorney. 4 (19) It was reasonably assumed that the Town Defendants directed their Town Attorney to fully proceed to perfect the Town Defendants' Appeal so that a determination of the propriety of this Court's Contempt Order and Decision could be made by the Appellate Division. (20) Instead, the Town Defendants did not proceed in good faith to perfect their Appeal. Simply stated, the Town Defendants never filed any Town Defendants' Appellate Brief nor Record of Appeal. Thus, the Town Defendants' delayed processing of the Plaintiff's Application by at least one-half of a year despite this Court's Directive. (2 1) After the time for the Town Defendants to perfect their Appeal had expired (as did any Statutory Stay in the Town Defendants following this Court's Contempt Decision and Order), your Affiant reached out to the new Attorney for the Town Defendants to see if there was any continued claire to a Statutory Stay of this Court's Decision and Order regarding processing the Plaintiff's Application. (22) Not having received any verbal response, on April 23, 2025 your Affiant wrote to the Attorney for the Town a Fetter that is attached as Exhibit "D". As noted in that Letter, I inquired if there was any other Stay that the Town Defendants were claiming and that "I have also not seen the Town Planning Board returning this matter to its Agenda for compliance with Judge Rosa's Order". (23) On May 1, 2025 the Attorney for the Town Defendants responded to your Affiant by email saying "I was out for a few days and just got caught up. I notified the Director of Planning, Barbara Roberti. I wasn't the Town Attorney when this matter occurred so we'll get up to speed as to where it left off'. I responded on the same day, "Thanks Mike. Looking forward to a response when you have one. Take care. Dennis". (24) After a quarter of a year_passed without your Affiant hearing back from the Town Attorney about processing the Downey Energy Application per this Court's Order and Decision, on August 4, 2025 I sent the attached Letter to the new Town Attorney. (See, Exhibit "E" annexed hereto). ' (25) As this Court will note from that August 4, 2025 Letter, I confirmed nay earlier efforts to have the Town Defendants process the Downey Energy Application per this Court's Order and Decision. I also advised that no word was received about processing my Client's Land Use Application and that I needed confirmation that the Town Planning Board will return my Client's Application "to its Agenda for compliance with Judge Rosa's Order". If not, I would seek the hearing that Judge Rosa provided for in her Contempt Decision and Order. (26) Rather than, commit that the Town Defendants would soon schedule this matter on the Planning Board Agenda and follow this Court's Decision and Order, the Town Attorney wrote back to me and advised inter alio, "from what I can tell, the ball is in Downey's court". (27) What followed was an exchange of ernails, but no confinf.ation by the Town Defendants that they would comply with all aspects of this Court's Decision and Order. So, on August 7, 20251 provided another Letter to the Town Attorney that is attached as Exhibit "F" In essence, I stated in this Letter that Town action, not Town talk, was needed by the Town Defendants to comply with this Court's Decision and Order. (28) What was most important in compliance with Judge Rosa's Decision and Order was not just putting my Client's matter on a Town Planning Board Agenda, but a commitment by the Town Defendants that my Client's Application would be processed pursuant to the terms of this So Ordered Stipulation. Simply stated, the Town Defendants never so committed. 0 (29) To the contrary, the Town Attorney indicated that there were new Town Engineers "so there will need to be some catch up". That is another way of saying there will be both more delay and expense to the Plaintiff's Application since the "catch up" will be another expense charged to the Plaintiff by the Town. (30) Significantly, only when I advised that I would be applying to this Court for a Hearing on the Contempt issues did on that sande day the Town Attorney advised that a date for the Planning Board Agenda was set. Yet, to confirm that the Town Defendants were just "going through the motions' to feign compliance with this Court's Decision and Order, there was no request by the Town Defendants for confirmation that Plaintiff's Land Use Professionals could even attend any such Meeting nor what action would be taken at any such Meeting. (31) To confirm the useless of the Town just announcing a Planning Board Meeting without any coordination with the Plaintiff, on August 8, 2025 1 provided the Letter attached as Exhibit "G" to the Town Attorney. As that Letter confirms, my Client would not consent to paying the Town Professionals for "catching up" on what was reviewed before by other Town Professionals. This Letter confirmed that the Town Defendants needed to unequivocally commit to follow all terms of the So Ordered Stipulation and this Court's Decision and Order, (32) That August 8, 2025 Letter concluded with your Affiant advising the Town Attorney that "I ani willing to engage in good faith settlement discussions" to resolve issues. I also advised the Town Attorney that if a lawful resolution on moving forward with my Client's Application could not be reached, then I would proceed with this. Application to this Court. I noted that "the choice is the Town's to mare" about proceeding to a Hearing or confirming this Court's Decision and Order would be complied with by the Town Defendants. 7 (33) Having received absolutely no response from the Town Defendants that they would com.mit to follow this Court's Order, after unsuccessfully waiting a considerable time for the Town Defendants to so agree, this Order to Show Cause Application for a Hearing is now being made. WHEREFORE, your Affiant respectfully requests this Court direct that a Hearing be scheduled on the Town Defendants' Contempt of this Court as this Court provided for in its Decision and Order of February 5, 2024, together with such other Od f�rther relief to the Plaintiff as is just and proper under the circumstances. DENNIS,I ,A.. LYNCH Armed on this 15' day of December 2025 EXHIBIT "All l N�SCEF DOC. Nd: 87 RECEIVED NXSCEF: 02/05/2024 SUPREME COURT OF THE STATE.OF NEW YORK COUNTY OF DUTCHESS Present: Hon. Maria G. Rosa, Justice DOWNEY ENERGY and NORTHEAST 40, LLC, -against- Plaintiffs, DECISION AND ORDER. Index No.: 2022-51174 TOWN OF WAPPINGER, PLANNING BOARD OF THE Motion Sequences: 3,4 TOWN OF WAPPINGER, BRUCE FLOWER, RALPH MARINACCIO, ROBERT CERU, MARR.OS PERATIKOS; PAUL FRENO; NICHOLAS MASELLI; THE TOWN BOARD OF THE TOWN OF WAPPINGER and "JOHN DOES AND JANE DOES I — 15,". Defendants. The following papers were read and considered on Plaintiffs' motion for contempt against Defendants regarding the So Ordered Stipulation of Settlement and Discontinuance dated September 15, 2023 (the "Settlement; Stipulation") (Motion. Sequence #3) and Defendants' cross- motion to vacate the Settlement Stipulation (Motion Sequence #4): Document: NYSCEF Doc. Nos .: ORDER TO SHOW CAUSE_ ............ ___ ..................... ........... 71 AFFIRMATION IN SUPPORT and EXHIBITS A --B ................67---69 AFFIDAVIT IN SUPPORT.........................................................70 NOTICE OF CROSS-MOTION..................................................79 - AFFIRMATION IN SUPPORT and EXHIBIT I ........... ..............80---81 REPLY AFFIRMATION and EXHIBITS A—B .......:..................82-84 REPLY AFFIDAVIT and EXHIBIT A ...... .................................. 85-86. In this action, originally commenced as a hybrid civil action and CPLR Article 78 proceeding, Plaintiffs assert claims for alleged violations of their federal and state civil rights with respect to their application to construct a propane storage facility on real property owned by Plaintiff Northeast 40, LLC at 199 Old Route 9 in the Town of Wappinger, New York, By Page 1 of 4 I of 4 N.YSCEF DOC. NO. 87 RECEIVED NYSCEF: 02/05/202- Decision 2/05/202Decision and Order dated August 10, 2022, the Court dismissed the Article 78 portion of the complaint/petition, and this action proceeded on the civil rights claims, including the filing of an amended complaint on October 21, 2022. At a conference held June 21, 2023, counsel for the parties advised that a settlement had been reached in principle. Among the settlement terms reported to the Court were that Defendants agreed to process Plaintiffs' application in a timely manner, and this litigation would be discontinued without prejudice. Counsel further advised the Court the language of the settlement agreement required the approvals of Defendants Planning Board and Town Board. By letter dated August 5, 2023, counsel for Defendants requested additional time to submit a settlement agreement, stating that "the final wording has to be approved by two municipal boards of the Town of Wappinger" which counsel would not be able to obtain "until their next meeting in September." The Court granted an extension to September 13, 2023 for the filing of settlement and discontinuance papers. On September 13, 2023, Defendants' counsel c -filed the Settlement Stipulation as executed by all counsel, and it was "so ordered" by the Court on September 15, 2023. On November 20, 2023, Plaintiffs moved by order to show cause for an order of contempt against Defendants for their alleged fail -are to comply with the Settlement Stipulation, and for an order directing such compliance. In opposition, Defendants cross -moved to vacate the Settlement Stipulation. Defendants do not contest that they have not taken any farther action on Plaintiff's application; rather, Defendants assert that the municipal boards had not approved the Settlement Stipulation prior to or following its submission to the Court, and that the stipulation is therefore void and unenforceable. To address Defendants' cross-motion first, "[ojrdinarily, ... parties to litigation are bound by their lawyers' agreements on their behalf' (Haberman v Zoning Bd. of Appeals of City of Long Beach, 9 NY3d 269, 275 [20071), and "[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (Hallock v State, 64 NY2d 224, 230 [1984]). The Court of Appeals has upheld the enforceability of a stipulation of settlement between a developer and a municipal board where, as is the case here, the stipulation was "entered into in writing, after negotiations between counsel, and was approved by the court" (Haberman, 9 NY3d at 275). Defendants submit no admissible evidence that their counsel did not have actual or apparent authority to enter into the Settlement Stipulation on their behalf at the time it was executed and submitted to the Court. The Settlement Stipulation itself recites that "the Attorneys for all Parties with the consent of their Clients are entering into this Stipulation" and that the "Stipulation of Settlement shall binding upon and shall be for the benefit of the parties ... to the fullest extent permitted by law." Defendants' claim that Town Law § 68 required a public vote to approve the Settlement Stipulation is therefore irrelevant under the circumstances presented here Yd. at 276) and not supported by the plain language of that statute (Town Law § 6$[4]). The crass -motion must therefore be denied. Turning to Plaintiff s motion for contempt, "Wo sustain a civil contempt [under Judiciary Law § 753(A)(3)], a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed," and "prejudice to the rights of a party to the litigation must be Mage 2 of 4 2 of 4 NYSCEF DOC. NO. .87 RECEIVED. NYSCEF: 02/05/202 demonstrated" (McCain v Dinkins, 84 NY2d 215, 226 [1.994]). "[C]ivil contempt is established, regardless of the contemnor's inotive, when disobedience of the court's order defeats, impairs, impedes, or prejudices the rights or remedies of a party," and regardless of whether the disobedience was willful (El-.Dehdan v El-Dehdan, 26 NY3d 19, 35 [2015] [internal quotation omitted]). Here, the Settlement Stipulation provides, in relevant part, that "Defendants agree to process [Plaintiff s application] in an, expeditious and efficient manner." On September 15, 2023, when this agreement was So Ordered, it became an order of this Court. Although the use of the terms "process," "expeditious" and "efficient" in this context are not entirely clear, Defendants do not dispute that they have taken no action on Plaintiff's application since they were ordered to do so on September 15, 2023; and they assert that they do not plan to do so unless another agreement under unidentified different terms is reached. Defendants therefore admit that they are refusing to comply with the So Ordered Settlement Stipulation, which supports a finding of contempt (Casavecchia v.tMizrahi, 57 AD3d 702 [2d Dept 2008]). As to prejudice, Plaintiffs chief executive officer has submitted unrebutted affidavits in support of the motion stating that Defendants' delays have imposed additional costs on Plaintiff, and that Plaintiff reasonably relied on the Settlement Stipulation in agreeing to discontinue, this litigation and in abandoning an alternative development plan in Putnam County. Accordingly, Plaintiff is entitled to a finding of contempt against Defendants'. Based on the foregoing, it is hereby ORDERED AND 'ADJUDGED that Defendants are in contempt of this Court's order of September 1'5; 2023, and that Plaintiff s'motion is granted with costs. It is further ORDERED that Defendants' cross-motion is denied; and it is further ORDERED" that not later than March 15, 2024, Defendants shall process Plaintiffs application pursuant to the terms of the Settlement Stipulation and applicable law; and it is further ORDERED that Defendants' failure to comply the So Ordered Settlement Stipulation by that date will result in the scheduling of a.hearing to determine further penalty for Defendants' contempt which may include a substantial fine for actual damages sustained by Plaintiffs, imprisonment, or both. The foregoing constitutes the decision and order of the Court. Dated: February ' S ',2024 Poughkeepsie, New York ENTER: i� MARIA ROSA, J.S.C. Page 3 of 4 3 of 4 �oi...gsy.• . v w v ao.n v w v v . v .+ 1� SE]"FZ DOC.NO. 87 �y RECEIVED NYSCEF: 02/05/202 Scanned to the E-1: fle System'only Pursuant to CPLR §5513, dti appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken. Within thirty days thereof, Dennis E.A. Lynch, Esq. Wallace & Wallace, LLP 55 Old Turnpike Road, Suite 209 85 Civic Center Plaza, Suite LL3 Nanuet, NY 10960 Poughkeepsie, NY 12601 Page 4 of 4 4 of 4 --i IFEAHIBBIT GG99 jo 'icyTv *04 gold -ml Rmsi 7 014 iv- tA Po,2024 �00 ow p ul )) 44*4-0 1 owe),. Thoor4erwb*"OVK not WoflaftMooh v TN OWL;! 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XtetW. o"At ........ ..... . . .............. .......... ..... . ... . ....... ........ .......... ingot..: Lt. YL . .... .... . .1 ID : " EAIAO: EXHIBIT `6E" f -VEJXHIBIT "F" W vhe-I , 20H c a thal I EXHIBIT "G" IEis E. A. LyNcii .ATTORNEY &- COU11TSEt,OR AT L Aw For Mailing 8r Service of Papers Dennislynchesq@grrail.com P.O. Box 600 W-729-5744 Nyack, New York 10960 August S, 2025 Hogan; Rossi & Liguori 3 Marr Ridge Road; Suite 200 Brewster, New York 10509 Attention., Michael T. Liguori, Esq. lie: Downt,y Energy, et al v. Town of WV ppizager, et al Index Number 2.02251.174 Deax Attorney Liguori: This Letter is to wnfirm developments with regard to the matter above -captioned. Simply stated, I advised you in my Leger of ,August 7, 2025 that my Client would be filing for appropriate relief to Judge Rosa due to the Town's Contempt in not processing any Client's Application, Suddenly, only when confronted with my Client's written confirmation to pursue Contempt Remedies per Judge Rosa's Order was the Town forced to provide a date (for the first time in approximately two years) for this matter to be on the planning 13oardAgenda. Yet, that was still without any confirmation as requested that the Town would comply with. Judge Rosa's prior Decision and Order. For the Town to suddenly set an arbitrary date for this matter to return to the I'ia ming Board .Agenda (without confirmation of all required Town adherence to the So Ordered Stipulatlon requirements) is just farther bad faith and Contempt of Court by the Town. Below is th,e Court record and confirmation of conduct confirming the Town's continued Contempt of Court which lasted nearly two years and caused my Client: substantial damages. BACKGROUND OF JUDGE ROSA'S TOWN CONTEMPT FINDING After substantial Litigation in this matter and Discovery of considerable Town Documents, including multiple Depositions of Town Officials, a Stipulation of Settlement was reached by the Town. Defendants and my Client on September 13, 2023 in Supreme Court, Dutchess County, Supreme Court Judge Rosa on September 15, 2023 "So Ordered" that Stipulation, which was duly filed and served on the Town with a Domand for Compliance. For approximately two months of costly efforts (after this So Ordered Stipulation) of my Client trying to have the Town eonply with Judge Rosa's So Ordered Stipulation to process zany Client's Application, and. after considerable expense by my Client in that regard to obtain. Town. compliance with the same, the Town continued to defy Judge Rosa's So Ordered Stipulation, Because of that contemptuous action by the Town, on November 20, 2023 the undersigned moved by Order to Show Cause for an Order of Contempt due to the Town's defiance of Judge Rosa's So Ordered Stipulation. While the Town Cross -Moved to set aside that So Ordered Stipulation, as Judge Rosa noted in her February 5, 2024 Order and Decision (collectively the "Order"), "Defendants do not contest that they have not taken any further action on Plaintiff s application ... , "(Order, p. 2 NYSCEF Doe. No, 88), It bears emphasis that Judge Rosa also noted in her Order that "Defendants therefore, admit that they arc refusing to August 8, 2825 Page Two comply with the Court Ordered Settlement Stiptalatiou". (Id. p. 3). As more fully set forth herein, this refusal by the Town to process my Client's Application continues at least until my August 7, 2025 Letter to you. advising 1 would be Ming for relief firom Judge Rosa based upon the Town's continued Contempt of Judge Rosa's Order. As you know, Judge Rosa in her Order directed that "riot later than Marcia f 5, 2024, Defendants shall process Plaintiffs application pursuant to the terms of the Settlement Stipulation, and applicable law". Judge Ross, also Ordered "that Defendants' failure to comply with. the So Ordered Settlement Stipulation by that date will result in the scheduling of a hearing to determine further .penalty for Defendants' contempt which may include a substantial fine for actual, dar egos sustained by Plaintiffs, imprisomnent, or bath." (Id.). On the last day possible to appeal Judge Rosa's Order which. was March 5, 2024, the Town belatedly filed a Notice of .Appeal and advised Judge Rosa of a statutory stay for not complying with Judge Rosa's Order pursuaat to CPLR. Section, 5519(a)1. The Town therefore had no more than 6 months to perfect that Notice of Appeal if the Town was in good faith seeking to appeal. The Town was -.ot. TOWN DLLAYS SIX MONTHS AND FAILS 10 PEECT ITS,APP Consistent with Judge .Rosa's Order finding that the Town would riot process nay Client's Application, the Town never processed its Notice of Appeal to perfect the sauce by the filing of an Appellate Brief and Record an Appeal. At no time during those six months did. the Town reach out to my Client on any Application issues. To the contrary, by September 6, 2024 the time for the Town to perfect the Appeal had lapsed, but the Town still did not comply with Judge Rosa's Order to "process" my Client's Application. Moreover, at no time did. the Town indicate to my Client that there were may documents needed to be #filed by racy Client for the Town to process this Application.. Simply stated, the Town remained as contemptuous as ever in not complying with Judge Rosa's Order, That Town misconduct continued still. Given that my Client still wished to pursue. its'Application and with all rights reserved because of the Town's failure to process this Application, in an effort to mitigate my Client's damages on. April 23, 2025 I contacted your Office by Letter inquiring if the Town was claiming some additional statutory stay that enabled the, Town not to comply with. Judge Rosen Order to process ray Client's Application.. In my .April 23, 2025 Letter, f noted that previously; You advised that the Town was involving CPLR Section 5519(a)l to obtain a Statutory Stay of compliance with Judge Rosa's Order. As of this date, I am not aware of any further Stay that exists and if there is any kindly advise. I also have not seen file Town. Planning Board returning this matter to its Agenda for compliance with .fudge Rosa's Order. Please confirm that the Town will comply with Judge Rosa's Order concerning processing my Client's "application pursuant to the terins of the Stipulation. Settlement". (NYSCEF, Doc.No.87, p.3). I await your reply. August &, 2025 Page Three 1n response to my April 23, 2025 Letter, on May 1, 2025 you emailed me to advise," 1 was out for a' few days last weep and just got caught up. I notified the Director of Planning, Barbara Roberti, f wasn't the Town Attorney when this matter occurred so we'll get up to speed as to where it left off % I replied that same day to advise I would await the Town Attorney's follow- up. There was absolutely no follow-up by the Town and the Contempt of Judge Rosa's Ordered continued unabated. More significantly, you refused to, commit and confirm in writing that the Town would follow Judge Rosa' Order that rater calica mandated that the Stipulation of Settlement be followed by the Town with regard to my Client's Application. Receiving no follow up from the Town as promised In your May 1, 2025 email and in further efforts to mitigate nay Client's damages, in my follow-up Letter to you of August 4, 2025, I requested that you confirm the Town will comply with. Judge Rosa's Order for the Town Planning Board to return this matter to its Agenda. As you know, Judge Rosa Ordered that my Client's Application be processed pursuant to the terms of the Stipulation Settlement. (N-YSCEP, Doc.No.87, p.3). 1 specifically noted in my August 4, 2025 Letter to you: As i advised in nay Letter to you of April 23, 2025, you advised in your Letter dated March 12, 2024 that you contacted Judge Rosa to advise the Town had filed a Notice of Appeal regard.ittg her Decision and. Order dated Pebmary 5, 2024. You advised that the Town was invoking CPLR. Section 551.9(x) l to obtain a Statutory Stay of compliance with Judge Rosa's Order. As of this date, I am stili not aware of any further Stay that exists and if there is any kindly advise. As I also advised. on April 23, 2025,1 also have not seen the Town Planning Board returning this matter to its Agenda for compliance with. Judge Rosa's Order. Please confmn that the Town will comply with Judge Rosa's Order concerning processing my Client's "application pursuant to the terms of the Stipulation Settlement,% (NYSCEIi, Doc.No.87, p.3). I await your reply. If not, l will have no recourse but seek relief from. the Court or otherwise proceed to vindicate nay Client's rights, Please mote this Letter is sent with all my Client's rights mid remedies roserved and without prejudice to exercising the same without further notice. Your replied to me in an email that same day again not confirming that the Town would comply with Judge Rosa's Carder and strangely trying to reverse Judge Rosa"s Order that the Town process my Client's Application by noting that "the hall ds in Downey's court'". Since you as the Town Attorney refused to provide a time to discuss this matter and more importantly refused to acknowledge that the Town would comply with Judge Rosa's Order in processing my Client's Application on August 7, 20251 wrote to you in part as follows: 1 Contained in the Town Attorney email of August 4, 2025 (emphasis supplied). August 87 2025 Page hour Based upon the Town's continued Contempt as evidenced by a now apparent frivolous Notice of .Appeal that was never perfected and the Town's continued neglect to process my Client's Application per Judge Rasa's Order, I will be requesting Fudge kosa to schedule that Hearing noted above. As such, there is no need for any diw ssion this Friday as the Town's continued delay and defiance of Judge Rosa's Order will not be tolerated by my Client any longer. This Letter is sent with all .my Client's rights and remedies reserved and without prejudice to exercising the same without further notice. Suddenly on the sante day that I advised you that I was going to make an application before Judge Rosa involving the Town's Contempt, you contacted me by email to indicate that this matter could be on the August 18, 2025 Planning Board Agenda.. You never consulted with me as to the availability of my Client's Professionals to be thore that Clay. Y"ou never confirmed that the Town would comply with Judge Rosa's Order. You never indicated the scope of issues to be considered on August 18, 2025. This is most critioal as I have attended many such. Planning Board Meetings that seemed to be held only to waste my Client's time and fiends. Moreover, much more focused issues must be considered per the So Ordered Stipulation of settlement. Thus, costs to my Client for Town, professionals Review must be considerable loss and that needs confirmation. To acid insult to injury, you later that day "oonfzxmed" this matter would be on the planning Board Agenda. when I neither sought tion requested any such, "confirmation". CONCLUSION After nearly two (2) years of the Town defying a So Ordered Stipulation signed by Judge Rosa, my Client gill not consent to only having Town Professionals incur more charges that -rill be billed to my Client for "catching up" during the two years of delay or for non -Stipulation issues. After nearly two (2) years of the Town's delay, my Client will not consent to incur costs of any Planning Board. Meetings until the Town confirms it will comply with both the So Ordered Stipulation as well as- Judge Rosa's Order. After nearly two (2) years of delay by the Town, my Client will not allow the Town to again protract processing my Client's Application until the Town addresses the prior "additional costs" caused by the Town's "delays" and other relief provided for in Judge Rosa's Order. The Town cart address reimbursement of those costs and an amount agreed upon in the next two weeps. I am willing to engage in gond faith settlement discussions to reach any such agreement during that period. If no such agreement can be reached, my Client wifl proceed with the application to Judge Rosa as stated in my August 7, 2025 Letter. The choice is the Town's to make. This Letter is sent with all my Client's rights and remedies reserved and without prejudice to excroj4ng the same without further notice. Ve. yours, DEALIsef Dennis . Lynch SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS D().€BEY PROPANE, LLC, and NORTHEAST 40, LLC, SUPPORTING AFFIDAVIT Plaintiffs, Index'No: 2022 - 51174 - against -TO OF WAPPNOEA, PLANNING BOARD . OF THE TOWN OF WAPPINGER, BRUCE FLOWERS,, RALPH MARINACCIO, ROBERT CERU, MARKOS PERATIKOS; PAUL FRENO, NICHOLAS MASELLI, THE TOWN BOARD OF THE.. TOWN OF WAPPINOER and "JOIN DOES AND JANE DOES 14555, Defendants. ----------------- ---------------------------------- --X . as follows: Assigned Judge, Hon, Maria O. Rosa, JSC CARY DOWNEY, being duly sworn, deposes artd states under e Pe nalty taiperjury 1. Your Deponent is the Chief Executive Officer of both Plaintiffs Downey Energy,and Northeast 40, LLC, in this Litigati6n (Collectively refe:xed to as""Plaintiff" or "Downey Energy") in this Affidavit. While I. am the dlaief Officer, myself and. my Family are still involved in this business. 2. This Affidavit is made since Defendants remain isi Contempt of this Court after a ding of Conteznpt by this Court on FCbr aty 5; 2024, Not only do Defendants remain in suoh contempt of this. Court, but the Defendants file. a Notice of Appeal which Defendants never perfected to .further delay cbmPlianoe with this Cot's February 5, 2024. Contempt Finding and the Defendants still f1hd reasons to not comply with what dais Court Ordered nearly two years ago. 3. This Affidavit is Made upon my personal knowledge as ,I have been f dly involved with all aspects of this Litigation involving my real property located at 199 Old mute 9, in the Town of Wappinger, New York also known as Tax Map Section 615-02-763656 consisting of over S .acres (tine "Property"). This Property is own by Plaintiff Northeast 40, LLC (the "Property Owner'. On this Property will be a proposed- Propane Facility for use by 2lalntiff Downey Propane, LLC to store and distribute propane in the area (the "Projeef') 4. Your Deponent has also read the .Affirmation of my Attorney .De=is E. A. Lynch anti l reaffJxm all' factual Paris of that Affirmation as if set faith in my Affidavit. BACK(' OUND OF THIS APPLICATION 5. For three generations of the Downey Family that worked for decades prier to t1le ding of this Litigation. in April 2022, the Downey Family has been involved in the safe,sound and lawfid provisions of energy supplies to f'amMes and businesses in the Hudson Valley Area, including but .not limited to the provision of coal, ail, gas and now propane, 6. Only after this proven track, record of safety did f undertake a review of land. to locate a, new Project Facility to store and distribute Propane, that would serve as a terminal for the safe and sound distribution of propane to businesses and individuals in the area of the Defendant Town of Wappinxger, Now Fork (the "Town"). 'This' new location ,vas needed to centralize the serviwrng of cugoxners in -0-, area around the Towyn, as the Downey Energy business has grown, 7. Myself, along with my company professionals, in deer ld ng this review for locating Downey Energy's now Project Facility consulted with experts hi the, Liquid Propane Industry to identify property that would allow for the continued safe and secure storage and delivery of propane in the sarne manner that I had urnderta%en. those Kervices for years and years. This Property in the Town was the best loca,tioaa possible for this Project. 8. Over six (6) years ago in March 21 19 and only after consultation withal] appropriate professionals and Experts, I mei with Town Officials to see if my Project would be soinething that the Town was interested in having located on this Property that would also be a good commercial ratable to help lower the real property taxes that Town Residents would otherwise have to pay without such a good commercial tax ratable. 9, My exchanges with Town Officials involved with approving my proposed. Project were most favorable. In fact; the Town actively encouraged me to location this Project within. the Town o -n this Property by having their Town. Planner woxk with my Lard Use Professional to be. certain that the land use was consistent with the Tovm's comprehensive land. use Plm 10. With the help of many professionals, I filed a Land Use Application with the Defendants to obtain Town approval, to operate this Project its a safo and sound manner completely Consistent with all applicable laws. 11. A most important pant of the background for this Litigation is that after myself and my Professionals rniet with Town's Officials on multiple occasions, the Town Board on January 13, 2020 passed a Local Law to snake this Pr cot a. lawful use on this 1'rcperty. That Local. Lawwas fled'with the Secretary of State by the Town on -February 3,'2020, As the Property Owner's rePresentativc, I have never -in. the past half -decade since this Local Law was filed with the Secretary of State received any notice that this Local ]Law was repealed by the Town 12: Only after spending many months and muoh more money in, pursuing this Project, dict I learn of a Secret Meeting by Towvn.. Officials where i was not invited to when what was to be a path for approval of this Project became instead a proverbial dead end for my time, money and investment to' naake-this Project take place -in this Town.. 13. in the interest of dais Court's,tiirre, I will not recount all the events that followed at least this oae this Secret Meeting as those slxocking Facts are set fordo in the First Amended Complaint filed in this Litigation. record. (See, NYSC' FF Doc, No. 45, paras 74 - 52). M -11S COUTIS VINDINGOF CIDNTEMPT AGAINST THE, I)EF'ENDAN S 14: After this Secret Meeting of Town Officials, it became clear that only by filing Litigation aga.iast the Defendants would Defendants be required to follow the law regarding processing Plain4f s Land Use Application for this Project. 15. Accordingly, in April 2022 this Litigation, cornrneDced by the Plaintiff, There was extensive Discovery and multiple Depositions were tal= of Town Ci:>Fficials that rovealcd the unlawful actions undertaken by the Defendants against the Plaintiff, 16. As this case was approaching Trial, the Defendants finally agreed to process this Pro, ject in a. Stipulation that was Med with this Court cert-Septeinbcr 13, 202� (NYSCEF Doc. No. 0) and So Ordered by this•Court on September 15, 2i 223 (NYSCEF Doc, No. 64). 17. 1 again most respectfully rof'er this Court to the Affirmation ofrny Attomey regarding the failure then by Defendants to fallow that So Ordered Stipulation to process Plaintiffs Land i.1se Application for this Project. dearly, the Defendants were finding more and more unlawful reasons to -not comply this this Cailrt's lawful So Ordered Stipulation. 18. Eventually, zny Attorney lead to make a Contempt of Court Application which was filed on November 20, 2023 (NYSCEF Doe. No.' 66). That Contempt Application was fully briefed by the Parties to this Litigation before this Cuurt. 19. On February 5, 2024 this Court issued a. Decision and Order Finding the Defendants ,in Contempt of Court. (NYSCEF Doc. No. 87): I again respectfully refer this Court to the accompanying Afffrrmation of my Attorney providing greater details about that finding of Defendants' Contempt of this Court. 20, This Court ruled in finding Defendants' Contempt c f its Decision and Order that the "Defendantsshall process Plaintifps application pursuant to the terms of the Settlement Stipulation and the'applicable %aw" and also that "the Defendants' failure to comply with the So 'Ordered Settlement Stipulation by that date (March 15, 2024) will result in the scheduling of a boaring to determine f4ther penalty for Defendants' -contempt which may include a substantial fine for actual damages sustained by Plaintiffs, impasonrrsent, ofbotlx" (1d, p. 3) 21. The Defendants did not comply with this Court's Decision and Order and the Affirmation of my Attorney again provid.es details in that regard about their Conto pt of this CQ,Urt's Decision and Order, IItAI A s S JS"1C AYE By PLAINTIFF FROM DEFENDANTS' CONTE I PT 22, 1 look forward to the sehedul'ing ofa Hearing by this Court rogaxding Defendants' Colitempt where I can provide evidenco of the substantial damages that the Plaintiffs have sustained since Defendants' COWmpt of this Court continues to this day. 23. In addition to the impact of the growth of Downey Energy, tlxe moaetary damages the Plaintiff has and continue to sustain axe in two categories: 24. The, First category, of damages concOras the Property that I purchased for this Prai cot that rcmait'as Without any isse and simply is a.. source of:liability both frz?ancially and otherwiso. I have had to and continue to pay the Town Deceiver of Taxes for this property I cannot ase in any way. I have also had to pay arnd,contiaue to pay the Du.tchess County Commissioner of Finance for real property taxes do this property that I cannot use. 25. Addit onally, I Dave had to pay cumulative iAterest to carry the financing of this Property in an amount that is continuing, 26. Furthermore, I have incurred professional Fees for accouuting and legal matters regarding the Defendeats' continued contempt of this Court'. -I have also had to and continue to pay for an Expert in the Propane Industry so that his'services remain available to me regarding, this Property and any Court consideration of this Property, 27. Likewise, I have had to hfxe a Professional Planning Firm to represent the Plaintiff ia.this Land Use AppiWation before the Town and tents ofthousands of dollars have already been expanded far their services. I understand. Haat some, if not all, of the sttWies and analysis done by those Planners may be of no use due to thepassage of time as Defendants delayed processing this Application as the befen'tlants rete' ain. in Contempt of this Court. 28. I have also had to pay for the Town's Professionals to review this Land Use Application considerable sums. And, one of the nxain issues that was presented to the Town niter this Court's Contempt finding was that the Town should not continue to force the Plaintiffs to pay those fees for a Land Use Application that Defendants were not processing pursuant to this Couxt's Contempt Order. Defendants refused to address that important financial fsqne. 29. The Second category of damages involves the finding by this Court in its Order and Decision that Plaintiff in reliance upon the Defendants' not lawfully processing this Project's Application had `aremonably relied on the Settlement Stipulation in agreeing to discontinue this Litigation and in abandoning an alternative development plan. in Putnam County" (NY CE1F Doc. leo. 87, P• 3), 3q. Because of that reliance by Plaintiff on. Defendants' supposedly complying with. the Court Ordered Stipulation of Settlement, Plaintiff discontinued this then. pending Litigation. As a. result, depending on how and to what degree t& Plaintiff em' rely on: prior Court flings in this Litigation in the event of any new Litigation is required against the Defendants, the Plaintiff will incur those additional legal fees and costs yet to be ascertained. 3 L Additionally, what is now known from Plaintiff "abandoning ,= alternative development in Putnam County" is that Plahttiff has had to incur expenses regarding the following business. requirements, (i) the costs in-havM9 Drivers travel extra time to service customers that would not be needed W have been expended if 'that alternative developr4ent was realized, (2) additional costs regarding servicing of the vehicles that Drivers used to travel those additional miles servicing oustomers if the alternative development was realized; (3) costs -regarding acquisition of a new Project, ite if Defendants contium, to defy this Comm' l 31 "hese and other costs will be set forth in, this Court's record at whatever; Hearing this Court directs as part of this Court Application to hold Defendants responsible for their clear Contempt of this Court's Orders. 33. Filially, I respectfully submit to this Court that the Defendants have gone to, extraordinary delay in processing xray sand. Use Application for this Project, That delay by the Nfendants continued with the Court Town. Supervisor and Town Board actions in approving an Appeal ofthis Court's Contempt finding, but never perfecting that Appeal so as to delay the processing of tray Land Use Application for at least half a year.. 34. This is conksteut with what the current Town Supervisor told me before he was elected as Supervisor in front of fro other witnesses that I would never be able to build my Project in this Town. I trust the Court at this Hearing will prove that clairrr wrong. WHEREFORE, your Deponent resp Court be granted, together -with such tither a& Swom to before me On this Vday of December 2025 Notary Public, State of'New York to this .It T'49%.-TTa ia�4�l�""PI..M6d•20,';,rs �.� :txo-,:� .'a,:' _ r • SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS __---------__---------------.------------------------_.._____--------X DOWNEY ENERGY and NORTHEAST 40, LLC, Plaintiffs -against- TOWN OF WAPPINGER, PLANNING BOARD OF THE TOWN OF WAPPINGER, BRUCE FLOWER, RALPH MARINACCIO, ROBERT CERU, MARKOS PERATIKOS; PAUL FRENO, NICHOLAS MASELLI, THE TOWN BOARD OF THE TOWN OF WAPPINGER and "JOHN DOES AND JANE DOES 1-15"; Defendants. __--......------------------_-------------__T__--------_---_-------- -X WORD CERTIFICATION Index No. 2022-51174 Assigned Judge: Hon. Maria G. Rosa, J.S.C. I hereby certify pursuant to 22 NYCRR Section 202.8-b that the foregoing papers submitted with the proposed Order to Show Cause were prepared on a computer using Word Typeface that was proportionally spaced typeface as follows: Name of typeface: Type Point size; Line Spacing: Times New Roman 12 Double Word Count: The total number of words in the below documents, inclusive of point headings and footnotes and exclusive of signature blocks and pages containing table of contents, or captions, etc. is as follows: Affirmation of Dennis E. A. Lynch - 2,170 words Affidavit of Cary Downey - 2,128 Dated: December 15, 2025