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SUPREME COURT OF THE STATE OF NnW YORK COU1\TTY OF DELAWARE

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V.W. PARTS, INC., Plaintiff,

STIPULATION OF SETTLEMENT AND ORDER

-againstTHE CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION Defendants, INDEX NO. 2002-328

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WHEREAS:
A. PlaintiffV.W. Parts, Inc. brought this action for money damages pursuant

to the New York State Public Health Law 1105 and inverse condemnation regarding the use of plaintiffs property, located within the New York City watershed, for a junkyard. Plaintiffs property is located at 1 Depot Street Fleischmanns, New York (the "Property"); and B. Because of the Property's location within an area that contributes surface

water to the New York City water supply, ajunkyard within a certain limiting distance from a watercourse is subject to the New York City Rules and Regulations for the Protection from

Comamination, Degradation and Pollution ofthe New York City Water Supply, 10 New York
Codes, Rules and Regulations ("NYCRR") Part 128; 15 Rules of the City of New York ("RCNY") Chapter 18 ("Watershed Regulations") which are enforced by defendant New York City Department of Environmental Protection (NYCDEP); and C. Plaintiff brought this action against defendant City of New York (the

"City") and NYCDEP after NYCDEP denied plaintiffs variance application to locate ajunkyard inside a warehouse located on a portion of the Property. Plaintiff sought a variance because

NYCDEP determined that the warehouse was located within 250 feet of a watercourse (the "Warehouse Area"). The Watershed Regulations (Section 18-41(a)) prohibit siting ajunkyard within 250 feet of watercourse; and D. NYCDEP has inspected the Warehouse Area, most recently on October

19, 2005, and determined that the work in the Warehouse Area does not constitute a junkyard. In addition, :t\TYCDEP observed that the areas adjacent to the Warehouse Area within the 250 foot limiting distance are not being used for junkyard operations and were well maintained; and E Plaintiff, by its representative William Hrazanek, President ofV.W. Parts

Inc., has indicated to :t\TYCDEP that plaintiff's intended and future use of the Warehouse Area is for vehicle repair and/or storage and has agreed to use the Warehouse Area in a manner consistent with its current use in accordance with this Stipulation; and F. Plaintiffhas agreed that NYCDEP may inspect the areas of the Property

within 250 feet of a watercourse, including the Warehousc Area, as part of the settlement of the instant litigation and in accordance with this StipUlation; and

NOW THEREFORE, upon the stipUlation ofthe Parties and for good cause shown, it is hereby ordered, adjudged, and decreed as follows:
l.

Each ofthe undersigned representatives of the

Parties to this Stipulation of Settlement a..'1d Order (the "Stipulation and Order") certifies that he or she is fully authorized by the Party whom he or she represents to enter into the tenns and conditions of, and to execute, StipUlation and Order and to bind the Parties legally. Plaintiff will continue to use the Warehouse

2.

Area, and other areas outside the Warehouse Area located within a 250 feet limiting distance of a watercourse, for purposes other than a junkyard as defined in Section 18-41 (a) of the Watershed Regulations. Plaintiffs use of this area will not be considered ajunkyard so as:

(a) The vehicles in the Warehouse Area will be in substantially similar condition as the vehicles depicted in the annexed photographs taken by NYCDEP during its October 19,2005 inspection including, but not limited to, vehicles that are recent models in, or capable ofbeing repaired to, condition for use on public highways (See photographs annexed hereto as Exhibit

"A"); and
(b) no vehicle fluids will be drained from vehicles on the Property or stored on the Property including, bUl not limited to, transmission fluid, brake fluid and anti-freeze; and (c) vehicles in the limiting distance of a watercourse will not contain any vehicle fluids; and (d) no storm drains or floor drains will be installed in the Warehouse Area; and (e) a concrete floor will be maintained in the Warehouse Area; and (e) no junk vehicles, as defined in the Watershed Regulations shall be stored in any outdoor area located within a 250 foot limiting distance from a watercourse or wetland on the Property. 3. Inspection of the Warehouse Area: Plaintiff acknowledges that it will grant

NYCDEP full access to the Warehouse Area on one (1) occasion per year for each year that plaintiff owns the Property, for the sole and specific purpose of confirming compliance with this StipUlation. This annual inspection shall occur upon fifteen (I5) calendar days wrilten notice to the plaintiff, by overnight mail or facsimile transmission from NYCDEP. The notice shall state the date and time of the NYCDEP inspection and shall be delivered to the address or facsimile transmission number below (the "Notice of Inspection"). NYCDEP shall be permitted to photograph andlor videotape the interior rooms of the Warehouse Area and be allowed to view and examine the contents of the Warehouse Area in its entirety, including all manifests and logs

maintained by Plaintiff pursuant to local, state or federal law, for so long as is reasonable for such inspection. The Parties mutually agree that the inspection may occur on a day other than specified in the NYCDEP Notice of Inspection upon good cause shown that such date is not mutually acceptable but in no case may the inspection be adjourned more than 72 hours beyond the Notice ofInspection date.

4. Communications: all written communications required by this Stipulation and


Order shall be transmitted by mail, by private courier, by hand delivery or by fax followed by delivery by mail, unless another means of transmission is specified herein, to the following addresses: For V.W. Parts, Inc.: Peter J. Hickey Attorney for V. W. Parts, Inc. 210 Great Oaks Boulevard Albany, N.Y. 12203 (518) 456-6456 (telephone) (518) 456-6056 (facsimile)

For the City: New York City Department of Environmental Protection West of Hudson Engineering and Project Review Attn: Brenda Drake 918 Ulster Avenue Kingston, N.Y. 12401 (845) 340-7633 (telephone) (845) 340-8657 (facsimile)
5.

.00 ad Faith Effort: The Parties acknowledge that each other will proceed

in good faith and cooperation in the execution of this StipUlation and Order and will take all reasonable efforts to effectuate the tern1S and understandings contained herein.
6.

Future Disputes: The Parties acknowledge that each will make good faith

efforts to resolve future disputes. Prior to the issuance of a Notice of Violation in the event that
VIO!

of the Watershed

iJlions occurs on the Property, "J'r'CDFP <1:111 iirst

issue a warning letter to plaintiff so that the Parties can attempt to resolve the matter prior to a formal enforcement action.

7.

Modification: No change in this Stipulation and Order shall be made or

become effective except as set forth by a written order of this Court or by written agreement of the Parties. 8. Binding Effect: This Stipulation and Order shall apply to and be binding

upon the Parties, and upon their respective agents, successors and assigns. 9. Resolution of this Litigation. Based upon all of the foregoing, and in

reliance upon the mutual representations and promises contained herein, plaintiff hereby withdraws all claims in this action and terminates the action against the City in accordance with this Stipulation of Settlement and Order, with prejudice and without costs.

Dated:

Z/zl Z

PETER]. HICKEY Attorney for PlaintiffV.W. Parts, Inc. 210 Great Oaks Boulevard Albany, New Yo 03 (518) 45 '-'-'-..-.-""

William Hrazanek President, V.W. P Dated:

YJ.A.,ck (_,

1/
j/

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Plaintiff 71 Smith Avenue ew York 12401

3.61
Lmda A. Geary Assistant Corporation Counsel

Exhibit "A

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