Gershow critic wants out of lawsuit, citing health issue

04/09/2015 12:00 PM |
iverhead officials say they're moving forward with a lawsuit against Gershow Recycling's operation on Hubbard Avenue, even though the most outspoken of the neighbors who have complained about noise and other alleged issues at the site says he has a medical condition and no longer wants to be part of the case. (Credit: Barbaraellen Koch, file)

Riverhead officials say they’re moving forward with a lawsuit against Gershow Recycling’s operation on Hubbard Avenue, even though the most outspoken of the neighbors who have complained about noise and other alleged issues at the site says he has a medical condition and no longer wants to be part of the case. (Credit: Barbaraellen Koch, file)

A Hubbard Avenue resident who has been an outspoken critic of Gershow Recycling and who submitted legal motions in Riverhead Town’s lawsuit against the company has now asked the court to remove him as a witness on the case, citing health concerns.

Richard Luzzi, 79, who lives in the Riverhaven mobile home community adjacent to Gershow, was one of two Riverhaven residents who submitted affidavits to the court against Gershow.

But now Mr. Luzzi says he has been advised by his doctors to drop out of the case. 

“Basically, dealing with this issue, I started to get heart palpitations,” Mr. Luzzi said Tuesday. “I went to the doctor and he advised me that I really should not partake in this any more. It’s too much stress.”

Mr. Luzzi had submitted an affidavit that was used by Riverhead Town both in its lawsuit against Gershow and in the July 2014 letter from the town’s planning and building administrator, Jeff Murphree, that denied Gershow’s later attempt to get site plan approval on its property.

Riverhead Town’s lawsuit against the recycling company claims it changed the use of the property from what had existed before 2012, when it was owned by Fred J. Gallo Used Auto Parts.

The town, and Mr. Luzzi’s affidavit, claim Gallo didn’t do scrap metal recycling on the property and never crushed cars, and that Gershow does.

In August 2012, former town planning director Rick Hanley and former town building department administrator Sharon Klos issued Gershow a “de minimus exemption,” meaning that the changes the company had proposed there were so minor compared to the previous use of the property that a site plan review or amendment before the town Planning Board was not necessary.

After Riverhaven neighbors began complaining about noise coming from Gershow, the town took the position that the company had illegally changed the property’s use and took the company to court.

Since then, Gershow has also filed a lawsuit seeking to overturn the town’s denial.

Gershow, in its court papers, asserts the company had received the same junk yard permit from the town as had Gallo, and they produced an affidavit from Thomas Gallo saying his company also recycled scrap metals, in addition to car parts.

John Zaher, a spokesman for Gershow, said of Mr. Luzzi’s request to be removed from the case, “I think it speaks to the town’s case and is perhaps a reason why the town should settle, because the town is relying on an affidavit of someone who doesn’t want to speak or participate in the lawsuit any further.”

Gershow has objected to Mr. Luzzi’s attempt to be removed from the case because the company seeks to question the accusations made in his affidavit and to require him to back up those accusations.

Mr. Luzzi said a hearing before Judge Diane Molino on Mr. Luzzi’s request to be removed from the case is scheduled for April 30. He said he’s submitted letters from two different doctors urging him to drop out.

Mr. Zaher said a proposal made by Gershow to stack empty shipping containers around the property as a means of lessening noise from the recycling operation never moved forward because of the town’s lawsuit, since the shipping container plan would require town approvals.

“We’d like to settle this matter and speak to the town about parameters that would make the town, the community and Gershow happy, at a reasonable cost,” Mr. Zaher said.

The Town Board on Tuesday didn’t appear to be settling, as it voted to hire an outside legal counsel for the Gershow case, citing the company’s requests for volumes of information from the town.

“They are burying us in discovery requests,” Supervisor Sean Walter said recently, adding that these requests are adding to the amount of litigation time it’s requiring of the town’s in-house attorneys.

The town has also lost deputy town attorney Bill Duffy, who had been handling the Gershow case and who recently took a job as Southold Town attorney.

The Town Board on Tuesday hired McGiff Halverson, a law firm based in Patchogue, to handle the Gershow litigation.

Riverhead Town Attorney Bob Kozakiewicz said he doesn’t think Mr. Luzzi’s testimony is essential to the town’s case against Gershow.

“He’s not a named party in the lawsuit, but because of all the things he stated publicly and all the comments and criticism he directed at Gershow, now Gershow wants to depose him,” Mr. Kozakiewicz said.

“It really comes down to what was the prior use,” he said, “and was the new use a change in use? We don’t need Mr. Luzzi to do that. I really don’t think it effects our case.”

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