Appellate Division: Second Judicial Department

M85355

E/cb

WILLIAM F. MASTRO, J.P.

HOWARD MILLER

CHERYL E. CHAMBERS

LEONARD B. AUSTIN, JJ.

2009-02713 Town of Poughkeepsie, respondent, v River Terminal Services, LLC, appellant. (Index No. 2713/09)

DECISION & ORDER ON MOTION

Motion by the appellant, inter alia, to stay enforcement of an order of the Supreme Court, Dutchess County, dated February 25, 2009, pending hearing and determination of an appeal therefrom.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is to stay enforcement of the order dated February 25, 2009, is granted, and enforcement of the order is stayed pending hearing and determination of the appeal on condition that the appellant (1) perfect the appeal on or before May 20, 2009 and (2) complies with the following restrictions, as recommended by the respondent:

(a) no tank vehicles containing flammable liquids shall be allowed on the premises;

(b) no other tanks containing flammable liquids shall be allowed on the premises unless specifically authorized by the Fire Inspector of the respondent Town of Poughkeepsie;

(c) the parking of tank vehicles on the premises shall be in compliance with New York State Fire Code § 3406.6.2.3;

(d) tank vehicles parked on the premises shall show placards for fuel oil or kerosene;

(e) secure fencing shall be provided around the entire site;

(f) appropriate warning signs shall be provided on the perimeter fence;

(g) the appellant shall purchase and maintain a supply of fire extinguishing foam on the premises in an amount and in a location to be determined by the Fire Inspector and the Captain of the Arlington Fire District. This fire extinguishing foam shall be available to fire departments for fighting fires on the premises or other locations. The Fire District shall be provided with keys or combinations to the foam storage location;

(h) the appellant shall comply with all applicable federal and state laws, rules, and regulations, including the New York State Fire Code and New York State Department of Environmental Conservation regulations; and

(i) the Fire Inspector and the Fire District may inspect the premises at any time and the appellant shall make a representative available to conduct such inspection upon reasonable notice, but such notice shall be at least six hours if the inspection is not to take place during regular business hours; and it is further,

ORDERED that in the event the appellant does not perfect the appeal on or before May 20, 2009, or comply with the specified restrictions, the court, on its own motion, may vacate the stay, or the respondent may move to vacate the stay, on three days notice; and it is further,

ORDERED that the motion is otherwise denied.

MASTRO, J.P., MILLER, CHAMBERS and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court