The above captioned matter having duly come on before the Court for trial on April 11, 2013. The Town of Brookhaven ("People") having been represented by Jennifer Lutzer, Esq., Assistant Town Attorney, and defendant Strathmore Ridge Homeowners' Association, Inc. ("Defendant" or "HOA") having been represented by Cohen & Warren, P.C. Oral testimony having been received by the Court from the People's witness, Michael Matteo, Jr., Fire Marshall of the Town of Brookhaven and from defendant's witness, Daphne Cohen, Esq. Exhibits having been received into evidence, consisting of a certified copy of the Amendment to Chapter 30 of the Brookhaven Town Code dated December 19, 1972 (People's Exhibit No.1); certified copy of zoning map (People's Exhibit #2); certified copy of the records of the Building & Fire Prevention Department of the Town of Brookhaven, consisting of 35 pages (People's Exhibit #3); Offering Plan of HOA dated October 11, 1972 (defendant's Exhibit "A"); and Declaration of Covenants and Restrictions of HOA (defendant's Exhibit "B").

[*2]People of the State of New York

(Town of Brookhaven),

v. Strathmore Ridge HOA, Inc.

Index No.: BRTO-12-2187

The defendant is charged with violating the following section of the Code of the Town of Brookhaven:

Count 1:Installation and Maintenance of Fire Alarm System, in violation of §30-159(A) of the Code of the Town of Brookhaven, a misdemeanor;

Based upon the credible testimony and documentary evidence adduced at the trial, the Court determines the following findings of fact and conclusions of law.

The burden of proof at this trial rests with the People.

The Court also finds that the defendant HOA was and is, inter alia, responsible for the fire alarm systems located at the 38 multi dwelling units contained within the complex overseen by the defendant HOA, including the subject premises located at Valley Forge Court, Building E, Ridge, Town of Brookhaven, County of Suffolk, State of New York ("subject premises"), on or about June 19, 2012 at about 5:00 p.m.

In addition, the Court finds that the evidence demonstrates the fire alarm system was initially installed by the developer and selling agent, Levitt Residential Communities, Inc. in 1973, but was altered and replaced in 2005. The evidence does not, however, demonstrate who paid the technician/installer responsible for the altering and replacement which occurred in 2005.

The Court further finds that as the result of a fire which occurred on December 8, 2004, the Incident Report from the Fire Marshall's office determined that the fire alarm system in the room of the fire, did not operate. The Fire Marshall concluded the cause was the failure to maintain the fire alarm system.

Additionally, the Town of Brookhaven brought Code violations against the Strathmore Ridge HOA, which ended with the Court ordering a conditional discharge ("CD") which was agreed upon by the Strathmore Ridge HOA, on May 5, 2005, which required, inter alia, that the defendant HOA inspect, test and maintain the fire alarm system of the burned-out multi units destroyed by the fire. The exact language of the CD was:

1.You will refrain from the conduct as alleged in the Appearance Ticket and the Accusatory Instrument.

2.That you consent to a reinspection of above described premises by a Brookhaven Town Employee to insure that the violations of the Brookhaven Town Code or other State, County or Municipal Law has been corrected or rectified. [*3]

3.In addition, it is further orderedas a Condition

of Discharge that defendant will properly maintain the fire alarm system at 2E Valley Forge Court, Ridge, NY in such a manner that said system complies with Brookhaven Town Code under Section 30-161 within thirty (30) days from the date herein. Specifically defendant will make every effort to eliminate false alarms. Also, will clean smoke detectors and keep them free from excessive dust. Defendant will have the system inspected and repaired within 30 days.

The Court observes the CD was signed on behalf of the HOA by its President, as well as by its attorneys, Cohen & Warren, P.C., who now presently sit before the Court and protest almost 8 years later, that the HOA is not responsible. It is enlightening that no protest was registered by them or the HOA almost 8 years ago when the HOA and Cohen & Warren, P.C. agreed to the Conditional Discharge imposed by the Court. More disturbing to the Court is the failure of counsel to support its present claim that the HOA is not the responsible party for the failure of the fire alarm systems of the multi unit complex, with any demonstrable factual intervening circumstances which are different since May 5, 2005.

Furthermore, the Court observes that the permit for the Fire Alarm Installation which was applied for by Diamond Security Inc. on May 23, 2005, was applied for on behalf of the Strathmore Ridge HOA. The actual permit for the Fire Alarm Installation which was issued by the Town of Brookhaven was also issued to Strathmore Ridge HOA on May 24, 2005. The Certificate of Compliance for the Fire Alarm Installation which was issued on May 31, 2005, was issued by the Town to Strathmore Ridge HOA.

The evidence through the Fire Marshall's testimony and admitted documents further demonstrates that the last full

compliance with submission of valid fire inspection reports occurred in 2005. A Fire Marshall's Order mailed to the Strathmore Ridge HOA and dated February 5, 2008, directed the HOA to remove or remedy the violation of §30-9 of the Town Code, in that "the Fire Alarm System is past due for the semi annual fire alarm inspection." The submission of 3/17/10, contained statements that the fire panel had no power, demonstrating that the fire alarm system had not been maintained. The last submission of 9/10/12 was also rejected by the Fire Marshall's office.

The Court is also cognizant of the fact that the certifications for the fire alarm inspections by the Town Inspector which occurred on 5/27/05, 7/17/07, 2/21/08, 2/19/09, 10/6/09 and 3/17/10, were all certified to the Strathmore Ridge HOA.

Though defendant HOA denies responsibility for the inspection, testing and maintenance of the fire alarm systems at least once every 6 months (see §30-159[A] of the Code of the Town of Brookhaven), and claims this responsibility falls upon each respective multi dwelling owner of the complex, the Court determines that the defendant HOA was and is exclusively responsible for the inspection, testing and maintenance of the fire alarm systems for the complex.

The Court notes that §30-155 (Definitions) of Article XXVII (Fire Protection Systems) of Chapter 30 (Fire Prevention), defines FIRE ALARM SYSTEM as being "Any arrangement of fire alarm devices, connected together and to a control panel or panels, designed so that the activation of any one device will cause an appropriate signal to operate (emphasis added)".

Moreover, §30-156[A] (Registration) of Article XXVII of Chapter 30, requires that "Every fire protection system shall be registered with the Division of Fire Prevention by the owner of the system (emphasis added). With each application the applicant must submit the fees required by Chapter 29 of this code."

Furthermore, §30-159[B] requires that "The owner shall be responsible for the [*4]maintenance and service of his or its fire alarm device equipment (emphasis added) and shall be responsible for all malfunctions of his or its equipment.

Finally, the Court observes that the Declaration of Covenants, Restrictions, Easements, Charges and Liens submitted into evidence by defendant (Exhibit B), contains provisions under Article IX, Section 4, which state:

"In the event that the Association [HOA] fails to maintain the streets, sidewalks, lawns, buildings, outdoor lighting, fences and green areas in such a manner as, in the sole opinion of the Town Board of the Town of Brookhaven is reasonably necessary for the health, safety and general welfare of the Members of the Association [HOA] and the general public, then the Town Board shall have the right to cause such maintenance to be performed on behalf of and at the expense of the Association and its Members."

"... if the Town Board makes an official determination that such a defective condition exists, it shall serve notice upon the Secretary of the Association..."

"If the Association does not remedy the said condition to the satisfaction of the Town Board within said thirty days period, then and in that event the Town Board shall at any time thereafter have the right to have the defective condition remedied and to assess the cost against the Association and its Members."

"The Town of Brookhaven, their employees and agents shall have the right to enter upon all of the Properties covered by this Declaration, whether common lands or individually owned, in order to do all the work necessary to remedy the said condition."

It would appear to the Court that the forgoing declarations, coupled with the fact that the overall fire alarm systems were initially installed by the developer, Levitt Residential Communities, Inc. in 1973, suggest that the HOA assumed the ownership of the existing fire alarm systems for the multi unit complex, and with ownership, the responsibility to inspect, test and maintain them.

Accordingly, after careful consideration and mindful deliberation, based upon the legally competent evidence before the Court, the credible testimony of Fire Marshall Michael Matteo, Jr., and the exhibits introduced into evidence by the People and the defendant, the Court finds the People have sustained their burden of proving beyond a reasonable doubt that the defendant is guilty of the charge of §30-159[A] of the Code of the Town of Brookhaven.

The defendant is directed to appear at the Suffolk County Department of Probation at Central Islip, for intake, so that an Investigative Probation Report may be prepared and presented to the Court on the date of Sentence.

This memorandum constitutes the opinion, decision and order of the Court.

New Court Date for Sentence:June 6, 2013, at 2:30 p.m. [*5]

Dated: April 17, 2013

J.D.C.