East Hampton Town Seeks Contempt of Court Order Against Montauk Restaurant

East Hampton Town officials have asked a judge to find the owners of Duryea’s Montauk in contempt of court for expanding the business while a court case over the property is pending.

An attorney for the town said that the restaurant has constructed new structures and expanded the restaurant’s seating to include indoor seating that had not previously existed, benefiting from a stay of the town’s enforcement of zoning afforded by the nearly five-year-old lawsuit.

“[Duryea’s] has enjoyed all the benefits of the stay order now for five summer seasons, while the town was restricted from enforcing its code with respect to petitioner’s operations,” the town’s attorney, Steven Stern, wrote in a new complaint to the judge in the case, Suffolk County Supreme Court Justice David T. Reilly. “Yet, instead of just proceeding to operate the food service establishment as it previously existed, as ordered by the court, [Duryea’s] has repeatedly pushed the proverbial envelope — by constructing new structures, destroying vegetation and now operating an indoor restaurant/event space at the interior of the facility — in direct contravention of the orders of this court.

“Enough is enough,” Stern added. “After five seasons of allowing petitioner to reap the benefit of its illegal operation, the court should lift the stay, permit the town to enforce its code and hold petitioner in contempt for its flagrant violations of the court’s 2019 orders.”

The town and Duryea’s, which is owned by billionaire investor Marc Rowan, are embroiled in five lawsuits in all, each brought by Rowan against the town in 2018 and 2019.

The first three lawsuits, filed in March 2018, demanded that the town issue a certificate of occupancy for a 90-seat restaurant, concede the town’s authority to regulate the shorefront of the property and to declare a residential home part of the commercial use.

Rowan has claimed that the town invited him to sue, so that the Town Board would have “political cover” for conceding to the property owner’s demands in exchange for road improvements, septic upgrades and an agreement to forever bar the landing of ferries or passenger cruise vessels at the restaurant’s large deepwater pier.

With essentially no litigating of the facts of the case, former East Hampton Town Attorney Michael Sendlenski and Rowan’s attorney at the time, Water Mill lawyer Michael Walsh, negotiated a settlement of the three initial lawsuits in January 2019 that gave the restaurant its demands, while Rowan would ban commercial uses of the pier, install a costly nitrogen-reducing septic system, give up ownership of a small pond and repave and improve drainage along Tuthill Road.

Town officials at first spoke approvingly of the settlement, but after outrage from residents of the neighborhoods near the restaurant, who said the agreement allowed previously undisclosed expansions of the formerly rustic take-out seafood stand, Town Board members said that they had not been informed of the details of the settlement and had never authorized Sendlenski to sign it.

In April 2019, the town hired Stern’s firm, Sokoloff Stern, to petition the court to vacate the settlement and rescind the certificate of occupancy that had been issued to the restaurant. Rowan’s attorney answered with two additional lawsuits against the town, seeking to halt the revocation of the CO.

In the 53 months since, Reilly has still made no ruling on any of the substantive issues in the five pending lawsuits. But the restaurant has continued to operate under orders that it conduct business exactly as it had in 2018.

Stern says that Duryea’s has advertised the use of its indoor space for private parties, a clear expansion of the restaurant’s use prior to the court entanglements. An August 28 post on the restaurant’s Instagram account shows long tables, draped in cloths and arranged with dozens of chairs inside the former seafood shop space.

When the property was owned and operated by the Duryea family for the 70-plus years before it was sold to Rowan in 2014, the inside of the structure had been a briney, roughly finished wholesale seafood market. A small kitchen with an ordering counter dished out steamed lobsters and clams and a small take-out menu that customers carried themselves to plastic tables and chairs scattered on the deck outside, or to rocks along the shoreline.

Since Rowan took over, the restaurant has steadily upgraded its offerings. Teak and custom fabric have replaced the plastic tables chairs. The once ramshackle pier has been wholly rebuilt and now regularly plays host to numerous large private yachts. Tables extend well out onto its broad planking in summer. A large crew of waitstaff caters to the tables of customers, buckets of rosé and bottled water line the deck railings, and although orders are still technically placed at the ordering counter, food and beverages are delivered to tables by the staff.

The interior has been remade, with “high top” tables crafted in the mode of island counters scattered around the room, but without chairs.

Stern noted in his appeal to Reilly that the food service operations at Duryea’s have been strictly constrained by the town Zoning Board of Appeals in 1997 to a limited type of use that fell well short of the legal definition of “restaurant” in the town code, which specified service staff and indoor seating, and that the food service had been only an extension of the seafood market’s operations.

“There can be no question that what is depicted on [Duryea’s] Instagram account is not only an illegal use but expressly violates this court’s stay order,” Stern wrote in his appeal to Reilly.

The attorney also notes the weight of such a request.

“I understand the gravity of a contempt motion, and I rarely file motions of this nature,” he says. “But [Duryea’s] plainly believes it is above the law, just as petitioner repeatedly and overtly refused to comply with the rules and regulations of the Town of East Hampton before filing these actions, it has repeatedly and overtly refused to comply the orders of this court.”

The judge in the case signed Stern’s “order to show cause” on Tuesday, demanding that Duryea’s attorneys respond with an answer to Stern’s accusations by mid October.

Since the legal battle over Duryea’s Montauk began, Rowan has since also purchased the casual former Orient by the Sea restaurant and remade it as Duryea’s Orient in a decidedly more upscale offering. Neither he nor his attorney, Gayle Pollack, could be reached for comment on Wednesday.