A two-year-old case about a crowing rooster in Springs has finally been dismissed, with prejudice.
East Hampton Town Justice David Filer wrote the decision on May 15, tossing a case against Efraîn Mayorga, whose part-time neighbor Marc Auerbach made multiple complaints to the town about the sunrise sounds coming from Mr. Mayorga’s granddaughter’s rooster, Brownie.
“I and my family simply want to enjoy our life and our property in a peaceful and harmonious manner, and I want to know that if I choose to offer a lease to a rental tenant for financial reasons then that tenant will not terminate such a lease solely because of a nuisance-causing rooster next door,” Mr. Auerbach wrote in a notarized statement to Animal Control in the fall of 2023. (He rents out his Malone Street property.)
Turns out, Mr. Auerbach picked the wrong cock to fight.
After the town ticketed Mr. Mayorga, his daughter, Ana Nuñez, went to work.
She’s a lawyer and claims Mr. Auerbach began harassing her parents, who have lived in their home since 2001, with letters from fake lawyers. That was enough for her.
“There have been issues with roosters in the past,” she said in a phone call this week, “but they’ve never gone to trial. In the past, when someone was cited, they either just paid the fine or got rid of the rooster. I read the law. It was vague. I knew there was no way the town would be able to successfully try the case.”
Ms. Nuñez hired a lawyer. “It cost me $9,000. That’s why these things have never gone so far. No one was willing to put so much money to fight for a rooster. But I wasn’t going to let them get away with intimidating my parents.”
Mr. Mayorga moved for dismissal on March 29, 2024.
According to court papers, his lawyer, Claudia Batarseh, cited “insufficiency of the charging instrument, lack of clarity of the actual town code subsection being charged, whether the code charged is a violation, or a misdemeanor-level charge, over-vagueness of the code, and the presence of an ‘agricultural exception’ allowed under town code.”
Even though the town prosecutor clarified that it was a violation (not a misdemeanor) and argued that the agricultural exception did not apply, Justice Filer found yet other issues.
“The government has several problems here, lack of clarity and vagueness being the most persistent ones,” he wrote. While he noted clerical errors in the issuance of the ticket, including citing the wrong section of code, he wrote, “The controversy over the choice of the proper subsection of the code under which to charge the defendant is a bit of a side-show.”
Even if the town refiled under the proper code section, the code was still “unconstitutionally vague” because it wasn’t clear what the law was, or how a nuisance was defined.
“What is a nuisance for one may not be a nuisance for another,” wrote the judge. “Who discerns whether the activity is ‘causing a nuisance.’ Code enforcement? A complaining neighbor? When does a group of young children playing in a swimming pool with such excitement cause adequate noise to be deemed a ‘nuisance’? Might a cow lowing or a horse neighing rise to the level of a ‘nuisance’? Perhaps, depending upon whose ears they fall.”
He noted that other sections of town code were specific about decibel levels and could be more effective.
“If the town wants to prohibit (or otherwise regulate) noise from roosters, or any other livestock, they need to do so explicitly in their local code,” he wrote.
“It’s a triple win,” Ms. Nuñez said. “There were procedural problems, the law was unconstitutionally vague, and then it was dismissed with prejudice, meaning Mr. Auerbach can’t bring this back to court.”
Mr. Auerbach did not respond to a request for comment.
Jake Turner, the town attorney, said “The town is reviewing the decision and determining available courses of action.”
Ms. Nuñez added that she hasn’t heard from her parents’ neighbor in years. She said that the renters who frequent his home are often loud, however.
“There was one group of people, they must have been in their early 20s. They started a drinking game based upon when the rooster would crow. We could hear it. ‘Next time the rooster crows, take a shot,’ they’d say. That’s how close we are to each other,” she said.
East Hampton Town Code allows for two short-term rentals (defined as less than two weeks) every six months. The town recently procured software from Deckard Technologies called Rentalscape that scours 10,000 rental websites to track listings and bookings.
The town will send warnings based on the software’s findings and ultimately issue violations if compliance isn’t achieved.
