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Home My WebLink AboutTR-4597 . . Albert J. Krupski, President John Holzapfel, Vice President Jim King Martin H. Garrell Peter Wenczel Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1892 Fax (516) 765-1823 BOARD OF TOWN TRUSTEES TOWN OF SOU1HOLD Nay 23, 1996 Suffolk Environmental Consulting, Inc. P.O. Box 2003 Bridgehampton, NY 11932 Re: Harold Hepensteil SCTH U23-3-14 Dear Mr. Anderson: The fOllowing action was taken by the Board of Town Trustees during its regular meeting held on May 22, 1996 regarding the above matter: WHEREAS, Suffolk Environmental Consulting on behalf of HAROLD HEPENSTEIL applied to the Southold Town Trustees for a permit under the provisions of the Wetland Ordinance of the Town of Southold, application dated March 27, 1996, and, WHEREAS, said application was referred to the Southold Town Conservation Advisory Council for their findings and recommendations, and WHEREAS, a Public Hearing was held by the Town Trustees with respect to said application on May 22, 1996, at which time all interested persons were given an opportunity to be heard, and, WHEREAS, the Board members have personally viewed and are familiar with the premises in question and the surrounding area, and, WHEREAS, the Board has considered all the testimony and documentation submitted concerning this application, and, WHEREAS, the structure complies with the standard set forth in Chapter 37-18 of the Southold Town Code, WHEREAS, the Board has determined that the project as proposed will not affect the health, safety and general welfare of the people of the town, NOW THEREFORE BE IT, . . RESOLVED, that the Board of Trustees grant a Wetland Permit to HAROLD HEPENSTEIL to construct a 4' X 78' catwalk, a 4' X 14' ramp and a 6' X 20' float not to interfere with navigation, and, .BE IT FURTHER RESOLVED that this determination should not be considered a determination made for any other Department or Agency which may also have an application pending for the same or similar project. Permit to construct project will expire two years from the date it is signed. Fees must be paid, if applicable, and permit issued within six months of the date of this notification. Two inspections are required and the Trustees are to be notified upon completion of said project. FEES: Catwalk Ramp Float 4' X 48' = 4' X 14' = 6' X 20' = 192 56 120 368 s.f. s.f. s.f. s.f. X $3.00 = $1,104.00 Very truly yours, tWN'/ f} /¿~. 9, Albert J. Krupski, Jr. President, Board of Trustees AJK/jmd cc: CAC T (J () G\ ~ í3> ..~~ ~C", ~,,() .. ~:::. ~I.:'I " ~'- ~ ):\1 ...~t: ...." ~ .... \) C; "'" " ~.i.': _0-, ~ ~~ \J'"),:: -~cn ~)¡ ~~~ ~\ ì':._-G),~~~ .. ~~ \ f.ì\ ~>...~ . <: '-..... W "~\I i: 1:\... If) ~ ~ r.:\ '( }, IJ:J ) I:\..-.~ G " '- I\..~ 'I> <:) ~ '- ..... ">..:- - DEEP HOLE - '=. / /" ~ .... ~ -.I ~ ~i ¡.;:~ ~~ . \h:~ æi5~ :l~! ~CI)~ i~~ ~~I€ ~¡.;:~ ð"1:l.( -.I~~ "I:,., \!)~~ "1:",- ii "I: . ¡¡~ "I:"I:~ ~~ð ~~I.) " t>- z w ~ ~ \~ \ / , <?Jo tf 1~')' / ~ CREEK ~ ~ ~ æ ~ ~ 10"" ~r.~1>' ~ ~f- 1 t .¡ -.I ,~ Y.J _ t~ ët ~ 8-11: ~ S ~, :!ì 11 .~ ~~Q~';t~ ~:I f~ Q:: ~ r '\; ='..... I ,.~ (() ~ II .!' \0 o ~ ~ ~ ~ CO) II Q)'~.,:::." 0\ l(. o~ ~Q:::5<:)L ~ æ ~I ~ n..j::: QI ~. I ~ ~ to&.. ..... 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"'-, it ~~cI,i~~ ê;;t~.... :i!!!2!!11".. !t~¡~ ~ ~~o::O:: >-<{"'II! ~~~~~~ ~~~<{ ~~t;Ii.",~ u:~~ ~CI)I:i~~~ ::?IQ~~ 8~p.;~u¡.;, >-~ 6 <( t!t!~~ -J3~~ ~~~~IL~ ~~~~ ;;t~~~ibl ¡::;....<{2 ~~~~~~ ~~!!s~ ¡Jj ~lI.. ~~ 8~ I,t¡CI) ~~~ ;::!!i>:'(:S ~¡<;g;;~ ~!t~Q /,¡j\,j ~ 9.,...l<J"I: è~-i~~ ... .b!.tï:::\! "I:a:; :<: ßQ:,(Oo L:"-.J:.:î\!).-.I ...o~~ ffi~2~~ I.):t:... ~ ~ ~ I:i ? o ... ~ u ~ ~ ~ ~ "I: CI) ~ -.I !š ~ ~ I.) .,.; .... ti- C/) Ço ~CÞ .:i ~CÞ .. ''¡: ~~ a: 'I:( . . Albert J. Krupski, President John Holzapfel, Vice President Willialll G. Alberlson Martin H. Garrell Peler Wenczel Town Hall 53095 MaJn Road P.O. Box 1179 Soulhold, New York 11971 Telephone (516) 765.1892 Fax (516) 765-1823 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Office Use Only: ,_._ Ii Coastal Erosion Permit Application, X::Wetland Permit Application i, Grandfather Permit Application" ---Trustee Lands Permit Application ---Waiver Received Applicati n: Clerical Review:,z ~7 Completed A pI ca ~o Incomplete ' _ ~/o/i~ SEQRA Class ficat pe I., Type II Cdóidination:(date CAC Referral Sent: Date of Inspection: Receipt of CAC Reporb:! ate) Lead Agency Determination: Technical Review:(date). . PUblic Hearing-:(date) V/,'(/rl- Decision: 'Approved (Y/Ñ) ('date) Application Fee:$/,j"(). .0 [' ì: M,ð.q·271œ ~2719OO &I= ~__¡Y==~~,l 1 ii ì I i d Name of Applicant Harold Hepensteil Address 44 Shoreham Drive Eastr Dix Hills. NY 11746 Phone Number: (516) 586-8422 Suffolk County Ta~ M~p Number: 1000 - 123-3-14 Property Location: Bunqalow Lane IMattituckl 77.3.Q fppt nnrth nf intersection with Park Ave. (provide LILCO Pole ø, distance to cross streets, and location) Bruce A. Anderson Agent: ~1Jffnlk Fn";rnnmant-~l C'Q.....lìulti"'], IRC. I If applicable) Address:P, O. Box 2003, Bridgehampton, NY 11932 Phone: 537-5160 1 BO~ of Trustees APPlicationtþ GENERAL DATA Land Area (in square feet) : 16,788 Area Zoning: R-40 Previous use of property: residential Intended use of property: residential " Prior permits/approvals for site improvements: Agency N/A Date X No prior permitslapprovals for site improvements. Has any permit/approval ever been revoked or suspended by a governmental agency? X No Yes If yes, provide explanation: Project Description (use attachments if necessary): Construct a 88' x 4' raised catwalk, a 4' x 14' ramp and a 6' x 20' floating dock ....''',..,~'. 2 --------.................. ..±~~c >'J'ÇJr- ===on :rg-Q~ In ,. ~ 0 ~ -.. ~ :1 ~ q - .¡., .. Q- , ëJ ~)(- ~ c , (5) :r ~ g = ¡¡."- ~;:: ,,-;::. .. ~. ~ ~ 5' " 5' ~ n !t " ,,' (¡) ~ G) n b1 !.. rJ (ì) tL ~ 5;).. b1 n ~ n 5;).. (ì Ñ' (") n (") o (ì (") >- "-:>On :>0 \)J ~ (j) ., c: ¡:¡: ~ ~ <S:> " \)J :r 0 "" ~ x [T1 3 N :3 " C) :So :>- '" ., 0 C) 0 " .:3 C>I :3 >L 3 (, z " ~ -< :3 '" '" ~ ~ õ' ~ (¡) :3 C>I \) ~ I\J 0 :3 <II c: s:t. :3 ~ :3 ~ lJ) " .. :f '" .. ,. c: i! <z " .. J ~ cï g !11.... ~Gï ,. " c: 0 3~ 5\, õ' (¡) N (¡) .. 'I " ~ lJ) " " " 5 " .. ,. ö' ~ !'! . -1 3 <r " , I J! ¡¡- ~ "' J ;:: I !~ 1!1 N U, oJ J .! = ... r I ;:: r- =ë :,: fJ 1!1 C) ~ . I <r- " .. "" ~ " "- ,. ~ ~ .. !tï::. -1m 5:&- !11.. " ~5\, " ,. i» ~ "- "' ~£:' <lJ) .g 1.1 " ~ ,. .. .. , ¡: "- "-m -1"- _. "" "- " !11..5\, ~ ,. i» ~ "- "' ... a " o "' -!t n .. ,. ~ .. ;¡o ~ ... a " --~ " "- £:' 3 " b ~ ~¡ o "' !t -n õ .. ,. ~ ri ;:: .. ¡¡ :r m;::;:: ~ ~. r- :t 5' ~ ~ ~ "' ,,' "" (¡) ô1 "- " .~ (¡) (¡) G> . m (') x !U iii' '" çt ,. ~ ,,' n " "" ". (¡) -;Þ ;;: ô1 C) 0 "- oJ ~ n . .¡., " Q 3 ,,' ~ "1 x x q a¡ lJ) ~ ~ .. 3 G> C) C) ~ \JI c: ~ ~ ~ m ¡¡- ~ I,' ',' II " II' Q ~'" !U G>n çt I,' . " .3~ 0 II (b çt !U - Î j NN , . x x qi:¡ U1 ct I: !U çt ~ U1ö1OJ I: :e § ~::3lS> 7<"~~ U1 :e Q r I: !U çt ::3 3' Q .(b šl:s:: !U g ct I: o 7<" (') Q I: ::3 ~ Z -< ----, '-¡ r~ \ ~_,J..,,!, , ",/ ~ N -J ~ I I\) ., o ~ I (1) \:5 (1) ::s \!) çt (1) () ., o \!) \!) , \f) (1) () s:!: -no o ::s ., I\) Q iii' tS:\1 ï;.1 3 Botlb of Trustees APPlication4IÞ WETLAND/TRUSTEE LANDS APPLICATION DATA Purpose of the proposed operations: provide dockinq facility to access naviqable waters. Area of wetlands on lot: 924 square feet Percent coverage of lot: 10.8 % Closest distance between nearest existing structure and upland edge of wetlands: 65 feet If yes, how much material will be excavated? cubic yards Closest distance between nearest proposed structure and upland edge of wetlands: 0 feet Does the project involve excavation or filling? X No Yes How much material will be filled? o cubic yards Depth of which material will be removed or deposited: N/A feet Proposed slope throughout the area of operations: <10% Manner in which material will be removed or deposited: N/A Statement of the effect, if any, on the wetlands and tidal waters of the town that may result by reason os such proposed operations (use attachments if appropriate): Catwalk is to be elevated 4 feet above grade (minI thereby preventing shading of vegated wetlandsd and bottom lands. Accordingly, no impact to wetlands are expected to occur as a result of project as proposed. 6 .. , . DR. JONA THAN M. GOLD 277 Indian Head Road Kings Park, NY 11754 (516) 544-4400 . '-l ~I- I I """ .....iìl 1-1- I- January 22, 1996 Oral Maxillofacial Surgery Dental-Facial Reconstruction Implantology To whom it may concern: Rosemarie Hepensteil has been under my care for chronic and acute tempromandibular joint dysfunction, associated myofacial pain dysfunction, headaches, and vertigo status post an MVA (motor vehicle accident) April 7, 1992. Mrs. Hepensteil requires assistance when walking when vertigo is acute, therefore, she needs a cat walk wide enough for someone to assist her. , CJ·h M. Gold cc: Mrs. R. Hepensteil JMG: sc - T.I.p~... (5IB) ml67B . DAVID BIDDLE, M.D. IRWIN H. BLAU, M.D. JEFFREY E. MALLIN, M.D. SUJan A. Thomp.on, Administrator 2-2-96 To Whom It May Concern: RE: Rosemarie Hepensteil The above named patient is under my neurologic care for vertigo and cervical radiculopathy. Due to this condition it is necessary for her to have a widened cat walk so that she may have assistance walking. Sincerely, - . · BoJlt of Trustees Application 4IÞ AUTHORIZATION (where the applicant is not the owner) I, Hal Hepensteil (print owner of property) residing at 44 Shore ham Drive East (mailing address) Dix Hills, NY 11746 Bruce A. Anderson Suffolk Environmental Consulting, Inc. Bridgehampton, NY 11932 do hereby authorize (Agent) Southold Board of Town Trustees on my behalf. to apply for permit(s) from the -J..J.J a. ~,..; ¿.ß (Owner's sig ture) 4 Boa4IÞof Trustees APPlication 4IÞ - County of Suffolk State of New York Bruce A. Anderson BEING DULY SWORN DEPOSES AND AFFIRMS THAT HE/SHE IS THE APPLICANT FOR THE ABOVE DESCRIBED PERMITrS) AND THAT ALL STATEMENTS CONTAINED HEREIN ARE TRUE TO THE BEST OF HIS/HER KNOWLEDGE AND BELIEF, AND THAT ALL WORK WILL BE DONE IN THE MANNER SET FORTH IN THIS APPLICATION AND AS MAY BE APPROVED BY THE SOUTHOLD TOWN BOARD OF TRUSTEES. THE APPLI CANT AGREES TO HOLD THE TOWN OF SOUTHOLD AND THE TOWN TRUSTEES HARMLESS AND FREE FROM ANY AND JILL DAMAGES AND CLAIMS ARISING UNDER OR BY VIRTUE OF SAID PERMITrS), IF GRANTED. IN COMPLETING THIS APPLICATION, I HEREBY AUTHORIZE THE TRUSTEES, THEIR AGENT(S) OR REPRESENTATIVESrS), TO ENTER ONTO MY PROPERTY TO INSPECT THE PREMISES IN CONJUNCTION WITH REVIEW OF THIS APPLICATION. ~ ¿fdLL_. ~gna u e SWORN TO BEFORE ME THIS 25.ff.... DAY OF H/JRC?f!. ,19 9~ - ~- '/;¡¡hl ê ~ Notary Public' . Þ<.IM ~~"P!' f'OP'!llll Nrn~'¥ I't,\, Sl.lh' "I NY Ph OIf("'191~~a.,<), ~lIfflll!.¡ C"rlut'~ ".om", f'r''''; 2/;!{3,JQ8 3 · Suffolk Environmental Consulting, Inc. Newman Village, Main Street, P.O. Box 2003, Bridgehampton, New York 11932-2003 (516) 537-5160 Fax: (516) 537-5198 Bruce Anderson, M.S., President Hand Delivered April 24, 1996 Mr. Albert Krupski, President Southold Board of Trustees Town Hall P. 0, Box 1179 Southold, NY 11971 Re: Harold Hepensteil Situate: Bungalow Lane, Mattituck SCTM# 1000-123-3-14 ~G& æ n !17 R..(ñ).,.. -, IE n -..., ·"~··'""'""jr APR 2 4 lnfy. 0 010. /i I h7\:ItI "I "'~ TOWN 07-=\liT¡~-I~)I' --"'-vi (,' 1)1 ~--'--'-"-':""~::~~,:::,j Dear Mr, Krupski, I represent Harold Hepensteil who has applied to your Board for the construction of a private dock facility at the above referenced location, In meeting with your clerk regarding this project, I was advised that a preliminary determination was under consideration by you Board to reduce the length of the dock by 3"2 feet. Such a reduction would result in water depths of approximately 7 inches at the point were Mr. Hepensteil's boat would be docked, The purpose of this correspondence as well as my overall testimony is to shed additional light on this project with special reference made to the rights of my client and the environmental setting and impacts to Deep Hole Creek with respect to the project as proposed and the shortened dock as contemplated bv your Board This report is comprised of five parts, They are: (1 )Project Description and Design Considerations; (2) Deep Hole Creek and Waterfront Development Patterns; (3) Riparian Rights and the Right to Access Navigable Waters; (4) Regulatory Status; and (5)Environmental and Quality of Life Impacts Pertaining to a Smaller Dock Several c.:onclusions for your consideration are drawn at the end of this report, Pal1 I: Proiect Description and Design Considerations (1) Applicant proposes to construct a 88' x 4' raised catwalk. a 4' x 14' ramp and a 6' x 20' floating dock (2) The proposed catwalk is elevated to four feet above grade as it crosses vegetated tidal wetlands, Thereafter, at the seaward edge of tidal wetlands, the catwalk is lowered by approximately I foot. · Page 2: Krupski 4/24/96 (3) The purpose of this project to provide for an adequate docking facility for a 25 foot power vessel which draws 2.5 feet of water. A boat of this size falls well within the range of boats that dock and navigate in Deep Hole Creek. (4) As proposed, the overall dock structure extends forty feet into Deep Hole Creek from the low water mark. Water depth at the end of the dock is 36 inches. (5) As proposed the dock is to extend to a point just landward of where the navigable channel of Deep Hole Creek begins Part 2: Deep Hole Creek and Waterfront Development Patterns (1) Deep Hole Creek is a tidal creek of 42,9 acres, It derives its name !Tom the northeastern portion of this creek which contains a circular body of water having considerable depth, This portion of the creek was formed during the last glacial period approximately 20,000 years ago. (2) A review of the aerial survey taken by Aerographics Corp on September 15, 1994 reveals 66 private docks to have been constructed at Deep Hole Creek. Dock structures range !Tom 6 feet (a floating dock secured to an existing bulkhead) to 160 feet. Generally the larger docks occur in the more shallow areas of the creek reflecting the need to access navigable waters, (See Exhibit A) (3) More recently, in the spring of 1995, the Southold Trustees approved a 99 foot dock assembly proposed by Rosalind and David Gordon whose property is separated by three other properties to the north of the Hepensteil property, Importantly, the approved Gordon dock extends 54 feet out into Deep Hole Creek !Tom the low water mark. Thus, the Trustee Approved Gordon Dock is both longer and extends out further into Deep Hole Creek than the instant application (See Exhibit B), Page 3: Krupski 4/24/96 Part 3: Riparian Rights including the Right to Access Navigable Waters There are numerous cases which have been decided by the Court system of this State. Three such cases are discussed in detail all of which were decided in the State of New York by the Supreme Court or the higher Court, The Appellate Division. Each case is discussed separately below: Case #1: Allen (plaintiff) vs. Potter (Defendant) {Supreme Court, Yates County, 1970} The defendant (Potter) constructed a catwalk and boat hoist out into Canadaigua Lake in upstate New York and over an easement the decision for which is attached hereto as Exhibit C. In this case, the plaintiff (Allen) sought a permanent injunction and damages rrom the defendant for the dock facility In his decision, the Judge found that the rights as a member of the public did not exceed the riparian rights of the landowner who constructed the dock facility and accordingly dismissed the complaint. The Judge also declared that riparian rights consists of (I) the use of water for general purposes such as bathing and domestic use; (2) the right to warf out to navigability; and (3) the right to access navigable waters, Other legal decisions in support of the Judge's Declaration include Hilt v, Weber, 252 Mich, 198233 N, W. 159; City of N, Y v, Wilson and Co" 278 N, Y 86 15 N, E. 2d 408, (See Exhibit C) Case #2: Town of Hempstead et. al. (Respondents) v. Oceanside Yacht Harbor Inc. (Appellant) {Supreme Court - Appellate Division, 1972} bf{ ('5-'nJ :2 b~ 6{IJ ~';>Nj 2.J '(>'1 The decision reached in this case is attached hereto as Exhibit D. In this case, an action was filed by the Town of Hempstead to recover the reasonable rental value of the use and occupation of Oceanside Yacht Harbor Inc. in the operation of its business as a marina In its decision over this action, the Appellate Division found that the extent of the marina owner' use of its riparian rights including the rental of the mooring slips which were attached to piles, to the public, did not constitute an unreasonable exercise of dominion over underwater land belonging to the Town by virtue of a Colonial Grant and others, even though the number of boats was considerable in view of state policy directed toward encouraging the private development of waterfronts, Appropriate regulation rrom the Town was subject only to condition that the use be reasonable and not destructive of navigation, Accordingly, the Appellate Division dismissed the Town's Complaint. In rendering its decision, the Appellate Division declared that the upland owner's riparian rights include the power to build a pier, dock or warf, for the upland owner's use and the erection of more than one dock was not unreasonable if they are necessary to the Page 4: Krupski 4/24/96 upland owner's e~oyment of his riparian right of access, Importantly, the Appellate Division defined the riparian right of access as to comprehend the reasonable, safe and convenient use of the foreshore for navigation citing in support, a previous case known as Town of Brook Haven, Trustees of Freeholders and Commonalty v, Smith which was decided in favor of Smith, Numerous other court decisions in support of the Appellate Division's decision are cited throughout and also, the issuance of an Army Corp of Engineers Permit was viewed as evidence that the construction of docks did not impede navigation, (See Exhibit D) Case #3: Ted Bravo (Respondent) v. Hilde Tertiege (Appellant) {Supreme Court, Appellate Division, Second Department, 1993} J 'I (. (.\1:>2 J ~Î3 This legal action involved a dispute between a buyer and seller of watemont land on Great Neck Creek in the Town of Babylon, The decision reached by the Appellate Division is attached hereto as Exhibit E. In this matter, the purchaser (Bravo) brought an action for return of payment on the parcel ofland after vendors (Tertiege) sold rights to a navigable tidal waterway abutting the parcel. In its decision, the Appellate Division found that the owner ofland abutting navigable tidal waterway has the right to use area over underwater land fronting on his property for access to navigable waters, even if, title to underwater land is held by another. The Appellate Division also declared that the right of access comprehends the reasonable, safe and convenient use of the foreshore for navigation,.. commonly belong to the riparian owner. Accordingly, the court ruled in favor of the vendors. (See Exhibit E) Part 4: Regulatory Status Applicant has applied to and received the necessary permits rrom the New York State Department of Environmental Conservation and the US Army Corp of Engineers for the project as proposed, Importantly, both agencies are bound by their responsibility to provide reasonable safe and convenient access to navigable waters via a dock while not blocking a navigational channel or generally impeding navigation The NYSDEC Tidal Wetlands Permit and the US Army Corps of Engineers Permit are attached hereto as Exhibit F. Part 5: Environmental and Ouality of Life Impacts Pertaining to a Smaller Dock It is clear that the issuance of a Trustee Wetlands Permit for a dock significantly smaller to that as proposed will have certain negative impacts to my client and the environs of Deep Hole Creek. After careful consideration, I conclude that a shorter dock will in the following impacts Page 5: Krupski 4/24/96 (I) Applicant would be deprived of his riparian right specifically including reasonable, safe and convenient access to navigable waters, (2) The 25 foot boat to be tied up to the proposed dock would now rest on the bottom during mid to low tides and accordingly, the underlying bottom lands would abrade the bottom of the hull releasing or causing an flaking off of bottom paint on the creek bottom. (3) During mid to low tides, the applicant would be forced to power through the underlying mucky bottomlands thereby releasing fine grained organic sediments into the water column, The release of these fine grained organic sediments into the water column would result in direct increased nutrient availability to algae, increased biological and chemical oxygen demand, decreased dissolved oxygen concentration as well as to cause visual sediment plumes in Deep Hole Creek In conclusion, I offer the following conclusions for your Board's Consideration: (I) The proposed dock has been designed in such a way as to protect vegetated tidal wetlands by the elevations proposed for the catwalk and also to protect the bottomlands held in trust by the Southold Trustees for the Freeholders and Commonalty of the Town, In contrast, a shorter dock would undermine the protection of surface waters and bottomlands of Deep Hole Creek (2) The proposed dock avoids the navigable channel of Deep Hole Creek and therefore will not impede navigation, This finding is supported by recent approvals for the dock as proposed, by the New York State Department of Environmental Conservation and the US Army Corps of Engineers, (3) The issuance of any permit for a dock significantly shorter than proposed is viewed as illusory because my client's riparian rights would be violated and his objective to access navigable waters in a safe, convenient and reasonable fashion would be defeated, Page 6: Krupski 4/24/96 For the reasons stated above, I hereby request that this Board approve the dock facility as proposed, Thank you in advance for your careful consideration. Sincerely, AA~I Bruce A. Anderson cc. H. Hepensteil , -,-..- -.,~---.._-_.... -----------..-- -.-.----- ~.', ",,' ;:', .<d' \.... '1;.', J.. r__ . ". ì:.~, \ -Ï !... 4.~'·~::; '~~, - )'"-} '---':: ........ . ('~'... \.;: . . ( ...",-, ..... 5).,. ',: W "" "\ -,~~ .,. "":$. '. ',- ......:. ,:'p- .; ~ ".' / -y ^ .D, ' ü /'. c, ,.)"' f ~. ~ '/ -. '. ,.~ 1, .~ . \ ~ ',- I,; '. \, .0...... '....:~-..-l\ :...:, -~--- . ''\." '". <, ;J 'Y~ f'-~.' .... ......, , '~î-1 C :-: '::-:. ; l..AND>GS ê A C :.e. t'leetJu... T .; -_. ~JCTION 10 Î~L LE't\.\S-TH : LEf\fó-TI{ OF OOCK OUT " ...,. ~~ ? "--.._---- -f='L~CC - (.:'. "-... '\ ,:~ < -- \ ~\ \ '. \ \ , .. \, " ~ -, \ \ . .' ...:.~ J , , .~: .. 'ý ,/ , /7' : l~ \ ,~ ,', '. ~ ",.\ , ~::: '( f./:A.¡-i , 5CO " ,L u_ ,J ., . -.. !",,"; þ;':' ',' ',,"'':''.ki:..,':''-· --'..... '. , . ,..1(. .. 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(ZENOVAï/ONS. j9Ñ.S 5_~?,';:,~..¡Rf:n:Q '!"c MEA~ S¡:,A. L8Æl.~~.D; I,NG ZC_'-If,J~,.:@, ~~~L~!:.tO ~¡QAGE :::o~p. ~ ) 12 !!2"_'-:~__G!,J6g!:.!:-!TE~___-=:.. t:~EC;.l';lj~· . -.--...-- ;, :,.c· ..:" \: '.... .,-. , ' .- .- 1·....· ". ,Þ -..' '( :._- ! , . - / - -- ...." V\ - -----.---. .'-- -... -'-'---. ~;':;L EE;-, ~ ~ ~"'~'~ -" '. - .. ---- - --'-"-- T:,~_:.:a -·----..--)3 , ij1 ^ .-~.--_._. --..i ---------'.-..-....--.--, ,- t' Exhibit A: Aerial Photograph by Aerographics Corp, of Deep Hole Creek taken on September 15, 1994 submitted at the Trustee Public Hearing of April 24, 1996 790 316 nW YORI!; SUPPLEMENT, 2d SERIES r 7J The objective of di~dosure here is to reveal and not COnceal the, :', facts bearing on validity of the will. The purpose is to avoid surprise.:;:' at a trial, not to caus. surprise at the trJa!. The statute is to be nte~::;.~ preted liberally and to pernlÎt disclosure of eviúence which is material. ", and necessary. Allen ". Crowell, Collier Publishing Company, 21 N.Y. ~ . 2d 403, 288 N.Y,S.2d 449, 235 N.E.2d 'klO (1968). ,.' The Court is of the opinion that the disclosure of the statements is ,:,¡ sought in good faith, that Ihe production is required In this probate pro. . ,:" ceeding in the interests of justice, that the disclosure is In the interest of; all pnrties, that the guardian ad litem is under aMty to reveal and reo port the same, and that disclosure will prevent surprise and assist in proper preparation or resolution of the issues. ' Accordingly the guardian ad litem is directed to produce and disclose the five statements. The order M submitted contains a general direction not limited to disclosure of the five statements, It is the intention o( , the court that only the five statement~~:~}clO~l£.I\ d . I~ .f·~ . I' (iJtltJPj.· 64 ~(js..2'¡ 938 fv " Grace r. ALLEN, Plalntlfl, v. Walter Ð, POTTER, Dettlldallt. I ¡,'. d"?' .-: S~prtl1l. COllrt. Trial Term, V.tes Counl.· vl1 ói J;; Dc.. 16, 19ìO. vtV'< f 1 }:' : J'. . . , '. , . Action seeking permanent injunction and damages from defendant, ,;t for intederence with use by plaintiff of a boat and boat hoist which she '~ had placed in lake, together with a catwalk, in "ieinity of right.of.way.,' The Supreme Court, Yates County, Richard M. Rosenbaum, J., held,,: that plaintiff landowner, who did not Own property on Canandaigua,::j Lake but who had constructed a boat h(li$t and catwalk be)'ond the lo~¡;, water mark, which was thus located on land owned by the state in trust. ',..1 for the people, was not a "riparian owner" with regatd to Ihe lake by'. , virtue of easenJent ol'er defendant's land which was designed to give;; plaintiff access to the lake; plaintiff's ri~hts. as member of the public ~ did not exceed riparian rights (If landow'ner over whose property she. passed. ~ Complaint dismissed. Art ter a. of ea! tio 8. fo na . o Jrnt....."fJOt 4. L: WI fo vit ph dil pa fo of 1. .IbtrigabJ. Waterø <1:=89(1), 40 Waterø and Water Oourø.. 4::>89, 109 'Ii A "riparian proprietor" is one who OWns land on the bank of a ri!i.. er; corresponding to riparian proprietors on a stteam or a small PO~..!l da en 1>1. th 01' ot conceal the .vold surpri$~ i is to be inter: , :h is material 'any, 21 N.Y., statement$ is , probate pro- , he Interest of :eveal and re- and assist in ~ and disclose leral direction ~ intention oi Indaot, >m defendant list which she right-of·way, mm, J., held, Canandaigua yond the low state in trust I > the lake by gned to give of the public property she. ~ .~- lank of a ri'v~ 1: J. ~. a small po~~:;.7 ..~'.J ALLEN v. POTTEIt 791 Citl' n~ 910 N.Y.~,2" ¡gO are "littoral proprietors" on a sea Or lake, but riparian is also used coex· tensively with littoral. 8M publi.alion W ordo and Phras.. for other judiciI' eonsttUctionK Ib.nd definition", 2, Navl.able Watern OÞ>S9(2) In general, "riparian rights" connote the right and profit to owner of the upland arisin¡¡ from it< connectic1tlwith the water such a$ the eaSement of passage and lise, subject however to governmental regula· tion for the Improvement of navigation: 8ee publi.alion Words Ind Phrases for other judiÓal t'onstruCotioßl5 and f)Qfinltions. S. Navl,able Waters OÞ>S9(2) Generall\' speaking. "riparian rights" consist of: (1) IIse of water for general purposes such a bathing and domestic use; (2) wharf out to navigability; nnd (3) access to navigable waters, See pùblicRtion \Vords And Phru@! for other judicial 1o(!Ot1Struotiot\! aud definitions. 4. Nan¡able Waten <Þ2Ð, 39(1) Plaint; fI landowner. who did not own property on Canandaigua Lake but who had constructed a Ix>:!.t hoist and catwalk beyond the low water mark, which was thus located on land owned by the state in !rust for the people, was not a "riparian owner" with regard to the lake by virtue of easement over ddendant's land which was designed to give plaintiff access to the lake; plaintiff's rights. as a member of the public, did not exceed riparian ri/{hts of landowner over whose property she passed. See publication Worrl. and PhrutI for other judiclal constructions and definitions. Taylor & Taylor, Penn Yan, Daniel R Taylor, Penn Yan, of counsel, for plaintiff, Croucher & Gifford. Canandaigua. Thomas Croucher. Canandaigua, of counsel, for defendant. DECISION RICHARD M. ROSENBAUM, Justice, The plaintiff brings an action for a permanent injunction and lor damages and for ptlOith'e damages against the defendant for interfer- ence with the use by the plaintiH of a boat and boat hoist which she placed in Canandaigua Lake together with a catwalk on both sides of the boat hoist in the dcinity of a right·of·way plaintiff has over land owned by the defendant along the shore of Canandaigua Lake in order \,/' I! " , ' ;::1 : . : ~ . I; ~ i1t ~ '¡ ~ 'j :r· : ~ 'H !u ,¡ii' , :¡ ~. "'11 "'I ' ", , :'::1 . '::(,: " 'j, ! 'flll I, ¡'f , .~ : ª ~ , "I " n , ' l! :' I, , I 792 316 NEW YORK SUPPLEMENT, 2d SERIES . :! 'JI I,.: ,;'¡': .:., :¡¡. :1, :1"" ,',' to reach the Lake located Some distance from her property which Is not along the shore of the Lake, Prior to the instant dispute the defendant in the instant case had brought an action in State Supreme Court against the plaintiff in the in. ~tant case to enjoin an ailegcdl)' improper use of the same right,of.way;. The facts were that the plaintiff in the instant case had instailed a dock at the end of the right-oC-way and had parked vehicles and equipment on the right,of-way. The Court granting the injunction ordered the dock removed pointing out that by the terms of the right-of',,:ay con- tained in a Deed the purpose of the right-of,way is for "ingress, egress and re/(ress with the right at all times to the parties hereto, their heirs and assign~, and the occupants of the premises along said driveway to, pass or repass on foot and with animals or vehicles over said right-of." way." The Court in the prior case also held that the then defendant now plaintiff had no right to obstruct the right.of-wa)' by storing boats, chairs or other equipment on Ihe rlght·oC·way. A pmnanent injunction was i~sued to prohibit such activities in the future. The law as was stated in the prior case is that a clearly stated written agreement may not be varied by extrinsic evidence. Bethlehem Steel Company,·. Turner Constr. Co, 2 N.Y.2d 456, 459-460, 161 N.Y.S,2d 90, 141 N.E.2d S90 (195ì); Loch Sheldrake Associates v. Evans, 306 N.Y. 297, 304-305, 18 N.E.2d 444 (1954), Walter Potter v. Grace I, Allen and G. Ernest Oremlls. Supreme CI. Yates County, May 21, 1969. The decision In Polter v. Allen and Oremus, supra, citing various caseS' also pointed out that "it is a general rule of construction that no more is ,'". granted than is necessary Cor the enjoyment of the easement itseU:" ;'''''e, . : '.' t!, ~;Æ A question of fad was raised in the case at bar as to whether or not "," the boat hoist and catwalk around it was located in the water beyond the :.' low water mark. Were is not located beyond the low water ~arkthe.';' plaintW would be clearh' in ";olation of the defendant's rights because :;" it would then be located on land owned by him. Stewart v. Tum~ý::~' 237 N.Y. 17, 142 N.E. 437. 1 find that the boat hoist and eatwalle'. . . .,Ilo,*, were located beyond the low water mark. Since the boat Jloist andea,!,:, ~ .....,. walk were located he~'ond the tow water mark they Inust be located:,o~~ land owned b)' the Stale of New York in trust for the people oC.the' State of N ew York since Canandiagua Lake is a navigable body or' wä;, ter and title to the bed of the Lake is held by the State oC New York In: trust for the people of the State. See Granger v. Canandaigua, 257 'N;" Y. 126, 177 N,E. 394. '~'" , ..:.;;; Accordingly, the Court must decide whether or not as a member,]~ the public the plaintiff has the right to construct the boat hoist and ~~. walk located beyond the low water mark in Canandaigua Lake an .: . .~ not as a member of the public would plaintiff have the rights enjoy.. . *' .",~,.. vhich, is not I t case had ff in the in- ght-of-way: IlIed a dOck I equipment ordered the )f-way con- ;re5$, egress thei r hei rs Irivewny to id right-ol. I defendant )ring boats, t injunction lied written lehem Sleel ,I N.Y.S.2d Evans, 306 v, Grace 1. ly 21. 1969. arious cases : no more is self," !I her or not , beyond the tr mark the ¡hts because v. Tumey, Ind catwalk )Ist and ,cat- ~ located on ;ople of Ihe >ody of wa- II ew York in , ~a, 257 N, member of/ ,'st and cal-, ,: .ake and'H~~' Ilts enjoyed.:;, ALL:EN v. POTTE!!. 793 cu. u 3Jð ~.Y.S.2d 790 by a riparian owner as the holder of a right-of-way, The Court is con. strained to decide both questions in the negath·e. [1-4] A ripatian proprietor is one who owns land on the bank of a river, See Mettler v, Ames Realty,Co., 6111Ion!. 152,201 p, 702, 70J Corresponding to riparian proprietors on a stream or a small pond are littoral proþrictors on a sea or lake. But riparian is also used coexten. sivtly with ¡¡ttoral. Commonwealth v. Alger, 7 Cush. (61 Mass.) 5.1 Boston v. LeCraw, Ii How. 426, 15 L.Ed. 118, In general terms ri. parian rights connote the right and profit to Ihe owner of the upland arising from its connection with the walèr such as the easement of pas- sage and use, subject howe"er to governmenlal regulation for the im- provement of na\'igation, Matter of Citv of New York West 20SIh Street), 240 N.Y. 68, 147 N.E:. 361. enera}' spea mg such fig Its are: (1.) se 0 water or g'é'Ï1é-iaI purposes as bathing and domestic use; (2.) Wharf Ollt to navigability; (3.) Access to navigable waters. See Hilt v. Weber, 252 Mich. 198, 233 N.W. 159' City of N. Y. v, I Wilson & Co.. 27R N Y !!6..J.;; N.E.2d 408, he Plamtt IS not a "rl-" "'pãriãn owner with regard to Co.nandaigua .a e and her easement to get to the Lake does not give her the rights of a riparian owner. Knight \'. Ciarlone, Sup" 200 N. Y.S,2d 805. As a member of the public certainly plaintiff's rights do not under the facts in this case exceed the riparian rights of the defendant. In fact the riparian rights of the defendant would be severely limited were the plaintiff to prevail. Matthews v. Treat, 75 Me. 594, 597; Johnson v, JeJdness, 85 Or. 657, 167 P. 798. The Court could ha\'e disposed of this matter by use of the unclean hands principle. It was admitted in the testimony in the plaintiff's case that in the installation of the boat hoist it was necessary to use heavy equipment on the right-of·way and to go off the bounds of the right. of-way contrary to the decision of the Supreme Court in Potter v. Allen and Oremus, supra. Also it would be well within the realm of reason, based on the proo£ln this case, to sa)' that the plaintiff simply remo\'ed the dock In the Potter v. Allen case and placed it out approximately sev, en feet (7') In the water in a different form. However, in order to dis- courage further litigation between these parties, particularly based on the litany of events as concerning them, the Court has endeavored to an, ticipate future points of disagreement In its decision, The complaint of the plaintiff is dismissed with costs to the defend, ant. .11' N,y,$.2d-5()1A / ! , ! /Ii ,,,! 'I :¡'I; I . ; j . ~ . ~ ! ~ I ;: ¡:I¡; ¡ iì' , " '1·' .~ - . . 1 ~:r. . . ,j :of' ~ . Q+ ./-D uJk~t S8 A,D.2d 263 f¡n, y'\#I ~ . TOWN OF HEMPSTEAD el al., Rupondent.. v. OCEANSIDE YA f1( , HARBOR. INC.. Appellant. q , ~ -I \0, " Supreme COUI"l, Appellate Division, Second Department. Feb, 14, 1972, t¡ , S94Y2Q NI!W YORK SUFFLEMIINT, Zd 5I1M1ìð ¡ was given a vcry clear option by the Legislature to combine collection . of taxes by 'local ordinance if it wi~hed to do so and the, State Constitution, art. IX, § 2(c) (8) and the Municipal Home RuléLaw, SectlòniO establish a city's right to revoke or amend local ordinances. , It is' not within the pt'ovincé of the court to question the wisdom of this charter pl'ovlslon provided by the Legislature for It is the Legisla- ture which possesses the power to make any charter change which it ,deems advisable regarding the method of collecting taxes, (County of Nassau v, City of Long Beach, 272 N.Y. 260, 5 N.E.2d 811). Plaintiff's prayer for relief is therefore denied in all resiQcl4. ~ . .¡.' i t" 'I I , , t,: ! r ¡: i , ''1 'I'; ·t)1 r ; ; ;. . o : "V."""" !rill" , ~¡ ¡I ¡¡ Jij /, Action to recover the reasonable rental value of use and occupa. tion of plaintiffs' land underwater by defendant In operation of its business as Ii marina. From a resettled interlocutory judgment of the Supréme Court at Special Term, Bertram Harnett, J., the defendant which had filed its counterclaim appealed. The Appellate Division, Hopkins; Acting P. J., held,inter alia, that the extent of marina owner's Use of Its riparian rights and the rental of the mooring slips attached to 'piles to members of the public owning boats did not constitute an unreasonable exercise of dominion over underwater land belonging to town and others even though the number of boats was considerabJe in view of state policy dirècted toward encouraging lhe private development of waterfronts, subject only to condition that use be rell80nable and not destructive of navigation. Resettled interlocutory judgment reversed insofar as appealed (rom, amended and supplemental complaint dismissed !llld defendant granted judgment on Its counterclaim. ,Christ and Benjamin, JJ., dissented. 1. Navigable Walers ....39(3) Where by colonial grants town and others were owners of land under water adjacenl to upland owned by defendant bordering East Rockaway Channel, defendant had a dgM of access to and from the channel over plaintiffs' offshore and that right followed entire (ront. TOW age of de reasonable fishing an, owner, ex~ '2. Navlgabl, The u pier, dock 3. Navl,abJ, The ri land undel right of a. term "accE extrinsic t that publi, 4. Navlgab~ By its, if they are right of æ personal u docks to t 5. NaY/,abl, The e, rental of t owning bo over unde! nUlnber oj toward en only to c, na vlgation Lapp, S. . hurst, of George Town Att; Before CHRIST ! HOPKl1 By colol wateradjl Rockaway rising' ane nbine collection and the' State )me Rule Law, "",I o~dinánces. the wisdom of . is the Legisla- hange which it xes, (County of 2d 811). n all resPects. OSIDE YACHT ·tment. se and OCcupa- peration of its dgment of the the defendant .Jlate Division, ent of marina mooring slips boats did not lderwaler land of boats was Icouraging the ditlon that use r lIS appealed lnd defendant Nners of land Jrdering East and trom the entire front. ;.," .~ , M ~.;> ~, t! ;l!.. ." ": ~, \ TOWNOF.H£lIIPSTDAD.. OCEANSIDE YACHT HARBOR, INC. 895 CII. ll$ 328 N. ·....S.:2d 594 age of defendant's property; thc right of access compreh~nds the reasonable, safe and convenient use of the foreshore for tiavigatlon, fishing and such other purposes M commonly belong to the rip!lrian :'N";¿€:;::;~~:~::'n:::~:':;'<h;:='-:~'~"~ Pi::~..~~~.~ or ,,:~~:.fr..~r: ~plan~~\Vn.~!'.~,s~~'U).!:J!!L u.s,e of the pu blic. -.J 3. NavicableWaleu -39(3)' . .' "_n. ,:; ,T~e right of access may be shared with others intent on crossing land' under water for purposes unrelated to use of the upland, but the right ot access cannot be expanded beyond purpose denoted by the tenn "access"; the exercise of the right does not exlend to pUrposes extrinsIc to commerce and navigation, nor may the light be used so that public navigation Is impeded. 4. Navigable Walen "'39(3), 43(2) By ilself, the erection of more than one dock is not unreasonable, if they are necessary to the upland owner's enjoyment of his riparian right of access; nor can the right of access be restricted to the personal use of the upland Owner who may lease his property and docks to third parties. 5. Na.igable Waters -43(1) The exttnt of maJ'ina owner's use of its riparian rights and the rental of the mooring slips attached to piles to members of the public owning boats did not constitute an unreasonable exercise of dominion Over underwater land belonging to town and others even though the number òf' boals was considerable in view of state policy direct~d toward encouraging the private development of waterfronls, subjeot only to condition that use be reasonable and not destructive of navigation:' .. Lapp, Schacher & Bradle, Cedarhurst (Charles E. Lapp, Jr., Cedar. hurst, of counsel), for appellant, George C;'Pratt, Mlneola, Special Counsel to Howard E. LElvitt, Town Atty., Town of Hempstead, for respondents. 'Before HOPKINS, Acting P. J., and SHAPIRO, GULOTTA, CHRIST and BENJAMIN,JJ. ' HOPKINS, Acting Presiding JU9lice. .. By colonial grants. the plaintiffs are the owners of the land under watèr'adjacent to the upland owned by the defendant, bordering EMt Rockaway Channel.' On the upland is a bulkhead from which'ramps, rising' and falling with the tide, are attached to floating docks. . .. ,..' ," ". , , ' J ! J I i : ¡I, '~ . f!./ I,f[ , I, " "' " , , . i ·1, , ! ,j i} . 1;' t , . 'ï'!' ,'i,i/' ~ .: I" t . 896 328 NEW YORK SUPPLEMENT,2d SERIES , ' ,',,' . ~;' M~rlíig slips; also known as flngers,extend from';tlie flbaÙngd<iO)¡š~~ and~re rented to'the déÍendant's customers.' ", '¡'''"~~~',~ . , Th~ plaintiffs' sue torecoverthereaSonable~e'ntal valúe òf ìlìê"~~; and occupation of their land under water by the defendiint 'Iri'Hi~'; operation of its business as a manna. The plaintiffs' theorY'$, th,at' ~ the defendant" through the construction'of. ,the mooring slips, h~';~. ,ventured beyond the traditional riparian rights of an upland owner to :., such II degree as to trespass on the rights of the plaintiffs. The"" defendant In response claims that the riparian rights include the . . itistallation of docks, floats and mooring slips above the 'plaintlffs', land under water, for which 'use the defendant need not ,pay any compensation. '. The Special Term, trying the case on the issue of liability alorl~, ~ found in favor of the plaintiffs arid directed an 8.8$essment of daril. :.' ages, The opinion of Special Term held (64 Mlsc.2d 4, 9, 811 N.Y,S.2d 668, 674) that "the Town may nòt charge for rents for Its underwater lands in the Instance of docks and floats which are primarily fOf access from navigable waters to upland property, but the Town may charge the upland owner fOl' use of the Town's underwater lands for doeks ,and floats and other Installations maintained there as distinct actlvl. ties in their own right." We are unable to agree with the conclusion of the Spedal Term; and we reverse the resettled interlocutory judgment, direct dismissal of the amended and supplemental como' plaint, and grant Judgment to the défendant upon its counterclaim; ',¡ ",. , . -;-:"'..';- [1J The defendant, as an upland owner, has a right of accel58 to; ~ and from the channel over the plaintiffs' foreshore (Town of Brookha. ~ ,'II ven, Trustees of Freeholders & Commonalty v. Smith, 188 N,y, 74,,~~' N.E. 666) and that right follows the entire frontage of the defendant~s,:' property (Tiffany v. Towllof Oyster Bay,'234 N.Y. 16, 186 N,BJ. 224). i The right of access comprehends the reasonable, safe and:,convenlf!l)f' Use of the for'eshore for navigation, fishing and such other purposes ~;~ commonly belong to the riparian owner, exercised in a reasonabl.e... manner (Tiffany v, Town of Oystér Bay, supra, p. 21,136 N.E"p, ~¡<i:' The scope of what is a reasonable, safe and convenient use ofJ"e" upland owner's riparian rights has been gradually defined on a case ~; case foundation. . , ." , :t" . . . .... .. I [2,3) Thus, it is clear that the right.includes the powe.£.j£.!>ull!!..å.: ~Ier dock ot' wharf for the upland o,wner's use or for the use of.t1¡" ~(Saltnders v. New or n. u 80n v. R. R. Co., 144 N.Y' 76,87,88 N.E. 992, 995; Rumsey v. New York & New England R. R.; Co., 188 N.Y. 79, 30 N.m. 6.'54) or more than one pier or dock (Barnes if. Midland R. R. Term. Co., 218 N.Y. 91, 97-98, 112 N.E. 926, 92!1;:!!?iV;,. Moreover, the 1'Íght of access may be shared with others ,i,!~.n,~ ' crossing the land under water for purposes unrelated to the uSe.9.lJ. uplánd (City of New York v. Third Ave. Ry. Co., 294 N.Y. 258,244;' ;' ES ~e floating docks vahíe of the use J~end.i.nl 'in the ¡iJtheory is lhat oaring slips, has upland owner t() plaintiffs. The ghts Include the Ie the plaintiffs' ..cd not pay any ,f liability alone, essment of dam- ,9,311 N.Y.S,2d I' its underwater marily tor access own may charge lands for docks IS distinct actlvi· th the conclusion cd interlocutory pplemental com· its counterclaim. ¡ght of access to own of Brookha. 1', 188 N.Y. 74, 80 f the defendant's ,5, 136 N.E. 224). ~ and convenient >ther purposes as in a reasonable 136 N.E. p. 226). nien t use of the 'jned on a case to .,= ~~ ;~ ,::~" ::j, 'or ~ :¥ii'. t "", .:" ~ L ':~' ¡: 1;¡· .,", "I';" ..:. " .' ., " " '.' . ~ ,~ ~.. '1 ~1;: ~.. ~, . ,y :~- t', """. :91 ~ . '~~. '~ I:' ~-. ,~ ~ .;~: ~. ."fI., ,. '~ .. it power to build a >1' the use of the . R. Co., 144 N.Y. w England R. R. I' dock (Barnes v. E. 926, 928-929). others intent on to the use, of the N.Y. 238, 244, 62 " TOWN or HEMPSTDAD.. OCEANSIDE YAOHT BARBOR, INC. 897' çlt. M 328 N. Y.S.2d ß94 N.E.2d 52, 54). But the right of access cannot be expanded beyond the purpose denoted by the term "access"-for example, the e>lcrcise of the right does not extend to pUrposes extrinsic to commerce and navigation, such as the operation of a restaurant (Matter of City or ' New York [Neptune & Emmons Aves.], 280 N.Y, 604, 20 N.E,2d 557), amusement parks (People v. Steeplechase Park Co:, 218 N.Y. 459, 113 N.E. 521) or a plantfor processing meat (City oC New York v. Wilson & Co., 278 N.Y, 86, 15 N.E.2d 408). Nor may the right be used so that public navigation Is impeded (Town oC Brookhaven, Trustees of Free. holders & Commonalty v. Smith, 188 N.Y. 74, 87, 80 N.E. 665, 670, supra). We must therefore look to the character and size oC the deCendant's activities on the land under water to determine whether under lhe circumstances they represent a reasonable exercise of its right of Mcess. The evidence as to those activities is substantially undisputed. Thus, it was stipulated that the deCendant "operates a marina on il.q upland, and in connection wllh that has nine floating docks which extend into East Rockaway Channel up to 100 feet, and that these docks are held in place or secured Into place by piles which are driven into lhe land under water" and that "in October 1961 the Department of the Army issued a permit for the construction at 17 floats . . . to extend up to 100 feet Into the waters of East Rockaway Channel." The marina provides repair service and gasoline, as well as storage for boats during the winter. The floating docks accommodate aoout150 boats at mooring rental. The Special Term found that the docks did not in~rtere with Qubllc na~ni and, indeed in 1960, the plaintiffs by re.,olution li'ad authorized the installation of 16 docks by the defendant; declaring that the structures would not unreasonably obstruct the plaintiffs' waterways.1 Thus the plaintiffs have acknowledged that the defend. ant's Use of the foreshore by the floating docks is not a menac~to p~navlgatiº!l. - u The:questlon Is consequently narrowed to whether the extent oC the defendant's use of its riparian rights and the rental of the mooring slips attached to the piles to members. of the public owning' boats constitute an_ unreasonable exercise ot dominion Ov,tr.Jhe plaintiffs' und~~t!).r.laOfl. .As has been frequently said, the term "reasonable" is relative, taking on color and significance from the clrcums¡';'oces (cf. United Paper Bd. Co, v. Iroquois Pulp and Paper Co., 226 N,Y. 88, 4.5, 123 N.E, 200, 202), In this clllle, the plaintiffs introduced no evidence I The permit I.sued under the ruoluUon recited Ihat It was granted "upon the condlUon that the applicants enter Into a lea.. with the Town 01 Hempatead lor tho.e lands lyin. underneath and adjacent to the aforesaid 'trudure.... 'The t.... wu never executed. However. the plaintiffs in their brief disclaim an)' reJianct on lb. tcceþtal1:ce of Ole pennJt by th. d.ftndant as a ground tor holdlDIU to lbe paynlent of "nt. "becaus. all partie. desire to have the basic principle adjudicated:' UAN.'I'.$..td_,r ." .. S. 'd l!:IlOl . ,., , 898 328 NEW YORX SUPPLEQ)rT" ad SEJtIES in .the form of expert testimony that the defendant's use was unrea~ son able. 'tssentlally, the plaintiffs contend that the defendant's use is unreasonable because it malhtains a commercia! operation, in which the riparian right Is sold to others. t 4] Bv Itself; the erection of more than one dock.is not unreason- able, If they are necessary to the upland!ill'llet'L~njoY!!1el1,t-2Lhis Iiparian~..righL2taccess (cf. Barnes v. Midland R. R. Term, Co., 218 N.Y.' 91, 97-98, ii2-N.E. 926, 928-929, supra). Nor do we find authority for restricting the right of access to the personal Use of the upland oWner; the ~Ie is otherwise, for the owner may lease his Þroperty and docks to third parties (City of New York v. Third Ave. Ry. Co., 294 N.Y. 238, 244-245, 62 N.E2d 52, 54-55; Bedlow v. New York Floating Dry Dock Co., 112 N.Y. 263, 279-281, 19 N.E. 800, 807-808; cf. Moyer \'. State of N. Y., 56 Mlsc.2d 549, 289 N.Y.S.2d 114; Huguenot Yacht Club v. Lion, 43 Mlsc.2d 141, 250 N.Y.S.2d 648). [5] We cannot say on this record that the defendant oventepped the bounds of reasonableness by renting the mooring slips to indlvidu. al owners of boats, eVen though the number of. boats Is considerable. The policy of the State, since an early time In the history of our State, has been directed toward encouraging the private development of waterfronts, subject only to the condition that the use be reasonable snd not obstructive of navigation (Town of Brookhaven, Trustees of Freeholders & Commonalty v, Smith, 188 N.Y. 74, 79-80, 97, 80 N.E, 665, 667, 673, supra). If a different policy is to be formulated at this time, favoring the right of the fQreshore owner to be compensated when the riparian Owner uses the tight of aCCess by operating a marin. accommodating the mooring of a substantial number of small private boats, the change ought to be accomplished by the Court of Appeals which established the policy. It folJows that the resettled interlocutory judgment should be reversed, insofar as appealed from, on the law and the facts, with costs, the amended and supplemental domplaint dismissed, and the' defendant granted judgment on its counterclahn, declaring that the defendAnt h8.'l the right to maintain the docks and plies In question. ResetUedlnterlocutory judgment reversed insofar as appealed from, on the law and the facts, with costs; amended and supplemental complaint dismissed; and defendant granted Judgment on Its counter. claim, declaring that defenda'nt has the right to maintain the docks and piles in ques.tion: SHAPIRO and GULOTTA. JJ., ConCUr. , . . . "~; CHRIST and BENJAMIN, JJ.; dissent and vote to affirm, on the.,',. 'oplnion of the Special Term. .. .,,} , . ': :~t tiES , 18 L.Ed.2dI019),~,*; ct which substantially; free and unhampèred: tial defense witn..;;¡:to · process (8ee, .ftoplé· , d 747, 43LN:Y:S.2dJ' t every contAct bét;';een nt and a potèntial de:; Ututes a !'substantJallb! he choJce to testify (ç,i , 145 A.D.2d 564,' 5~ pie ". l{U8b, 122 A.D:2cI 1000; People v. McRo,: 3 N. Y.S.2d 158). Due only when warnings b)' t to a potential defense sited to the point whert .d instead Into insl.tq.. n" (People v. Shapiro," t 762, 431 N.Y.S,2d 422, , this case, the ptosecu. ',:' sting the witness at thé ;' , epresent an attempt to . tef using to testify fot is undisputed ,that the rth man Involved In the se counsei announced' II him as a witness, ·h. uld be alnstèd as' âJ turned to New' Y Of testified'ön the detéR· eover, tI,,; artest '/&" ~ss had announced 't.h~ . (y for' the d~tenda¡¡~ .0 belJeve that·th. vri? because he was intï~! refusal, to lesÍlCy ;~ , since he wa~ få~n for his p&rtici¡'a~o¡'" bout which he ":ou ~. Further;lbeé~ü.. , the witness inigh¡ g the Incident cleaHy incriminate him, theN' Durt to bring hlm'!ntõ' nally assert Ills Filth (.fee, People v. BlJI~ ¡2 N. Y,S.2d 562,' 48a Thoma8, 51N.Y:2d II, 415 N.E.2d 931 6 N.Y.2d 928, '41. ~.2d 342, Miztl.~,b..; , '''', BRA VO v. TERSTIEOE Cllcu60J N.y,S.Jd 129 (A,n.1O.po. 1991) v, Ha""';"., 93 A.D.2d; 971. 463 ·,S.2d 76; Slat. of Ne1'; York t·, Car.y òlltCU, 97 A,D.2d 508, 467 N, Y,S,2d '·Slal. of New }'o"k t', Skibin..<kl, 87 , ' .2d 974, 450 N.Y.S.2d 100), '1:,1'he defendant was not denied the eèllve Q&sislance of counsel ($e., People . àldi, 54 N.Y,2d 137,444 N.Y,S,2d 893, "N.E,2d 400), It ig well setlled thAt trial ïegy'should not be second· guessed on '&1 (set, People I'. Lo.ne, 60 N.Y,2d 748, .Ì'I.Y,S.2d 663, 461 N.E.2d 769), More· ~' the defendant has failed to establish his àtlorney's performance was so un· "onable as to fan out. of the scope of ;'sslonal competence ($ee, People v. La· , '0,' 147 A.D,2d 592, 587 N .Y.S,2d 886). .~i',' Viewing the evidence in the light ost favorsble to the People (8ee, People v. .. te8, 60 N,Y.2d 620, 467 N.Y,S,2d 849, 'N.E,2d 932), we find that it was legally ò, ficlent to establish the defendant's guilt yond a reasonable doubt. MOI'eover, a the exel~ige of our factual review Wet, we are saUsfied thst the verdict of , t was not against the weight of the '~ence (see, CPL 470.15[5]). f han examined the defendant's reo 'ing contentloM snd find them to be -"erved for appellate re\;ew or with; ~,'Ínerit. . o i Ur IIUH'U $Tnht T L.\ J;' ~,r.~, , f ~t,'::, 196' A.D.2d 473' , ',r~d g, BRAVO, Respondent. .j,. , I" v. ". ,¡"HUde TERSTIEGE, ele.. <>, .. ' et al., Appellont.. ,I"~c' u~reh1e Court, Appellate Division, it! Second Department. Aug. 2, 1993. 'd. Q .' haser brought action for return of a)'lnent on parcel of land, after ven· ,,., "'... ~_. dors sold rights to navigable tidAl water' way abutting the parcel. Vendors com, menced separate lummary proceeding for posses~ion, and acllons were consolidated. The Supreme Court, Suffolk County, Do~'IE', J., granted purchaser summary Judgment and ordered return of down pay· ment. Vendon appealed. The Supreme Court, Appellate DMsion, held that: (I) purchaser was entitled to return of do'vn payment, and (2) survey map prepared af· ter determinat.ion of Suprème Court would be considered on appeal. ' AffirmE'd. I. Navigable Waters ""'39(3) Owner of land abutting navigable tidal waterway has right to use area over under· water lAnd fronting on his property for aceen to navigable water, even if title to underwater land I. held by another. 2. Vendor and Purchaser ~334(2) Purch",er was entltied to return of down payment On parcel of land which abutted navigable tidal wsterway, where purchasE'rs of second lot, ba$ed on vendor's purported grant of litle to underwater land, had constructed docks In front of the parcel which would interfere with purchas· er's u~. of property for marina, and survey map showed that vendors had sold same laud to both purchasers. 3. Appe:ol and Error ""'891 While ordinarily material outside rec· ord will not be considered on appeal, there i~ exception for reliable document whose exigtence and accuracy are undisputed, and thus for purpose of sustaining judgment, incontrovertible documenlary evidence de- hor' the record may be received by appel. late court. 4. Appeal and Error 0.714(5) On appeal. Appellatè Division would cOMld..· survey map by licensed land sur· veyor of two parcels Involved in litigation over purchaser's request for return of down payment, despite fact that map sub· mitted with brief was prepared after dete... mination of Supnme Court, where surve)' 129 ¡ /:t: !,j; '!II¡: ¡'j I, 1,1 ¡"I "' , , :,", l'¡ :,: !, I/:,",Ii/' ii: it I(!.~ q;;¡~~: ,',:',:[;,: 'I,.f:' i Ii: : . ~ ! ," ~~ ,I :,1 or ,ò 'I', Ij';i!; ¡!:Iii¡! l:t1l¡t, 'i""" .. '~'H" '¡ hiHJ """, ~\I"I~ ,+ ":~~~ ~~(',n (I" "} ì>,:: ,1'Ii'.,,;~' " . Fi¡ ;¡;I:\II .r I ~ 'II "II ',¡:Ii; 1'!1 I¡w ,,"'It ,':;:,:J ""if '1""1"; " .. L ~ I . ~ ~1;1 r :1':1' '1 µ .; i; l' .j, '.' '.. I! ' f 13U Got NEW YORK SUPPLEPtiENT, 2d SERIES . , 1': ~'. . J. ' .... ~ , map was bis.d on déScript.îons In contraclll of sale of both parcels, which 'Were before Supreme Court and were part of record on ' appeal, and vendnr. did not contend that map wag Inaccurate. I : Costantino & Costantino, Copiague (SI:&- ven A, CMtantlno, of counsel), for appel- lants. Alsn Bend.rsky, West Islip, for rcspon· dent: Before SULLIVAN, J,P., and' ROSENBLATI', LAWRENCE and O'BRIEN, JJ. MEMORANDUM BY THE COURT. (n sn action, inle,' alia, for specific per· formance of a real estate contract, the d.. fendants appeal, as limited by their brief, frmlt .tated portions of an order and judg· ment (one paper) of the Supreme Court, Suffolk County (Doyle, J.), dated Januar,Y 30 1991 which, inter a./ia, (I) denied their cr~.s m~tIon for sumn'ary judgment dis- missing three of the plaJntlff's causeS of action, (2) granted the plaintiff's motion. to consolidate it summary proceeding pendmg In Suffolk Counly District Court with the instant action provided that he deposit rent- al payn1tnt.s with tile court, (3) granted the, plaintiff summary judgment on hi. fiut and fourtll causes of action to recover the down payment, and (4) directed the Clerk ot the Court to remit to the plaintiff the Slim of $76,237.50. By decision and order on 'motion dated October 4, 1991, the defen' dants' motion to strike "Exhibit A" from the plaintiff's brief was granted, ORDERED that. after argument of the appeal, this court grants renewal of the motion, and upon renewal, the decision and order on motion dawd, October 4" 1991. which granted the defendanL,' motion to strike "Exhibit A" from the plaintiff's brief, is recalled and vacated: and lhe mo- tion Is denied; and it is further, ORDERED that the order and judgment, Is affirmed insofar as appealed from, with costs. The dèfendants auctioned two adolnln parcels of proþertybordering on ,Gre¡ Neck Creek In the Town 'of Babylon. "UIi der the terms of Ule auction, the high.. bidder was given the èhc\ice of either Ó(,U; two parcels, The h¡gh~st bldd~rs, Anth~!1, and Robert laSala, who are not parties ' this action; chose Parcel No.2. Theplåú\o tiff ao the second highest bidder, signed' , I . .... contrae! to purchase Parcel No.1, which tbe ellbject of tlÌis action: At the timè'iI, '.'.¡; the auction, the plaintiff operated a mar; .. on property adjacent to Parcel No.1. Th# plaintiff alleges that his corporation h. leased Parcel No, 1 trom the deftodan' for many years þrior to the auction:";'. .., The plaintilt otter,d evidence that,,~ auction advertisements and his cont.raet 0,. sale did not Indicate that Utle to the undef!, water land abutting Parcel No.1 was plU'. port.edly Included in Pareel No.2. Before the date set for closing, the plaintiff. learned that the LaSalas were clalmin' own..rship of the underwawr land abuttln Parcel No. 1. A survey prepared for LaSalu after the contract signing. showtd that Parcel No, 2 Included the underwa" l&ltd abutting Parcel No.1. There Is'; displlte that the contr1lct of sale be~~ the LaSala. and the defendants purports, grant them all of the defendants' . ngh title and interest to Great Neck Creek ab,! ting Partel No.1. The plaintiff tlee .' that the LaSalas had constnlcted d based on their claim to the uoderwa, rights abutting Parcel No.1, which In,' fered with his use of the existing doeks 0 the property. The plaintiff refused to cl , title and commenced thIs action. The , fendants subsequently commenced a, su, mary proceeding in District Court for , se.sion of Parcel No.1. alleging that,. plaintiff was a squatter on that pro We find no basi. to set aside the coU determination to consolidate the 8umm.; proceeding with the ac!jon at bar 00 cO " tlon that tbe plaintiff ciontinués to pay into court while the action is pending. lhermore, we agTee with the court that plaintiff 18 entitled to the return of" down 'payment on the contract of sale:, Parcel No. 1. ,1 BRA VO v. TERSTlEGE Çlk.,601 N.Y.5.2d 129 (A.b.2Dtpt.. ."J) 10 Although we reach the ~ame result mount to forcing him to purchase a lawsuit ,the Supreme Court, we do so on a diff." (if, Gmce v. Nappa, 46 N.Y.2d 560, 415 ['ground. The Supreme Court based Its N,Y.S.2d 793, 389 N.E.2d 107). We there. iÀinnination on the lawgovorning title to fore find that the ,court did not err in oerweter land abutting nontida! water- dlrecUnlt the return of the plaintiff's down 'ÿs and held that the dMcription of Par· payment. ': No. 1 in the contrad of &ale would 'Iude owner~hip of the abutting underwa. , land to the center of the creek. Howev. ,c as the defendants note in their brief, . ;'at N ck Creok I. a navigable Udal wa. "ay T t n a " e tidal waterway has the right to e the area over the underwater ,land "nting on his property for access to navi. , Ie water, even If title to the underwater "íd Is held by another (see, TijJa'IYI'. "wn o/Ovster Bay, 234 N.Y. 15, 186 N.E. '; TruJleer 0/ Tau?! 0/ B"ookhaVffl V. Ïnilh, 188 N.Y. 74, 80 N.E. 665: 3 War- "p's Weed, New York Real Property, Lan :Under Water, §§ 1.02(2); 6.02(3): 6.06[3) 6.06{1] [3d ed). "The right of access com 'prehends the reasoMble. ure and conve nlent use of the foreshore for navigation, :flåhlng and such other purposes M com. .Ø/only belong to the riparian owner, exer. tfsed In a reasonable manner" (Town 0/ Htltlpsleo,d v. Oceanside Ya,chl HMbor, 88 ';D.2d 263, 264, 328 N. Y.8.2d 894, a/ld. 32 "iUd 859, 346 N.Y.8.2d 529, 299 N.E.2d 95). ' ··;'i"··~··-·"· ',ill ,We need not decl ewe or e e. e~da~ts' conveyance to' the LaSalM or eli' Interest in the underwater land abut. 'iI Patcel No. I was .alid. Upon pur. Ming Parcel No. I, the plaintiff would be !itled, to reasomlble use of the area over In --. ~,underwater lalld abutting that proper. :- The plaintiff submittéd evidente, in. uding photográphs, thaI the uSalas, , ed On the defendants' purported grant ¡the title to the underwater land, had ÌlátnJcted docks In rront ot Pal-eel No, I Nch would interfere with the plaintiff's .,o:·ót the property. We agree with the aprorn. Court's determination that thi la!ntlff should not be expected to clo,qe the , nsaction with the defendants and "gam. ,'lIS to the chance of vindltatlng hi. ~h!$ vl~·a·vis the purchaser of the adjoin- ." :property", Compelling the plaintiff to ", pt the conveyance would be tanta. {lES ¡ auctioned two adjoinii "ty bordering on' .G¡'~ ' Town 'of Babylon. "Un; the auction, the hlghèit he e),oite ohlther óf,tJ¡' highest bidders, An~~nr '. who art not parties 'ii' Parctl No.2. Th.¡'iàlilJ highest bIdder, signed a, se Parcel No. I, wliichi( action. At the time 'bt : intlff operat.!d a maii,¡¡. nt to Parrel No. L Th~ lat his corporationhað ' 1 from the defendancit, ior to the auction. ., :':''':1, .red evldtnce that, tit; , ents and his contrartoi - that title to the unde..... , Parcel No. 1 W8& pur-,! Parcel No.2. Beforér" closing, the plaint:ifU>' ¡..Salas were claiming ",;~ ,derwater land abutting i';' urvey prepared for the" , ntract slgnlngs showed'1 \ ' ,eluded the underwaten~ el No. L There Is no'. ntnct of sale betwun: deíendants purports to ' the defendants' righ~;, Great Neck Creek abut. ' The plalntlff asserte,I-; lad constructed docks,' illl to the underwater', cel No. I, which Inter, f the existing docks ,on laintiU refused to close: j this action. The dè-.. lIy commenced a SUIII-,'· District Court for pot-~ o. 1, alleging that th.: tler On that property.: o ~et aside the court's' ,solldate the summary' .ction at bar on cond!. , continues to pay nn( cUon is pendinr. Furo ,jth the court that the to the return of his , contract of sale for: 131 [3,41 We further not. that the plaintiff submitted with his brief on appeal a survey map by a licensed land surveyor of the two parcels involved In this litigation. By ded. Ion and order on motion dated October 4, 991, this court granted the defendant!' otlon to ~trlke the map, referred to as Exhibit A" In the briefs, frorn the ....col'd n appeal, because It was prepared after t.he determination of the Supreme Court. After argument of the appeal, and upon consideraUon of the entire record, we grant renewal, and, upon renewal, we recall and v.cate that decision and order on motion and deny tile defendant,,' motion, At the Ume the motion WQB derided, the court did not have an opportunity to evaluate th. motion in light of a full presentation of the i"ues. While ordinarily material dehors the record wHl not be considered on appeal. there Is an exception for a reliabl. docu. ment, whose existence and accuracy is un. disput.!d (s.., ..g., C"aw/Qrd v. Merrill Lync!4 Pisrce, Fffllltr & S.nil/r., 35 N.Y,2d 291,299,361 N.Y.S.2d 140,319 N.€.2d 408; Brandes Meat Corp. v. C,·om.., 146 A.D.2d 666, 667, 537 N.Y.S.2d 177). For the purpose of sustaln¡ng a judgment, in. "-ontroverUble documentary evidence de. hors the record may be received by an appellate court (see, Sial. 0/ New York v. Pe..l.,s !tu. Ca., 117 A.D,2d 370, 503 N,Y.S.2d 448; Kirp !'. Caleb'! Palh Il.al/y Corp., 19 A.D.2d 744, 242 N.Y.S.2d 877). Here, the survey msp Is based on the de. scription. in the contracts of sale of both parcels, which were before the Supreme Court and are part of the record on appeal, and the defendanl~ do not contend that the map Is Inaccurate. Accordingly, we will consider the map 011 this appeal. Th. map shows that the m.tes and bounds description of the property in the LaSala contract of nle encompaues nearly all or the property described In the plain. III i'tl It I II; I' ','j" ,', II' i :1: ~ ,I, L ¡" I: 1· r/ I " I I .1 I, Ii I: n,/! I ~:, ' : I ~í :1' 'I; .' , .~ , .!. ! : t,:; ;¡ri; I' ~'!'j ;~~. ¡ ~, n ¡H,'tl, ,I ~ '¡,;Ji,I'Jd ¡',\I~ ...,'. H!' ,¡QJ jl'I'/' 1,1 . J" "I~ ' ¡ili, '~I~. , I", ~! ; li'T, t \ ' ',*nf: ~ ¡, ., 1,,, 'tr : !¡~ ~ " I¡ ·'!.'J1.~t;: 132 60t NEW YORK SUPPLEMENT, '2d SERIES . ,.," '. > tiff's contrad of ule, This alone provides sufficient gTounds to Ifrant the plaint.iff's request for the return of his down pay· ment, as the defendants contracted to .ell to the plaintiff the ..me land which they had contracted to oell to the LaSalas. w o tmI'lV""lImUH T 192 A.D.2d 289 The PEOPLE, dc" Respondent, v. William BUXTON, Appellant. Supreme Court, Appellate Divi.lon, Second Department. Aug, 2. 1993. .' Defendant was convicted in the Suo prenle Court, Kings County, Marrus, J., of sodomy,' Defendant appealed, The Suo preme .Court, Appellate Division, Bracken, J.P., held that communications between court officer and jury were administerial, and thu. trial judge was not required to deliver them in person, In open court and In presence of defendant. Affirmed. 1. CrIminal Law Þ85&(1) Trial judge may properly anthorize court. officer to speak to deliberating jury in criminal trial when subject of communi· cation Is "administerial." McKinney's CPL § 810.10. 2. Crlnllnal Law 4=0855(1), 11;4(&) Trial judge who authorizes court offi· eel' to communicate with jury in criminal trial on matters which are not administerial commits error so grave as to warrant ré- versal even Ulough defendant's attorney' might have consented to occurrence of the error. McKinney's CPL § 310.10, 3. CrImInal La.. 6'01039 r.i; De'fendani'. ~rguments oli appeal,~'.t nlessages eonveyed to jury by court offlc should In'tead hAve betnconveyed by' ' " judge himself, and that his right 1.0: present at all material stages of trial '" ' violated inasmuch u court officer's cÒiÏI" munlcatlons ,..ith jury were made in'b' absence, were reviewable as questions 0 law, even In absence of any objection.: ' 4. CrimInal Law Þ636(7) Where cOllrt officer's communicatlò~ to jury rtlate9 10 an administerial matterllá AS to fan within officer's silper\'isory ròlt; defendant's absence during such commù¡'L cation does not constitute violation of'dêí fendant's right to be presen~ at all materi stages of trial. McKinney', CPL § 310.lOi~ McKinney's ConsL. Art. I, § 6. '" "':\1 5, Criminal La.. Þ855(7), 864 .i Communi~tlons between court. officu and jury were administerial, such thaç' absence of objection, trial judge was ~~ required to deliver Ultm in person, in O~-i court and in presence of defendant, wb.: first nota was sent in order to obtain cI . ficatlon of meaning of earlier now receìv from jury, and second note, infoniii.â. deadlocked jury to cease their dellbeit: tlons, contained Instructions as to ëom~i tlon of verdict sheet which jurors "tiô ' themselvel, have already deduced, thi!'! light'of partial nature of their verdict,:. diet aheet was' to be filled out parttâñ McKinney's CPL §§ 310.10, 310.30; Me . ney's Const. Art. 1, § 6.""'U , " Philip L, Weinstein, New York City t, chael Murray, ,)f counsel), for appell"'; :1 Charles J. Hynes, DiaL Atty., Brook! (Roaeann B,. MacKechnle, Seth M. LI~ man. and Victor Barall, of eounse!);:: respondenL ' Before BRACKEN, J.P., and BALLETTA, ROSENBLATT and MIL ~ ~ fN~If5f ~ F DEPARTMENT OF THE ARMY NEW YORK DISTRICT, CORPS OF ENGINEERS JACOB K. JAVITS FEDERAL BUILDING NEW YORK. N.Y. 10278-0090 1111["- Y TO EasteH"~~ð\Ìts Section Apri 1 2, 1996 SUBJECT: Department of the Army Permit No. 10GP-96-03160 Harold Hepensteil c/o Suffolk Environmental Consulting, Inc. P.O. Box 2003 Bridgehampton, New York 11932-2003 Dear Mr. Hepensteil: We have completed our review of the above application. From the information submitted it appears that the proposed work is authorized by our General Permit for Non-Commercial Mooring Structures (NYDGP-10) a copy of which is enclosed. Your work should be performed according to the conditions of this General Permit. Please display the enclosed Notice of Authorization sign at your work site. You are required to submit to this office the dates of commencement and completion of your work. Enclosed are two forms for you to use to submit the required dates. Notice is hereby given that the permittee should recognize that a possibility exists that the structure permitted herein may be subject to wave wash from passing vessels. The issuance of this permit does not relieve the permittee from taking all proper steps to insure the integrity of the structure permitted herein and the safety of boats moored thereto from damage by wave wash and the permittee shall not hold the United States liable for any such damage. It should be noted that this permit does not relieve you of 'the obligation to obtain any State or local approvals for your , .' work.' \ If, for any reason, a change in your plans or construction methods is found necessary, please contact us immediately to discuss modification of your permit. Any change must be approved before it is undertaken. , Enclosure incerely, (~J t"", ./,¡¡/ flC"1f!,~iì a es W. 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(0 ID Ø\ DEPARTMENT OF THE ARMY NEW YORK DISTRICT, CORPS OF ENGINEERS JACOB K. JAVITS FEDERAL BUILDING NEW YORK, N.Y. 10278-0090 .~ ·00 ftE,",-V TO 110 Tn:HTIOfIIOf!" CENAN-OP-RH IMPORTANT This letter must be completed and mailed to the Harbor Supervision & Compliance Section at the above address prior to commencement of any work authorized under the permi t. Permittee: Harold HeDensteil Permit No. 96-03160 Date Permit Issued: 2 ADril 1996 Expiration Date: 18 July 2000 waterway: DeeD Hole Creek. Great peconic Bav City & State: Mattituck. Town of Southold. Suffolk County. New York Work will commence on or about: Name. Address & Telephone Number of Contractor: Signature of Permittee Date Fold this form into thirds, with the bottom third facing outward. Tape it together and'ma11 to the address below or FAX to (~~~J ~b4-4~60. . .; ~ " , , Place Stamp Here .' ~ ( ,- Department of the Army New York District Corps of Engineers Jacob K. Javits Federal Building ATTN: CENAN-OP-RH New York, New York 10278-0090 ... ~ . "j ,.¡ DEPARTMENT OF THE ARMY PERMIT Permittee: Harold Hepensteil, 10GP-96-03160 44 Shoreham Drive East, Dix Hills, New York 11746 (Telephone Number: (516)586-8422) permit No., X..uing Office: Hew York Dist.rict Corps of bgiD..ra NOTK: The term ·you· and ita derivative., .. u.ed in this permit, ..an. the permitt.. or aay future transfere.. The term -this office- refer. to the appropriate district or divi.ion office of the Corps of IInginun having jurisdiction over the per.mitted activity or the appropriate official of that office acting under the authority of the commlloDding officer. You are authorized to perform work in accordance with the term. aDd condition. specified. below. Project Description: Construct a timber pier, ramp., floats and/or mooring pil.. for nOD-commercial purpose., as .hOWD in the attach.d drawing(s), auhj.ct to the General Conditions of this docum.nt and Special Conditions attached herewith, Project LoeatioD: In navigable waters of the United atat.. within the geographic boundari.. of N....u and Suffolk Counti.., in the .tat. of New Yorka P.rmit Conditiona, General Conditions: 1, Th. time limit for completing the work authorh.d .nds on July 18, 2000. If you find that you n.ed more time to comphte the authorb.d activity, aubmit your requeat for a time extend on to thb office ", for consideration at least one month before the above date is reached a 2. You muat maintain the activity authoriudby thb permit in good condition and in confor.mancewith the ter2D8 and condi tions of this permit a You are Dot relieved of this requir_ent if you abandon the 'permitted activity, although you may make a good faith tranaf.r to a third party in eomplianeewith aen.r..l Condt"tion 4 balow. Should you wish to c.... to maintain the authorbed activity or ahould you desire to abandon it without a good faith transfer, you muat obtain a modification of thb permit from .. this office, 'which may require rastoratioD of the ar.aa 3 a If you discover any previou81y unkDown historic or archeological r_1ns while accomplishing the activity euthoriz.d by thia p.rmit, you mu.t imm.diatelynotify thia offiee of what you have found. We will initiate the Pederal and .tat. coordination required to deter.mine if the r...1118 warrant . recovery effort or if the dte i. aligibh for liating in the National aegbter of Historic Placea. .. If- you .ell the property associated with thil per.œit, you mu.t obtain tbe signature of the new owneriD the apace provided aDd forward a copy of the permit to this office to validate the transfer of this authorization. 5a If a conditioneclwater quality certificationha. been is.uecl for your project, you mu.t comply with the condition. .pecified in the certification a. .pecial condition. to this permit a Por your cODvenience, a copy of the certification i. attacbed if it contain. such conditiolUla 1145-2-303b (Great Peconic Bay - Harold Hepensteil - Pier Assembly) ENG FORM 1721, Nov 16 EomON OF SEP 82 IS OSSOLIITE. ß3 CFR 325 (App,,,diz A)) ,. You must allow repre.entative. from this office to inspect the authorised activity at any time ~ deemed necessary to ensure that it is heing or has heen accomplished in accordance with the terms and condi tion. of your permi t. Special Condition.: SBB ATTACBBD SIIJIBTS FOR SPBCXAL CORDrrrOHS Further Information: 1. Congre.sional Authoritie.. You have been authorized to undertake the activity described above pur8uan t to: IX) S.ction 10 of the Riv.rs and Barbon Act of 1899 (33 11.S. Cod. 403). S.ction 404 of the Cl.an Water Act 133 11.S. Cod. 1344). Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 t1.S.C. 1413). 2. Limits of this authorization: a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law. b. This p.rmit doe. not c. This p.rmi t do.. not d. This penni t does not grant any property rights or exclusive privilege.. authorize any injury to the property or rights of other.. authorize interference with any existing or proposed Federal project. 3. Limita of Federal Liability: In i.suing this permit, the Federal Government doe. not a..ume any liability for ~h. following: a. Damage. to the permitted project or u.e. thereof aa a re.ult of other permitted or unpermitOted activities or from natural causes. b. Damagea to the permitted project or uses thereof a. a re.ult of current or future activities undertak.n by or on b.half of the l1nited St.t.. in the public int.re.t. c. Damage. to person., property, or to other permitted or unpermitted activities or .tructures cau88d by the activity authorh.d by this p.rmit. d. Design or construction deficiencies a.sociated with the permitted work. e. Damage claims as.ociated with any future modification, au.pen.ion, or revocation of this p.rmit. 4. R.li....c. on Applicant·. Data: Th. d.t.rmination of this offic. that issuanc. of this p.rmit is not eontrary to the public interest was made in relianee on the information you provided. 5. Reevaluation of Permit Decision: This offiee may reevaluate its decision on this permit at any time the circ~tances warrant. CircWlUltance. that could require a reevaluation include, but are not limit.d ~o. the following: a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application prove. to have been fal.8, incomplete, or inaccurate (See" above). C!. Significant new information surface. which this office did not consider in reaching the original public int.rest d.cidon. Such a reevaluation may result 1n a determination that it i. appropriate to u.e the suspenaion, modification, and revocation procedure. contained in 33 CFR 325.7 or enforcement procedure. such a. those contained in 33 CPR 326.4 and 326.5. The referenced enforcement procedur.. provide for the issuanoe of an administrative order requiring you to comply with the terms and conditioDs of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measur.. ordered by this office, and if you fail to comply with 8uch directive, this office may in certain situations (such· a. those .pecified in 33 CPR. 209.170) accomplish the corrective measure. by contract or otherwise and bill you for the coat. . ENG FORM 1721, Nov III EDITION OF SEP 82 IS OBSOLETE. (33 CFR 325 (App.ndìz A)) 2 6. Extensions: general Condition 1 e.tabli.h.. a time limit for the completion of the activity authori.ed by this permit. l1nleu there are circumotanc.. requiring eithar a prompt complation of the authorized activity or a re.valuationof the public interest deci.ioD, the Corp. will nor.mally give favorable consideration to a reque.t for an extensioD of this ti.e limit. This permit become. effective when the Federal official, de.ignated to act for the Secretary of the Army, ha. .igned below. ..... 18' J1}C (DATB) /11s- aary Thoma. Colonel, Corp. of Engineera Diatrict Engi~e~r When the atructure. or work authori.ed by this permit are still in existence at the time the property i. tran8ferred, the te::r:ms and conditione of this permit will continue to be binding on the new owner(.) of the proparty. To validate tha tranofer of thio parmit and tha a..ociatad liabilitiaa a.oociatad with complianca with it. to""", and condition., hava the trandarea dgn and data balow. ITRANSFBRBB) (DATB) . .. . . ',' ENG FORll1721. Now II EomON OF SEP 82 IS OBSOLETE. (33 CFR 325 (App.ndix A)) 3 Plot Plan .~ ~. ru \ '. ~ ,~ '" ..., V) " '" c. '" :x: """ ~ o s.. '" :x: >, '" '" u .~ " o u '" 0.. ..., '" Q) s.. ""~ ~>, ~ .0.0 (Y'E 0", (Y'V) IV) Nc( I LOs.. <t"", ......~ .....0.. 1 ~ITE' ( ~\ ~ » 1"""" .. 0., ~ \.'ì. ,...' .» ',~ \' \ .,0' , ' , P""..;"· . tJ \ ~.." ....~ø'..~ p.~:!... ,,...,..., ~ \ -' ,."....... '" ,:I; "".,.~' Ii - !(', <:) ,1'".._ ,. r- I '.,-, ' , "' '. ...... &o:-o·'t~·""1 l' .....f,.,....,"p.. ~ ~ I,. ,.",,, ~ ..."'...."'...""..- ,t ø-,."""" "to( '.II'~r' tR ."<.1_/ I .\ "~,. 0 . .\ ~....II ~ .\ \' - ~- 111 ...... ""' ~, '" ,b;l, ¡, ,. . . \¡EilJlNDS UNF: , .. I'nUIÐJ '....(1 "IØ"I'IJ l..",....1'fO roG£ or lOAL t'tlIAM:lS"$ ŒUWUU1 IIr ".......f7(lIIlN1lll'l'(Ml(N'..t CCWStA. lING. NC. ON ,(.ItVAIn' ''', ,.... N ~ ~~ttl . If\- f· .,.~ tllOrf ,0' (, f211' . . ~ ,.' , .alA t, ",a.L..- .......\ . "'f,IIO' .. ..... . ., at/fl.)" 5f~ . ,;;. IA~(IIO S~VEr FOR " .. ~toEf HAROLD A. HEPENSTEIL & ROSEMARIE L. HEPENSÆlL .not/. A r AlA WruCK 5fl> rOWN OF SOUrnOLD SUFFOLK couvrr, N r. 1000· r:l'·03... Scllle, ,.. . 30' lln, Iii. 1996 J... 30. If" (,."'ion ....,I\_¡..oIoIon.! ..11._,_..._..........._1 \ \-::., "', . ~ , ' po...¡f,. , ppo.Jt¡{ Crr"F"f:r1 '0' "'."«0". Hr1'[Nsrtll ltO.$lu...... L 14(1'(".~,u, C'fCAOC' "nt I'tS\1fANCC CCJM'AN"r 'He "(W¡IIAAIClIA~.J 'AIrJI;, 'H. f~ fc{1- AREA. P6.1BB .q.n '¡' 'oMb COH'OUIf llPot"S .,,( Ifrrrl(M:rø '0 "'.4.".0.""'" ...., ,..""ug ~ 1:"::: ~7~""~~t ·,rfCt<l''''r/:- r. ilr"f".r,.".,... . CUMf..... ",1/'z:'1, ""'[!!:.M·"Mf¡ r.; '1:;11:: =-.~Bl~.~,= 11'...... N'O""U t 'I' rtW't. ..,....., I'. 'tC" 11:"" ·'l:f.; .,. MI" It\ w".~ ....~ .or..., IUI'""'~ yll..... , . cr NfØ MI' ........~CI.. _. rt;1IId tu;Io.......c .....- ~t·,_rt·_""'t",ftlW'LlINCf..t"...cl... fr·.. I'f.:Ccwt I ""1 T.,· 5 ". C. eot" HIP 'lJe 'A..ttU" ::·"[rr lOV'HOC.D. N;t, ,,~., " N·/04 ~ .~ OJ .µ cn <: OJ c. OJ ::z: " ~ 0 .iij ... '" µ ::z: \) r- a "'0 u . ~ " \¡) >, Q~ '" Q a> ¡¡: u .~ <: 0 u OJ 0.. .µ '" OJ ... <!J~ ~>, ~ .0 .0 ME OOJ Mcn I cn N«: I ... LO "-OJ .......~ ......0.. It . II! ~ r- 0 a .t ~ "" ~ :¡ a µ III l.> . E .- ~ IS'! tIS ã tIS 1- 6~ :¡::; l.) ,0 ~ I IS) IS) Q 1- U 'i) .µ IS) s: o Q... o :c ~ ~ tIS :c .:;¿ l) :J µ B III >- ¿"'I:SZ Õ " \)" ..<:: ~ t:µs: j Õ :J S t!)'J .2'5~ ~t::ê t: S :J :J Q t!) tQ~ ~ ~ if¡ >, u c ~ ~ IQ ~ ~ 8 ~ E ~ ~ \I) !¡¡ ~ ~ ~ Ñ :0 ~ µ III :J µ ii) bb - - ~ ~ N~ J ! c 'Ë b ..t " " ~ \!) '" c ~ ,è '" --- --- j---t " " ~ \!) '" c 3:3:~ ~ J:-J)( t ~ ~ '" i Iii \ " ~ () ï: ~ l~ ¡> II... <>- E ,:, ~ ~~ 8.. e II... '" ~ " ('J 1j~ ~ 8.. () c II... c " ... E ¡:: ~ q o W ~ 3: -J ~ ~ ':! " ~ '1;~ ~ " " ~¡.: "'1j 1! " HI ~ '" " " \I);:. r- "1 N W ~ '" " c ~ ~ '1;3: " Ïij "''' ;:j¡:: 1!] {t! c :r j;:. 3: r ~ r~ 1- c11.... () N 2! .!1 '1; \!) ~'E () -g ~ 2! " " ¡(J" \!)~ b Ïij- c :'J N .r () .- ~ :¡; t " ~ ~ ~ ò- ~ z Ë ¡; :i ~ ~ ~ C> \I) :>, tQ <: o :¡> 11 <.> 'fi.. "- < Ú E ¿. c: :¡> ::J U'I c: o U (\ I{) , 0) := 11 +> c: " E I{) c' 5 Q ,CI .!: 01>.. 1: (\ E w ð ~ ~ to ~ ~o~ ::J . ~ (1)1\....... >- z -< lJ .r " lJ Ù I.: < t) U.t: ~ ~ t) ~ t) ~ \S ~ \S \!) ~ ~ ~ t) \!) ~ \!) C " 'C t) C t) tQ 'f g 'f ~ 01 :q ....;~i5 ~ t: \S .J: . ~ C In. 0 :J .. ~ LOt) )( b L ~ ;¡. - b ~ .. ~ L.: r:: - ... t) 1: .. r.. '" 0..111 \S - t) _ ~8fë< ;; õ --@'t()~ ~ c.........'-''- ~ u It: ï3 ~ \I) DEPARTMENT OF THE ARMY REGIONAL GENERAL PERMIT NONCOMMERCIAL MOORING STRUCTURES This general permit authorizes the performance of work in or affecting waters of the United states, upon the recommendation of the Chief of Engineers pursuant to Section 10 of the Rivers & Harbors Act of March 3, 1899 (Title 33, U.S. Code Part 403) This general permit authorizes the construction of piers for noncommercial purposes in navigable waters of the United States under the regulatory jurisdiction of the New York District, Corps of Engineers located within Nassau and Suffolk Counties in the State of New York. Activities authorized by this general permit do not require further authorization under the provisions contained in Title 33 of the Codes of Federal Regulations, Parts 320-330, Department of Defense Regulation Entitled: Corps of Engineers, Department of the Army, Regulatory Programs of the Corps of Engineers; Final Rule, published in the Federal Register on November 13, 1986 unless the District Engineer determines, on a case-by-case basis, that additional processing is in the public interest. The structures authorized by this general permit must conform with all of the following conditions, as well as the General Conditions of ENG Form 1721, revised November 1986. SPECIAL REOUIREMENTS AND CONDITIONS Piers. Docks and Floats 1. The proposed piers and any floats may be straight, T, L, or U- shaped. 2. The combined total surface area of a pier and any floats shall not exceed 1200 square feet. 3. Extensions to existing piers/floats may be authorized under this general permit, provided the entire structure meets the conditions outlined herein and that the existing structure was either previously authorized by the Corps of Engineers or cons~ructed prior to December 18, 1968. 4. Only one pier or similar use structure may be constructed per lot under the authorization of this general permit. Such construction may only take place on lots where no previously constructed serviceable piers or similar use structures exist, except for extensions as provided in Condition No.3. 5. All piers and walk ramps shall be limited to a maximum width of four feet. 6. All floats shall be limited to a maximum width of eight feet. 7. Any section of pier or walk ramp crossing wetlands or submerged vegetation must be: a. Elevated four feet above the existing grade of the wetlands or area of submerged vegetation, and; b. Constructed so that the structure will not cross more than 50 linear feet of wetlands. Structures crossing more than 50 linear feet of wetlands are not authorized by this permit. As stated in the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands", wetlands are defined as areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. The majority of wetland areas in Nassau and Suffolk Counties which are under the jurisdiction of the New York District are saltmarshes, defined as areas which are periodically inundated by saline or brackish waters and which are normally characterized by the prevalence of salt or brackish water vegetation capable of growth and reproduction in saturated soil conditions, such as Spartina alterniflora (saltmarsh cordgrass) and Spartina patens (saltmeadow cordgrass) . 8. All floats must be positioned waterward of the line of mean low water and of any wetlands or mudflats. 9. All floats must be positioned, held by piles or made fast to the shore or a pier, but in all cases must be adequately secured so as to prevent substantial changes in their positions. Floats may be installed and removed on a seasonal basis. Moorina Piles 10'. A maximum of four (4) mooring piles may be installed. Conditions Related to Waterway Width 11. For this general permit no structure may be placed in a waterway less than 15 feet wide, measured from the mean low water lines on each bank." 12. No structure shall extend waterward more than 100 feet, measured perpendicular to the shore from the mean hiah water line, or one-fifth (20%) of the distance to the opposite shore (measured from the mean low water line perpendicular to the centerline of the waterway), whichever is lesser. 13. For waterways less than 50 feet wide (measured from the mean low water lines on each bank), no structure shall be placed within 20 feet upstream and downstream of the centerline of an existing pier on the opposite bank, measured by projecting the centerline of the existing pier toward the bank of the proposed pier. 14. The combined total surface of a pier, walk ramp and floats in waterways less than 50 feet wide (measured from the mean low water lines on each bank) shall not exceed 400 square feet. --- Scecial Conditions 15. All piers shall either be open pile-supported or cantilevered. piles shall be driven to a depth sufficient to provide adequate stability. No structures shall impede the flow of waters beneath the structure or in the littoral zone. 16. All construction materials and design of the structures shall be determined by appropriate engineering practices and judgements. 17. The structures shall be designed to be stable against the forces of ice buildup, flowing water and wave action. Those authorized to perform work under this general permit must recognize that the permitted structures may be subject to damage by ice and by wave wash from passing vessels. This authorization does not relieve those authorized from taking all proper steps to ensure the integrity of the structure permitted within, and the safety of the vessels moored thereto, from damage by ice and wave wash. The United States of America shall not be held liable for any such damage" . 18. All construction equipment working in wetlands shall be placed on mats. Any wetlands disturbed during the construction shall be restored to the pre-project conditions by the permittee. 19. That the proposed structures may be used for non-commercial purposes only. The term "non-commercial purposes", when used in the context of this general permit, shall mean that the intended use would provide only personal benefits and have no connection with a commercial enterprise that charges for the production, distribution or the sale of goods or services. 20. That an individual Department of the Army permit will be required for the work proposed in any of the following areas: " '. a. Historic, cultural, or archaeological sites as identified '.in the latest published version of Appendix B of the National Register of Historic Places, or sites eligible for inclusion in ·this register. . , b. Sites included in the latest published National Registry of Historic Landmarks which periodically in the National Register. version of the are published c. Areas named in Acts of Congress or Presidential proclamations, such as Wild & Scenic Rivers or those rivers listed in the Nationwide Rivers Inventory, National Wilderness Areas, National Seashores, National Recreational Areas, National Lakeshores, National Parks, National Monuments, Federally designated maritime sanctuaries (Section 302 of the Marine Protection, Research 7 Sanctuaries Act of 1972, as amended [Public Law 92-532, 86 Stat. 1052]), and such areas as may be established under Federal law for similar and related purposes. d. Waterbodies designated by the New York Department of Environmental Conservation as a "wild, scenic or recreational river" under Article 15 of the New York State Environmental Conservation Law. 21. The structures subject to this general permit shall be constructed a m~n~mum of 50 feet outside of any Federal channels and Federal anchorages/turning basins. 22. No structure or any vessel to be moored at it may extend into any channel normally used for navigation. 23. All structures shall maintain a clearance of at least 10 feet from the property line on each side, as extended into the waterway, or any such greater distance needed to allow reasonable vessel access to any adjacent waterfront properties and structures. 24. That all work performed under the authorization of this Regional General Permit in areas designated as Significant Coastal Fish, ánd Wildlife Habitats by the New York State Department of State or within the boundaries of an approved Local Waterfront Revitalization Program (WRP) , is subject to review by the Department of State. The work will be presumed to be in compliance with the State's Coastal Management Program and/or approved LWP unless during review, the Department of state determines that the proposed work may adversely affect a designated habitat or be in conflict with an approved WRP. Following submission of a complete permit application and Federal Consistency Assessment Form to the Corps of Engineers and Department of State, and upon notification by the Corps of Engineers that the proposed work may be eligible for authorization under this Regional General Permit, the Department of State will within thirty (30) days of the receipt of such notification from the Corps of Engineers, determine that either no further review is required ~ a full review of the applicant's consistency certification is necessary. Notification from the Department of State concurring with the applicant's consistency certification or indication that no further review is necessary must be submitted to the Corps of Engineers before work under this Regional General Permit can be authorized. 25. That the Department of the Army retains discretionary authority to require a proposal to undergo an individual permit process in those cases where it is determined that such review would be the public interest. 26. If it is discovered that an individual is performing or has completed work under the pretense that it is authorized by this general permit, and in fact it is not, he/she may be required to undertake remedial action and/or be subject to civil and/or criminal penalties. The individual may then be allowed to apply . for an individual Department of the Army permit ,to perform the work. If the Department of the Army permit J.S denied, the applicant shall restore the waterway to its former condition, as set forth more specifically in General Condition No. 46 of this permit. If an individual Department of the Army permit is granted, the permittee may be required to modify the structure(s) to conform with the provisions contained in the general permit. 27. The General Permit will not apply if the District Engineer determines that the proposed work may jeopardize the continued existence of species listed as threatened or endangered under the Endangered Species Act of 1973, as amended, or result in the likelihood of the destruction or adverse modification of habitat, determined by the Secretary of the Interior or Commerce, as appropriate to be a critical habitat of such a species under the Act, as amended. General Conditions 28. That prior to commencing any work under this permit, the permittee should contact the various utility authorities and companies (i.e. electric, gas, water, sewerage, etc.) in order to prevent personal injury and/or damage to property during construction work. 29. That this general permit is not applicable for work directly related to another activity requiring an individual Department of the Army permit application and approval by the District Engineer. 30. No buildings or other structures, including dispensing facilities, shall be constructed authorized· by this general permit. 31. Pollution of the waterway with harmful chemicals, acid, waste washing, and/or harmful materials, shall be prevented. fuel storage or on structures 32. During construction activities, all public and private property, including all existing vegetation, existing landscape features and monuments within, along and adjacent to the work area, shall be protected and preserved to the maximum degree possible. This shall include, but not be limited to, precautions being taken to minimize damage, injury, pollution of destruction; protection of all ttees and other woody plants which are to remain; special care being. taken to protect the natural vegetation and surroundings, including all natural drainage ways and storm swales, ponds lakes, swamps, woods and fields; and storage of materials in such a manner so as to prevent leaching, which would be injurious to soils and to plants. 33. Each individual activity performed under the authorization of this general permit must receive all other Federal, state and local approvals, including but not limited to permits from the New York State Department of Environmental Conservation Law: Article 15, Title 5 (Protection of Waters); Article 15, Title 27 (Wild, Scenic responsibility of maintaining recor-ds of title to and interests in real property. 42. That there navigation by the within. shall be no unreasonable interference with existence or usè of the activity authorized 43. That if the display of lights and signals on any structure or work authorized herein is not otherwise provided by law, such lights and signals as may be prescribed by the United states Coast Guard shall be installed and maintained by and at the expense of the permittee. 44. That the permittee, upon receipt of a notice of revocation of this general permit or upon its expiration before completion of the authorized structure or work, shall, without expense to the United States of America and in such time and manner as the Secretary of the Army or his authorized representative may direct, restore the waterway to its former condition. If the permittee fails to comply with the directive of the Secretary of the Army or his authorized representative, the Secretary or his designee may restore the waterway to its former condition, by contract or otherwise, and recover the cost thereof from the permittee. 45. That if the permittee, during prosecution of the work authorized herein, encounters a previously unidentified archaeological or other cultural resource within the area subject to Department of the Army jurisdiction that might be eligible for listing in the National Register of Historic Places, he/she shall immediately notify the District Engineer and appropriate state and local authorities. 46. Those desiring to perform work under the provisions of the general permit should make application to the New York District, Corps of Engineers as soon as a project is contemplated, with sufficient information so that compliance may be validated with the terms and conditions of this general permit. The application must- include completed forms (New York State Department of Environmental Conservation Joint Application Form and Environmental Questionnaire), photographs and project drawings which generally £ollbw the format of the sample drawings attached to the general permit. No work may be preformed under this general permit until written authorization has been received from the New York District, Corps of Engineers. New York State Department of Environmental Conservation Building 40· SUNY, Stony Brook, New York 11790-2356 Telephone (5161 444-0365 Fecsimile (5161444-0373 ~ ..... ~ Michael D. Zagata Commissioner April 18, 1996 Mr. Harold Hepensteil 44 Shoreham Drive East Dix Hills, NY 11746 RE: 1-4738-01317/00001 Dear Permittee: In conformance with the requirements of the State Uniform Procedures Act (Article 70, ECL) and its implementing regulations (6NYCRR, Part 621) we are enclosing your permit. Please read all conditions carefully. If you are unable to comply with any conditions, please contact us at the above address. Also enclosed is a permit sign which is to be conspicuously posted at .the project site and protected from the weather. DMG/ls enclosure Very truly yours, &(Û1æ ¡V. frv J.iuk~'-- Darleen M. Ger~i~~ Environmental Analyst I I . TYPE OF PEI!NIT · New [] R.......I [] Modific.tlon [] Pe....lt to Construct [] Pe....it to Cpor..e a Article 27, Title 7; 6NYCRR 360: Solid ~..te Man8g~t DEC PERHIT NUMBER e PERM IT IhIer the Envi--....t c....n",tlon L.. OOOð/ FACILITT/PROGRAM NUMBER(S) (TWSP1 ) . Article 15, Title 5: Protection . 6NYClR 608: \later Qual ity 01 \laters Certi 'fcation J Ar"ticl. 15, Tltl. 15: \,later [] Article 17, Titles 7, 8: SPOES: S,-""Iy [] Articla 19: Ai,. Pollution Article 15, Title 15: !Jater Control Transport [] Article 23, Title 27: Mined Lind Article IS, Title 15: Long Rocl_tlon Isl.nd Wells [] Artlcl. 2': Fresh....t.,. \letl..... Article IS, Title 27: Wild, Scenic and Recreatiorwl Rivers . Article 25. TI<IoI Wetllll'lds Other: PERHIT ISSUED TO HfI~OLD lfefJéH5T - /1- ADORESS OF PERMITTEE 4. SHoR15lfflM bRiVE ElJs/} bi X t-ÙLLS N ¿, EXPIRATION DATECS) tj-/p-7''7 [] Artlcl. 27, Titl. 9; 6NTCRR 373. Hazardoua W..t. M.n.oe.ent C Article 34: Coe.tal Eroaion M_.-.t ' [] Article 36: Floodpl.ln 1Iono.-.t a Articles " 3, 17, 19, 27, 37; 6NTCRR 380. Rodletlon Control TELEPHONE NUMBER -S7(,'Sf6- ?',),).... 6 CONTACT PERSON FOR PEI!NITTED WORK NAME ANO ADORESS OF PROJECT/FACILITY H6P6 /L PR.ofJa LOCATION OF PROJECT/FACILITY ßI.-(N6-I1Low!.fiNE, (r)ftTTt'TLlCJ;:: :ooNTY TM WATExCCURSE S u .ç tDk Sou '1-1{ 0 I cL ::e:æ, PrICN CF AJJH:RIZEJ .ðCT"IVllY TELEPHONE NUMBER 0576- ~31- S"/&o ÌJ66P tfo L6 cr2e~t:. E: . N: NYTM ~IHATES Construct, reconstruct, replace or repelr open pile cat~.lks or docks h.vlng e maxi.... surfece ~idth of , feet; end I C.OI1s.truc.+ <t.. 4')1. ~¡¡-' CQ:¡"Wa..Rk. rCv7)l. tJ ~d. It> ')(;).0 inst.ll or replece flootlng docks ard r_·.f/þtlf 5Cc..ur-ec(. b,j (~) -t:wo-p(I'l:.cldí/JÙI5. /'fll Werle ' Sh4/1 b~ ¡'" QCc>or.,rItA1,~ wij/¡ i-A~ 1t''f-it,chl!.d..¡lJla....., <OTE: Additional activities described on po.e (;5) ere also .""roved <ner this po....lt if the odjolr¡ng box la checked ' St''::'fe.d. ~'fSf¡¡;(.. "17'rtJue.cf.. 0>1 <¡/If'I"!". m9 the proposed work is shown on the e""roved plan. . By.acceptance of this pennit. the penelttee 'srees th.t the pe....lt Is contingent...,.", strict c_Uonce ~Ith the dronnental Cona.rv.tion la~ (ECl), ell _llcable re;ul.tlons, the G_r.l Conditions specified <see _ 2) end.ll ,l ¡cable Speciel Conditions included .. pert of this pe,.,.ft. 'ERHIT AOHINI, STRATOII: ADORESS c,. e.o,e~ e., LV . tfltm 111 II 0-1/ BldS_ 40, SUNY, Stony aroot, New 'fo,..1e 11790-2356 'UTH~~ Sl~~ Dr&4t Page 1 of 6 nspect ¡ens 1. The permitted site or faci'I ity, including relevant records, is subject to in- spection at reasonable hours and intervals by an authorized repreSentative of the cepar1Trent of Envi rom-enta I Conservat ion (tile cepar1lTent) to determine 1IIhether the permittee is carplying with this permit and the B:l.. Such represen_ tat ive rray order the VIOrk suspended pursuant to B:l. 71-0301 and SðPA 401 (3). copy of this permit, including al I referenced rmps, draNings and special conditions, rT1JSt be avai lable for inspection by the cepar1lTent at ai' tirres at the project site. Fai lure to produce a copy of the permit upon request by a cepar1Trent representative is a violation of this permit. :!RT1Ï t 01anges and fe1a...a Is 2. The cepar1Trent reserves the right to rrod i fy, suspend or revoke th i s permi t 1IIhen: a) the scope of the permitted activity is exCeeded or a violation of any condition of, the permit or provisions of the B:l. and pertinent regula_ t ions is fOUnd; b) the permit VIaS obtained by misrepresentation or failure to disclose relevant facts; c) ne.vrmterial infolTrBtion is diScovered; or d) env i rom-enta I cond i t ions, re I evant techno logy, or app I i cab I e I aN or regulation have rmterially changed since the permit VIas issued. 3. The permittee rrust sub11it a separate vvritten appl ication to the cepar1Trent for ref1Elllal, lTDdification or transfer of this permit. Such application rrust include any fom, fees or supp I errenta I i nforrrat i on the cepar1JTent requ ires. Any ref1Elllal, lTDdification or transfer granted by the cepar1Trent IT1Jst be in vvriting. +. The permittee rrust sub11it a ren6lla1 appl ication at least: a) 180 days before expiration of permits for State Pollutant Discharge Elimination SystBTI (~), Hazardous W!ste Mmagerrent Facilities (I-VM=), rrejor Ai r Pollut ion Control (AfC) and Sol id W!ste Mlnagerrent Fac i lit i es (Si'M=); and b) 30 days before expiration of al I other permit types. J. Lhless expressly provided for by the cepar1Trent, issuance of this permit does not lTDdify, SuperSede or rescind any order or determination perviously issued by the cepar1Trent or any of the tem, conditions or requirerrents contained in such order or determinat ion. 'er legal (J) igat ions of Pennittee ì. The permittee has accepted expressly, by the execution of the appl ication, the full legal responsibility for all dãr8ges, direct or indirect, of Vlhatever nature and by V\harever suffered, arising out of the project described in this pel1'T1it ånd has agreed to' indemify and save harmless the State frcm suits, acti9'1s, dãr8ges and costs of every I'1a'Te and description resulting frcm this proj ect. ' This permit does not convey to the permittee any right to trespass upon the I ands or interfere wi th the r i par i an rights of others in order to perform the permitted IIIOrk nor does it authorize the in-pairmmt of any rights, title, or interest in real or personal property held or vested in a person not a party to the pe rmi t. :. The permittee is responsible for obtaining any other permits, approvals, lands, easaTents and rïghts·of_VlaY that rmy be required for this project. Pace 2 of t:, ;,10-.,... lii'J.!J-!5l' IDDITIONAl CENERAl CONDITIONS FOR ARTICLES. 1S (Titl. SJ, 24, 25, 34 .nd , NYCRR P.,I 608 ( t;I That if future operations by the State of New York require an al- teration in the position of the structure or work herein authorized. or if. in the opinion of the Department of Environmental ConJervation it Jhall cause unreasonable Obstruction to the free navigation of said waters or flood ;loWJ or endanK!'r the health, safety or welfare of the peop'l" of the State. Or caUJe loss or destruction 0; the natural resources of the State. the OWn!'r may be ordered by the Department to remoVe or alter the structural work. Obstructions. or hazards caused thereby without expense to the State. and if. upon the expiration or tevOcation of this permit. the structure. fjIJ. excavation. or other modification of the watercourse hereby authorized shall not be com- pleted. the owners. shall. without expense to the State. and to such ex.tent and in such time and manner as the Department of Environmental Conservation may require, remove aU or any POrtion of the uncompleted structure or fill and restorl!' to its former condition the navilable and flood capacity of the watercourse. No claim shall be made alainst the State of New York on aCCount of anv such removal or alteration. That the State of New York Jhall in'no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the State for the conservation or improvement of navigation. or for other purposes. and no claim Or risht to compensation shall accrue from any such damase. Granting of this permit does not relieve the applicant of the responsi_ bility of obtaining any other permission. consent or approval from the U.S. Army Corps of EnRin~rs. U.S. Coast Cuard. New York State Office of General Services or local lovemment which may be required. All necessary precautions Jhall be taken to preclude Contamination of any wetland or waterway by suspended solids, sediments. fuels. solvents, Jubricants. e~oxy Coatings. paints. concrete. leachati! or any 13. ) other environmentally deleterious materials auociated with the project. Any material dredSe'C/ in the prosecution of the work herein permitted shall be removed evenly. without leaving large r!'fuse piles. ridle! across the bed of a waterway or floodplain or deep holes that may have a tendency to cause damage to navigable channels or to the banks of a waterway. There shall be no unreasonable interference with navi,åtion by the work herein authorized. 14, If upon the expiration or revocation of this permit, the project hereby authorizl!d has not be<en completed. the applicant shaJl. ~ithout expense to the State. and to such extent and in such time and manner as the Department of Environmental Conserv"tion may r@quire. r~OVe "U or any portion of the uncompleted structure or fill and restore the site to its former condition. No claim sh,,1I be made aRainst the State of New York on account of anv Juch removal or alteration. If granted under 6 NYCRR Part 608. the NYS Dep"rtment of Environ-. mental Conservation herebv certifies that the Subject project will not contravene effluent limitations or other limitations or standards under Sections 301. 302, 303. 306 and J07 of the Clean Water Act of 1977 CPl 95-217) provided that all of the conditions listed herein are met. All activities authorized by this permit must be in strict conformance with the approved plans submitted by the applicant or his agent as part of the permit application. Such .p 'oved pl.ns we~. P"P.'ed by Joh~ T. Þk+zJ~r; SIJnJeYI O>l I '~qlø 0.Atcl.. /qS+ rev':S'-<lon .>, 112. RI". "",ø! .L ~ro~s-sec:. J'o", p.r¥......~ ~ SO~k: €¡'vl':on",..." CQ",SIJI'¡'''n /'1$'1- tc.v'-sed... <,J /:J 9¿. SPECIAL CONDITIONS 15 16, 17, o o Additional Ancroved Activities board walk or f dock (see sp box is checked) up to four (4) special co itions 8 in width Imnortant: Refer to Special Conditions on the following pages which apply specifically to any additional activities checked. Þ6, ~':¡"'T5~~";;Ì31 r¡ ! ~ 000 I Page 3 of~ """'0/ \,.<,\../_..,,_ Ntw )üKt.; sr"rl: Ul:p""rMENT OF E:-"\dKON,\.IENTAL CONSERVATION SPECIAL CONDITIONS ., For Article ';¡.5 T¡,d..ftL IAJ~+/,,","J$ L. The use of wood treated with pentachorophenol in the construction of structures that will be in contact with tidal waters is strictly prohibited. 1.. Those portions' Of docks, catwalks and ramps which extend over vegetated tidal wetlands shall have a maximum surface width of 4 fee and shall be a minimum of 3 1/2 feet above grade, as measured from ground surface to the bottom of the planking. Floating docks shall not rest on vegetated tidal wetlands at any tidal stage. Docks and floats shall not: (a) extend laterally beyond property lines, (b) be placed so that docked boats extend over adjacent property lines, (c) interfere with navigation, (d) interfere with other landowners' riparian rights. 3· 'I. Dock reconstruction or replacement or seasonal installation shall not involve expansion or substantial modification of existing structures . or facilities. s: Installation of additional docks at marinas, boat basins, or other commercial facilities is not authorized by this permit. (,. No dredging, excavating or other alteration of shoreline or underwate areas is authorized by this permit, nor shall issuance of this permit be construed to suggest that the Department will issue a permit for such activities in the future. 7· Any debris or excess materials from clearing or construction activities performed under this permit must be immediately and completely removed from the wetland adjacent area and disposed of at an upland site. Disposed of debris in tidal wetlands is prohibited. 0000/ / Of~ ·.~.. 'V",.. .)1r\lt Utt"^KI'''ltt\d 0,. tNVIHOt\MtNTAL CONSERVATION SPECIAL CONDITIONS .. For Article 6¡.Q' TiDftL kJ6TLIq}{D5 ) . P11es 8. No Structures are to be constructed on pilings without further authorization of the Department. 9. Pilings shall not: (a) extend beyond property lines, Cb) be placed so that docked boats extend OVer property lines, (c) interfere with navigation, (d) interfere with other landowners' riparian rights. Access naths. boardwalk~ (if approved, see page 3) ~O. The ground area cleared for const...-uction of a path or boardwalk is limited to a maximum width of six (6) feet. The path or boardwalk itself is limited to a maximum width of four (4) feet. ~~. Cover material Used for footpath is limited to natural wood/bark chips, stone, gravel or sand. Page"£" of , SUPPLEMENTARY SPECIAL CONDITIONS - . The following conditions apply to all Tidal Wetlands; Freshwater Wetlands; Coastal Erosion Management; and Wild, Scenic, and· Recreational Rivers Permits: A. A copy of this permit, including all conditions and approved plans, shall be available at the project site whenever authorized work is in progress. The permit sign enclosed with the permit shall be protected from the weather and posted in a conspicuous location at the work site until all authorized work has been completed. B. The permittee shall require that any contractor, project engineer, or other person responsible for the overall supervision of this project reads, understands, and complies with this permit and all its general, special, and supplementary special conditions. Any failure to comply precisely with all of the terms and conditions of this permit, unless authorized in writing, shall be treated as a violation of the Environmental Conservation Law. If any of the permit conditions are unclear, the permittee shall contact the Division of Regulatory Affairs at the address on page one or telephone (516) 444-0365. C. If project design modifications become necessary after permit issuance, the permittee shall submit the appropriate plan changes for approval by the Regional Permit Administrator prior to undertaking any such modifications. The permittee is advised that substantial modification may require submission of a new application for permit. D. At least 48 hours prior to commencement of the project, the p~rmittee and contractor shall sign and return the top portion of the enclosed notification form certifying that they are fully aware of and understand all terms and conditions of this permit. Within 30 days of completion of the permitted work, the bottom portion of that form shall also be signed and returned, along with photographs of the completed work and, if required, a survey. E. For projects involving activities to be undertaken in phases over a period of more than one year, the permittee shall notify the Regional Permit Administrator in writing at least 48 hours prior to recommencing work in subsequent years. F. The granting of this permit does not relieve the permittee of the responsibility of obtaining a grant, easement, or other necessary approval from the Division of Land Utilization, Office of General Services, Tower Building, Empire State Plaza, Albany, NY 12242 (516) 474-2195, which may be required for any encroachment upon state-owned lands underwater. DEC Permit No.I-473~-()1317100001 Page b of 0 -- þ¡v '3 JSLcl~ 4/;'-$ (S G - a.:t /0 .. I r::; t9 IV\. /.-6"; -f 1'1) R:..... I -- 790 316 NEW YORK: SUPPLEMENT, 2d SERrES [7J The object;"e of disclosure here is to reveal and not conceal the,,,. facts bearing On validit)' of the will. The purpose is to avoid surprise: ::. at a trial. not to caUSe surprise at the trial. The statute is to be jnte~:': " preted liberally and to permit disclosure of eviúence which is materia¡': :', and necessary, Allen \', Crowell·Collier Publishing Company, 21 N,Y.: ß 2d 403. 288 N.Y.S.2d 449, 235 N,E.2d 430 (1968), The COurt is of the opinion that the disclosure of the statements is songht in good faith, that the production is required in this probate pro., :;; ceeding in the interests of justice, that the disclosure is in the interest of '; all parties, that the guardian ad litem is under a duty to rev~al and re, ," port the same, and that disclosure will pr~vent surprise and assist in proper preparation or resolution of the issues, Accordingly the guardian ad litem is direct~d to produce and disclose the five statements, The order as submitted contains a general direction not limited to disclosure of the five statements, It is the intention of the court that only the five statements be discJose.d, , . "" /r. ¡J ,"/'" ~L.V\ 6--r . /~')/ . f-~ruJ4 ,I ()./ (¡(PJf ',' 6{ i\íi,c,2d 938 rv i Graee !, ALLEN, Plallltif!. v, Walter E. POTTER, Ddend&%lt. J /,' ,çJßI . Supreme Court, Trial TerD), y.te. Counl" Vltf.¡ A ~;, " ~\.¿1\ 1""1;.l. Dec. 16, 19/0, f ' / ' Action seeking permanent injunction and damages from defendant, for interference with use by plaintiff of a boat and boat hoist which she had placed in lake, tOgether with a catwalk. in \'icinity of right-af.way. " The Supreme Court, Yates County, Richard M. Rosenbaum, J., held,'.: that plainti if landowner, who did not Own property on Canandaigua '" , Lake but who had cOnstructed a boat hoist and catwalk beyond the low t water mark, which was thus locattd on land owned by the 'state in trust"'- for the people, was not a "riparian owner" with regard to the lake by, , virtue of easement O"er defendant's land which was designed to give:~' plaintiff access to the lake: plaintiff's rights, as member of the public " did not exceed riparian rights of landowner over whose property she, _,,:' passed. " Complaint dismissed. ae< ter a. of ea! tio 3. fo na . o ;u'......'unnQlt , 4, L; w( fo v¡, ph di, pa fo of 1, Na';gable Waters 0(;=59(1), 40 Waters &nd Water CODaes ""'59, 109 ", A "riparian proprietor" is One who owns land on the bank of a riv,j: er; corresponding to riparian proprietors on a stream or a smaH po'!!! da ot conceal the lyoid surprise' is to be inter. , :h is material 'any, 21 N,Y" statem~nt$ is 3 probate pro- , :he inter~st of :eveal andre- and assist in ~ and disclos~ leral direction ~ intention of rndant. )m defendant list which she right-of·way, \Urn, J., held Canandaigua yond the low state in trust ) the lake by gned to givè of the public property she ¡nk of a riv, ic ,.,' I small po!1i: ~ ._:':,i .... ,- ALLEN v. POTTER 791 Ci~1' I\~ 310 ~_Y,~,2rt 790 arc "littoral proprietors" on a se;¡, or lake, but riparian is also used coex- tensively with littoral. Sée publication \\r ords and Phrases for other judicial congtrllctions nnd definition!'!. 2. Navigable Waters <Þ39(2) In general, "riparian rights" connote the right and profit to Owner of the upland arising from its connection with the water stich â$ the easement of passage and lise, suhjeet however to governmental regula- tion for the improvement of navigation,' See publi..tion Words and Pbras.s for other judioial <.'onstructiQn~ and ¡leíinìtioT1.3. 3. Navigable Waters <Þ39(2) Generallv speaking, "riparian rights" consist of: ( I) use of water for general purposes such a bathing and domestic use; (2) wharf out to navigability; and (3) access to navigable waters, S(!e publico.lion \V ords and Phrases for other judicial ...constructions Bud definitions. 4. Navigable Waters ""'29, 39(1) PI~intiff landowner. who did 110t own property on Canandaigua Lake btlt who had constructed a blOat hoist and catwalk beyond the low water mark. which was thus located on land owned by the state in trust for the people, was not a "riparian owner" with regard to the lake by \'irtue of easement over ddendant's land which was designed to give plaintiff access to the lake; plaintiff's rights, as a member of the public, did not exceed riparian rig-hts of landowner over whose property ,he passed, See publication \Y Ql'ds 3nd Phrues for other judicial (!onstru~tions ßnò definition.!. Tayior & Taylor, Penn Yan. Daniel R Taylor, Penn Yan, of counsel. for plaintiff, Croucher & Gifford. Cananciaigua. Thomas Croucher, Canandaigua, of counsel, for defendant. DECISION RICHARD lvl. ROSENBAUM, JuStice, The plaintiff bring> an action for a permanent injunction and for damages and for punitÌ\'e damages against the defendant for interfer- ence with the use h)' the plaintiií of a boat and boat hoist which she placed in Canandaigua Lake together with a catwalk on both sides of the boat hoist in the dcinitv of a right·of-way plaintiff has over land owned bv the defendant along the shore of Canandaigua Lake in order \y/ I I , I I, II I:¡¡ ' ",;:;1' ' 1',1 " ':h 792 316 NEW YORK SUPPLEMENT, 2d SERIES to reach the Lake located SOme distance from her property which is not along the shore of the Lake. Prior to the instant dispute the ddendant in the instant case had brought an action in State Supreme Court against the plaintiff in the in. ,tant case to enjoin an allegedly improper use of the same right-of-way;' The facts were that the plainti If in the instant case had installed a dock at the end of the right-of-way and had parked vehicles and equipment on the right-of-way, The COurt granting the injunction ordered the dock removed pointing Ottt that by the terms of the right-of-w.ay COn- tained ;n a Deed the purpose of the right,of·way is for "ingress, egress and regress with the right at all times to the parties hereto, their heirs and assigns, and the occupants of the premises along said driveway to, pass or repass On foot and with animals Or vehicles over said right-of;' '~ay." The Court in the prior case also held that the then defendant now plaintiff had no right to obstruct the right·of.way by storing boats, chairs or other equipment on the right·of·way. A pennanent injunction was issued to prohibit such acti "ities in the future. The law as wa$ stated in the prior case is that a dearlv stated written agreement may not b. yaried by extrinsic eyidence. Bethlehem Steel Company Y. Turner Constr. Co, 2 N. Y.2d 456, 459-460, 161 N.¥.S.2d 90, 141 N.E.2d 590 (195i); Loch Sheldrake Associates v, Evans, 306 N.¥. 297, 304-305, 118 N.E.2d 444 (1954), Walter Potter Y. Grace 1. Allen and G. Ernest Oremus, Supreme Ct. Yates County, May 21. 1969. The decision in Potter v, Allen and Oremus, Supra, citing various cases' ,. also pointed out chat "it is a genera! rule of construction that no more is < granted than is necessary for the enjoyment of the easement itself:" :';{. .~" ,~ A question of fa"t was raised in the case at bar as to whether or not'" the boat hoist and catwalk around it was located in the water beyond tbe low water mark. IV ere is not located bevond the low water mark .the', plaintiff would be dearly in \'iolation of the defendant's rights becaus~.Y it would then be located on land owned by him, Stewart v. Turner.:, 237 N, Y. J 17, 142 N,£, 4Ji, ¡ find that the boat hoist and catwalk; , , .",~ were located beyond the low water mark. Since the boat hoist and ,c~,tt_~ walk were located he:'ond the low water mark they must be located:0o/.~ land owned by the State of New York in trust for the people of.th~':' State of New York since Canandiagua Lake is a navigable body of w~. ter and title to the bed of the Lake is held by the State of New York ii. trust for the people of the State. See Granger v, Canandaigua, 257~N';: y, 126, li7 NE. 394, ':, ;~) Accordingly, the Court must decide whether or not as a membe~,?¡' the public the plaintiff has the right to construct the boat hoist and c~f walk located beyond the low water mark in Canandaigua Lake an i.: not as a member oí the public would plaintiff ha;'e the rights enjoj~" . . ~~" .. ,,,. vhich,is not ,t case had ff in the in· ght-of-way. 'lied a dock I equipment ordered the >f-way con- ¡ress, egress their heirs Iriveway to id right·of. I ddendant ~ring boats, t injunction Hed written lehem Steel ,I N.Y.S.2d Evans, 306 v. Grace 1. 'y 21, 1969. arious cases : no more is self." :ther or not . beyond the ~r mark the rhts because v. Turney, Ind catwalk ,ist and cat- , located on ople of the ody of wa- =w York in , ;ua, 2$7 N. member of ist and cat- " .ake and if··;~ Its enjoyed:,' ALL:EN v. POTTER CH. u 3Je .......Y_S.~d í9Q 793 by a riparian owner os the holder of a right-of· way. The COllrt is con. strained to decide both questions in the negati,·e. [1-4] A riparian proprietor is one who owns land on the bank of a river. See Mettler v. Ames Realty,Co., 61 Mont. 152,201 p, 702, 703 Corresponding to riparian proprietors on a stream or a small pond are littoral proprictors on a sea or lake. Bu! riparian is also used coexten- sively with littoral. Commonwealth v. Alg=r, 7 Cush, (61 Mass.) 53, Boston v. LeCraw, 17 How, 426, 15 L.Ed. 118. In general terms ri- parian rights connote the right and profit to the o\"ner of the upland arising from its connection w,th the watèr sllch as the easemcnt of pas- sage and use, subject however to governmental regulation for the im- provement of navigation, Matter of Citv of New York (West 205th Street), 240 N,Y. 68, 147 N.E. 361. rGë;ierally speak 109 such rig ItS ."...-- ..-----' . are: (1.) se 0 water tor general purposes as bat lung and domestic use; (2.) Wharf out to navigability; (3.) Access to navigable waters. See Hilt v. Weber, 252 Mich. 198, 23:> N.W. 159; City of N, Y. v. Wilson & Co.. 2iR N Y R6..lÞ N.E.2d 408, he PlalOtIt is not a-i1- "'piiì'ían owner with regard to Canandaigua .a c and her easement to get to the Lake does not give her the rights of a riparian owner, Knight v, Ciarlone, Sup., 200 N. Y,S2d 805. As a member of the public certainly plaintiff's rights do not under the facts in this case exceed the riparian rights of the deíendant. In fact the riparian rights of the defendant would be severely ¡¡mited were the plaintiff to prevail. Matthews v. Treat, is Me. 594, 597; Johnson v. Jeldness, 85 Or, 65ì, 167 P. 798. The Court could have disposed of this matter by use of the unclean hands principle. It was admitted in the testimony in the plaintiff's case that in the installation of the boat hoist it was necessary to use heavy equipment on the right-of·way and to .go off the bounds of the right. of-way contrary to the decision of the Supreme Court in Potter v, Allen and Oremus. supra. Also it would be well within the realm of reason, based on the proofin this case, to say that the plaintiff simply removed the dock in the Potter v. Allen case and placed it out approximately sev. en feet (7') in the water in a different form. However, in order to dIs- courage further litigation between these parties, particularly hased on the litany of events as concerning them, the Court has endeavored to an, ticipate future points of disagreement in its decision. The complaint of the plaintiff is dismissed with costs to the defend- ant. 116 ~,Y.S.24-!O¡"~ / 790 316 NEW YORIt SUPPLEMENT, 2d SERIES [7J The objective of disclosure here is to reveal and not COnceal the~ ,,' facts bearing or¡ validity of the will. The purpose is to avoid surprise,·.< at a trial, not to caUSe surprise at the trial. The statute is to be int';':',') preted libera1ty and to permit disclosure of eviúence which is materiat': \ and necessary. Allen \'. Crowell·Collier Publishing Company, 21 N.Y. ~:. 2d 403, 288 N.Y.S.2d 449,235 N.E.2d 4.~0 (1968). . The court is of the opiuion that the disclosure of the statements is'j sought in good faith, that the production is required in this probate pro... .'t. ceeding in the interests of justice, that the disclosure is In the interest of; all parties, that the guardian ad litem is under a duty to renal and re, port the same, and that disclosure will prevent surprise and assist in proper preparation or resolution of the issues. Accordingly the guardian ad litem is directed to prOduce and disclose' the five statements. The order as submitted cor¡tains a general direction not limited to disclosure of the five statements. It is the intention of the court that only the five statements be,,~clos~. f ( 4' .,::;¡MLe/\ d . ¡U-d?-t(j)/ q.~~ . I vi . 1 64 ~{j.c.2,1 938 fv ,. Grace I, ALLEN, PI.untlfl, v. Walter E. POTTER, DefèlldAllt. I /,- ",/,,11 " Supreme Court, Trial TerDl, Vatu Count·· vl1 ~ 3." Dec. 16, 19ï0. ~\t?\ f 1 . J' Action seeking permanent injunction and damages from defendant, for interference with use by plaintiff of a boat and boat hoist which she had placed in lake, together with a catwalk, in vicinity of right-of.way. The SuprC!tne Court, Yates County, Richard M. Rosenbaum, J., held that plaintiff landowner, who did not Own property on Canandaigua Lake but who had constructed a boat hoist and catwalk beyond the lo~ ,r water mark, which was thus located on land owned by the state in trust. i' for the people, was not a "riparian owner" with regard to the lake by'.. , virtue of easement over defendant's land which was designed to givè;; plaintiff access to the lake; plaintiff's rights, as member of the public' , did not exceed riparian rights of landowner over whose property she.¿ passed. ., Complaint dismissed. ar' ter a. of ta! tio s. fo na . o 111f.....t:5YSJDt , 4. L Wi fo yil pI: di. pa fo of 1, Harigahle Walfrs <1=39(1), 40 Waters and Water Coursos Ç,39, 109 .. A "riparian proprietor" is One who owns land on the bank of a riv,~: er; corresponding to riparian propridors on a stream or a small pO!l,g: da ot conceal the Ivoid surprise is to be inter, , :h is material 'any, 21 N,Y., statements is , probate pro- , :he interest of :eveal and re- and assist in ~ and disclose leral direction ~ intention of 'nd....t. >m defendant list which she right-of·way, .um, J., held, Canandaig1la yond the low state in trust ) the lake by gned to gi vii of the public property she, k f'" Ian 0 a rtvj. '¡~: a small po~~p ,'" .:1 ALLEN v. POTTER Citf' I\~ s'10 N.Y.S.2r:1 ¡gO 791 are "littoral proprietors" on a sea or lake. but riparian is also used coex· tensively with littoral. See publication Word. and Pbrase. for other judicio I consh'udions and definitionl!. 2. Navigable Waters <Þ39(2) In general. "riparian rights" connote the right and profit to owner of the upland arising- from its connection with thc water such a$ the easement of passage and use. subject however to governmental regula· tioll for the improvement of navigation.' See publication Words and Phrases for otber judidol c.'onstruotionl) flnd 11dinitions. 3, Navigable Waters <Þ39(2) Generallv speaking, "riparian rights" consist of: (1) use of water for general purposes such a bathing and domestic use; (2) wharf out to navigability; and (3) access to navigable waters. See pùblicatíon Words and Phrases for otber judicial ...constructions Bnd definitions. 4. Navigable Waten =29. 39(1) Plainti If landowner. who did not own property on Canandaigua Lake but who had constructed a b(,at hoist and catwalk beyond the low water mark, which was thus lotated on land owned by the state in trust for the people. was not a "riparian owner" with regard to the lake by virtue of easement over defendant's land which was designed to give plaintiff access to the lake; plaintiff's rights, as a member of the public, did not exceed riparian rights of landowner over whose property she passed. Se. publication Wo,·d. and Phr.... for other judicial (!on':!ikø<!tions and definition... Taylor & Taytor, Penn Yan. Daniel R Taylor, Penn Yan, of counsel, for plaintiff, Croucher & Gifford, Canandaigua, Thomas Croucher, Canandaigua, of counsel. for defendant, DECISION RICHARD M, ROSENBAUM, Justice. The plaintiff bring~ an action for a permanent Injunction and for damages and for punitive damages against the defendant for interfer· ence with the use hy the plaintiff of a boat and boat hoist which she placed in Canandaigua Lake together with a catwalk on both sides of the boat hoist in the vicinity of a right·of·way plainti ff has over land owned bv the defendant along the shore of Canandaigua Lake in order v/ j. r I' il ·1" .1', Hi' ~ ::' , !irl ' t: ~ "11 ;'¡I' ~ ¡! ,/ 792 316 NEW YORK SUPPLEMENT, 2d SERIES to reach the Lakt located SOmt distance from her property which isnat along the shore of the Lake. Prior to the instant dispute the defendant in the instant case had brought an action in State Supreme Court against the plaintiff in the in. stant case to enjoin an alltgcdly improper use of the same right-Of'way;' The facts were that the plaintiff in the instant case had installed a dock at the end of the right.of-way and had parked vehicles and equipment on the right,of-way. The COurt granting the injunction ordered the dock removed pointing Otlt that by the terms of the right-of.w.ay con. tained in a Deed the purpose of the right,of·way is for "ingress, egress and regress with the right at all times to the parties hereto, their heirs and assigns, and the occupants of the premises along said drivewny to pass or repass on foot and with animals or vehicles over said right-of," way." The Court in the prior case also held that the then defendant now plaintiff had no right to obstruct the right·of-way by ~toring boats, chnirs or other equipment on the right·of·way. A permanent injunction wa~ issued to prohibit stich activities in the future. The law as was stated in the prior case is that a clearly stated written agreement may not be varied by extrinsic evidence. Bethlehem Steel Company v. Turner Constr, Co, 2 N. Y.2d 456, 459-460, 161 N.Y.S.2d 90, 141 N.E.2d 590 (1957); Loch Sheldrake Associates v, Evans, 306 N,y' 297,304-305, 118 N,E.2d 444 (1954), Walter Potter v, Grace 1. Allen and G. Ernest Oremus, Supreme Ct. Yates County, May 21, 1969. The decision in Potter v, Allen and Oremus, Supra, citing various cases' also pointed out that "it is a genera! rule of construction that no more is granted than is necessary for the enjoyment of the easement itself," ;,;r,,';:., A question of fad was raised in the case at bar as to whether or riot ',' the boat hoist and catwalk around it was located in the water beyond the :.' low water mark. Were is not located beyond the low water ~ark ,the ,]' plaintiff would be clearly in yiolation of the defendant's rights because < it would then be located on land owned by him, Stewart v. Turoeý;,' 2;37 N.Y. 117, 142 N.E. 437, I find that the boat hoist and catwä.tk'., . .,"..,.,~ were located bevond the low water mark. Since the boat hoist and ,ca,t;:,;¡ walk were locat~d be)'ond the low water mark they must be located:,öi¥~ land owned by the State of New York in trust for the people of.thr:' State of New York since Canandiagua Lake is a navigable body o(wä;/, ter and titie to the bed of the Lake is held by the State of New York in: trust for the people of the State. See Granger v, Canandaigua; 257 'Nt Y. 126, 177 NE. 394, "-; :.;:; Accordingly, the Court must decide whether or not as a member"p . the public the plaintiff has the right to construct the boat hoist and c~~' walk located beyond the low water mark in Canandaigua Lake an ~: not as a member of the public would plaintiff have the rights enjoy::', ,,.,, ·'·,If'· .......".. vhich is not 1t case had ff in the in· ght-of-way.. ¡lied a dock I equipment ordered the )f-way con· :ress, egress their heirs Jriveway to id right·of· I ddendant )ring boats, t injunction .ted written lehem Steel ,I N.Y.S.2d Evans, 306 v. Grac~ I. lY 21, 1969. arious cases : no more is self." ~ther or not . b~yond the tr mark the ¡hts because v. Turney, .nd catwalk >ist and .cat- : located on ,ople of the )Ody of wa- 'ew York in gua, 257 N. member of ¡ist and cat-..' Lake and 'if '.:.:. ,hts enjoyed::'" ALLl:N v. POTTER. 793 CU~ u 3J~ ~.Y.S.~d 790 by a riparian owner as the holder of a right·of-way. The Court is con- strained to decide both questions in th~ neg~tÌ\·e. [1-4] A riparian proprietor is one who owns land on the bank of a river. See Mettler v. Ames Realty.Co., 61 Mont. 152,201 P. 702, 703 Corresponding to riparian proprietors on a stream or a small pond are littoral proprietors on a sea or lake. But ripari~n is also used coexten' sively with !ittoral. Commonwealth v. Alger, 7 Cush. (61 Mass.) 53, Boston v. LeCraw, 17 How. 426, 15 L.Ed. 118. In general terms ri· parian rights connote the right and profit to the owner of the upland arising from its connection with the watèr sltch as the easttncnt of pas- sage and use, subject however to governmental regulation for the im· provement of navigation, Matter of Citv of New York (West 20Sth Street), 240 N.Y. 68, 147 N.E. 361. Æfe;;ërally speaking such rig ts are: (1.) se 0 water or ¡iêriëi<iq5ii'rposes as bathing and dOmtstic use; (2.) Wharf out to navigability; (3.) Atcess to navigable waters. See Hilt v. Weber, 252 Mich. 198, 233 N.\V. 159; City of N. Y. v. \ Wilson & Co._ 27& N V 86..1,5 N.E.2d 408, he Plamtl IS not a-r¡:- "pwn owner with regard to Canandaigua .a e and her easement to get to the Lake does not give her the rights of a riparian owner. Knight \'. Ciarlone, Sup., 200 N.Y,S.2d 805. As a member of the public certainly plaintiff's rights do not under the facts in this case exceed the riparian rights of the defendant. In fact the riparian rights of the defendant would be severely limited were the plaintiff to prevail. Matthews v, Treat, 75 Me. 594, 597; Johnson v. Jtldness, 85 Or. 657, 167 P. 798. The Court could have disposed of this matter by use of the unclean hands principle. It was admitted in the testimony in the plaintiff's case that in the installation of the boat hoist it was necessary to use heavy equipment on the right-of·way and to go off the bounds of the right· of-way contrary to the decision of the Supreme Court in Potter v. Allen and Oremus. supra. Also it would be well within the realm of reason, based on the proo(¡n this case, to say that the plaintiff simply removed the dock in the Potter v. Allen case and placed it out approximately sev· en feet (7') In the water in a difftrent form. However, in order to dis- courage further litigation between these parties, particularly hased on the litan)' of events as concerning them, the Court has endeavored to an· ticipate future points of disagreement in its decision, The complaint of the plaintif f is dismissed with costs to the defend· ant. 3016 If,Y.S.24-!o-lA / , I I'I I, . IB I'" . II.' " I) ii, ¡ ~ ij 1 1 :¡ ~ ' :'I!! : alEs BR.~ VO v. TERSTIEGE CHcu6QI N,y,S.ld 119 (A.D. 1 Dept. I~)) ,~ 0, IS L.Ed2d 1019),!iÌÏ! uct which sUbstaritiAiJy:, ' free and unhampered oil; ntial defense wjtr¡esC¡ij . .,t: Ue proce.. (3ee, ,feople' 2d 147. 431N,y.s,2d.,(' at every contact betw~ri ent and a potential de: stitutes "- ~'substantial in:' the choice to testify (ct:. r. 145 A.D.2d 564, 536 ople 11. J(U83, 122 A.D:M 1000; People 11, A{cRo~' S03 N. Y,S,2d 158). Dui only when warnings. by nt to a potentia) defenae asized to the point wherl! med in.tead into inS!nt., ion" (People 1/, Shapiro, at 762, 431 N, YS,2d 422, 0, I n this c"-se, the prosecu. ',:' 'esting the witness at !be ',; , represent an attempt to ; ) refuslUg to testify for,' is undisputed .that the , urth man involved in th.·' ~n.ge c:ounsel annóun'ced ~ all him as a witness,h. 'ould be amsted as' â,,! 'eturned to New' Yor( testifieddn the deféR. 'eover, the arresttôö~ ess had announced 'th~t. fy fOr' the defendaó' ;0 believe that the ..it~ because he Was intiríi:! f I "r~~ re U.a to testify w~. , since he was fådií'" 1 for bis participatfon'iñ , bout whicb he woul r F rth 'b' " _'J ," U er, i ecause," } the witness might.. g the incident clearly ncrimiJ1ate hjtn~ therë" JUri to bring him'mto; :1ally aSSert his Fifth (.ree. People 11, Bag~ 12 N, Y,S.2d 562.' 482 17iomas, 51 N, Y;2d I, 415 N.E2d 931 5 N, Y,2d 928,41 :.2d 342; Matt.., h, .~i v. Ham" 93 A,D,2d 971. 463 ".g,2d 76; Slale of New York ", Ca,rey òl/rces, 97 A.D.2d 508, 467 N, Y,S.2d . '·Slale of New Y01'k", Skibin.,ki. 81 , ' .2d 974, 450 N,Y,S,2d 100). st, The defendant was not denied U,e èëtive assistance of counsel (sec, Pðf)ple (Jldi, 54 N,Y,2d 1:37, 444 N.Y,S,2d 893, ''N.E.2d 400), It js well ,.!tIed that trial teÌP' should not be second·gues$ed on "I (seo, People ¡'. Lane, 60 N, Y2d 748, '.N.Y,S,2d 663, 467 N.E,2d 769), More. ii' the defendant has failed to e"tabli,h this àttorney's perfonnance wag so un· "onabl. as to fall out .of the "cope of iessional competence ("ee, Peopli v. Lo· "0, 147 A,D.2d 592, 537 N,Y,S,2d 886), ;ßJ, Viewing the evidence in the light O'st favorable to the People ($ee. Plople v, "te~, 60 N, Y.2d 620, 467 N, Y,$,2d 849, "N.E.2d 932), we find that it was legally , ficient to establigh the defendant', guilt '. ond a reasonable doubt. Moreover. n the exercise of our factual review ,wer, lVe are ,atisfied that the "..did of , t w""' not against the weight .of the ':'ence (see, CPL 470.15(5J), ,é hav@ examined the defendant's re- uiing contentions and find them to be -nerved for appellate re\;ew or with- li.'/nerit. . o iUrnUMIt.STS1IM T 196 A.D.2d 473' ;,red S. BRAVO, Respondent. .~~. '. v. 'u "r" II Hilde TERSTIEGE, dc.. et al.. Appellants. Upreme Court. Appellat£ Division, "tJo Second Department. Aug, 2. 199:3. dors sold rIghts to navigable tidal water- way abutting the parcel. V(>ndors com~ menced separate summary proceeding {or possession, and actions were consolidated. The Supreme Court, Suffolk County, Doyle, J., granted purth3.!er summary judgment and ordered return of down pay- ment. Vendors appealed. The Supreme Court. Appellate Division, held that: (I) purchaser was entitled to return of down payment, and (2) survey map p...pared af- ter determination of Suprème Court would be considered on appeal. Affirmed. I. Navigable Wate... *"39(3) Owner of land abutting navigable tidaJ waterway has right to use area over under. water land fronting on his property for acce.. to navigable water, even if titJe to underwater land i, held by another, 2. Vendor and Purchaser <Þ334(2) Purchaser was entitied to return of down payment on parcel of land which .butted navigable tidal waterway, where purchasel'$ of second Jot, ba$ed on vendor', purported grant of title to underwater land. had constructed docks in front of the parcel which would interfere with purchas. er's use of property for marina. and 3urvey map showed that vendurs had sold same land to both purchasers. 3. Appe,,¡ and Error "'891 While ordinarily material outside rec· ord will not be considered on appeal, there is exception for reliable document whose existence and accuracy are undisputed, and thUB for pllrpo", of sustaining judgment. ¡ncontrovertíble documentary ~vìdence de- hor' tbe record maybe received by appel. late court. ~. Appeal and Error "'714(5) On appeal. Appellate Division would consider survey map by licensed Ja.nd sur. veyor of two parcels involved in litigation over purchaser's request for return of down payment, despite fact that map suh. mitted with brief was prepared after deter- mination of Supreme COUl1:, where slU've}" 129 I ¡ I II II) ¡IJI i :'11' ~ iL~ ;:111:1 ï I~·: I,: hi i;: hi I." "'I' " . ;: : ~ I; "~,¡I ¡'ï¡ :: ~1 !' ,:.;; t, '_~,I il:I" "" '¡¡f':, 1 ¡ J' . ~~, fl'" "'_ " . :'1 i I " iLLfj íW;ib ~ ij . ( '" , d!¡" ;~I ""'"'iI' ¡~I ,ji!j ; 1~ ';1 ': !/ ,;~ '( ::f; ;;;,:1, : I' .~ !/ ;c, I ~ . '.: i!o F:;,;n Ii", r< i~;t~i 111'1£ .1,., :1.1 ;;¡!: "I't]'· :¿"~'W ,-); t~ il·1 't~ , '''!', : ,~ ::! 'If 'i'·i.,:: , "'.~ J1.t" i~'i .~ "'i'll' "1','/' ' J". ....... .)1' . 'I; , . '.' .;;, ¡f,,1 ;! : ',.., " . .'~ ~:'" . >: t' !'J, 130 I 601 NEW YORK SUPPLEMENT, 2d SERIES map was based on descriptions iu contract.c; of sale of ooth parcels. which were before Supreme OJurt and were part of record on . appeal, and venda," did not contend that map was inaccurat..e. Co.tantino & Cost'lI1tino, Copiague {Ste- ven A. Costantino, of coulIsel), for appel. hinta. Alan Bendersky, Weot Islip, for respon- dent: Before SULLIVAN, .J.P" and ROSENBLATI', LAWRENCE and O'BRIEN, JJ, MEMORANDUM BY THE COURT. In an action, inte¡· alia. for specific per. formance of a real estate contract, the de- felldanta appeal, as limited by their brief, from stated portions of an order and judg, ment (one paper) of the Supreme Court, Suffolk County (Doyle, J,), dated January 30, 1991, which, inter alia. (I) denied their cross motion for sumn1ary judgment. di$~ missing three of the pl.untiffs cau.e. of action, (2) granted the plaintiffs motion to consolidate a summary proceeding pending in Suffolk County District Court with the instant action provided that he deposit rent- al payments with the court, (3) granted the plaintiff .ummary Judgment on hi. first and fourth causes of action to recover the down payment, and (4) directed the Clerk of the Cou,1; to remit to the plaintiff the sum of $76,237,50. By decision and order onmobon dated October 4, 1991. the defen. dants' motion to !.trike l'Exhibit A" from the plaintiff', brief was granted. ORDERED th¡\t. after ar¡¡llment of the appeal, this eOl1rt grants renewal of the motion. and upon renewal. the decision arJd order on motion dated October 4" 1991. which granted the defendant.,· motion to strike "Exhibit A" from the plaintiff'. brief, is recalled and vacated,' and the mo. tion is denied; and it iK further, ORDERED that the order and Judgment is affirmed insofar [\8 appealed from. with costs. The defendants aucboned two adjoinin' parcels of property bordering onGrOà Neck Creek in the Town of Babylon., U~ del' the terms of the auction, the highe. bidder was given the chòice of either of.tIi two parcel.. The highest bidders, Anth~!V .nd Robert laSala, who are not parties'" this action, chose Parcel No.2. The piÍiíí\< tiff a. the second highest bidder, signed'. con~ract to purchase Parcel No. I, which!3 the subject of this àction. At the time~f the auction, the plaintiff operated a malina on property adjacent to Parcel No.1., Th plaintiff alleges that his corporation h^ lea.ed Parcel No.1 from the defendàn" for many years prior to the auction. ":: ,., The plaintiff offered evidence that, ~ auction advertisements and his contra¢t 0, .ale did not indicate that title to the under.', water land abutting Parcel No. 1 was pin': portedly included in Par.:el No.2. Before the date set for closing, the plaintiff, learned that the LaSalas were claiminf owner.hip of the underwater land abuttin Parcel No. 1. A survey prepared for th LaSalas after the contract signings showed that Pareel No.2 included the underwa" land abutting Parcel No. 1. There Is ,; , dispute that the contract of sale betw" the LaSalas and the defendants purpom, grant them all of the defendants' righ title and interest to Great Neck Creek ab~ ting Pal'tel No. 1. The plaintiff asse " that the LaSalas had constructed dockì based on their claim to the underwa. rights abutting Parcel No. I, which in, fered with his use of the existing dow 0 tlle property. The plaintüf refused to cl titie and commenced this action. The. fend ants 5ubsequently commenced a su, mary proceeding in District Court for po session of Parcel No.1. alleging that., plaintiff was a squatter on that prope,. We find no basis to set a..de the cou determination to consolidate the sumlD" proceeding with the action at. bar on COD tion tbat tbe plaintiff oontinues to pay into court while the action is pending, thermore, we agree with the court that plaintiff is entitled to the return of' down payment On the contract of .ale, Parcel No. I. IES ~ueboned two adjoinin? y bordering on ',GrOi' Town of Babylon.'t) , e auction, the highèSt e choice of either of. !Ii ' igheat bidders, Anthpny' \vho >te not parties' ¡h", areel No.2. Theplåin! ¡ghest bidder. signed'..,', Parcel No.1, wliichil action. At the time (if: ntiff operated a marinâa t to Parcel No. L Thi, this corporation had ' 1 from the defendan~ ' or to the auction .,,!"~ . ..':"..:.... red evidence that, the " nts and his contract ot that titJe to the unde"" Parcel No, I was PIU'-,; Parcel No.2. BeforÙ./ oJosing, the plaintiff"'" JiSalas were claiming ~..? ierwater land abutting .,.' rvey prepared for the"'~ 'tract signings showed'¡~,' :Iuded the underwaten. ' No. 1. There ia no,,' ~act of sale betwun,: lefendants purports y!' he defendants' righ~ii reat Neck Creek abut. ' I'he plaintiff assertðd·. i Constructed dacla,: , to the underwater I No. I, which inter.' ;he existing docks on , ntjff refused to close,' ;J¡is action. The de-; commenced a sum-.:' strict Court for pas.. I, alleging that the ", or On that property.,:: 'et aside the court's', lidate the summary' ion a t bar on coridi- 'ntinues to pay rent,' >n is pending. Fa!' , the court that the, the return of h~' on tract of sale for: , BRHO v. TERSTIEGE Cite A¡ 601 ,'V. Y.sold 129 (A-t). 2 .Di.opL 199J, 11) Although "'e reach the same result the Supreme Court, we do so 011 :l díffer- ["ground. The SUpreme Court based its """nnination on the Jaw governing title to ôerwater land abutting nontidal wate,.. '18 and held that the d..cription of Par. 'No, 1 in the contract of ,.Ie would 'Jud. Qwnership of the abutting underwa- , ¡and to the center of the creek. Howev. .,' as tb. defendant.. note in their brief, ~:eat Neck CrHk iß a navigabl@ UdaJ wa. ay T e 0 tin a VI e tidal waterway has the right to the area oVer the underwater land "nting, on his property for access to navi. Ie water, even if title to the underwater "'d is held by another (see. Tiffany I'. ~¡jwn 0/ Oyster Bay, 234 N, y, 15, 136 N.E. '; TTU$tees 0/ To,,", of Brookha¡,en v. '-;"ítft, 188 N,Y, 74, 80 N,E. 665: :3 War- '"'n's Weed, New York Real Property. Lan .Under Water, §§ 1.02[2J; 6,02[2J; 6,05[3J 6.06(1] [3d ed]). "The right of access com prehends the reasonahle, safe and conve .nient use of the foreshore for Mvigation, ¡¡¡hing and such other purpo.e. as com. Ø/only belong to the riparian owner, exer. dsed in a reasonable manner! (Toum of Hempstead v, Oceanside Yacht Harbor, 38 ';n,2d 263, 264, 328 N, Y,S.2d 894. affd, 32 ·¡Y.2d 859, 346 N.Y,S,2d 529. 299 N,E,2d " 51,_.._.. "'f ',i21 ,We need not d~1 e w. er e de. eiÍdants' convevance to the LaSalas of .ir' interest in 'the underwater land abut. ,'ir Parcel No, 1 was valid. Upon pur. " ing Parcel No. I, the plaintiff would be Íitled, to reasonable use of the area over I~ . . . ,underwater land abutting that proper. ::' The plaintiff submitted evidence, in. 'ding photographs, that the LaSalas, , ad On the defendants' purported grant ithe title to the underwater land. had llatructed docks in front of Parcel No. 1 ÌÌJch would interfere wiili the plaintiffs .,..·ot the property. We agree with the Ptf!rne Courfs determination that the , ' tiff should not be expeeted to cIo.e the , nSaction with the defendants and "gam. ,'.. to the chance of vmdicating hi. ghts vis·a,vis tile purchaser of the adjoin. ", :Ptoperty" Compelling the plaintiff to t the j~onveyance would be I:.1nta. 131 mount to forcing him to purehase a lawsuit (c/., Grace v, N¡¡ppa, 46 N.Y,2d 560, 415 N, Y,$,2d 793, 389 N.E.2d 107), We there. fore find that ilie court did not err in directillg tbe return of the plaintiff'. down payment. (3.4J We further note that the plaintiff submitted with his brief on appeal a survey map by a licensed land surveyor of the two parcels invclved in thi. litigation, By deci. ion and order on motion dated October 4, ' 991. this court granted the defendants' otion to .trike the map, referred to as Exhibit A" in the briefs, from the record n appeal, because it was prepared after the determination of the Supreme Court. After argllment of the appeal. and upOn consideration of the entire record, we grant renewaJ! and, upon renewal, we recaJl and vacate that decision and order on motion snd deny the defendant>' motion, At the time tho. motion was decided, the court did not have an oPportUllity to evaluate the motion in light of a full presentation of the ¡"ues, While ordinanly material dehors the record will not be considered on appeal, there is an exception for a reliable docu. ment, whose existence and accuracy i$ un. disputed (.... ..g" C"awjiJrd t·, Merrill Lynel4 Pierce, Fenner &: S'nith, 3.5 N, Y.2d 291,299.361 N,Y.S,2d 140, 319 NE,2d 408; Brandes Meat Corp. v, C"om"" 146 A,D,2d 666, 667, 537 N,Y,S,2d 177), For the purpose of sustainìng a judgment, in. <:ontrovertible documentary evidence de. hors the record may be !'1!eeived by an appelIate court (see, Slate 0/ New Yo~k u. P..~le'8 bu. Co., 117 A.n,2d 370, 503 NY,S,2d 448; Kirp t', Cateb'. Poth nealty Corp" 19 A.D,2d 744, 242 N, Y.S.2d 877), Here, the survey map is hased on the de. scriptlons in tbe contracts of sale of both parcels. which w.r. before the Supreme Court and are part of th. record on appeal, and the defendants do nnt contend that the map is inaccurate. Accordingly, We wiJI ronside.· the map o!! this appeal. The map .hows iliat the metes and bounds de,cMptio!! of the property in the LaSala contract of s3Je encompasses nearly aII of ~he property described in the plain. - ill : ¡ 1 ¡ill I ~, ~ r. [I "I i ~ , ,':1 !11:¡ , < , I ii :,) ·I·,¡ I ¡! ,;.",¡i ;.¡ ¡/:!I! 'I ¡ ,i ìi ":-, ; ~i ;1 q., , ;! .., '" ., ., , ¡ 'J "I ';(1;- '1 . ¡",I'I j, f'~_ r: t¡-~ '.·.T :.1.; , '~j·U~ ~:lll~ it -/ ' ' I ~ :,",1 1·,,·rll( ¡¡¡¡.if.}' 11'1" iI'n ¡'f''''\ : ~f¡ ¡J~"~: <¡Ii' ,,·.t; I,'J.7r I f,'~, ;1'1' , ·¡:¡'f 'I~,",¡' ~t : 'j':' i~i :1 !"~,,', '¡~'¡¡.·f." ::d:'í1' ~HJ ':r,¡¡ ~¡:. ¡.oJ ~ #L f ~ .~ 132 601 :'II'EW YORK SUPPLEMENT.2d SERIES tiff', contract of ,ate. This alone provides sufficient grounds to grant the plaintiff's request for the return of his down pay. ment, as the defendanl~ contracted to .ell to the plaintiff tl1e same land which they had contracted to .ell to the LaSalas. . o ~UTl'IUMølllm'EM T t 92 A.D.2d 289 The PEOPLE, etc.. Respondent, Y. William BUXTON, Appellant. Supreme c.,urt. Appellate Division, Second Depal'tment. Aug, 2. 1993. Defendant was convicted in the Suo preme Court, Kings County, Marrus. J.. of sodomy. Defendant appealed. The Suo premeCourt, AppeJlate Division, Bracken, J.P., held that communication3 between court officer and jury were administerial, and thus trial judge was not reqUIred to deliver them in person. in open court and in presence of defendant. Affirmed. 1. Criminal Law <=>855(7) TI·ja! judge may properly authorize court officer to speak to deliberatmg jury in criminal trial when 9ubject of t~ommunì. cation is fladminis.terial." McKinney's CPL § :nO.l0. 2. Criminal Law <Þ855(1), lIi4(5) Trial judge who .uthorizes court offi. cer to communieate with jury in. criminal trial on matters which are not administerial commits error so grav~ as to warrant re- versaJ even though defendant's attorney' might have consented to OCCllrrence of the error. McKinney's CPL § 310.10. 3. Criminal Law ÞI039 ¡:t,' De'fendant'. Arguments on appeal, ~.t messages conveyed to jury by court officer should instead have been conveyed by'..' judge himself. and that' his right to.:·G present at all material stages of trial ;,,.\ violated inasmuch as court officer's 'cÒtQ~ munications ,with jury were made in' it absence. were reviewAble as que.tions' 0 law, evên in absence of .ny objection..: :: 4. Criminal Law Þ636(i) . ":i'./' Where court officer's communicati6n to jury relates to an administerial matterScÍ AS to fall within officer'a super\'iaory roJë; defendant's absence during 8uch commùn( cation does not constitute violation of 'dê> fendant's right to be present at all materi : stages of trial. McKinney's CPL § 310.!O;~' McKinney's Const. Art. I, § 6. ,,. 5. Criminal Law ç.855(1), 864 Communications between court offic~ and jury were administerial, such that.'·- ahsence of objection, trial judge wu .. required to deliver them in person, in oM-" court and in presence of defendant, wh, first note WI!.! sent in order to obtain cl ., fication of meaning of earlier note rece¡~ ' from jury, and second note. ¡nfomi,¡ deadlocked jury to cease their deliben. tions, contained instructions as to oompi tion of veniict ,heet which jurors 'êóÜ!' themselves, have already deduced, thai! light'of partisl nature of their verdict,'ve diet sheet was to be filled out pari:ul~ McKinney's CPL §§ 310.10,310.30; Mc ney'. c.,nst. Art. 1, § 6. ""~ Philip L. Weinstein, New York City C, I chael Murray, of counsel), for appeUañ , Charles J. Hynes, Dist. Atty., BrookJ (R03eann B. MacKechnie, Seth M. Lie' man, and Victor Bara11. of counsel);:: respondent.. Before BRACKEN. J.P., snd BALLE'M'A, ROSENBLA'M' and MIL JJ. ,~ -- 0, 18 L.Ed.2d 1019),~s" uct which substantially: I ' free and unhampèl'ed':U' ntial defense witJ¡ess": , . Al ue proCe.t$ (see, "peOP16' , .2d 747, 481,N. Y;S.2d,.j' , not eVery contact betw,!;¡/l gent and a POtential de: stitutes 11 "Substantia! iII" the choice to ~stify (<ii:' r, 145 A.D.2d 564, "~ ople 11. /(UOS, 122 A.D:2<¡' I 1000; People v. MCRo¡¡, 503 N. Y.S.2d 158). Due only when Warnings by nt to a potential detells, ¡asi....d to the point where med instead inlio instru... tion" (People II. Slt.o.pi1'O,; at 762, 431 N. Y.S.2d 422, In this case, the prosecu. ::' casting the witness at thé ;.' ; represent an attempt to ¡ o refusing to testify for is undisputed/hat the Urth man involved in the . !nse counsel announced;' all him as a witness,h. ould be arrosted as'âJ .turned to New Yor testified'dn the défé~: eover, the arresttôö" ss had announced ïhi' 'y for' the defendaiì~ ) believe that the v.~t? , . '.-:'0: ecause he was intinÌl. sfusal to testify ~i,i: since he was facM' >r his ParticiPaiiori'" )ut which he wOul' Further, i~u~. the witness might the incident clearlÿ "iminate him, therë' rt to bring him"intå Uy aSsert his Fifth ee, People v. Bag~ N. Y.S.2d 562,'481 ~om<18, 51 N. Y:2d 415 N.E2d 981 N, Y.2d 928,41 ~ 342; Matte" à. 'CI~ BRA VO v. TERSTIEGE Cllc.. 601 N. Y,S.1d 129 (A,O,2 O'PI.I99,) 129 II, Ham" 93 A,D.2d, 971, 463 ';S,2d 76; State of New York v, Carey òurces, 97 Jt:D.2d 508, 467 N, Y,S,2d ;·State of New York "", Skibin.,ki, 87 ' , .2d 974, 450 N.Y.S.2d lOa), ''1.. -, The defendant was not denied the t!ii¡¡ve assistance of counsel (see, People "aldi, 54 N. Y.2d 137, 444 N, Y,S,2d 893, "N.E.2d 400), It is well settled that trial ~h' should not be second· guessed "n ,; I (see, People v, Lane, 60 N.Y,2d 748, ,jl,Y.S,2d 663, 467 N.E,2d 169), More- ,.:t the defendant has failed to Mtablish ' hisáttornèy's performance was so un. "ønable as to faB out ~f the Scope of iessional competence (see, Peoplt v, Lo. " .. 147 A.D.2d 592, 537 N,Y.S2d 886). 'ßi, Viewing the evidence in the light '$t favorable to the People (iee, People II. ;, te~, 60 N.Y.2d 620, 467 N.YS,2d 849, 'N.E,2d 982), we fiod that it was legaBy , (icient to establish the defendant's guilt '. ond a reasonable doubt. More"ver, n the exercise of our factual review wer, IVe are satisfied that the \'erdiet of " t was not against the weight of the " ence (see, cn 470.15[5J). .. é' have examined the defendant's reo -, IlÍg contentions and find them to be -'served fOr appeBste review or with: ~,'inerît, ' dol's sold rights to navigable tidal water- way abutting the parcel. Vendors com. menced separate Summary proceediog for pOssession, aod actions Were consolidated. The Supreme Court, Suffolk County, Doyle, J" granted purch..er summary jUdgment and ordered return of down pay. ment. Vendors appealed, The Supreme Court, AppeBate Division, held that: (I) PUrchaser was entitled to return of down payment, and (2) survey map prepared af. ter determination of Suprème Court would be considered On appeal. Affirmed. w o IU'lfUHtlU$n1bf T I. Navigable Waters *"39(3) Owner of land abutting navigable tidal waterway has right to u.e area Ov.r under. water laljd fronting on his property for access to navigable water, even if title to underwater land is held by another. 2, Vendor and Purchaser *"334(2) Purchaser was entitJerl to return of down payment on parcel of land which abutted navigable tidal waterway, where pUrchase~ of gecond lot, based On veodor's purported grant of title to underwater land. had constructed docks in front of the parcel which would interfere with purchas- er's use of property for marina, and survey map showed that vendors had sold sàme lal1d to both purchasers. 3. Appeal and Error <!:o891 While ordinarily materia! outside rec. ord will not be considered on appeal, there i6 exception for reliable dO<1ument whose existence and accuracy are undisputed, and thus for purpose of sustaining judgment, incontrovertible documentary ,vidence dc- hor' the record may be received by appel. late court, 4. Appeal and Error <1:>714(5) On appeal. Appellate Division would consid... survey map by licensed land sur, veyor of two parcels involved in litigation over purchaser's request for return of down payment, despite fact that map sub. mitted with brief was prepared after deter- mination of Supreme COUI·t. where surveJ' 196 A.D,2d 473 ' ;;r~d S, BRAVO, Respondent. ,; :.... V. '~r' . ,'I Hilde TERSTIEGE, etc., et al.. Appellants. Uprel!1e Court, Apþéllate Divisioo, '..~ Second Department. . , AuII', 2. 1993, ¡ I I ;I¡:' Ii Ii", "lid '¡I:¡·I I, ~ I: I " t.< !,: ;: -,. ., i ¡.; g¡ :t·!.1 'II:..!. ! i~ i r' #~ II:;, ~': ·¡'â:¡ II'!'·"!, II'" ,..;. " 1 ~ I " i! 'i', . I"~: ' d,i'!; 'ff,~ ¡¡.-., "''''1'14 ¡:¡I!.:,I '~'(I'" j'#'~I¡ ':~¥l I'~ i'i;!J 1!;~n ,if'! ,'~~ !:', .:':~; n;,i),t \:"} /1" )(,::,} J~,: . ~_,' !i'i¡ii ¡j;i:I'~ .I, ~ ¡I¡,i" ), :I,í,Jú ,h~ Ii! ii, I L1:!~ r ;: ; ~j :¡"! ,,/,;'¡" ;;;'~Jn ili'IF ; ~(¡ I ~ . ;",'1:' : ,,~ ': ' :ii', ::.:' . ,. ii' !. :¡ i I, :~ ' 130 - 601 NEW YORK SUPPLEMENT, 2d SErm:S ,,"::, . map was b....d On descriptions in contract/; of sal. of both parcels, which were before Supreme Couli and Were part of record on ' appeal, and vendor. did not contend that map wa~ inaccurate. Costantino & Coslantino, Copiague (St&- ven A, Costar'tlno, of counsel), for appel. lants. Alan Bendersky, West Islip, for rcspon. dent: Before SULLlV AN, J,P., and ROSENBLAT1', LAWRENCE and O'BRIEN, JJ. MEMORANDUM BY THE COURT. In an action, inl." alia, for specific per. formance of a real estate contract, the dl>- fendants appeal, as limited by their brief, from stated portions of all order and judg. ment (one paper) of the Supreme Court, Suffolk County (Doyle, J.), dated January 30, 1991, which, inler alia, (I) denied th~ir cro.s motion for sumn\ary Judgment dls, missing three of the plaintiff's cau.es of action, (2) granted the pJaintiff's motion to consolidate a summary proceeding pending in Suffolk County District Court with the instant action Provided that he deposit rent- al payment.! with the court, (3) granted the plaintiff SUmmary judgment on his first and fourth causes of action to reCðVer the down payment, and (4) directed the CJerk of the COUli to remit to the plaintiff the sum of $76,237,50. By dedslon and order on 'motion dated October 4, 1991, the defen. dants' motion to strike- IlExhibît A" from the plaintiff's brief was granted. ORDERED tbat, after ar¡llment of the appeal, this court grants renewal of tbe motion, alld Upon renewal, the decision arId order on motion dated. October 4, 1991. which granted tb. defendanL,' motion to strike "Exhibit A" from the plaintiff's brief, is recalled and vacated,' and the mo. tion is deni.d; and it is further, ORDERED that the order and jUdgment, is affirmed in.ofar as appealed fMm, with costs. The defendants auctioned two adjoinib parcels of property bordering on ,Gre¡ Neck Creek in tbe Town 'of Babylon. :>VIi der the terms of tlle auction, the high"t bidder was given tbe cMice of either o{tli two parcel.. The highest bidders, Anth~!\t and Robert LaSala, wlio are not parties"" this a~tion, chose Parcel No. 2. ThE'pi~ tiff as the ucond highest bidder, signed" contract to purchase Parcel No. J, which'" the subject of tbis action: At the thnè'ò, ',''- the auction, the plaintiff operated a maNna on property adjacent to Parcel No. 1. , .. plaintiff alleges that his corporation h', leased Parcel No. 1 from the defendan' for many years þrior to tbe auction:;';: .., The plaintiff offer~d evidence that, tì¡ auction advertisements and his contract o. sale did not Indicate that title to tbe unde~: water land abutting Parcel No. J was 1'''''': port.edly Included in Parcel No. 2. Befo~ the date set for closing, the plaintiff. teamed that the LaSalas were claimini' own..rship of the underwater land abuttin Parcel No. 1. A survey prepared for LaSalas aft..r the contract signings showtcl that Parcel No.2 included the underwa" land abutting Parcel No. 1. There Is';" dispute that tbe contract of sale bern:.. the LaSalas and the defendants purports" grant them aJ! of the defendants' righ titJe and interest to Great Neck Creek ab~ ting Parcel No. 1. The plaintiff asse " that tbe LaSaJas had con!!.n.tcted doc based on their claim to the underwa, rights abutting Parcel No, J, which 'n, fered with his Use of the existing docks 0 tlle property. The plaintlif refused to cl, titJe and commenced thl! action. The. fendant/; sUbsequently commenced a, SU, mary proceeding in District Court for P9 session of Parcel NO.1. alleging tbat,. plaintiff was a squatter on that prope" We find no bMis to set aside the cou determination to consolidate the summ..,· proceeding with the action at bar on COD tion that the plaintiff ciontinu"s to pay into court while the action is pending. thermore, we agree with the C011rt that plaintiff is entitled to the return of' down payment On the contract of sale', Parcel No. 1. ,1 -- auctioned two adjoin ,^ rty bordering on· ,GÌ'èà " Town of Babylon.. Uti' the auction, the highèit he chOice o£'eitber Of tIi" highest bidders, Anth,on; , who are not parties' tj,_ ·""·,o¡-I. Parcel NO.2. The 'pliinl. highest bidder, Signed a' . se Parcel NO.1, wliich/t ' action. At the time W. in tiff operated a ma~. nt to Parcel No. LTh,J at his corporation~d 1 from the defendantä. 'or to the auction. .. .1:'1'1, fered evidence that.~;, ents and his contract oi e that title to the unde", g Parcel No. I waa P\U'. ...' n Parcel NO.2. Before <:, closing, the p]ainijfi;o'., LaSalas Were claiming ,,;' , oderwater land abutting ;::' urvey prepared for the".. In tract signings showed',~ ' .cluded the underwater1. ~l No. L There Is no,. ,tract of sale betwun. defendants purports ~ ;he defendants' righ~;¡ reat Neck Creek abut. : I'he plaintiff osserted·, d COnstructed docks,: I to the underwater', J No. I, which inter.' ;he existing docks On, ntiff refused to close: his action. The d..,: commenced a su",..·· 'liict Court for !'O'.~' I, alleging that the: r On that property.: ~t aside the court's' date the Summary )n at bar on corid~' ltinues to pay rent,' , is pending. Fur; the court that the he retu", of hi.t 'tract of salefof ,"/! " BRA VO v. TERSTlEGE Cftl:,.,60, N,Y.5.2d 129 (A...D.2lhpL J993) t1] Although We reach the same result mount to forcing him to purchase a lawsuit the Supreme Court. We do so on a diff." (qt:, Grace v. Nappa, 46 N.Y.2d 560, 415 ¡·ground. The SUpreme Court based its N. Y.;¡,2d 793, 389 N.E.2d 107). We there. "'nnination on the law governing title to fore find that the Court did not err in ¡jèrwater land abutting nontlda} water- directing the return of the plaintiff'ß down 18 and held that the description of Par- payment. ': No. 1 in the contract of s.le would 'Jud. Ownership of the abutting underwa. : land to the center of the creek. Howev- ,; as the defendants note in their brief, , reat N ck Creek is a navigable tidal wa. ay T e 0 tin a VI e tidal waterway has the right to the area over the underwater ,land ' "nÌing on his property for access to navi. ' Ie water, even if tit]e to the underwater ""d is held by another (see, Tif.fa"y ". "U/n 0lOv8Ur BaV, 2.34 N. Y. 15, 186 N.E. ' '; Truslees 01 Tau", 01 B/'ooklto.¡Jffl V. "mÎIIt, 188 N.Y. 74, 80 N.E. 665: 3 War- ";"s Weed, New York Rea] Property, Lan .Under Water, §§ 1.02(2): 6.02[3]; 6.05[31 6.06[1] [3d ed]). '''I'h. right of acc.~ COm ìiftø.as the reasonable. safe and conve ftt ua. of the fOl'e8hore for navigation. ~ and such other purposes as com. ' Iy belQn¡ to the riparian OWner, exer. &ad in a reasonable manner" (Town 01 1ftmpslead v. OCea"side Yacltt Harbor, 88 ·:D.2d 263, 264, 328 N. Y.S.2d 894, o.flff. 32 11'.2<1 859, 346 N.Y.S.2d 529, 299 N.E.2d . 5). ;,·'1·_··_··_····· 1,(2) We need not dec! eWe or 0 de. ttÍdants' conveyance w' the LaSalas of 'ir interest in the underwater land abut. ,'if Parcel No. I Was valid. Upon pur. " ¡ng Parcel No. I, the plaintiff would be ~tJed to reaSOnable use of the ""ea OVer fl. ". '" Underwater land abutting that Proper- .; The plaintiff submi!téd eVidente, in- ilding photográpllS, that the LaSalas, " ed On the defendants' purported grant ¡the title to the Underwater land, had Îlàb-ucted docks in front of Parcel No, 1 ilJch "'ould interfere with the plaintiffs . f.·ot the Property. We agree with the preme Court'. determination that the faintiff should not be expected to close the nsaction with the defendant.1¡ and "gam. ,'sa w the chance of vindicating his ,his vis·a,vis the pUrchaser of the adjoin. ." :PrOperty'" Compelling the plaintiff to I the Conv~yance would be tallta- 13,41 We further note that the plaintiff submitted with his brief 011 appeal a survey map by a licensed land surveyor of the two parcels involved ill this litigation. By deci- ion and order on motion dated October 4, 991, this court granted the defendants' otion to strike the map, referr~d to as Exhibit A" in the briefs, from the record n appeal, because it was prepared after the determination of the Supreme Court. After argumellt of the appeal, and upOn Consideration of the enUre record, we grsnt rertewal and, upon renewal, We recall and vacate that decisioll alld order on motion and deny the defendants' motion, At the t,lme the motion was decided, the court did 110t have an opportunity to evaluate the motion in light of a full presentaUon of the issues. While ordinarily Illaterial dehors the record will not be considered 011 appeal, there is an excepUon for a reliable docu. ment, whose existence and accw-acy is un. disputed ($e., e.g" C"aWlord v. M#'rill Lynelt, Pierce, Fenner & S"lith, 35 N. Y.2d 291, 299, 361 N. Y.S.2d 140, 319 N.E.2d 408; Brande. llfeat Corp. v. C"O'''er, 146 A.D.2d 666, 667, 537 N.Y,S.2d 177). For the purpose of sustaining a jUdgment, in. controvertible documentary evidence de. hors the record may be received by an appeHa!e court (see, S/(¡Ie of New York v. Peerless 1>1$. Co., 117 A.D,2d 370, 508 N Y.S.2d 448; Kirp I'. Caleb's Pallt Really Corp., 19 A.D.2d 144, 242 N.Y.S.2d 877), Here, the survey map is based on the de. scriptiollS in the contracts of sale of both parcels, which Were before the Supreme Court and are part of the record on appeal. and the defendant.1¡ do not contend that the map i. inaccurate, Accordingly, we will consider the map 011 thIs appeai. The map shows that the metes and bounds description of the Property in the Lasala contract of sale encompasses nearly all of the Property described in the plain. 131 lI/: ¡ I ' 111,1,,/ . ,t¡ {!þ 1)''''/ , ,'1'1 ' " .' :',ri 1..,.1 r ," f-~ I i' :1 Ii i/ :I r'l ' " I! I- , I Ji:, 'I' ~ I :¡ 'I ,I '~ ,I, i' :j¡ ,;1 ....; ~: :,'/ '" t ';¡ I 132 - 601 NEW YORK, SUPPL€MENTi '2d SERIES '. ., .. . tiff's contract of Sale, This alone provides sufficient grounds to grant the plaintiff's request for the return of his down pay. ment, as the defendan~~ contracted to sell to the plaintiff the some land which they had contracted to .ell to the LaSalas. w o : J(ty IfUM8111 SVHEM T 192 A,D.2d 289 The PEOPLE, etc., Respondent, v. William BUXTON, Appellant. Supreme c.,urt, Appellate Division, Second Department. Aug, 2, 1993, Defendant was convicted in the Suo preme Court, Kings County, Marrus, J., of sodomy. ' Defendant appealed, The Suo premeCourt, Appellate Division, Bracken, J.P., held that communications between court officer and jury were administerial, and thuII trial judge was not required to deliver them in person, in open court and in presence of defendant. Affirmed, 1. Criminal Law ¢=>855(7) Trial judge may properly authorize court officer to speak to deliberating jury in criminal trial when subject of communi. cation is "administeriaL" McKinney's CPL § 310,10, 2. Criminal Law >1>855(1), 1114(5) Trial judge who authorizes court offi. cer to communicate with jury in climinal trial on matters which are not administerial commit.s error so grave as to warrant re- versal even lhough defendant's attorney' mlght have consented to occurrence of the error. McKinney's CPL § 310.10, 3. Criminal Law PI039 (¡, Defendant'lI ~rgument.s on' appeal, ~~ messages conve¡'ed to jury by court offj should instead have been conveyed by" '. jUdge himself, and that' his right to:' prellent at all material stages of trial ,,,,<1, violated inasmuch aa court officer's còiQ, munications ,with jury were made in'''. absence, were reviewable as questions 0 law, even in absence of any objection." " 4. Criminal Law Þ636(7) Where court officer's communicatiòl. to jury relates to an administerial matter~ as to fan within officer'a 8upel'\'iaory rolf. defendant's absence during lIuch commUÌI¡' cation doell not constitute violation of'dêi fendant's right to be present, at all mate . stages of trial. McKinney's CPL § aI0.10;~ McKinney's Cona~ Ar~ 1, § 6, ~.. ···3; 5, Criminal Law «=-855(7), 864 .,), Communications between court offi~ and jury Were administerial, lIuch that, , absenCé of objection, trial judge was Ii', required to deliver them in person, in o~" court and in presence of defendant, Wbf first note was sent in order to obtain cI ,., fication of meaning of earlier note receiv ' from jury, and Second note, inforn;iå deadlocked jury to cease their delib<!'" tions, contaIned instructions as to compi tion of verdict sheet which jurors 'êõÍÌ!' themaelves, have already deduced, thaf! light' of partial nature of their verdict, eve dict sheét was to be filled out parii8fi McKinney's CPL §§ 310.10,310.30; Mc ' ney's Const. Art, I, § 6. ' D,," , " '. Philip L. Weinstein. New York City (, chael Murray, of counsel), for appellatÍ ~ Charles J. Hynes, Dis~ Atty., Brookl' (Roseann B, MacKechnie, Seth M. LI~ man, and Victor Bara!!, of counsel)¡:: responden~ Before BRACKEN, J.P" and BALLET1'A, ROSENBLATT and MIL JJ, Q+ .~ J. L0l\ ~J ~ 38 A.D.2d 263 ~, y\þ'..J' \ . TOWN OF HEMPSTEAD et aI., Respondents, v. OCEANSIDE Y ~ 11 ( HARBOR, INC.. Appellant. '~ -[ \ð Supreme Court, Appellate Division, Second Department. 0 . Feb. 14, 1972. '\" 894 92g N1:W YORK: SUFFLEMIJìlT. Zd SIJ1Ulìö .' was given a very clear option by the Legislature to combine conection . of taxes, by )ocal ordinance if it wished to do so and the StAte Constitution, art. IX, § 2(c) (8) and the Municipal Home Rule Law, Section 10 establish a city's right to revoke or amend local ordinances. . It is' not within the province of the court to question the wisdom of this charter provision provided by the Legislature for it is the Legisla- ture which pOssegses the power to make any charter change which it ,deems advisable regarding the method of collecting taxes, (County of Nassau v. City of Long Beach, 272 N.Y. 260, 5 N.E.2d 811). Plaintiff's prayer for relief is therefore denied in an respects. , r , i " I î ! \ >, '1 Î '; "" . Q :.I'_VMtl.lnlf" , .~ , 1 .¡ ¡.; i",i. ~ \:1 n·· ~, 1; " t , ~ : Action to recover the reasonable rental value of use and occupa- tion of plaintiffs' land underwater by defendant in operation of its busin.ess as a marina. From a resettled interlocutory jUdgment of the Supreme Court at Special Term, Bertram Harnett, J., the defendant which had filed its cOunterclaim appealed. The Appellate Division, Hopkins, Acting P. J., held,inter alia, that the extent of marina owner's use of it¡¡ riparian right¡¡ and the rental of the mooring slips attached to piles to members of the pu blic owning boats did not constitute an unreasonable exercise of dominion over underwater land belonging to town and others e\"en though the number of boats was considerable in view of state policy directed toward encouraging the private development of waterfronts, subject only to condition that use be reasonable and not destructive of navigation. Resettled interlocutory judgment reversed insofar as appealed from, amended and supplemental complaint dismissed and defendant granted jUdgment on its counterclaim. ,Christ and Benjamin, JJ., dissented. :1 i¡, II 'm':¡ :;. ~ ,~- :~ ¡, " " I , :~' " 1. Navigable Waters -:)9(:) Where by colonial grants town and others were Owners of land under water adjacent to upland owned by defendant bordering East Rockaway Channel, defendant had a right of access to and from the channel over plaintiffs' offshore and that right followed entire front. , . -;.: .,',,' " ,., , ..~ - TQY age of de reasonable fishing an owner, ex. 2, Navigabl The u pier, dock 3. Navfgabl, The ri land u nde, right of a term l'accE extrinsic t tha t pu bli, 4. Navfgabl, By its if they arc right of 2 personal u docks to t 5. Navigabl, The e, rental of t owning bo over unde, number oj toward en only to c, na vigation Lapp, S. hurst, of George Town Att: Before CHRIST ! HOPKll By colo! water adj¡ Rockaway rising' ane "bine collection and the State )me Rule Law, x:al ordinance.. the wisdom of : is the Legisla, hange which it xes, (County of 2d 811). n all respects. ;SIDE YACHT tment. Ie and Occupa- )eration of its dgment of the lhe defendan t llate Division. nt of marina mooring sJips )oats did not lerwater land of boats was ouraging the ition that use ag appealed Id defendant lers of land dering East ¡d from the ntire front- ;.; ,J, ,iild i;,~' ~ ~ .~'" ~, ~~ TOWN 01' HEMPSTBAD v. OCEANSIDE YACHT HARBOR, INC. 895 CIl.. ¡I,! .12s N. Y.3.2d S9J , /1 J ....L :"11 'I' . I, ¡ i j'!1 ,J ' :'-!íij :~:, r . ,~ ~ ¡.t I·· . , , I.: ! age of defendant's property; thc right of access compl'ehends the reasonable, safe and convenient use of the foreshore for navigation, fishing and such other purposes as commonly belong to the riparian owner, exerd,sed in a reasonable manner. 2. N;~~~b~;:~e:s~::~<2:iPaJ'ian~ights inc:de the~=~r'~~~~~~-\ Pi:::..~~:~o~_\\I~a:'f ,f~r~p'lando_\Vn~r:su_~~..2!.J9~. use of the P~b1i~:_..-.J 3. Navigable Waters -39(3) . , ,;The right of access may be shared with others intent on crossing land under water for purposes unrelated to use of the upland, but the right of access cannot be expanded beyond purpose denoted by the term "access"; the exercise of the right does not extend to pUrposes extrinsic to commerce and navigation, nor may the right be used so that public navigation is impeded. 4. Navigable Waters -39(3). 43(2) By itself, the erection of more than one dock is not unreasonable, if they are necessary to the upland owner's enjoyment of his riparian right of access; nor can the right of access be restricted to the personal use of the upland Owner who may lease his property and docks to third parties. 5. Navigable Waters -43(1) The extent of ma.rina owner's use of its ripari:\n rights and the rental of the mooring slips attached to piles to members of the public owning boats did not constitute an unreasonable exercise of dominion Over underwater land belonging to town and others even though the number of boats was considerable in view of state policy direet~d toward encouraging the private development of waterfronts. subject only to condition that use be reasonable and not destructive of navigation. ' Lapp, Schacher & Brad ie, Cedarhurst (Charles E. Lapp, Jr,. Cedar- hurst, of counsel), for appellant. Gè()rge C.Pratt, Mineola, Special Counsel to Howard E. Levitt, Town Atty" Town of Hempstead, for respondents. Before HOPKINS, Acting P. J" and SHAPIRO, GULOTTA, CHRIST and BENJAMIN,JJ. ' HOPKINS, Acting Presiding Justice. By colonial grants, the plaintiffs are the owners of the land under water'adjacent to the upland owned by the defendant, bordering East Rockaway Channel. On the upland is a bulkhead from which ramp., rising' and falling with the tide, are attached to floating dooks. i I . I' ";'1' rT 896 328 NEW YORK SUPPLEMENT,' 2d SERIES M09rlrig slips,' also known as fingers, extend from ·'the f!òating dÔè:Jiš:'S; and ~re rented to' the defendant's customers..c~~..;~ The plaintiffs'sue to recover the reasonable rental value of th';ùi;e '; and oCCupation of their land under water by the defendilnt 'in 'Üíë:,' operation of its business as a marina. The plaintiffs' thcorYi~th,;lt' :- the defendant" through the construction' of ,the mooring slips, has ' ,ventured beyond the traditional riparian rights of an upland OWner to such a degree as to trespass on the rights of the plaintiffs. The defendant in response ciaims that the ripàrian rights include the 'installation of docks, floats and mooring slips above the piaintiffs', land under water, for which 'use the defendant need not ,pay any 'compensation. ' The Special Term, trying the case on the issue of liability a¡on~, found in favor of the plaintiffs arid directed an assessment of dani. ages, The opinion of Special Term held (64 Misc.2d 4, 9, 311 N.Y,S.2d 668, 674) that "the Town may not charge for rents for its underwater lands in the instance of docks and floats which are primarily for access from navigable waters to upland property, but the Town may charge the upland owner for use of the Town's underwater lands for docks and fJoats and other installations maintained there as distinct activi. ties in their own right." We are unable to agree with the conclusion of the Special Term; and we reverse the resettled interlocutory judgment, direct dismissal of the amended and supplemental com. plaint, and grant jUdgment to the defendant upon its counterclaim., , .....-". [I) The defendant, as an upland owner, has a right of access to~;' and from the channel over the plaintiffs' foreshore (Town of Brookha~ ". ven, Trustees of Freeholders & Commonalty v, Smith, 188 N, y, 74,,!\Ò: ~. N.E. 665) and that right foJ1ows the entire frontage of the defendant\'t, property (Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 136 N,E. 224).,:; The right of access comprehends the reasonable, safe and:,conveni~,!~/' use of the foreshore for navigation, fishing and such other pUrposes \I:!;" commonly belong to the riparian owner, exercised in a reasonable,,, manner (Tiffany v. Town of Oyster Bay, supra, p. 21,136 N.E"p. 22~I:i:', The scope of what is a reasonable" safe and convenient use ofJ!1e:: upland owner's riparian rights has been graduaJ1y defined on a case ~:: case foundation. , " ,T' . .'. (2,3J Thus, it is clear that the right jncludes the powe~.Èuil~.á': £ier, dock 01' wharf for the upland owner's use or for the use of.toh ,,: ~(Saunders v, New York en. u son IV, R. R. Co., 144 N.Y~ 75,87, 88 N.E. 992, 995; Rumsey v. New York & New England R. R.: Co., 133 N.Y. 79, ao N,E. 654) or more than one pier or dock (Barnes'r- Midland R. R. Term. Co" 218 N,Y, 91, 97-98, 112 N.E. 926,9~f!\!:, Moreover, the right of access may be shared with others ,i~~!I~e!l crossing the land under water for purposes unrelated to the use. ~fJ.~ ' upland (City of New York v. Third Ave. Ry. Co., 294 N.Y, 238,244;,. ,,~..1 g e floating docks vallie of the use efendàntin the , theory is that ring slips. has upland owner to plaintiffs. The hts include the e the plaintiffs' ed not pay any Jiability alone, ssment of dam- ,9,311 N.Y.S.2d r its underwater :narily for access )wn may charge lands for docks s distinct activi- h the conclusion Id interlocutory ,plementaI com. tg counterclaim. ,ht of access to ,wn of Brookha- 188 N.Y. 74, 80 the defendant's , 136 N.E. 224). and convénÎent her purposes as n a reasonable 36 N.E. p. 225). ent use of the ied on a case to )wer to build a the use of the ~. Co., 144 N.Y. England R. R. look (Barnes v. 926, 928-929). hers intent on the use. of the Y. 238, 244, 62 - 1!: '. ;:, ~- J; . i:f ,.,~ ~r. 1" ~...,_' ,,. ,. " ~ '.~ ...~. .oj. ~:-. ," .: 't· "?:;' ;; . ,J.... ~ ~ " M ." ~", ." ;'~~ .,. '»C ;,.. '.. ';:, .!1. ~ 't' Î ~c.; ~. TOWN OF HEMPSTEAD v. OCEA.NSIDE YACHT HARBOR, INC. 897' Çite .'HI 32S N, Y.S.:!d 69-1 '. N.E.2d 52, 54). But the right of access cannot be expanded beyond the purpose denoted by the term "access"-for example, the exercise of the right does not extend to pUrposes extrinsic to commerce and navigation, such as the operation of a restaurant (Matter of City of New York [Neptune & Emmons Aves.], 280 N.Y. 604, 20 N.E,2d 557), amusement parks (People v. Steeplechase Park Co~, 218 N. Y. 459, 113 N,E. 521) Or a plant for processing meat (City of New York v. Wilson & Co., 278 N.Y. 86, 15 N.E.2d 408). Nor may the right be used so that pubJic navigation is impeded (Town of Brookhaven, Trustees of Free. holders & Commonalty v. Smith, 188 N.Y. 74, 87, 80 N.E. 665, 670, supra). We must therefore look to the character and size of the defendant's activities on the land under water to determine whether under the circumstances they represent a reasonable exercise of its right of access. The evidence as to those activities is substantially undisputed. Thus, it was stipulated that the defendant "operates a marina on its upland, and in connection with that has nine floating docks which extend into East Rockaway Channel up to 100 feet, and that these docks are held in place or secured into place by piles which are dri;'en into the land under water" and that "in October 1961 the Department of the Army issued a permit for the construction of 17 floats . . to extend up to 100 feet into the waters of East Rockaway Channel." The marina provides repair service and gasoline, as well as storage for boats during the winter. The floating docks accommodate about 150 boats at mooring rental. The Special Term found that the docks did not interfere with public navigation; and, indeed in 1960, the plaintiffs by re.~olution h'ad authorized the installation of 16 dooks by the defendant; declaring that the structures would not unreasonably obstruct the pJaintiffs' waterways. I Thus the plaintiffs have acknowledged that the defend- ant's use of the foreshore by the floating docks is not a menace to public navigation. The' question is consequently narrowed to whether the extent of the defendant's use of its riparian rights and the rental of the mooring slips attached to the piles to members of the public owning' boats constitute an unreasonable exercise of dominion over the plaintiffs' underwater land. ,As has been frequently said, the term "reasonable" is relative, taking on color and significance from the circumstances (cf. United Paper Ed. Co. v. Iroquois Pulp and Paper Co., 226 N.Y. 88, 45, 123 N.E. 200, 202), In this case, the plaintiffs introduced no evidence " ,. 1 The permit issued under the ttsoluuon recited that it was granted "upon the condition th.tt the sappJicants enter ínto a lea$é with lhf: Town ot Hempstead for those lands lying underneath and adjacent to the aforesaid ,tructures.·· The leas. was never exet:uted. However, the plaintiffs in their brief disclaim an)' reJåance on t.ht acceptance of Lhe permit by the defendant as a ground (or holding it to the payment of rent. "becaul$e .all pa.rtÎe~ desire to. ha\'t the basic prtnciple adjudicated." J2'1!/'f.Y.$.Z(!_57 - -"'>F."': :" " - 898 328 N:!:W YORK SUPPLEM.E~T,,2d SEAlES in ,the form of expert testimony that the defendant's use was unrea- sonable. Essentially, the plaintiffs contend that the defendant's use is unreasonable because it maintains a commercial operation, in which the riparian right is sold to others. (4] By itself; the erection of more than one dock is not unreason_ able, if they are necessary to the upland owner's enjoyment of his ,;parian right of access (cf. Barnes v. Midland R. R. Term. Co., 218 N.Y. 91, 97-98, 112 N.E. 926, 928-929, SUpra). Nor do we find authority for restricting the right of access to the personal use of the upland owner; the rule is otherwise, for the owner may !ease his property and docks to third parties (City of New York v. Third AVe. Ry. Co., 294 N.Y. 238, 244-245, 62 N.E.2d 52, 54-55; Bedlow v. New York Floating Dry Dock Co., 112 N.Y. 263, 279-281, 19 N.E. 800, 807-808; cf. Moyer v. State of N. Y., 56 Misc.2d 549, 289 N.Y.S.2d 114; Huguenot Yacht Club v. Lion, 43 Misc.2d 141, 250 N.Y,S.2d 548). (5] We cannot say on this record that the defendant overstepped the bounds of reasonableness by renting the mooring slips to individu_ al owners of boats, even though the number of. boats is considerable. The policy of the State, since an early time in the history of OUr State, has been directed toward encouraging the private deveJopment of waterfronts, subject only to the condition that the use be reasonable and not Obstructive of navigation (Town of Brookhaven, Trustees of Freeholders & Commonalty v. Smith, 188 N.Y. 74, 79-80, 97, 80 N.E. 665, 667, 673, supra). If a different policy is to be formulated at this time, favoring the right of the fQreshore owner to be compensated when the riparian Owner uses the right of access by operating a marina accommodating the mooring of a substantial number of small private boats, the change ought to be accompHshed by the Court of Appeals which established the policy. It follows that the resettled interlocutory judgment should be reversed, insofar as appealed from, on the law and the facts, with costs, the amended and supplemental complaint dismissed, and the' defendant granted judgment on its counterclaim, declaring that the defendãnt has the right to maintain the docks and pj]es in question. Resettled interlocutory judgment reversed insofar as appealed from, on the law and the facts, with costs; amended and sUpplemen~1 complaint dismissed; and defendant granted jUdgment on its counter- claim, declaring that defendant has the right to maintain the docks and piles in ques.tion. SHAPIRO and GULOTTA, JJ., concur, ... . . .' ',:¡ CHRIST and BENJAMIN, JJ,; dissent and vote to affirm, on the ',;¡ 'opinion of the Special Term. ,,7 Q+ 'Þt wktJI: ()vJ 88 A.D.2d 263 .(;n V\ß \J . TOWN OF HEMPSTEAD et at, Respondent.. v. OCEANSIDE Y A (;J ( HARBOR, INC., Appellant. ~ . ~ _( \ð, " Supreme Court, Appellate Division, Second Department. Feb. 14, 1972. 994 ,Y2Q NJ!W YORK SUFFLEMBNT, Zd SB1U!ìB f ~. r i , , , wa$ given a very clear option by the Legislature to combine collection . of taxes by . local ordinance if it wished to do so and the, State Constitution, art. IX, § 2(c) (8) and the Municipal Home Rule Law, Section 10 establish a city's right to revoke or amend local ordinances. , It is' not within the province of the court to question the wisdom of this charter provision provided by the Legislature for it is the Legisla- ture which possesses the power to make any charter change which it 'deems advisable regarding the method of collecting taxes, (County of Nassau v. City of Long Beach, 272 N.Y. 260, 5 N.E.2d 811). Plaintiff's prayer for relief is therefore denied in all respec14. .;~' . o :_IYIIIIMUtITUIIf I ,'. 1 ;"; ·i, .' '. !i !ij ¡. . ~ : 11 'I' n ~'" '.J.. f, ~¡ Action to recover the reasonable rental value of use and Occupa. tion of plaintiffs' land underwater by defendant in operation of its busllle88 as & marina. From a resettled interlocutory jUdgment of the Supréme Court at Special Term, Bertram Harnett, J" the defendant which had filed its counterclainl appealed. The Appellate Division, Hopkins; Acting P. J., held, 'inter alia, that the extent of marina owner's use of 118 riparian rights and the rental of the mooring slips attat!hed t6piles to inembers of the publicownin4!' boats did not cOt'IIIIIitutêan unreasonable eXf:rclsé of domirtf(f\'(Wer ûnderwater land belonging to town and others even though the number of boats was conaiderable in view of state policy dirècted toward encouraging the prlvaUHHvelopment of waterfronts, subject only to condition that use be reaøonable and not destructive of navigation. Resettled interlocutory judgment reversed insofar as appealed from, amended and SUpplemental complaint dismissed and defendant granted jUdgment on its counterclaim. , ,Christ and Benjamin, JJ., dissented. t. Navigable Waters -39(3) Where by colonial gran ts town and others were owners of land under water adjacent to upland owned by defendant bordering East Rockaway Channel, defendant had a right of access to and from the channel over plaintiffs' offshore and that right followed entire front. , ;!. :i .i," -- 1'QW age of de reasonable fishÌ1lg an, owner, e~. '2. Navigabl, The u pier, dock 3. Navfgabl. The ri land undel right of a. term l'accE extrinsic t that publi, 4. Navigabl, By its. if they are right of t personal u docks to t 5. Navigab, The e, rental of t owning bo Over unde! number oj toward en only to c, na vigation Lapp, S. hurst, of , George Town Att: Before .~ CHRIST l HOPKIJ By colol water adjl Rockaway rising' ane nbine collection and the' State )me Rule Law, x:al ordiná.nces. , the wisdom of , is the Legis)a. ;hange which it xes, (County of 2d 811). n all rcsPects. ,SIDE Y AC.I:IT 'tment. Ise and OCcupa- 'peration of its ~dgment of the the defendant eHate Division, .ent of marina ~ mooring slips boats did not Iderwater Jand r of boats was Icouraging the jition that use , as appealed Lnd defendant Iners of land ,rdering East 'nd from the entire front- >i ~~¡ i{r -CO,' :~ '" :0:';:>- ~, - TOWN or .HEMPSTEAD '. OOEANSID;¡; YAO.HT H:ARBOR, INO. 895 CHIP ,IS :328 N. ¡'.S.2d 594 , , , ' f , ¡ , ¡ i j ;: ! '4"- i ,'If II If I "1111 ,~ ., ., "'pt f ,¡ è " ) :. age of, defendant's property; thc right of access compreh/)nds the reasonabJe, safe and conveJ;lient Use of the foreshore for navigation, fishing and such other purposes as commonly beJong to the riparian ' owner, _e_xercisediÙ ~ reasonable.nJanner. __ " "_." '., u~._'_~ '2. Navigabìè Wäters·....43(2) . ", : ' ' The upland Ownèr's riparian rights jnclude the power to build a - Pi~~,_~~c_~ or W~à~f~~r~pland<:>",:n/)!"9u..~"'.J>r.J9r !Jse of the public..-.J 3. Navigable Waters """39(3) " :T~e right of access may be shared with others intent on C!'ossing land ul1der water for purpOses unrelated to use of the upland, but the right of access cannot be expanded beyond purpose denoted by the term "access"; the exercise of the right does not extend to purposes extrinsic to commerce and navigation, nor may the right be used so that public navigation is impeded. 4. Navjgable Waters *"39(3), 43(2) By itself, the erection of more than one dock is not Unreasonable, if they are necessary to the upland Owner's enjoyment of hi., riparian right of access; nor can the right of access be restricted to the personal use of the upland OWner who may lease his property and docks to third parties. 5. Na,igable Waters ....43(1) The .extent of marina owner's use of its riparian rights and the nnta¡ of the mooring slips attached to piJes to members of the public owning boats did not constitute an unreasonable exercise of dominion Over underwater land belonging to town and others even though the nUmber 01 boats was considerable in view of state policy directt\d toward encouraging the private development of waterfronts, subject only to ,condition that use be l'e&$Onable and not destructive of ~tion:' Lapp, Schacher & Bradie, Cedarhurst (Chades E. Lapp, Jr., Cedar_ hurst, of counsel), for appellant, Gèörge C, 'Pratt, Mineola, Special Counsel to Howard E. Levitt, Town Atty., Town of Hempstead, for respondents. Before HOPKINS, Acting P. J., and SHAPIRO, GULOTTA, CHRIST and BENJAMIN,JJ. ' HOPKINS, Acting Presiding Justice. By colonial grants, the plaintiffs are the owners of the land under watèr'adjacent to the upland owned by the defendant, bordering East Rockaway ChanneJ.· On the upland is a bulkhead from which ramps, rising' and fal1ing with the tide, are attached to floating docks. ¡ . I· , '-r 'r( ,'f - 896 328 NEW YORK SUPPLEMENT, 2d SERIES .¡; M~níig slips; also known as firigèrs, extend from·:tlie f!oatingdôe1i¡¡::i, and are rented to the defendant's customers.,,"~,<~ 'Th~ plaintiffs'sue to recovetthereasonable rental vatúeof ib~~~\ and occupation of their land under water by the defendánt 'in 'ifië '; operation of its business as a marina, The plaintiff.' theory ,is ,that' . the defendant" through the construction of ,the mooring slips, has ' ventured beyond the traditional riparian rights of an upland owner tò such a degree as to trespass on the rights of the plaintiffs. The defendant in response claims that the riparian rights include the 'installation of docks, floats and mooring slips above the' plaintiffs', land under water, for which 'use the defendant need not pay any 'Compensation. The Special Term, trying the case on the issue of liability alori~, found in favor of the plaintiffs aríd directed an assessment of danl. ages. The opinion of Special Term held (64 Misc.2d 4, 9, 311 N.Y.S.2d 668, 674) that "the Town may not charge for rents for its underwater lands in the instance of docks and floats which are primarily for access from navigable waters to upland property, but the Town may Charge the upland owner for use of the Town's underwater lands for dû¢ks and floats and other installations maintained there as distinct activi. ties in their Own right." We are unable to agree with the conclusion of the Special Term; and we reverse the resettled interlocutory judgment, direct dismissal of the amended and supplemental <:om.' pJaiht, and grant judgment to the defendant Upon its counterclaim: . ,- '" .'-~"!,'!' [1] The defendant, as an upland owner, has a right of access to, * and from the channel over the plaintiffs'foreshore (Town of Brookha~ ". ven, Trustees of Freeholders & C<>mmonalty v. Smith, 188 N.Y, 74,,~:~' N.E. 665) and that right follows the entire frontage of the defendant'~,'t. property (Tiffany v. Towl1of Oyster Bay,284 N.Y. 15, 136 N.E. 224)../ The right of acœsa comprehends the reasonable, safe and:,convenie¡¡~:'" use of the foreshore for navigation, fishing and such other purposes ~,' commonly belong to lhe riparian owner, exercised in a reasonabI.!:, manner (Tiffany v, Town of OyStér Bay, Bupra, p. 21, 136N.E"p. 22~I<~', The sCope of what is a reasonable" safe and convenient use of ,~þ'e:' upland owne~'s riparian rights has been graduaJly defined on a case ~; case foundatIOn. , " ,,.'; . '. .. .', {2, 3) Thus, it is elear that the right .includes the powe~.!'ujì~..: p-ier, dû¢k or w'hart for the upland O,Wller'$ use or tor the use of ,tI¡,,, ~(SaUl\ders v. New YOI' n . u son v. R. R. Co., 144 N.Y' 76, 87, 88 N.E. 992, 995; Rumsey v. New York & New England R. Rl Co., 188 N.Y. 79, 30 N.E. 6.54) or more than one pier or dock (Barnes if. Midland R. R. Term. Co., 218 N.Y. 91, 97-98, 112 N.E. 926,9~. Moreover, the right of access may be shared with others ,il)té!lf ' crossing the land under water for purposes unrelated to the use.~,fJ.. upland (City of New York v. Third Ave. Ry. Co., 294 N.Y. 2S8,244~ ";·f ES .' he floating docks ,,1,' &~, '.. ,~~, ':l qo.f .; *f 'E. ¿r:~ value of the use JefendlÌnl 'in the (s' theory is that ooring slips, has upland owner to plaintiffs. The ghts include the fe the plaintiffs' ~ed not pay any ''-; '!~ . f" ~ )f liability alone, essment of dam- 1,9,311 N.Y.S.2d )r its underwater marily for access 'own may charge ~ lands for docks IS distinct activj. th the cOl1Clusion led interlocutory pplemental corn- its counterclaim. ¡ght of access to 'own of Brookha. I, 188 N.Y. 74, 80 f the defendant's .5, 136 N.E. 224). ~ and convenient ¡ther purposes as in a reasonable 136 N.E. p. 225). ]ient use of the jned on a case to .. ,~ ".~ " ~ ~;, ,. .' .: ;~~, , . ,;.~, ~, power to build a '1' the use of the R. Co., 144 N.Y. " England R. R. . dock (Barnes v. ~. 926, 928-929). ,thers intent on ~o the use. of the tV. 238, 244, 62 TOWN OF HEMPSTEAD v. OC£A.NSIDE YACHT HARBOR, INC. 897 Cite :'U 328 N. Y.S.2d &94 N.E.2d 52, 54). But the right of access cannot be expanded beyond the purpose denoted by the term "access"-for example, the eMrcise of the right does not extend to purposes extrinsic to commerce and navigation, such as the operation of a restaurant (Matter of City of New York [Neptune & Emmons Aves.], 280 N.Y. 604, 20 N.E.2d 557), amusement parks (People v. Steeplechase Park Co~, 218 N.Y. 459, 113 N.E. 521) or a plant for processing meat (City of New York v. Wiison & Co., 278 N.Y. 86, 15 N.E.2d 408). Nor may the right be used so that public navigation is impeded (Town of Brookhaven, Trustees of Free, holders & Commonalty v. Smith, lSS N.Y. 74, 87, 80 N.E. 665, 670, SUpra). We must therefore look to the character and size of the defendant's activities on the land under water to determine whether under the circumstances they represent a reasonable exercise of its right of access. The evidence as to those activities is substantially undisputed. Thus, it was stipulated that the defendant "operates a marina on its upland, and in connection with that has nine floating docks which extend into East Rockaway Channel up to 100 feet, and that these docks are held in place or secured into place by piles which are driven into the land under water" and that "i~ Qetober 1961 the Department of the Army issued a permit for the construction of 17 floats . . . to extend up to 100 feet into the waters of East Rockaway Channel." The marina provides repair sen'ice and gasoline, as well as storage for boats during the winter. The floating docks accommodate about 150 boats at mooring rental. The Special Term found that the docks did not interfere with public navigation; and, indeed in 1960, the plaintiffs by resolution Had authorized the installation of 16 docks by the defendant, declaring that the structures would not unreasonably obstruct the plaintiffs' waterways.' Thus the plaintiffs have acknowledged that the defend- ant's use of the foreshore by the floating docks is not a menace to public navigation. The' question is consequently narrowed to whether the extent of the defendant's use of its riparian rights and the rental of the mooring slips attached to the piles to members of the public owning' boats constitute an unreasonable exercise of dominion òver the plaintiffs' underwater land. .As has been frequently said, the term "reasonable" is relative, taking on color and significance from the circums¡';'nces (cf. United Paper Ed. Co. v. Iroquois Pulp and Paper Co., 226 N.Y. 38, 45, 123 N.E. 200, 202). In this case, the plaintiffs introduced no evidence 1 The permit issued under the resoJuüon recited that it was granted "upon the eondltion that the applicants enter into a leà$e with the Town ot Hempstead tor those lands l)iDg underneath and adjacent to the aforesaid struçtures. It The lea,e was never executed. However. th. plaintiffs in their brief di5~aim any telianC'e On the acceptanc~ of the permit by tht d:eftndant as a ground for holding U to the payment of rent. "becaU$t all parties desire to havt the basic principle adjudicated:' J2AN.Y.$.ld_51 - 898 328 NEW 'YORK SUPPLEJ\t.ÐJlrT" 2d SER1ES in the form of expert testimony that the defendant's use was unrea- sonable. E:ssentially, the pJaintiffs contend that the defendant's use is unreasonable because it maintains a commercial operation, in which the riparian right is sold to others. t 4] By itself; the erection of more than one dock is not unreason_ able, if they are necessary to the upland owner's enjoyment of his riparian right of access (cf. Barnes v. Midland R. R. Term. Co., 218 N.Y.' 91, 97-98, 112 N.E. 926, 928--929, supra). Nor do we find authority for restricting the right of access to the personal Use of the upland OWner; the rttle is otherwise, fOr the owner may lease his property and docks to third parties (City of New York v. Third Ave. Ry. Co., 294 N.Y. 238, 244-245, 62 N.E.2d 52, 54-55; Bedlow v. New York Floating Dry Dock Co., 112 N.Y. 263, 279-281, 19 N.E. 800, 807-808; cf. Moyer v. State of N. Y., 56 Misc,2d 549, 289 N.Y.S.2d 114; Huguenot Yacht Club v. Lion, 43 Misc.2d 141, 250 N.Y.S.2d 548). [5] We cannot say on this record that the defendant overstepped the bounds of reasonableness by tenting the mooring slips to individu. al owners of boats, even though the number of. boats is considerable. The policy of the State, since an early time in the history of OUr State, has been directed tOward encouraging the private deveJopment of waterfronts, subject only to the condition that the use be reasonable and not obstructive of navigation (Town of Brookhaven, Trustees of Freeholders & Commonalty v, Smith, 188 N.Y. 74, 79-80, 97, 80 N.E. 665, 667, 673, supra). If a different policy is to be formulated at this time, favoring the right of the fQreshore owner to be compensated when the riparian Owner uses the right of access by operating a marina accommodating the mOOring of a substantial number of small private boats, the change ought to be accomplished by the Court of Appeals which established the policy. It folJows that the resettled interlocutory judgment shouJd be reversed, insofar as appealed from, on the law and the facts, with costs, the amended and supplemental complaint dismissed, and the' defendant gTanted judgment on its counterclaim, declaring that the defendAnt has the right to maintain the doeks and piles in question. ResettJedinterlocutory judgment reversed insofar as appealed from, on the Jaw and the facts, with co~ts; amended and sUpplemental complaint dismissed; and defendant granted Judgment on its counter- claim, declaring that defenda'nt has the right to maintain the docks and piles in ques,tion. . . '. SHAPIRO and GULOTTA, JJ., Concur. .., ., " "'1 CHRIST and BENJAMIN, JJ; dissent and vote to affirm, on the;;~ 'opinion of the Special Term. ..,,! . '~ ',' :~t, ---- .. . Suffolk Environmental Consulting, Inc. Newman Village, Main Street, P.O. Box 2003, Bridgehampton, New York 11932-2003 (516) 537-5160 Fax: (516) 537-5198 Bruce Anderson, M.S., President May 28, 1996 Mr. Albert Krupski, President Southold Board of Trustees Town Hall P 0, Box 1179 SOlltj,old, NY J 1971 ffõJ rŒJ&~ JOJff.!t, ~..m.1 IWJ; MAY 29 J!Ø)J! i Re: Harold Hepensteil SCTM# 1000-123-3-14 , Dear Mr. Krupski, Enclosed herewith please find a check made payable to the Town of Southold in the amount of $18,00 covering the remainder of the application/inspection fee for the now approved dock assembly at the above referenced location, ;-:¿ Bruce A. Anderson cc. H Hepensteil ---- . 05-22-19% 04: 12PM FROl1 . 5375198 P.02 ~ ØL- ð :s -d.). -<1h TO ESSEKS, HEF'TER .so ANGEL COUNSI!LOfll:S....T LAW !08 £.A$T MAIN $TFt'ttT P. Q. Box Z79 RtVERMEAO. N,Y, 11901'0279 WIL'-IAM W. ES$EI<S ".1...,,(:IÁ Z. HEFT't1l'. $n;p'1-4 t'" R. ANCS£L ";AN£ ANN ~. KRATZ ,JOMN M, WAGNER (SIG) 369-'700 WATt:P=I MIl.L QF"'CE MQNTAU( MIGI-4WAY P. O. aox 570 WATER MII.t.. N,Y, 119'7'3 (516) 1'26-Gê33 TEU;~OJIII&~ NUM8£:_ (51451 3G&-ZOG5 WU..\..IAM POWER MAl-ON!:,. "THOMAS F". WHELAN CAIltMILA M. 01 TALI'" via Fax 537-5198 & Mail May 22, 1996 Bruce Anderson, M.S., president Suffolk Environmental Consulting, Inc. P. O. Box 2003 Bridgehampton, NY 11932 Re: Bepensteil application to Soutbold Trustees Dear Mr. Anderson: As you know, we also represent Harold Hepensteil who is seeking a permit to construct a dock extending from his property on Bungalow Lane, Mattituck, into Deep Hole Creek. I am writing this letter with the understanding that you may submit it to the southold Trustees. At Mr. Hepensteil's request, I examined the Trustees' rile on his application. I took particular notice of two items: 1. a large aerial photograph; and 2. a memorandum dated 5/'/96 from the Town Attorney, Laury L. Dowd, to the Trustees. The aerial photograph shows that numerous homeowners have already constructed docks into Deep Hole Creek. Also, a line was superimposed, on the aerial photograph, showing the location of the proposed Hepenatail dock. The dock appears to be outside of the navigational channel. Ms. Dowd's memorandum cites four cases, Town of Is1ip v. powell, 78 Kisc.2d 1007 (Supreme court, Suffolk co., 1974, Lazer, J.), Peocle v. Mocarthv, 80 Kisc.2d 143 (criminal court, city of New York, 1974) , People v. Amerada Hess COrDoration, 84 Misc.2d 1036, Duke v. Town of Huntinaton, 153 Misc.2d 521 (Supreme court, suffolk Co., cohalan; J.). ----- . 05-22-199604:13PM FROM TO . 53751'38 P.03 ESSEKS, HE:FTER 5. ANGEL COUNSCLORS AT I..A.W Bruce Anderson, President May 22, 1996 Page 2 I think it is a fair statement that Ms. Dowd and I agree on the meaning of these cases: a riparian owner has the right to construct a dock to access navigable water, and government has the right to reasonably restrict dock construction. I also think that Ms. Dowd and I would agree that, under the cases cited, the Trustees cannot prohibit Mr. Hepensteil from constructing the dock as proposed, since it will not interfere with the recognized navigational channel in Deep Hole Creek. This conclusion is supported by the fact that docks have been uniformly permitted in Deep Hole Creek. In other words, it would be unreasonable to deny a dock to Mr. Hepensteil, while permitting docks to his neighbors. A quick review of the cases cited by Ms. Dowd support& my 1 conclusion. I Town of 1sliD v. Powell is a zoning case. The defendant . operated a marina on a commercially zoned parcel, but used dOc*s extending from two adjoining residentially zoned parcels as part of his marina operation. The court held that the zoning of the upland applied to riparian uses. Stated another way, the owner of a residentially zoned parcel could not construct docks and then use them for a commercial purpose; he could, however, construct a dock for a use consistent with his residentially zoned parcel, i.e., for his own boat. The court also clearly acknowledged that, riparian owners, such as Mr. Hepensteil, have the right tb construct docks to reach navigable waters. The opinion states the following (78 Misc.2d at 1013): "It is elementary that riparian owners have the right of access to navigable waters including the right to construct a dock (Crance v. state of New York), 284 App. Div. 750, revd. on other grounds 309 N.Y. 680). These rights have been defined to include: 1) use of water for general purposes as bathing and domestic use; 2) wharfinq out to navigability; 3) access to navigable waters (Hilt v. Weber, 252 Mich. 198) '" " ------ . 05-22-19% 04: 14PM FROI'I . 5375198 P. 04 TO ESSE:l<.s. HEFTER & ANGEL CQVNSELOA!i AT LAW Bruce Anderson, President May 22, 1996 Page 3 In PeoDl. v. Mccarthv, the issue was whether a work boat, operated in a basin connected to Flushing Bay, should be subject to state registration requirements. This opinion also acknowledges a riparian owner's right to wharf out to navigability, (84 Misc.2d at 145): "The adjacent, or riparian, landowner has the right of access to the navigable waters, and may build wharves or docks, subject to the municipal regulations. (Citations omitted) ... but may not build any structure that would interfere with the public's right of use of navigable waters. (citations omitted)" PeoDl, v. Amera~a Hess corDoration involved the power of the city of New York to control filling by a riparian owner. The court acKnowledged that government can regulate water resources: and navigable waters. It stated that a riparian owner's use of property must not interfere with navigation. In this case, the city's attempt to prosecute a landowner for filling waterfront property with concrete was dismissed because the fill did not interfere with navigation. of Course, Mr. Hepensteil's proposed dock is designed so that it will not extend into the navigable portion of Deep Hole Creek. Finally, Duke'v. Town of Huntinaton involved an action against the Town to enjoin a moratorium against dock construction. The oourt granted the injunction and directed the Town to issue plaintiff a permit to construct a dock to serve his residential property. The court acknowledged that plaintiff had a riparian right of access to navigable water from his property. In oonclusion, under well-established caselaw, riparian owners, such as Mr. Hepensteil, have the right to construct docks from their properties to navigable water. Government can regulate this construotion in order to protect the public's right of navigation. Here, in Deep Hole creek, where numerous docks have already been constructed, there appears to be no justification for prohibiting, or even limiting, Mr. Hepensteil's dock. The dock is designed to acoess water of sUft1cient depth --- . 05-22-199604:14PM FROM . 5375198 P.05 TO ESSEKS, HEFTER & ANGEL . COI,JN$'EI.,OFtS AT LAW Bruce Anderson, President May 22, 1996 page 4 to moor a boat without infringing on the established navigational channel. SRA:m.b truly yours, p.tý./2,jJ R. AN~\.. -.,.;LASS CODE INCIDENT REPORT REPORTED DATE ~ ~ S'S-- HRS '(.,.- uthold Town police Department Route 25 peconic, New York 11958 516-765-2600 FROM HRS .. - T()<-ù ù. ";1u..1:S~::' CASE 1YPE HRS TO o CRIMINAL CASE ~ CRIMINAL DESK OFFICER (') 1ñ m z c ¡: '" m ::J:J HOW REC~D IÞ""'6ALL FOR SERVICE o OFFICER INITIATED o COUNTER REPORT PAGE-1-0F ~ PATROL OFFICER L INCIO¡;:NT LacAT10N / 0 ¡OS~ \S()...J.(;~O""" LtJ b E.£R ~L¿ ~- '1,...tr.~ BOt c A NBR STREET NAME I TYPE DIR --¡P:¡::- SECTOR T D BLOCK D COMMERCIAL BLDG. D PUBLIC BLDG. D SCHOOL D COUNTRY CLUB/GROUNDS I D INTERSECTION D INDUSTRIAL BLDG. D PUBLIC PARK D BANK D OTHER 0 D PRIVATE HOME D MULT1 DWelLING D PARKING LOT (J CHURCI-4 N P¡;:RMN INVOlV¡;:MI;NT CODES M - MISSING PERSON o . OWNER p. POLICE OFFICER R _ REPORTING PERSON S· SUSPECT U . UNKNOWN V . VICTIM W - WITNESS Z-OTHER C' COMPLAINANT 0- DRIVER E . EMPLOYEE F . FINDER , . INJURED I AIDED J - JUVENILE W· WHITE PERSON J LAST NAME . to( uf'S K,\ HOME P1-40NE FIRST Ai.. MI ~......, Io.Jo r<t.LJ!. 'T1E.£.. ~ BUSINESS PI-4ONE ~~r(£.s CODE c.... COMPLEXION I. AMERICAN INDIAN 0- OTHER RACE W - RACI; mnl;s p A. ASIAN/ORIENTAL B . BLACK E PERSON LAST NAME R :t ¡..kpuJ S-re, L s 0 CODE HOME PHONE N 0 S RACE PERSON CODE HOME PHONE H· HISPANIC FIR~T J J~Lt> ADDRESS ¡OS':> ~(.IN61'! Lo "'-' [OJ fI¡ IH--r: MI BUSINESS PHONE OCCUPATION EYES COMPLEXION OCCUPATION COMPLEXION EYES RACE I Narrative: (Print or Type Only) ~ (è,£ ~CJU^..HNC:>.s. JfJ c t= PF.oI'\!'.CtJ"" S,... ð ç "i\z.AJ S ~ <; 'ùFLP i-kLf- &~ ;10 ;;L Ie E..ß ;):. £.N.e.E.. . '"t'oo~ f=R o..vr I PDT5-1 A . . Albert 1. Krupski, President John Holzapfel, Vice President Jim King Martin H. Garrell Peter Wenczel Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1892 Fax (516) 765-1823 BOARD OF TOWN TRUSTEES TOWN OF SOU1HOLD f'1~Y .iLl /9'1(. I ~b~ ~U'5."r£..~ L lOSS- ßUI\JoIáA-LoIIV Lu 1^''n-' 'rv~ 0~s'-r- vJl:"':''b /0 MPH Low ""b€- ApP,\o)ð; q' 53 rJ~ "'¡ODN I"'\....y I'}-+I" Fl. fI'"\. S~..j~b 'T, ~e..... E.~",il\, Co> T¡ ""-'t.- 8's~ q~ .;2.0 A.M. ~. t'\'\.. s~ 'ï£A5U({,e..~t..o)-" 1=1\0fY\. :¿ WaobW SüPP(),\~s. (~U"\.""·ltJb OF oLc ~ae...r... j . ~() Fr- ,e Ebb£.... Of: B Vla..rI GiUl-S.s a~5 - II J5' ¡::,.. 1= 1UI""'- £.'béL of \:'; U\<.ó\ /« ~vrn ~ f,\ f'"~ ~'b" E.. ( F ~ uq. e.M a~- .iL F'r ~ "'S- F"" 1= IUI "'" ~<bE., OF ßuo.Òb" ~~- :3 F'r ~ )::;- r'ï :R..o--.. £.'bG E.. <OF- 1Se..Aet.¡ ~- 'f Fï bu~ T<> S'r'7WVI'"" oF- c.~ t>J rJ£.. L 'T'o~ b ¡ ~T'A-<JC,.L F'R 0 "'" 't'O E."''''t.. o.¡; c'~A.J~ ~ I.<,}OöbE.AJ qt;,- ~£:rr g U Pf'o yt.;JrS t(~ ~. l' ~ . .....-- . MAY - 9 I»ì May 4, 1996 "'-'- _.I ,- Town of South old Town HaIJ P. O. Box 1179 Southold, New York 11971 re: case#SCTM 1000123314 Att: Diane This letter is regarding the matter of applicant Harold Hepensteil of Bungalow Lane, Mattituck, case number listed above. As neighboring property owners, we are opposed to Mr. Hepensteil's proposal to build a large dock on Deep Hole Creek. Besides being a navagationai hazard, we feel the size will be an unsightly addition to our beautiful creek. ,~~ f~éti ~ Ronald & Patricia Zito 1185 Bungalow Lane Mattituck, New York 11952 - ~ . . LAURY L. DOWD TOWN ATTORNEY JEAN W. COCHRAN Supervisor Town Hal!, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765.1889 Fax (516) 765-1823 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD - ~--...-~-_._'" MEMORANDUM "'"', f5 Íi" Ii DJ rJE ilIU~ i UMI - ,I!Ø) W!i I'It\I L___"u i " !! ¡ ¡::' TO: TRUSTEES FROM: TOWN ATTORNEY RE: HEPENSTEIL DOCK DATE: MAY 7, 1996 T^u' \ ¡~, f:\; (1': ~:,' ~, \;'~ b \j ,jf> ~--,~----~ As you requested, I reviewed the cases submitted by Mr. Anderson on the issue of dock access to navigable waters. The cases he cites are some of the leading cases. They hold that the owner of land has a right to wharf out to navigable waters. That individual right, however, is subject to the police powers of the Town to protect the navigability of the waters for the majority. As we discussed in the Friemann case, the Trustees can reject a long dock only if the public record establishes good facts and reasons. There are many cases that uphold the power of the Town to regulate docks and boats so as to protect the navigability of waters. Town of Islip v. Powell (1975) 78 M2d 1007, 1013; People v. McCarthy 80 M2d 143; People v. Hess Corp 84 M2d 1035. However, "a municipality may not invoke its police powers solely as a pretext to assuage strident community opposition. To justify interference with the beneficial enjoyment of property, the municipality must establish that it has acted in response to dire necessity, that its action is reasonably calculated to alleviate or prevent the.. .condition, and that it is presently taking steps to rectify the problem. II Duke v. Town of Huntington 153 M2d 521, 523. I would be glad to discuss this with you further if you have any questions. 1~~~~4V .'" ~ 1:j.~~~~' ...{i~'Ir}1. ~ ~ !' ;/7'9(; " , c!Juv . I q\ø-vt\ . ~/Y'~~ dÆ-V,~ ~t/~ Þt~~ . ß~~ft Þ ,.~ ~~~' ~'kuvMJ .J~,tM.ly~~i+-I~~ ~, (.4R.R.'~~J . J~;dü~'l~ r~~~'~~'~ .~~. L76s:-/t'12-.). A~·~~,' ~w;;tk .1'f~ ~ d 7PN" ~ 't ¿L þ;!ivv¡ F I4V ~J ,~~ ~ rJ..1u;~~ 3£"1 {J~þ~d~ tfo I_~ j ~~~~ ~JJ¿ ~µ~--iC .W.~~k~.~~·~ . ,j -1t!.~, ..,1 ~~~,µ.v-?-Lv,.tAU~~ .;(ALV ~, tj!I~~~~~/7T11. /I?I -. J~~dLÚ~µF~ 4l4~-~~µ~~~-~' M~ _~~Þq~ÚP~h~)~~ -~l~' ~ -)b¡f1¡J~~-~/$W: -(~~ þ..v . ·ßv~7,(~¿VJV~c¡_~'Jiduv.epk) J~~~~~P-~' ~.' /-' ~.,! f'Æ¿Mb,-~.I ~~ r/jkVrc..l í-i~ ~ M;~A,/'¿¿'J-; /L.L. p.~.13. I' . . /,~/-"'..~ ~ 79, ~ ~f'-3~'-fÝ vI .1Jf/b -S;ZS-7 ___ .7J.ff.jI17J /7t-,~ . . . Telephone (516) 765-1801 Town Hall. 53095 Main Road P.O. Box 1179 Southold. New York 11971 SOUTHOLD TOWN CONSERVATION ADVISORY COUNCIL At the meeting of the Southold Town Conservation Advisory Council held Monday, April 22, 1996, the following action was made: No. 1343 Moved by Robert Keith, seconded by Allan Connell, it was RESOLVED to recommend to the Southold Town Board of Trustees APPROVAL WITH STIPULATIONS of the Wetland Application of HAROLD HEPENSTEIL 123-3-14 to construct an 88' x 4' raised catwalk; a 4' x 14' ramp; and a 6' x 20' floating dock. The Council recommends approval provided the project is shortened so the length does not exceed the the neighbor's dock to the north. 1055 Bungalow Lane, Mattituck Vote of Council: Ayes: All Motion carried. -... . . APR 5 /99) Suffolk Environmental Consulting, Inc. Newman Village, Main Street, P.O. Box 2003, Bridgehampton, New York 11932-2003 (516) 537-5160 Fax: (516) 537-5198 Bruce Anderson, M.S., President April 4, 1996 Mr. Albert Krupski, President Southold Board of Trustees Town Hall P. 0, Box 1179 Southold, NY 11971 Re: Harold Hepensteil Situate: Bungalow Lane, Mattituck SCTM# 1000-123,3-14 Dear Mr. Krupski, Enclosed herewith please find PROOF OF MAILING OF NOTICE, duly notarized, for the above referenced applicant. Kindly schedule this matter for hearing and determination for the next available Trustee Meeting. Thank you in advance for your cooperation, ~<mw,:¿ ~: A ~derson cc, H Hepensteil . . ~'¡=-'- il "', '1 Ie .' (- Ii l1r= -, MAR21. Suffolk Environmental Consulting, Inc. J.:...- Newman Village, Main Street, P.O. Box 2003, Bridgehampton, New York 119 (516) 537-5160 Fax: (516) 537-5 Bruce Anderson, M.S., President March 26, 1996 Mr. Albert Krupski, President Southold Board of Trustees Town Hall P. 0, Box 1179 Southold, NY 11971 Re: Harold Hepensteil Situate: Bungalow Lane, Mattituck SCTM# 1000-123-3-14 Dear Mr. Krupski, Enclosed herewith please find four copies of a Trustee Wetlands Application, Survey and Cross- Sectional Diagram along with a check made payable to the Town of Southold in the amount of$15000 covering the requisite application fee, As disclosed in the application, Mr. Hepensteil is proposing a catwalk four feet wide, I realize that your Board has a preference towards catwalks of three feet wide but I also realize that there has been a history of exceptions where there has been a medical need for a wider structure. Enclosed herewith please find two opinions from two different physicians who are delivering care to Mrs, HepensteiL Mrs, Hepensteil suffers rrom chronic and acute tempromandibular joint dysfunction and vertigo neurological radiculopathy, Both physicians recommend a widened catwalk Upon your inspection of subject premises you will undoubtedly notice that the house is accessed by ramp, for the same reasons. Mr. Hepensteil owns a 25 foot Cobalt Power Craft which draws two and a half feet of water. Such a craft is significantly smaller than some of the vessels moored or docked at Deep Hole Creek The floating dock extends into Deep Hole Creek such that its seaward terminus reaches 3 feet of water while its landward terminus reaches 17 inches of water at low tide, These and all other depth measurements were arrived at using actual soundings, We know that a shorter dock would result in Mr. Hepensteil's boat being fully grounded at low tide, thereby causing undeniable impact to the bottom lands for which your Board protect in trust for the Freeholders and Commonalty of the Town of South old. As a final design concern, we have attempted to cluster this structure towards an existing dock to the north of subject parcel thereby leaving a larger swath of shoreline on . . . . Page 2: Krupski 3/26/96 subject parcel free from coastal structures, At the same time, we have maintained sufficient distance between both docks to preclude navigational hazard from this area. Please inspect the property and let me know when this matter will come before the Board for discussion. Thank you in advance for your cooperation Sincerely, Æ cc, H Hepensteil -.z. . 0 ~ b \- 10 (I), -.z. " " ~ ~ ~ '0__ _ _// ~-:, N U') o ~ ~ \- ~ <l "'"\ ~ ;æ. " .... ~ <L'" -,.> \ ° -- \- ò· \ -.z. , <l \ \- \ U') \ \ u1 \ ~ \ \ <l \ . ~ \ , d \ , ~ \Ù \ >. "::> " \ u.. c:(. ',,\ - 'Jt 0 oN' . - ~ ~ \ \ 0 -.z. \ \~ c:(. . Q.. DEEP HOLE ,¡ CREEK , tbCoE- o~ U~)l G~ .----/ '" '\ ---r: e;;:;;-; ¡;;., / -", M S h '" ~ 9\ ~ 84.98' .----/ - --- .' -- - --- -.J :« ,/ ¡..; ~i ~C , a: 4..:;: O~ !iJ iii \!j~0) (¡¡50) k- ~Y:'; :«i)¡- ~>-&: "I:<n~ -.J!::IQ: \:)~!X ~:«~ O\i.i ~~~ ¡¡j \!JQ\J ~CI)~ 1.("1:\5 ~"'~ <::~¡:: "I:"I::S ¡::!~~ !iJ!iJ~ "''''1.) " ·0 I~ - - "". <Ð "" ð ~ o ~ ~ ~ -:s:. ób u.. ~ 4- ..¿. ~ o -:z. 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