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HomeMy WebLinkAboutTirado, Leonardo & Luisa CIARELLI & DEMPSEY ATTORNEYS AT LAW 18///1 / JOHN L CIARELLI PATRICIA A. DEMPSEY 731 ROANOKE A VENUE RIVERHEAD, NEW YORK 1]901 (631) 369-5100 Facsimile: (631)369-5132 ciarelli dempsey@verizon,net July 31, 2007 Town Board, Town of South old Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 RECEIVeD AUG 2 2007 ATTN: Town Clerk SOIlI~Ij:d TGv/!l Cler. Re: Nassau Point Road Tax Map No.: 1000-111-8-1 Dear Sir or Madam, We represent Leonardo and Luisa Tirado, the ownrrsofthe above premises. r ,'^ Today, J~iy 3 L 2007, surveyors; L.K. McLean Associates, P.C.; appeared and marked their property without prior notice, or permission. The surveyors informed our clients that they were hired by the Town of Southold In case there is any confusion about the result of the recent lawsuit brought by the NPPOA against our clients, I have enclosed a copy of the courts final decision. I have highlighted the portions of the decision relevant to the above issue. They are: 1. OUf clients, along with their ddjh\.:~n.l ndghbut h) the ilorth. are the p.Jvners of the 25' wide "driveway" between their properties. 2. Only the owners of lots on subdivision map no. 156, whose lots are "appurtenant" have right of way to pass over said driveway. (Generally, that map includes the lots between Wunneweta Road and Nassau Peint Road) Accordingly, the surveyors are not permitted to re-enter without prior notice and permissIOn. Our clients were informed that the surveyors purpose was to assess the runoff problem from Wunneweta Road. Our clients support a solutIOn to that problem that is reasonable and supports their property rights. They have previously notified you that the CIARELLI & DEMPSEY ATTORNEYS AT LAW runoff was causing damage to their property. They, as any taxpayer would be, are interested in a mutually respectful relationship with the Town and with their neighbors. Please confirm the purpose and scope of the surveyors visit. By copy of this letter we are advising them that they have no permission to enter the Tirado property and must request permission in the future. Please contact the undersigned if you have any questions or need additional information. y "~rnllY, a ~ JOHN 1. CIARELLI JLC/mto cc: L.K. McLean Associations, P.C. Page I 10flDOCUMENT [*1] Nassau Point Property Owners Association, Inc., plaintiff-appellant, v Leo- nardo Tirado, et aI., respondents; Helene Behm Ciappetta, et aI., proposed interve- nors-appellants. 2004-06119,2005-03238,2006-04277, (Index No. 24827/03) SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2006 NY Slip Op 3861; 29A.D.3d 754; 815 N.Y.S.2d 674; 2006 N.Y. App. Div. LEXlS 6620 May 16,2006, Decided NOTICE: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS. SUBSEQUENT HISTORY: Appeal denied by Nassau Point Prop. Owners Ass'n v. Tirado, 2007 N. Y. LEXIS 577 (N. Y., Mar. 29, 2007) COUNSEL: Twomey, Latham, Shea & Kelley, LLP, Riverhead, N.Y. (Martha L. Luft and Peter M. Mott of counsel), for plaintiff-appellant. Keegan & Keegan, Ross & Rossner, LLP, Mattituck, N.Y. (Daniel C. Ross of counsel), for proposed interve- nors-appellants. CiarelIi & Dempsey, Riverhead, N.Y. (John L. Ciarelli of counsel), for respondents. JUDGES: GLORIA GOLDSTEIN, J.P., WILLIAM F. MASTRO, REINALDO E. RIVERA, ROBERT J. LUNN, JJ. GOLDSTEIN, J.P., MASTRO, RIVERA and LUNN, JJ., concur. OPINION [**754] [***676] DECISION & ORDER In an action to compel the determination of claims to r~al property pursuant to RPAPL article 15, (I) the plain- tIff appeals [**755] from (a) an order of the Supreme Court, Suffolk County (Loughlin, J.), dated June 14, 2004, which granted the defendants' motion for summary judgment dismissing the complaint and for summary judgment on their counterclaims, and (b) a judgment of the same court dated March 3, 2005, which, inter alia, determined the claims, and (2) the proposed intervenors appeal from so much of an order of the same court dated March 2, 2005, as denied their motion for leave to inter- vene. The plaintiffs notice of appeal from the order dated June 14, 2004, is deemed also to be a premature notice of appeal from the judgment (see CPLR 5501 [eJ). ORDERED that the appeal from the order dated June 14, 2004, is dismissed; and it is further, [*2] ORDERED that the judgment is modified, on the law, by (I) deleting the first decretal paragraph thereof and substituting therefor a decretal paragraph awarding judgment to the plaintiff on its first and second causes of actions, (2) deleting the second decretal para- graph thereof awarding the defendants judgment on their three counterclaims and substituting therefor a provision dismissing the counterclaims, (3) deleting the fourth de- cretal paragraph thereof adjudging that neither the plain- tiff, Nassau Point Property Owners Association nor any of Its members who do not own land abutting the prem- Ises are entitled, inter alia, to a right of easement or right of use of the premises, and substituting therefor a provi- sIOn that all owners of a lot depicted on a subdivision map known as "Amended Map A of Nassau Point owned by Nassau Point Properties, Inc." which map was filed in the Suffolk County Clerk's Office on August 16, 1922, as Map No. 156 and which lot is appurtenant to the prem- ises, as described in the annexed Schedule A (hereinafter "subject premises"), shall have a right of easement or right of use over the subject premises, (4) deleting from the fifth decretal paragraph thereof the word "abuts" and substituting therefor the words "is appurtenant to", and Page 2 2006 NY Slip Op 3861, *; 29 A.D.3d 754, **; 815 N.Y.S.2d 674, *..; 2006 N.Y. App. Div. LEXIS 6620 (5) adding a provision thereto granting the plaintiff a permanent injunction restraining and enjoining the de- fendants from placing or causing to be placed any ob- structions upon the subject premises which may impair or impede the previously-granted easement right and directing that the defendants immediately remove all obstructions that they have placed upon or have caused to be placed upon the subject premises, including any signs attempting to restrict access over the subject prem- ises, and restore the subject premises to the unobstructed and unimpaired condition that existed immediately prior to the order dated June 14, 2004; as so modified, the judgment is affrrmed and the order dated June 14, 2004, is modified accordingly; and it is further, [**756] ORDERED that the order dated March 2, 2005, is affirmed insofar as appealed from; and it is fur- ther. ORDERED that one bill of costs is awarded to the plaintiff-appellant payable by the respondents. ["*677] The appeal from the intermediate order dated June 14, 2004, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N Y2d 241, 248, 347 NE.2d 647, 383 N YS.2d 285). The issues raised on appeal from that order are brought up for re- view and have been considered on the appeal from the judgment (see CPLR 5501 [aJ [1]). The plaintiff is a not-for-profit corporation organ- ized for the general purposes of, among other things, protecting, maintaining, and promoting the property in- terests of its members who own real property in the area known as Nassau Point, located in Cutchogue, Suffolk County. The subject of the instant dispute is a strip of property known as Old Menhaden Road, bordered to the north by a lot owned by the defendant Richard A. Winge and to the south by a lot owned by the defendants Leo- nardo Tirado and Luisa Tirado. After the defendants al- legedly planted trees and erected other structures on the disputed street which restricted or prevented access to the street from other Nassau Point residents, the plaintiff commenced the instant action pursuant to RPAPL article 15 to compel the determination of competing claims to the disputed property. Specifically, the plaintiff sought, inter alia, a declaration that it had an ownership interest in the disputed strip, or, in the alternative, that its mem- bers have an easement of access over the disputed prop- erty, and a directive to the defendants to remove all ob- structions to the disputed property. The defendants as- serted three counterclaims, seeking, inter alia, judgment in their favor, an order barring the plaintiff from all claims to the disputed property, and a declaration that the defendants have sole title and the right to exclusive pos- session of the disputed property. The defendants subse- quently moved for [*3] summary judgment dismissing the complaint and for judgment in their favor on their counterclaims. In an order dated June 14, 2004, the Su- preme Court, Suffolk County, granted the defendants' motion for summary judgment dismissing the complaint and for judgment on their counterclaims, stating that the defendants' ownership of the property was subject only to the rights of those who owned property which abutted the disputed street. Since the only properties which abut- ted the disputed street were those owned by the defen- dants, the court, in effect, granted the defendants exclu- sive ownership of the disputed street, not subject to the [**757] rights of any others. After concluding that the plaintiff had no interest in the disputed street, the court then determined that the plaintiff lacked standing to maintain the instant action on this basis. After the order dated June 14, 2004, was issued, a group of 20 landowners, 17 of whom were members of the plaintiff, moved to intervene in the instant matter. In an order dated March 2, 2005, the court, inter alia, de- nied the proposed intervenors' motion to intervene as untimely, and, using the same rationale as it did in the prior order with respect to the plaintiff, concluded that the proposed intervenors did not have standing. The plaintiff appealed from the order dated June 14, 2004, and the proposed intervenors appealed from the order dated March 2, 2005. Since the plaintiff did not raise the issue of ownership in its brief, the plaintiff abandoned this issue (see Kahlona v New York City Tr. Auth., 215 A.D.2d 630,631,628 NYS2d 306) and thus effectively conceded ownership of the disputed street to the defendants. It is well established that "when property is de- scribed in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, ease- ments [*"678] in the private streets appurtenant to the lot generally pass with the grant" (Scaglione v Common- wealth Land Tit. Ins. Co., 303 A.D.2d 671, 672, 757 N YS2d 84, quoting Bogan v Town of Mt. Pleasant, 278 A.D.2d 264,264-265, 718 NYS2d 181 [emphasis sup- plied]; see also Fischer v Liebman, 137 A.D.2d 485, 487, 524 N YS2d 720). The implied easement so conveyed is "as extensive and unrestricted as if they were public streets" (Dalton v Levy, 258 NY 161, 165, 179 NE. 371; see Fischer v Liebman, supra at 487; Sullivan v Marko-- witz, 239 A.D.2d 404, 658 N YS2d 634; Firsty v De- Thomasis, 177 A.D.2d 839, 576 N YS2d 454). Appurte- nant, or accessory to, is conceptually much different than abutting, or bordering, and certainly is much broader. Thus, by stating in the order appealed from that the de- fendants' rights as owners of the disputed street were subject only to the rights of other landowners whose property abuts the premises, the court erroneously granted to the defendants far greater ownership rights . . 2006 NY Slip Op 3861, *; 29 A.D.3d 754, **; 815 N.Y.S.2d 674, ..*; 2006 N.Y. App. Div. LEXIS 6620 Page 3 than the defendants were entitled to. The Supreme Court should have followed the well-established case law as set forth above and reached the conclusion that the defen- dants' rights were subject to the rights of other landown- ers who owned property to which the disputed street was appurtenant. Although the plaintiff did not move for summary judgment, under these circumstances, we exer- cise our authority to search the record and award the plaintiff summary judgment on its first and second causes of action to the extent it sought a declaration that its members have [**758] an easement of access over the disputed property and a directive to the defendants to remove all obstructions to the disputed property (see CPLR 32/2 Fbi; Dunham v Hi/co Constr. Co., 89 N Y2d 425, 676 NE.2d 1/78, 654 N YS2d 335; Merritt Hill Vineyards v Windy Hgts. Vineyard. 6/ N Y2d /06, 460 NE.2d /077, 472 NY.S2d 592; Morelli v Giglio, /43 A.D.2d 986, 533 N YS2d 577). The proposed intervenors argue that the Supreme Court erred in denying their motion for leave to inter- vene. Under the particular circumstances of this case, and particularly in light of the fact that 17 of the 20 pro- posed intervenors were members of the plaintiff, that they filed their motion after the court's dispositive order was issued, and that they provided no explanation as to their delay in filing, the Supreme Court properly denied their motion for leave to intervene (see [*4] Agway Ins. Co. v P & R Truss Co., / / A.D.3d 975, 976, 783 N YS2d /89; Oparaji v Weston, 293 A.D.2d 592, 593, 740 NY.S2d 238; Vacco v Herrera. 247 A.D.2d 608, 669 N YS.2d 228; Matter of Weisshaus v Gandl, 238 A.D.2d515, 516, 657 NYs'2d909). We note that in light of the Supreme Court's errone- ous determination with respect to the category of land- owners to whom the defendants' ownership rights in the disputed street may be subject, the Supreme Court's con- clusion that the plaintiff did not have standing to main- tain the instant action because its members "do not own property that abut the [disputed] street" is incorrect. In order for an organization representing the interests of a group, such as the plaintiff, to maintain standing, (I) some or all of the members of the organization must have standing to sue, (2) the interests which the organi- zation seeks to protect must be germane to its purposes, and (3) neither the relief requested nor the claims as- serted must require participation of the individual mem- bers (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 76/, 775, 573 NE.2d /034, 570 N YS2d 778; Dental Socy. of State of New York v Carey, 6/ N Y.2d 330, 333-334, 462 NE.2d 362, ["*679] 474 N YS2d 262). Under the circumstances, the plaintiff sufficiently satisfied these criteria and established that it has standing to maintain the instant action. GOLDSTEIN, J.P., MASTRO, RIVERA and LUNN, J1., concur.