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.