Opinion
613-13
02-06-2019
Charles W. MCCUTCHEN, Plaintiff, v. 3 PRINCESSES and AP Trust dated February 3, 2004; Randall Family Trust, U/A dated 12-14-12; the HOM Camp Greentop Limited Partnership; Tamaracks Partners, a North Carolina Limited Partnership; Harold William Davis, III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle, Defendants.
John M. Silvestri, Glens Falls, for plaintiff. Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of counsel), for defendants 3 Princesses and A P Trust dated February 3, 2004. Whiteman, Osterman & Hanna, LLP, Albany (Christopher McDonald of counsel), for defendant Harold Williams Davis, III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle. John J. Randall, IV, Locust Valley, for defendant Randall Family Trust U/A dated December 14, 2012. Wilkins & Griffin, PLLC, Lake Placid (John T. Wilkins of counsel), for defendants HOM Camp Greentop Limited Partnership and Tamaracks Partners, a North Carolina Limited Partnership. Briggs Norfolk, LLP, Lake Placid (Matthew D. Norfolk of counsel), for defendant Whiteface Resort Holdings, LLC.
John M. Silvestri, Glens Falls, for plaintiff.
Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of counsel), for defendants 3 Princesses and A P Trust dated February 3, 2004.
Whiteman, Osterman & Hanna, LLP, Albany (Christopher McDonald of counsel), for defendant Harold Williams Davis, III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle.
John J. Randall, IV, Locust Valley, for defendant Randall Family Trust U/A dated December 14, 2012.
Wilkins & Griffin, PLLC, Lake Placid (John T. Wilkins of counsel), for defendants HOM Camp Greentop Limited Partnership and Tamaracks Partners, a North Carolina Limited Partnership.
Briggs Norfolk, LLP, Lake Placid (Matthew D. Norfolk of counsel), for defendant Whiteface Resort Holdings, LLC.
Robert J. Muller, J.
Plaintiff owns a parcel of land located along Lake Placid in the Town of North Elba, Essex County. On November 1, 2013, plaintiff commenced this action pursuant to RPAPL article 15 to obtain a judgment declaring that he has an easement by prescriptive right and right-of-way on and over Blodgett Road from his parcel of land to its joinder with County Route 31. Blodgett Road is a private, wooded drive beginning at County Route 31 and then proceeding in a northerly direction through parcels belonging to, inter alia , defendant 3 Princesses and A P Trust dated February 3, 2004 (hereinafter 3 Princesses), defendant Randall Family Trust U/A dated December 14, 2012 (hereinafter Randall Family Trust), defendant HOM Camp Greentop Limited Partnership (hereinafter Camp Greentop), defendant Tamaracks Partners, a North Carolina Limited Partnership (hereinafter Tamaracks Partners) and defendants Harold Williams Davis III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle (hereinafter referred to collectively as Camp Red Fox). Upon commencement of the action, 3 Princesses owned two separate and noncontiguous parcels traversing portions of Blodgett Road — one located at 78 Blodgett Way and another located at 92 Blodgett Way.
In June 2014, 3 Princesses and Camp Red Fox moved to dismiss the complaint for failure to join a necessary party — namely, defendant Whiteface Resort Holdings, LLC (hereinafter Whiteface) — and Randall Family Trust moved to disqualify James M. Brooks, Esq. from representing plaintiff. By Decision and Order dated April 15, 2015, the Court denied 3 Princesses and Camp Red Fox's motion to dismiss and granted Randall Family Trust's motion to disqualify Brooks (47 Misc 3d 1213[A], 2015 NY Slip Op 50564 [U] [Sup Ct, Essex County 2015] ). This Decision and Order was subsequently affirmed by Memorandum and Order of the Third Department dated April 7, 2016 ( 138 AD3d 1223 [2016] ).
On June 21, 2016, 3 Princesses executed a deed conveying its property at 92 Blodgett Way to David S. Guin as Trustee of the Theanogran Realty Trust under Declaration of Trust dated June 17, 2016 (hereinafter Theanogran Realty Trust). This deed was then recorded on June 24, 2016. In September 2016, Arthur H. Thorn, Esq. was substituted as counsel for plaintiff and, in November 2016, Whiteface was joined as a defendant in the action. In April 2017, John M. Silvestri, Esq. was substituted as counsel for plaintiff.
In April 2018, counsel for plaintiff began to circulate a stipulation whereby Theanogran Realty Trust would be joined as a defendant in the action. The stipulation was signed by counsel for all defendants. Counsel for plaintiff "believes that [counsel for Theanogran Realty Trust also] signed the [s]tipulation ..., but [he] has no copy of [that signature]." For reasons unknown, this stipulation was never filed.
The stipulation was signed by counsel for Camp Red Fox on May 1, 2018; counsel for Camp Green Top and Tamaracks Partners on May 18, 2018; counsel for 3 Princesses on July 10, 2018; counsel for Randall Family Trust on July 10, 2018; and counsel for Whiteface on July 10, 2018.
Presently before the Court is (1) 3 Princesses' motion to dismiss the complaint for failure to join Theanogran Realty Trust as a defendant (see CPLR 3211 [a] [10] ), with Randall Family Trust and Whiteface also appearing in support of the motion; (2) plaintiff's motion by Order to Show Cause to, inter alia , amend the complaint so as to add Theanogran Realty Trust as a defendant (see CPLR 3025 [b] ); and (3) Camp Greentop and Tamaracks Partners' motion for, inter alia , a protective Order directing that the members of Camp Greentop and Tamaracks Partners be deposed in Massachusetts and North Carolina, respectively, in the event such depositions take place outside the summer months (see CPLR 3103 [a] ). The motions will be addressed ad seriatim .
Turning first to 3 Princesses' motion to dismiss, RPAPL 1511 (1) provides that, "[i]n an action brought under [RPAPL article 15], the person in possession shall be made a party to the action ...." RPAPL 1511 (2) then provides as follows:
"Where it appears to the court that a person not a party to the action may have an estate or interest in the real property which may in any manner be affected by the judgment, the court, upon application of such person, or of any party to the action, or on its own motion, may direct that such person be made a party."
In considering 3 Princesses and Camp Red Fox's prior motion to dismiss, this Court observed and concluded as follows:
"[I]t is undisputed that Whiteface owns the portion of Blodgett Road proceeding from County Route 31 to Camp Red Fox's property. Inasmuch as plaintiff is seeking an easement over this portion of roadway, the Court finds that Whiteface is a necessary party. With that said, the Court declines to grant [the] motion to dismiss the complaint as a result of plaintiff's failure to name Whiteface as a defendant. Rather, plaintiff is hereby directed to join Whiteface as a party ..." ( 2015 NY Slip Op 50564, at *1 [citations omitted] ).
This reasoning is equally applicable to the instant motion. There is no dispute that Theanogran Realty Trust is a necessary party. Indeed, all counsel previously signed a stipulation in this regard.
While 3 Princesses contends that the complaint must nonetheless be dismissed as a result of plaintiff's delay in joining Theanogran Realty Trust, such contention is without merit. CPLR 1001 (a) provides that "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment shall be made ... defendants." CPLR 1001 (b) then provides that "[w]hen a person who should be joined ... has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned." Here, it is undisputed that Theanogran Realty Trust should be joined and, further, that it is subject to the jurisdiction of the court. As such, Theanogran Realty Trust must be joined — notwithstanding any delay on plaintiff's part (see Matter of Farrell v. City of Kingston , 156 AD3d 1269, 1271 [2017] ). It must also be noted that defendants have not alleged any prejudice as a result of plaintiff's delay in joining Theanogran Realty Trust. Accordingly, 3 Princesses' motion to dismiss is denied in its entirety.
Turning now to plaintiff's motion, plaintiff seeks an Order (1) granting him leave to amend the complaint so as to add Theanogran Realty Trust as a defendant; (2) directing that the amended complaint be deemed served as of a date determined by the Court; (3) directing that written discovery demands be served within 20 days of the date upon which the amended complaint is deemed served; (4) directing that responses to written discovery demands be served within 25 days of service of the demands; and (5) directing that depositions be conducted the week of October 22, 2018 at the office of counsel for plaintiff in the City of Glens Falls, Warren County.
Initially, the Court finds — in accordance with the discussion set forth above — that plaintiff is entitled to amend the complaint so as to add Theanogran Realty Trust as a defendant (see CPLR 1001 [a], [b] ; RPAPL 1511 [1], [2] ).
With respect to the second item of relief, however, the Court cannot direct that the amended complaint be deemed served as of a specified date. Unless and until Theanogran Realty Trust is served personally with the supplemental summons and amended complaint — or counsel for Theanogran Realty Trust accepts service on its behalf — the Court is without personal jurisdiction over it (see CPLR 306-b ). Further, because the amended complaint supercedes the original complaint and becomes the operative pleading, existing defendants must also be properly served (see CPLR 3025 [d] ; Ryan v. Bettiol , 211 AD2d 844, 845 [1995] ). Plaintiff is therefore directed to serve the amended complaint within thirty (30) days of the date of this Decision and Order.
With respect to the third, fourth and fifth items of relief, it would be inequitable for plaintiff to effectively rush defendants through the discovery process after taking approximately two years to join a necessary party to the action. Furthermore, the deposition dates proposed by plaintiff have now passed. Accordingly, counsel are hereby directed to prepare and circulate an amended discovery schedule. This amended discovery schedule shall then be submitted to the Court within sixty (60) days of the date of this Decision and Order. To the extent that this action is over five years old, the discovery schedule should be expedited — but perhaps not as expedited as plaintiff proposed.
Turning now to Camp Greentop and Tamaracks Partners' motion, these defendants request that the Court issue a protective Order pursuant to CPLR 3103 (a) directing that the members of Camp Greentop and Tamaracks Partners be deposed only if the deposing parties first demonstrate the need for the depositions and, if such need is demonstrated, that the depositions take place in Massachusetts and North Carolina, respectively, or by written questions pursuant to CPLR 3108. Camp Greentop and Tamaracks Partners will, however, consent to the depositions taking place in Essex County during the summer months — which they typically spend at their respective properties on Lake Placid.
Counsel for Camp Greentop and Tamaracks Partners states, in pertinent part:
"My clients are two family partnerships that each own a seasonally occupied vacation home accessed from Blodgett Road .... Both are necessary party defendants in that both partnerships have express easements for ingress and egress from their respective properties across Blodgett Road and the lands of Whiteface ... to the public road. For that reason, my clients will be affected by the outcome of this litigation, but not in any way that is meaningful to them. Neither partnership has any fee ownership interest in Blodgett Road. My clients have not taken any position in this litigation and have little interest in its outcome, except they expect that if [plaintiff] has a prescriptive (or other) easement over Blodgett Road, they hope he be held to honor the same cost-sharing and other agreements that exist between those with easements created by virtue of their deeds and the owners of the underlying fee interests."
According to counsel, his clients "have little interest in travelling to New York from their far (or at least somewhat far) away homes."
While no opposition has been submitted to Camp Greentop and Tamaracks Partners' motion, CPLR 3103 (a) only authorizes the issuance of a protective Order upon a showing of "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." Generally speaking, inconvenience from travel is not sufficient — in and of itself — to authorize the issuance of a protective Order (see Carella v. King , 198 AD2d 567, 568 [1993] ; Drews v. Spencer , 274 AD 802, 802 [1948] ; Lowenberg v. Stafford , 204 Misc 487, 488-489 [Sup Ct, Bronx County 1953] ). Here, Camp Greentop and Tamaracks Partners claim nothing more than inconvenience — there is no contention that they cannot afford travel to and from New York nor that they would otherwise experience hardship as a result of the trip. Indeed, they spend every summer in Lake Placid. To that end, if in fact their depositions are necessary, Essex County is the appropriate venue.
Based upon the foregoing, Camp Greentop and Tamaracks Partners' motion for a protective Order is denied in its entirety.
Therefore, having considered the Affirmation of Ronald J. Briggs, Esq. with exhibit attached thereto, dated July 17, 2018, submitted in support of 3 Princesses' motion to dismiss; Memorandum of Law of Ronald J. Briggs, Esq., dated July 17, 2018, submitted in support of 3 Princesses' motion to dismiss; Affirmation of Matthew D. Norfolk, Esq., dated July 19, 2018, submitted in support of 3 Princesses' motion to dismiss; Affidavit of John J. Randall, IV, Esq., sworn to August 21, 2018, submitted in support of 3 Princesses' motion to dismiss; Affirmation of John M. Silvestri, Esq. with exhibits attached thereto, dated August 9, 2018, submitted in support of plaintiff's motion to amend and in opposition to 3 Princesses' motion to dismiss; Affirmation of John T. Wilkins, Esq. with exhibits attached thereto, dated September 4, 2018, submitted in support of Camp Greentop and Tamaracks Partners' motion for a protective Order and in opposition to plaintiff's motion to amend; Affirmation of Ronald J. Briggs, Esq., dated September 12, 2018, submitted in further support of 3 Princesses' motion to dismiss and in opposition to plaintiff's motion to amend; Affirmation of Matthew D. Norfolk, Esq., with exhibit attached thereto, dated September 14, 2018, submitted in further support of 3 Princesses' motion to dismiss and in opposition to plaintiff's motion to amend, and having heard oral argument on January 31, 2019 with John M Silvestri, Esq. appearing on behalf of plaintiff; Ronald J. Briggs, Esq. appearing on behalf of 3 Princesses; Tara McNeil, Esq. appearing on behalf of Camp Red Fox; John J. Randall, IV, Esq. appearing on behalf of Randall Family Trust; John T. Wilkins, Esq. appearing on behalf of Camp Greentop and Tamaracks Partners; and Ann Cantwell, Esq. appearing on behalf of Whiteface, it is hereby
The Court notes that Mr. Wilkins appeared by telephone.
ORDERED that 3 Princesses' motion to dismiss is denied in its entirety; and it is further
ORDERED that plaintiff's motion is granted to the extent that he is permitted to amend the complaint so as to add Theanogran Realty Trust as a defendant and the motion is otherwise denied; and it is further
ORDERED that plaintiff shall serve the amended complaint within thirty (30) days of the date of this Decision and Order; and it is further
ORDERED that counsel shall prepare and circulate an amended discovery schedule, to be submitted to the Court within sixty (60) days of the date of this Decision and Order; and it is further
ORDERED that Camp Greentop and Tamaracks Partners' motion for a protective Order is denied in its entirety.
ORDERED that the Court shall attend a status and settlement conference on August 1, 2019 at 10.A.M. at the law offices of Briggs Norfolk, LLP, located at 2296 Saranac Avenue, Lake Placid, New York 12946; and it is further
ORDERED that all parties shall personally appear at this conference; and it is further
ORDERED that any relief not specifically granted has nonetheless been considered and is denied.
The original of this Decision and Order has been filed by the Court together with the Notices of Motion dated July 17, 2018 and the submissions enumerated above. Counsel for plaintiff is hereby directed to obtain a filed copy of this Decision and Order for service with notice of entry in accordance with CPLR 5513.