Opinion
21519/2015
03-12-2018
Kathleen Araskog THOMAS, Andrew S. Thomas, Rand V. Araskog, and Jessie M. Araskog, Plaintiffs, v. TRUSTEES OF the FREEHOLDERS AND COMMONALITY OF the TOWN OF SOUTHAMPTON, Village of Southampton, New York State Department of Environmental Conservation, and "John Doe No. 1" through "John Doe No. 4000", inclusive, the names of the last 4000, defendants being fictitious, the true names of said defendants being unknown to plaintiffs, it being intended to designate persons holding permits pursuant to Section 80–1(D)(4) of the Code of the Village of Southampton and/or Trustees' Regulations Article XII(A)(1) and (4), and/or persons or parties claiming rights to drive and park on ocean beach lands contrary to plaintiffs' rights, Defendants.
NICA B. STRUNK, ESQ., PO BOX 5087, SOUTHAMPTON, NY 11969, Attys. for Plaintiffs. SOKOLOFF STERN, LLP, 179 WESTBURY AVE, CARLE PLACE, NY 11514, Attys. for Defendant–Trustees of the Freeholders and Commonality of the Town of Southampton. DEVITT SPELLMAN BARRETT, LLP, 50 ROUTE 111, SMITHTOWN, NY 11787, Attys. for Defendant–Village of Southampton. ERIC T. SCHNEIDERMAN, ESQ., ATTORNEY GENERAL, NEW YORK, NY 10271, Attys. for Defendant–New York State Department of Environmental Conservation 120 BROADWAY
NICA B. STRUNK, ESQ., PO BOX 5087, SOUTHAMPTON, NY 11969, Attys. for Plaintiffs.
SOKOLOFF STERN, LLP, 179 WESTBURY AVE, CARLE PLACE, NY 11514, Attys. for Defendant–Trustees of the Freeholders and Commonality of the Town of Southampton.
DEVITT SPELLMAN BARRETT, LLP, 50 ROUTE 111, SMITHTOWN, NY 11787, Attys. for Defendant–Village of Southampton.
ERIC T. SCHNEIDERMAN, ESQ., ATTORNEY GENERAL, NEW YORK, NY 10271, Attys. for Defendant–New York State Department of Environmental Conservation 120 BROADWAY
Joseph A. Santorelli, J.
Defendant New York State Department of Environmental Conservation, hereinafter referred to as "DEC", moves for an order pursuant to CPLR 3211(a)(7) dismissing the complaint against it for failure to state a cause of action.
The plaintiffs oppose that application and separately move for an order granting them partial summary judgment against defendants, the Trustees of the Freeholders and Commonality of the Town of Southampton, hereinafter referred to as "Trustees", and the Village of Southampton, hereinafter referred to as "Village". Within the context of that application the plaintiffs seek a determination that § 80–1(D) of the Code of the Village of Southampton and prior Article XII of the "Rules and Regulations for the Management and Products of the Waters of the Town of Southampton," promulgated by the Trustees, hereinafter referred to as the "Trustees' Blue Book": (1) violates the plaintiffs' rights to equal protection of the laws under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1 section 11 of the New York State Constitution ; (2) constitute a physical invasion and appropriation of private property for public use without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1 section 6, 7 and 11 of the New York State Constitution ; and (3) that Article XII of the Trustees Blue Book was ultra vires and legally void.
Defendant Trustees opposes the plaintiffs' application in all respects and cross moves for an order: (1) granting leave to amend their answer to include the affirmative defenses of res judicata and collateral estoppel; and (2) dismissing the action pursuant to CPLR 3211(a) (2), (5) and (7) ; or, in the alternative, (3) granting summary judgment on each of the claims against the Trustees. The Trustees state that the Trustees' Blue Book section at issue was rescinded on February 24, 2016 when the Trustees adopted a resolution rescinding those provisions.
Defendant Village opposes the plaintiff's application in all respects and separately cross moves for an order: (1) granting leave to amend their answer to include the affirmative defenses of res judicata and collateral estoppel; (2) dismissing all claims of plaintiffs Andrew S. Thomas, Rand V. Araskog and Jesse M. Araskog because they lack standing to sue; and (3) granting partial summary judgment on the first, second and third causes of action against the Village.
The plaintiffs in this action seek a declaratory judgment that the regulations designating the ocean beach area of the Village of Southampton between Road F and the western boundary of the Village as the daytime driving and parking area for 4x4 trucks and SUVs are unlawful and invalid. Plaintiffs Rand V. Araskog and Jessie M. Araskog are the parents of plaintiff Kathleen Araskog Thomas and purchased the property commonly known as 2150 Meadow Lane, Southampton, New York, for $11,800,000.00 in October 2004. This property is one of nine properties between Road F and the western boundary of the Village. Plaintiff Kathleen Araskog Thomas is the current titled owner of the property, having received title in September 2015 from her mother's qualified personal residence trust. The plaintiffs were aware when they purchased the property that the Trustees and Village allowed ocean beach driving and parking on the beach behind the premises. The plaintiffs claim that this 2,000 foot long section of the ocean beach area is the only area within the Village that allows daytime beach driving and parking. The Village makes permits available to both Village residents and non-residents at no cost. The plaintiffs allege that the Village does not control the number of permits given out each year and does not sufficiently police the area. The plaintiffs claim that the people that drive and park on the beach drink alcohol on the beach, litter, block the plaintiffs' access to the ocean, allow their dogs to go unleashed on the plaintiffs' property, light bonfires, cook food, trespass on the plaintiffs' dunes to urinate and defecate, and play horseshoes and other hard ball games on the beach. The plaintiffs have been making complaints and meeting with the Trustees and Village to express their concerns since the summer of 2005. The plaintiffs argue that there are one hundred thirty property owners within the Village that have ocean beachfront property but only nine homeowners are effected by the laws allowing driving on the ocean beach behind their properties.
The plaintiffs' complaint alleges eight causes of action. The first cause of action claims that the plaintiffs have been denied Equal Protection of the Law by the Trustees and Village because they have been one of the nine property owners singled out where ocean beach driving and parking of vehicles is permitted. The plaintiffs seek a declaration that the Trustees' Blue Book and Village Code are unconstitutional, as well as a preliminary injunction restraining the Village and Trustees from issuing permits. The second cause of action claims that the Trustees and Village violated 42 USC §§ 1983 and 1988 by enacting § 80–1(D) of the Code of the Village of Southampton and Trustees' Blue Book and alleges that the Trustees and Village acted in a willful manner in enacting, applying and administering the Village Code and Trustees' Blue Book when issuing permits. They claim these actions deprive the plaintiffs' of equal rights under the Equal Protection Clause of the Fourteenth Amendment. The third cause of action alleges an unconstitutional taking of private property without just compensation by the Trustees and Village and claim that the designation of plaintiffs' property as a daytime driving and parking area constitutes an invasion and appropriation of property for public use in violation of their Constitutional rights. The fourth cause of action claims that the Trustees and Village failed to comply with the State Coastal Erosion regulations under 6 NYCRR 505.8 because they allow driving landward of the debris line. The fifth cause of action seeks to compel the DEC to monitor and revoke the regulatory programs authorizing driving and parking on ocean beach landward of the debris line. The sixth cause of action against the Trustees claims that their designation of the ocean beach area behind the plaintiffs' property for daytime vehicle parking during the summer months is ultra vires and void. The seventh cause of action against the Trustees, Village and John Doe No 1 to John Doe No. 4000 claims that the granting of the right to drive on the beach, overcrowding of the beach with vehicles, littering, public urination and defecation, public intoxication and other noxious uses of the plaintiff's property and property in close proximity interferes with the plaintiffs' peaceful use and enjoyment of their private property and create a private nuisance. The eighth cause of action against the Trustees, Village and John Doe No 1 to John Doe No. 4000 claims that the issuance of permits to drive and park on the plaintiffs' real property creates a noxious and unsafe situation that threatens that health, safety and welfare of all users of the ocean beaches by the plaintiffs' property.
The Trustees and Village argue that the rational basis for allowing ocean beach driving and parking on this stretch of beach is that it is the outermost stretch of beach, with easy vehicular access, sand bars for fishing and surfing, and next to the County Park. The defendants also argue that this stretch of beach is wider than other beaches in the area.
Preliminarily, the Court notes that the plaintiffs have consented to the defendants' applications to dismiss all claims of Andrew S. Thomas, Rand V. Araskog and Jessie M. Araskog. These plaintiffs' claims are dismissed and their names are hereby stricken from the caption. The remaining applications will relate only to plaintiff Kathleen Araskog Thomas.
DEC's Motion to Dismiss
To succeed on a motion to dismiss pursuant to CPLR 3211 for failure to state a cause of action, the court must determine whether, accepting as true the factual averments of the complaint and granting plaintiffs every favorable inference which may be drawn from the pleading, plaintiffs can succeed upon any reasonable view of the facts stated ( Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 754 NE2d 184, 729 NYS2d 425 [2001] ; see also Fowler, Rodriguez, Kingsmill, Flint, Gray & Chalos LLP v. Island Prop., LLC, 307 AD2d 953, 763 NYS2d 481 [2d Dept 2003], Bartlett v. Konner, 228 AD2d 532, 644 NYS2d 550 [2d Dept 1996] ). If the pleading states a cause of action and if, from its four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail (see Wayne S. v. County of Nassau Dept. of Social Services, 83 AD2d 628, 441 NYS2d 536 [2d Dept 1981] ). The documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Estate of Menon v. Menon, 303 AD2d 622, 756 NYS2d 639 [ 2d Dept 2003], citing Leon v. Martinez, 84 NY2d 83, 88, 614 NYS2d 972, 638 NE2d 511, Roth v. Goldman, 254 AD2d 405, 406, 679 NYS2d 92 ).
In the context of a CPLR 3211 motion to dismiss, the Court must take the factual allegations of the complaint as true, consider the affidavits submitted on the motion only for the limited purpose of determining whether the plaintiff has stated a claim, and in the absence of proof that an alleged material fact is untrue or beyond significant dispute, the Court must not dismiss the complaint ( Wall Street Assocs. v. Brodsky, 257 AD2d 526, 684 NYS2d 244 [1st Dept 1999], citing Guggenheimer v. Ginzburg, 43 NY2d 268, 275 ; Rovello v. Orofino Realty Co., 40 NY2d 633, 634–636 ). In making a determination whether the complaint sets forth a cognizable claim, evidentiary material may be considered to "remedy defects in the complaint" (see Dana v. Shopping Time Corp., 76 AD3d 992, 908 NYS2d 114 [2d Dept 2010], quoting Rovello v. Orofino Realty Co., supra at 40 NY2d at 636 ).The Court in Matter of Town of Riverhead v. NY State Dept. of Envtl. Conservation , 50 AD3d 811, 813 [2d Dept 2008], held that
the proceeding was properly dismissed. Assuming the truth of the allegations in the petition, as we must at this stage in the proceeding (see Matter of Long Is. Contractors' Assn. v. Town of Riverhead , 17 AD3d 590, 594, 793 NYS2d 494 [2005] ; Matter of 10 E. Realty, LLC v. Incorporated Vil. of Valley Stream , 17 AD3d 472, 473, 792 NYS2d 606 [2005] ; Matter of Zaidins v. Hashmall , 288 AD2d 316, 316–317, 732 NYS2d 870 [2001] ), mandamus "will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion" ( Klostermann v. Cuomo , 61 NY2d 525, 539, 463 NE2d 588, 475 NYS2d 247 [1984], quoting Matter of Gimprich v. Board of Educ. of City of NY , 306 NY 401, 406, 118 NE2d 578 [1954] ; People ex rel. Hammond v. Leonard , 74 NY 443, 445 [1978] ). The determination to initiate proceedings leading to the revocation of a permit is a discretionary function (see ECL 23–2711 [6 ] ) with respect to which mandamus does not lie (see Matter of Haydock v. Passidomo , 121 AD2d 540, 503 NYS2d 599 [1986] ). The Town's attempt to avoid the effect of these principles by characterizing the petition as seeking mandamus to review is belied by the actual relief it has requested, which is to direct DEC to commence a revocation proceeding.
The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has not pled a cause of action cognizable at law as against the DEC. Plaintiff has failed to come forth with any information to counter the proof provided by the DEC that the determination to initiate proceedings leading to the revocation of a permit is a discretionary function. Therefore the DEC's motion to dismiss the complaint as against it is granted. The plaintiff's fifth cause of action is dismissed.
Trustees and Village Motions to Amend Answers
Leave to amend pleadings "shall be freely given," absent prejudice or surprise resulting directly from the delay ( CPLR 3025[b] ; McCasky, Davies and Associates, Inc. v. New York City Health & Hospitals Corp., 59 NY2d 755, 450 NE2d 240, 463 NYS2d 434 [1983] ). Thus, a motion to serve an amended pleading should be granted unless the party opposing the motion demonstrates substantial prejudice resulting directly from the delay (see Cutwright v. Central Brooklyn Urban Dev. Corp., 127 AD2d 731, 512 NYS2d 128 [2d Dept 1987] ; Scarangello v. State, 111 AD2d 798, 490 NYS2d 781 [2d Dept 1985] ). Mere lateness is not a barrier to an amendment, and significant prejudice must be demonstrated to justify the denial of an application for an amendment (see, Hilltop Nyack Corp. v. TRMI Holdings, Inc., 275 AD2d 440, 712 NYS2d 888 [2d Dept 2000] ; citing Edenwald Contr. Co. v. City of New York, 60 NY2d 957 ; O'Neal v. Cohen , 186 AD2d 639, 640 ). Here, the plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendments (see, Hilltop Nyack Corp. v. TRMI Holdings, Inc., supra; citing McCaskey, Davies & Assocs. v. New York City Health & Hosps. Corp. , 59 NY2d 755 ). Moreover, the proposed affirmative defenses for both the Trustees and Village are neither devoid of merit nor palpably insufficient as a matter of law (see, Hilltop Nyack Corp. v. TRMI Holdings, Inc., supra; citing Bomar v. Lane , 265 AD2d 519 ). In this case, there is no evidence that the trial of this action will be delayed by the amendments, and the granting of the motions would not unduly prejudice the plaintiff or defendants (see Caceras v. Zorbas, 74 NY2d 884, 547 NYS2d 834, 547 NE2d 89 [1989] ; Clarke v. Americana House, Inc., 186 AD2d 530, 588 NYS2d 794 [2d Dept 1992] ).
The motions by the Trustees and Village defendants for an order pursuant to CPLR 3025(b) granting leave to amend their verified answers to the complaint to include res judicata and collateral estoppel affirmative defenses are granted; and it is further
ORDERED that the Trustees and Village defendants' amended answers are hereby deemed filed and served upon plaintiff.
Motions for Summary Judgment
CPLR § 3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment ( Olan v. Farrell Lines, Inc. , 105 AD2d 653, 481 NYS 2d 370 (1st Dept., 1984; aff'd 64 NY2d 1092, 489 NYS 2d 884 (1985) ; Spearman v. Times Square Stores Corp. , 96 AD2d 552, 465 NYS 2d 230 (2nd Dept., 1983) ; Weinstein–Korn–Miller, New York Civil Practice Sec. 3212.09) ).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Friends of Animals v. Associated Fur Mfrs. , 46 NY2d 1065, 416 NYS2d 790 [1979] ). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( Sillman v. Twentieth Century–Fox Film Corporation , 3 NY2d 395, 165 NYS2d 498 [1957] ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966, 525 NYS2d 793, 520 NE2d 512 [1988] ; Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v. Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981] ). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion ( Robinson v. Strong Memorial Hospital, 98 AD2d 976, 470 NYS2d 239 [4th Dept 1983] ).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v. Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478, 313 NE2d 776 [1974] ). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated ( Prunty v. Keltie's Bum Steer, 163 AD2d 595, 559 NYS2d 354 [2d Dept 1990] ). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted ( Prunty v. Keltie's Bum Steer, supra , citing Glick & Dolleck v. Tri–Pac Export Corp., 22 NY2d 439, 293 NYS2d 93, 239 NE2d 725 [1968] ; Columbus Trust Co. v. Campolo, 110 AD2d 616, 487 NYS2d 105 [2d Dept 1985], affd , 66 NY2d 701, 496 NYS2d 425, 487 NE2d 282 ).
Constitutional Claims
The Court in Katz v. Vil. of Southampton , 244 AD2d 461, 462 [2d Dept 1997], dealt with the same fact pattern wherein that action sought "inter alia , a declaration of rights as to an easement which the Freehold Trusteeship holds for the benefit of all the inhabitants of the Town of Southampton." The Court held that
The sixth cause of action in which the plaintiffs seek damages for the alleged uncompensated taking of their property should have been dismissed since the Village's regulation of motor vehicle traffic on the ocean beach in connection with the easement held by the Freehold Trusteeship is not a taking (see, Dolphin Lane Assocs. v. Town of Southampton , 37 NY2d 292, 297 ).
( Katz v. Vil. of Southampton , supra at 462–463). The Court ordered that
the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment declaring that Village of Southampton Code § 80–1 (D) (1) and (4) was properly adopted and is constitutional, and that the defendants' actions pursuant to Village of Southampton Code § 80–1 (D) (1) and (4) were constitutional and proper.
( Katz v. Vil. of Southampton , supra at 462).
The Court of Appeals in Trustees of Freeholders & Commonalty v. Betts , 163 NY 454 [1900], set out the legal background to the easement at issue in this action. The court stated
The plaintiff's success in the action was dependent upon the strength of its own showing of title and the burden of proving that title and the consequent right to the possession of the land described in the complaint rested upon it. I think it to be perfectly clear that the plaintiff has had no title since the passage of chapter 155 of the Laws of 1818. Originally, under the patent issued by Governor Andross, in 1676, the legal title to all the lands was vested in the plaintiff, then created a corporation, and subsequently, by Governor Dongan's charter, in 1686, that title was confirmed in the trustees, etc., of the town of Southampton, in trust for the original purchasers and proprietors, their heirs and their assigns. By reason of the increase of the population of the town, by the advent of new inhabitants who were not proprietors, in later times, some friction existed in the community as to the respective rights and interests of the proprietors and of those of the inhabitants who had no interest in the unallotted lands of the town. The act of 1818 was then passed, as a measure of compromise agreed to by the parties. That act created a body of trustees for the proprietors of the undivided lands and meadows in the town of Southampton and there were conferred upon them all rights of management of the "undivided lands, meadows and mill streams" of the town and the power to "sell, lease and partition" the same; while there were reserved to the trustees of the town, this plaintiff, the right of management of the waters within the town and of "the fisheries, seaweed and productions of the waters," for the benefit of the town, and to its inhabitants was reserved "the privilege of taking seaweed from the shores of any of the common lands of the town." The title to the lands, which was conferred by the earlier patents, or charters, which have been referred to; and the effect upon that title of the act of 1818 have been passed upon by this court in the case of this plaintiff against the Mecox Bay Oyster Company (116 NY 1 ); a case which leaves but little ground for much further contention over the title of the trustees of the proprietors, through whose grant the defendant's title is derived.
( Trustees of Freeholders & Commonalty v. Betts , supra at 457–458). The Court held that
I cannot do better than quote from the language of Mr. Justice Williams, at the Appellate Division, upon this point. "We find in the act no intent to except the beach or seashore from the undivided lands which the trustees of the proprietors were given the power to sell. * * * The language of the act is general ‘all undivided lands.’ The beach, or shore, was land, and it was undivided. There is no express exception or reservation of any lands which remain undivided. The first proviso, so far as lands are concerned, only relates to the use of the beach or shore, by taking seaweed from it, and carting or transporting to and from or landing property on such shore. This proviso makes no reference to the management or regulation of the lands, constituting the beach or shore, by either class of trustees, but merely provides for the management and regulation of the waters, fisheries, and taking of seaweed and the production of the waters. It then provides that the right given to the new trustees shall not in any manner debar the inhabitants of the town from the privilege of taking seaweed from the shores of the common lands as they had been accustomed to do. The phrase ‘common lands of the town,’ used in this proviso in reference to the taking of seaweed from the shore thereof, evidently was used to designate lands held in common by the proprietors, and not in any technical sense as indicating that the shores or lands were public property. * * * It is quite clear, as disclosed by the case, that the terms ‘undivided lands’ and ‘common lands’ were used interchangeably to refer to the uplands and to the beaches as well."
I consider these views to be correct, and I fail to find anything in the evidence which supports a contrary view, that there were common lands of the town other than what were held as such in trust by the trustees for the proprietors. The plaintiff's evidence is consistent with privileges and an easement enjoyed by the public, in connection with a title and the possession in the trustees and it is wholly insufficient, in my opinion, to inject any doubt into the meaning, or effect, of the act of 1818. The act itself made a reservation with respect to public easements and privileges, and that reservation was recognized in the deed to the defendant's predecessor in title.
(supra at 459–460). In Dolphin Lane Assoc. v. Town of Southampton , 72 Misc 2d 868, 872, 339 NYS2d 966 [1971], affd 43 AD2d 727, 351 NYS2d 364 [1973], mod 37 NY2d 292, 333 NE2d 358, 372 NYS2d 52 [1975], the Court noted that
Plaintiff admits that the act of 1818 contained a reservation of an easement in favor of the public but such easement is limited to the shore between the high and low water marks of the Atlantic Ocean and not between the dunes and the high water mark.
How does the plaintiff arrive at this conclusion? Plaintiff points out that the act of 1818 proclaims that the rights of the townspeople exist only over the "shores of any of the common lands of the Town". The plaintiff reasons that the word "shore" is limited to that area which is between the high and low water mark and thus the act of 1818 gave the defendants no easement over the beach area in question.
( Dolphin Lane Assoc., Ltd. v. Southampton , 72 Misc 2d 868, 877 [Sup Ct, Suffolk County 1971] ). The holding was that
The court cannot concur with plaintiff's position. The language of the court in the Betts case is clear, "The act itself made a reservation with respect to public [uses] and privileges". In other words, this easement was reserved by the act of 1818, separate and apart from the reservation contained in the Betts deed. Thus, the failure to mention this reservation in the "Post" deed is of no consequence. The distinction attempted by the plaintiff is without any meaningful difference. In fact, the reservation in the deed to Betts supports the defendants' position in that it indicates that the proprietors recognized the existence of the public easement in the act of 1818 and exactly what area that easement encompassed. No amount of rhetoric can change the clear meaning of the Betts case and the decision, like a good vintage wine, becomes stronger with age.
This court holds that the act of 1818 reserved to the inhabitants of the Town of Southampton for all time a public easement over the subject beaches. (supra at 868, 879). The Court of Appeals in Dolphin Lane Associates, Ltd. v. Southampton , 37 NY2d 292, 297, 333 N.E.2d 358, 360, 372 N.Y.S.2d 52, 55 [1975], modified the trial court's decision by holding that
We hold that it was error here to rely on independent, novel means for location of the high-water mark. The case should be remitted for the limited purpose of determining the location of the northern boundary of the property by reference to the line of vegetation.
We have examined appellant's other contentions with respect to the trial court's determination that there is an easement in favor of the public between the high-water mark of the Atlantic Ocean and the southerly top edge of the sand dunes and appellant's related argument that by the adjudication upholding such easement it was deprived of property without due process of law, and find them to be without merit.
In Semlear v. Inc. Vil. of Quogue , 127 AD3d 1062, 1065 [2d Dept 2015], the Court held that
In any event, we also agree with the Village that the broad declaration made by the Supreme Court exceeds the authority reserved to the Trustees under the 1818 Law, which was extended in the 1831 Law. The language of the 1818 Law "only relates to the use of the beach or shore, by taking seaweed from it and carting or transporting to and from or landing property on such shore" and "makes no reference to the management or regulation of the lands constituting the beach or shore ..., but merely provides for the [Trustees'] management and regulation of the waters, fisheries, and taking of seaweed and the productions of the waters" ( Trustees of Southampton v. Betts , 21 AD 435, 439, 47 NYS 697 [1897], affd and quoted in 163 NY 454, 459 [1900] ). Accordingly, the Village was entitled to a judgment declaring, inter alia, that the Trustees have no lawful governmental or regulatory power to grant or deny permits in connection with (I) the placement and grading of sand and earth, and (ii) the development, construction, maintenance, and use of structures and lands located anywhere upon the ocean beaches situated within the boundaries of the Village.
Based upon a review of the motion papers the Court concludes that the Trustees have made a prima facie showing of their entitlement to judgment as a matter of law as to the first, second, third, fourth and sixth causes of action. The Court notes that the Trustees' Blue Book sections at issue were rescinded on February 24, 2016 when the Trustees adopted a resolution rescinding those provisions and therefore no declaratory or injunctive requests by the plaintiff can be granted against the Trustees and those requests are denied.
The Village has similarly made a prima facie showing of their entitlement to judgment as a matter of law as to the first, second, and third causes of action.
The Courts have consistently held that the Laws of 1818 reserved an easement in favor of the public for use of the ocean beaches. The Katz court held that "Village of Southampton Code § 80–1 (D) (1) and (4) was properly adopted and is constitutional, and that the defendants' actions pursuant to Village of Southampton Code § 80–1 (D) (1) and (4) were constitutional and proper" and "the Village's regulation of motor vehicle traffic on the ocean beach in connection with the easement held by the Freehold Trusteeship is not a taking". ( Katz v. Vil. of Southampton , supra at 462–463).
The plaintiff has failed to rebut the prima facie showings made by the defendants that the Village of Southampton Code § 80–1 (D) is constitutional and not a taking. Accordingly, the Trustees' and Village's motions for summary judgment are granted. The first, second, third, fourth, and sixth causes of action are dismissed.
The plaintiff's motion for summary judgment is denied in all respects.
Nuisance Claims
In a common-law cause of action for nuisance, the plaintiff must sufficiently plead, and subsequently establish, the following elements: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act." ( Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 933 NYS2d 204 [1st Dept 2011], quoting Copart Indus. v. Consolidated Edison Co., 41 NY2d 564, 570, 394 NYS2d 169, 173, 362 NE2d 968, 972 [1977] ).
A private nuisance threatens one person or relatively few, while a public nuisance consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons (see Copart Industries, Inc. v. Consolidated Edison Co., 41 NY2d 564, 362 NE2d 968, 394 NYS2d 169 [1977] ).
New York recognizes the right by prescription as a defense to a nuisance claim. (See, Zutt v. State , 50 AD3d 1133, 856 NYS2d 245 [2d Dep't 2008] ). To establish a right by prescription the use must be: (1) adverse; (2) open and notorious; (3) continuous; and (4) for the prescriptive period. (Supra ). The prescriptive period is ten years. ( CPLR 212(a) ). The Court in Koepp v. Holland , 688 F Supp 2d 65, 86–87 [NDNY 2010], held that
The requisite time period may be established by taking into account the period of use by a predecessor in title so long as there is an unbroken chain of privity. Congregation Yetev Lev D'Satmar v. County of Sullivan , 59 NY2d 418, 424, 452 N.E.2d 1207, 465 N.Y.S.2d 879 (1983). New York courts have held:
For purposes of adverse possession the requisite continuity of possession may be shown by combining the successive possessions of several persons between whom privity exists, in a process called tacking. In other words, the use or possession by the predecessors in title, also meeting the requirements of adverse possession, may be tacked on to one's adverse use or possession to establish the statutory period, as long as there is an unbroken chain of privity between the adverse possessors. Where the successive possessions of those in privity with each other, when tacked together, constitute one continuous adverse possession for the statutory period, it will be sufficient, provided the other elements of adverse possession are also present.
Bayshore Gardens Owners, Inc. v. Meersand , 20 Misc 3d 1137[A], 867 N.Y.S.2d 372, 2008 NY Slip Op 51770[U], 2008 WL 3877173, at *5 (N.Y.Sup. 2008) (citing 2 NY Jur.2d Adverse Possession § 58 ); see also Belotti v. Bickhardt , 228 NY 296, 306, 127 N.E. 239 (1920).
Based upon a review of the motion papers the Court concludes that the Trustees have made a prima facie showing of their entitlement to judgment as a matter of law as to the seventh and eighth causes of action. The Court notes that the Notice of Claim was filed by the plaintiff on October 21, 2015 and any allegations of nuisance prior to July 23, 2015 are time barred. As of July 22, 2015 the plaintiff had privity with the prior owner, her mother's residential trust, for the requisite 10 year period to prove the right by prescription defense. In addition, the defendant has shown that the plaintiff failed to allege any damage to the public at large to prove a public nuisance or that the defendants actions were unreasonable in character to prove a private nuisance. The plaintiff has failed to rebut the prima facie showing made by the defendant as to her nuisance claims. Accordingly, the Trustees' motion for summary judgment dismissing the nuisance claims is granted. The seventh and eighth causes of action are dismissed.
The foregoing constitutes the Decision and Order of this Court.