Opinion
102167/11.
Decided May 4, 2011.
McCallion Associates LLP, New York, NY, Attorneys for plaintiff/petitioner.
New York City Law Department, New York, NY, Attorneys for defendants/respondents.
In this declaratory judgment action, plaintiff-petitioner ("petitioner") seeks a court order: (1) declaring petitioner the owner by adverse possession of an approximately eleven foot wide parcel of land (the "Parcel") running east-west on the south side of its property line (the "First Cause of Action"); (2) declaring petitioner the owner of the Parcel under the theory of boundary line by acquiescence (the "Second Cause of Action"); (3) declaring the construction of a garage (the "Spring Street Garage") unlawful because it will exceed the size authorized by the New York City Planning Commission Resolution dated October 7, 2008 (the "Third Cause of Action"); and (4) declaring a boundary and topographic survey prepared for respondents-defendants ("respondents") inaccurate (the "Fourth Cause of Action"). Petitioner also seeks to preliminarily enjoin the construction of the Spring Street Garage. Respondents cross-move for an order, pursuant to various provisions of C.P.L.R. Rule 3211, dismissing petitioner's causes of action.
Petitioner is the owner of real property that runs east-west along the entire city block between West and Washington Streets in Manhattan. The property is bounded to the north by Clarkson Street (it "bridges over" West Houston Street). On the south boundary is land (the "Spring Street Site") owned by the United Parcel Service ("UPS") and the City of New York (the "City") together as The Board of Managers of the Spring Street Garage Condominium ("The Board"). On petitioner's land sits a structure known as the St. John's Center and its annex, both of which house studios and office space. The structure and the annex cover almost the entirety of petitioner's property in all directions, except for a twenty-five foot parking lot on the southwest end. The annex juts out on the southeast end and measures the length of the parking lot. Immediately south of the parking lot and the annex is the Parcel, which is undisputedly part of the Spring Street Site's deed. Going east-west across the entire length of the southern edge of the Parcel is a fence that was constructed by UPS (the "Fence"). A chain link fence is immediately adjacent to the annex at the northern end of the Parcel and appears to extend to the eastern edge of the parking lot. A chain link rolling gate fence that was erected by petitioner runs along West Street from the north end of the parking lot to the Fence. On Washington Street, there is a chain link gate, also erected by petitioner, that extends from the southeast tip of the annex to Fence.
As more fully set forth in Tribeca Community Assoc., et al. v. New York City Dep't of Sanitation, et al., 2010 WL 151534 (2010), as early as 2005, the City planned to build the Spring Street Garage on the Spring Street Site and complete the project by December 31, 2012. In October 2008, the Spring Street Garage was approved by the City Planning Commission ("CPC") and then, in November 2008, the New York City Council approved the Spring Street Garage for construction. The Department of Buildings ("DOB") granted zoning approval for the Spring Street Garage on September 20, 2010 and posted the zoning diagram on its website on September 27. Thereafter, an organization entitled the Community Sanitation Steering Committee, of which petitioner claims to be a member, challenged the DOB's zoning approval, setting forth that the Spring Street Garage will be five feet longer than the building permitted by the CPC. The challenge was addressed on March 3, 2011, in a decision by Derk Lee, Manhattan Borough Commissioner of the DOB. The decision was issued after petitioner commenced this action, but prior to the date that it was fully submitted. In the decision, Mr. Lee admitted that the plans approved by the CPC differ slightly from the final plans. This discrepancy was due to the fact the CPC approval was conditionally granted pending a final site survey. Nevertheless, Mr. Lee did not focus on the length of the building, but rather the the floor to area ratio ("FAR"). According to Mr. Lee, the Spring Street Garage as approved by the DOB had a legal FAR. Mr. Lee noted that the there was a calculation of the FAR grossly inconsistent with the Spring Street Garage's actual FAR in the plans initially submitted to the DOB. He required the Spring Street Garage's architect to submit another zoning diagram to correct the error. On March 7, 2011, Mr. Lee accepted the new zoning diagram as having "satisfied the zoning objections" (collectively with the March 3, 2011 determination, the "March Determinations"). Mr. Lee further noted that the March Determinations were final determinations that could be appealed to the DOB's Technical Affairs Unit.
The Tribeca lawsuit, brought pursuant to Article 78 of the C.P.L.R., challenged the City's settlement agreement with an organization called Friends of Hudson River Park to relocate a sanitation garage from Gansevoort Street to make room for a park along the Hudson River. A proposed location for the new garage was the Spring Street Site. Petitioner was one of many parties challenging the City's agreement. This court denied the petition and dismissed the proceeding. The decision was recently upheld by the Appellate Division. See Tribeca Community Assoc. v New York City Dep't of Sanitation, 2011 NY Slip Op. 02959, ___ AD3d ___ (1st Dep't 2011).
FAR "is the relationship between the amount of usable floor area that may be constructed in a building and the area of the lot on which the building stands." Soho Alliance v. New York City Bd. of Standards Appeals, 264 AD2d 59, 65 n. 1 (1st Dep't 2000).
Before the March Determinations were made, on or about January 4, 2011, the Board brought a proceeding before this court for a license to enter petitioner's property, pursuant to R.P.A.P.L. § 881. See Board of Managers of the Spring Street Garage Condominium v. 340 West, LLC, Index No. 400008/11 (the "License Proceeding"). The Board sought access to areas three feet north of the property line in order to work on the northern wall of the Spring Street Garage and protect petitioner's property. Included in the submissions were various diagrams of the Spring Street Garage, which clearly showed that the Parcel was understood to be included in the Board's property and that the proposed structure would extend across the Parcel. Petitioner opposed the request, arguing that a proposed construction fence would become a permanent encroachment on its property and that, given that the Spring Street Garage will come "within inches of the property line," the Board will seek access to petitioner's property "in perpetuity" in order to perform routine maintenance on the northern wall. Petitioner also submitted an affidavit from an engineer, who set forth, inter alia, that the northern wall of the Spring Street Garage would come within nearly one foot of the annex.
The court granted the petition. See order and judgment dated February 7, 2011 (the "February Judgment"). The February Judgment granted the Board a three year and three month limited license to occupy petitioner's property. The work authorized included the erection of a construction fence three feet north of and parallel to "the property line" that would run from West Street to the western corner of the annex; the erection of a protective structure to protect petitioner's entire parking lot that would begin "immediately north of the property line;" roof protection for the annex; and access to the three feet of petitioner's property enclosed by the construction fence in order to "saw-cut the concrete pavement/curb at or near the property line."
For the first time, in this lawsuit, petitioner argues that it owns the Parcel by reason of adverse possession and boundary line by acquiescence. According to Richard Forte, the director of leasing for the St. John's Center, UPS purchased the property now owned by the Board in the 1970s and immediately installed the Fence, first establishing the separateness of the Parcel. Mr. Forte further sets forth that for as long as it owned the Spring Street Site, UPS was "unwilling to take any responsibility for maintaining the Parcel" and acted as if the Parcel was petitioner's property. Mr. Forte maintains that the St. John's Center has been ticketed by the City's Environmental Control Board for rodent infestations on the Parcel. Mr. Forte goes on to take issue with the February Judgment's authorization of construction activities on petitioner's property. He acknowledges that in the Board's application for a R.P.A.P.L. § 881 license, the Board sought "access to both our alley-way (i.e., the Parcel) and 3 feet of additional adjoining property." Rafael Pichardo, the building superintendent of the St. John's Center since 1985 and an employee of the St. John's Center since 1983, sets forth that he and other employees have cultivated, maintained, and improved the Parcel. He states that on June 20, 1997, he and other employees cleared waste, cut down trees and vines, and disposed of vermin. Pictures from that date corroborate Mr. Pichardo's affidavit. The pictures also reveal the nearly completed construction of an approximately three-foot high wooden wall on West Street that extends from north of the Parcel to the Fence(current pictures reveal that a cement wall has replaced the wooden wall).
Petitioner also argues that the CPC approved the Spring Street Garage to be only 413 feet, but that the City intends to build a 418 foot long garage. Petitioner further contends that the land survey that the City is relying on to build the Spring Street Garage is flawed and conflicts with the boundaries set forth in the deed. Therefore, the Spring Street Garage will not only encroach upon the land that petitioner acquired adversely, but also on petitioner's land owned by deed. In support of this contention, petitioner submits an affidavit from Michael Kramer, a real estate broker and a lobbyist. According to the deed of the Board's property, the property line starts at the northern side of Spring Street and the eastern side of West Street and runs north along West Street 418.21 feet to a point 848.78 feet south of Clarkson Street and West Street. On the west side of the property, the deed begins with a starting point of 852.62 feet from northern side of Clarkson Street and the western side of Washington Street and extends approximately 413.70 feet to the northern side of Spring Street. Mr. Kramer maintains that he used "Google Maps satellite imagery" to calculate the measurements, which "clearly [show] a discrepancy in measurement." Its not clear which measurement he is referring to, which bounds he used to make such a measurement, or how the survey prepared for the City differs from his measurements. Petitioner submits a second affidavit on the same issue is from Freddie Santiago, who sets forth that he works for a land survey corporation. He avers that after surveying the parking lot and the Parcel, his "findings show a discrepancy with the [Board's map] of 21.5 inches along the Washington Street side and 21 inches on the West Street side." He does not identify the precise area of the discrepancy, nor does he include a comparison of the two surveys.
Petitioner argues that it is entitled to a preliminary injunction, enjoining construction of the Spring Street Garage, until the issues of ownership of the Parcel, the legal length of the Spring Street Garage, and the accuracy of the survey can be decided on the merits. Petitioner argues that it has shown a likelihood or probability of success on the merits. Petitioner maintains that the affidavits of Mr. Pichardo and Mr. Forte demonstrate that it has adversely possessed the Parcel since at least the mid-1980s, ten years after UPS first constructed the Fence. Petitioner argues that the Parcel has been cultivated or improved and protected by a substantial enclosure, entitling it to adverse possession under R.P.A.P.L. § 522, before the law on adverse possession was amended in 2008. Petitioner further argues that it is entitled to adverse possession as the law stands now, because it has a "reasonable basis for the belief that [the Parcel] belongs to [it]." R.P.A.P.L. § 501(3). Petitioner also argues that it has shown a likelihood that the court would declare it owner of the Parcel on the theory of boundary line by acquiescence. Petitioner asserts that UPS acquiesced to petitioner's ownership of the Parcel in the 1970s when UPS erected the Fence.
Respondents cross-move for an order dismissing the action and request that the court issue declaratory judgments in their favor. They argue that the First and Second Causes of Action should be dismissed under the doctrines of res judicata and collateral estoppel. Respondents maintain that petitioner should have made a claim of adverse possession and boundary line by acquiescence during the License Proceeding. Respondents assert that not only did petitioner fail to make such a claim, it acknowledged that respondents were seeking to build the Spring Street Garage just inches from the property line. Respondents maintain that they were granted rights under the February Judgment that would be severely impaired if petitioner's adverse possession or boundary line by acquiescence claim succeeds. Respondents set forth that the License Proceeding, as prosecuted, would have been defeated completely if petitioner had claimed ownership of the Parcel. Respondents further argue that the First Cause of Action, the Second Cause of Action, and the Fourth Cause of Action are barred under the doctrine of laches. Assuming that UPS put up the fence in the mid-1970s, respondents set forth that petitioner has waited nearly 25 years to assert ownership over the Parcel. Respondents assert that petitioner's delay was deliberate and that its claims now threaten to produce an inconsistent judgment. Furthermore, respondents set forth that petitioner deliberately delayed taking issue with the survey prepared for the City.
Respondents also maintain that the First Cause of Action should be dismissed because petitioner cannot prove adverse possession as a matter of law. Respondents argue that petitioner has not demonstrated that they have enclosed the Parcel for more than ten years. The Fence was constructed by UPS, not petitioner, so petitioner cannot use it as evidence that it was acting openly hostile to UPS's ownership to the Parcel. Furthermore, the Fence only enclosed one boundary of the Parcel. Although respondents admit that the Parcel is now fully enclosed with the rest of petitioner's property, they state that petitioner has not demonstrated when the fences on Washington and West Streets were erected. Respondents maintain that petitioner cannot demonstrate cultivation by mere maintenance of the Parcel; petitioner needs to show "obvious alteration" of the Parcel. Respondents contend, through aerial photographs, that the Parcel was full of trees prior to and including July 2001. Therefore, even though present day aerial photographs reveal that the area is cleared of the trees, there was no substantial cultivation prior to July 2001, meaning that an adverse possession claim will not vest until after July 2011.
Respondents also argue that petitioner has no "reasonable basis" for its belief that the Parcel was owned by it all along. Respondents maintain that the only basis on which petitioner claims ownership of the Parcel is due to its adverse possession.
Respondents argue that the Third Cause of Action is not ripe for judicial review and should be dismissed. Respondents maintain that any objections to the size of the Spring Street Garage must be first made administratively. Respondents maintain that petitioner should have pursued an administrative appeal of the March Determinations, that no such appeal has taken place, and that the time to appeal has elapsed. According to respondents, the court cannot review administrative decisions that have not been properly appealed.
As to the Fourth Cause of Action, respondents maintain that it should be dismissed for failing to state a cause of action. Respondents maintain that Mr. Kramer is not competent to give assessments of land surveys, has failed to demonstrate how the survey is inaccurate, and his position is completely refuted by respondents' licensed surveyor.
Relying on the same factual arguments made in the cross-motion to dismiss, in opposing the preliminary injunction respondents argue that petitioner has not shown that it is likely to succeed on the merits. Respondents further argue that petitioner's goal is to stop construction of the Spring Street Garage and that it "should not be awarded for its outrageous conduct." Furthermore, the City has brought a condemnation proceeding for the Parcel, which is currently pending before the undersigned. While not admitting that petitioner owns the Parcel, respondents set forth that the condemnation proceeding will award them ownership of the Parcel, so petitioner would never be able to take possession of it, no matter what right it may have had over the Parcel. Petitioner would only be entitled to monetary compensation; therefore, there is no risk of irreparable harm.
In opposition to the cross-motion, petitioner maintains that it did raise the issue of adverse possession at the License Proceeding by arguing that the Board's attempt to get a license was a permanent trespass and encroachment. Petitioner further argues that both the Board and the court sought to limit the issues in the License Proceeding to access. Petitioner contends that in the License Proceeding, the City sought access to petitioner's deeded property, while this proceeding concerns the Parcel, a completely different piece of land. Petitioner sets forth that the First, Second, and Fourth Causes of Action are sufficiently pled. Therefore, petitioner argues that the claims should go forward. Petitioner admits that it is in the process of challenging the size of the Spring Street Garage administratively, but sets forth that the Third Cause of Action should not be dismissed.
In reply, respondents again maintain that the Parcel was the subject of the License Proceeding in that it was understood by all parties involved that the City was planning to build the Spring Street Garage across the Parcel.
Under the doctrine of collateral estoppel, a party may not litigate an issue that was decided in a prior proceeding that it had a full and fair opportunity to contest. Allied Chemical v. Niagara Mohawk Power Corp., 72 NY2d 271, 276 (1988), cert. denied, 488 U.S. 1005 (1989). For collateral estoppel to apply, the issue must be one that was actually litigated in the prior action; "that is, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding.'" In re Lamontagne v. Bd. of Tr. of United Wire, Metal Mach. Pension Fund, 183 AD2d 424, 426 (1st Dep't), app. denied, 80 NY2d 759 (1992), quoting In re Halyalkar v. Bd. of Regents of State of NY, 72 NY2d 261, 268 (1988). Facts that formed the basis of a determination, that were conceded or admitted by the party against whom collateral estoppel is sought, are deemed to have been placed in issue. See Chadbourne Parke LLP v. Warshaw (In re Will of Hofmann), 287 AD2d 119, 124 (1st Dep't 2001); Pierce v. Pierce, 291 AD2d 251 (1st Dep't), app. denied, 99 NY2d 727 (2002); Cary v. Fisher, 149 AD2d 890, 891 (3d Dep't 1989). Furthermore, an "actual" determination need not be an express determination; collateral estoppel will apply to "[w]hatever is necessarily implied in the former decision.'" Statter v. Statter, 2 NY2d 668, 672 (1957), quoting Pray v. Hegeman, 98 NY 351, 358 (1885); see also Kinberg v. Garr , 28 AD3d 245 , 246 (1st Dep't 2006); Walentas v. Johnes, 126 AD2d 417, 420-21 (1st Dep't 1987).
The February Judgment uses the term "property line" several times to set forth the extent of the license. Although the term was not defined, the only established "property line" at the time of the License Proceeding was the line separating the deeds of each party. The diagrams submitted made it clear that the Board's property line extended the full width of the Parcel. The February Judgment makes sense only if the Board's property is understood to extend across the Parcel (there would be no other reason to allow saw-cutting of the parking lot concrete or to stop the construction fence at the "western edge of the annex"). In the License Proceeding, petitioner submitted an affidavit from an engineer, who asserted that the northern wall of the Spring Street Garage was designed to be about a foot away. Thus, it was clear to the court and understood by the parties that the Spring Street Garage would be constructed across the Parcel. Necessarily implied in the February Judgment then is the determination that the Board owns the Parcel. See also R.P.A.P.L. § 881 ("When an owner . . . seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner . . . without entering the premises of an adjoining owner . . . the owner . . . seeking to make such improvements or repairs may commence a special proceeding for a license[.]") (emphasis added).
The court's understanding that the Board owned the Parcel "need not have been indulged in and could have been contested[.]" Walentas, 126 AD2d at 421. Instead, petitioner basically conceded that the Parcel was owned by the Board when it set forth that the northern wall of the Spring Street Garage was designed to be about a foot away from the southern wall of the annex and that the Spring Street Garage would come "within inches of the property line," an assessment consistent with the diagrams submitted in the License Proceeding. Not once did petitioner contest the requested location of the construction fence or access to the parking lot on the grounds that the Parcel was part of its property. Petitioner's protestations about permanent encroachments clearly referred to the suspicion that the construction would take a long time, requiring the construction fence to last an equally long time, and that the Board would seek future access petitioner's property to maintain the north side of the Spring Street Garage. There was never a contention that the garage itself was the encroachment. Therefore, collateral estoppel applies to bar the First and Second Causes of Action. See Chadbourne Parke LLP, 287 AD2d at 124.
The court notes that petitioner's meritless argument that it claimed to own the Parcel in the License Proceeding actually hurts its opposition to the cross-motion. See e.g., Sun Mei Inc. v. Chen , 21 AD3d 265 , 266 (1st Dep't 2005).
Even assuming that the ownership of the Parcel was not placed into issue by the parties nor considered by the court, under the doctrine of a res judicata, a party cannot litigate an issue "that could have or should have been raised in a prior proceeding arising from the same factual grouping or transaction." Greaves v. Ortiz , 65 AD3d 1085 (2d Dep't 2009) (citation omitted); see generally In re Hunter, 4 NY3d 260, 269 (2005); O'Brien v. City of Syracuse, 54 NY2d 353, 357 (1981). Indeed, a party may not "remain silent in an action in which he is the defendant and then bring a second action seeking relief inconsistent with the judgment in the first action by asserting what is simply a new legal theory." Henry Modell Co., Inc. v. Minister, Elders Deacons of Reformed Protestant Dutch Church of City of New York, 68 NY2d 456, 461 (1986). Here, the First and Second Causes of Action are sufficiently factually related to issues raised in the License Proceeding. Both the causes of action and the prior proceeding relate to use of the same land. As stated above, it was obvious during the License Proceeding that the Spring Street Garage would be constructed across the Parcel. Furthermore, in this petition, petitioner, through Mr. Forte, admits that the License Proceeding involved access to the Parcel. Had the First and Second Causes of Action been pled or, at the very least, petitioner's ownership of the Parcel been factually alleged, the extent of the Board's license would have been dependant on the court's determination of ownership of the Parcel. By raising the issue now, in a separate action, petitioner improperly seeks a judgment that "would destroy or impair rights or interests established by'" the February Judgment. Singleton Mgmt, Inc. v. Compere, 243 AD2d 213, 215 (1st Dep't 1998) quoting Schuykill Fuel Corp. v. B. C. Nieberg Realty Corp., 250 NY 304, 306-07 (1929).
Turning to the Third Cause of Action, a party cannot challenge an administrative determination in court until it exhausts its administrative remedies. Watergate II Apartments v. Buffalo Sewer Auth., 46 NY2d 52, 57 (1978); see also C.P.L.R. § 7801. The rule applies even if it would be untimely to raise the issue before the administrative agency. See In re Jamison v. Tesler, 300 AD2d 194 (1st Dept. 2002); In re Iacone v. Bldg. Dep't of Oyster Bay Cove Vill., 32 AD3d 1026, 1027-28 (2d Dep't 2006); In re Friends of Woodstock, Inc. v. Town of Woodstock Planning Bd., 152 AD2d 876, 879 (3d Dep't 1989). Under 1 R.C.NY § 101-15(a), the public must challenge the DOB's approval of a new building within "forty-five (45) days from the date of posting on the department's website of a zoning diagram filed in connection with" the new building. At the end of the forty-five day period, the DOB's borough commissioner is required to review the challenges, if any, and issue decisions. 1 R.C.NY § 101-15(b). If the challenge is denied, the public has fifteen (15) days to from the posting of the denial on the DOB's website to appeal to the technical affairs unit. 1 R.C.NY § 101-15(b)(1). The public may appeal the determination of the technical affairs unit to the Board of Standards and Appeal. In lieu of appealing to the technical affairs unit, the public may proceed with the appeal to the Board of Standards and Appeal. 1 R.C.NY § 101-15 (b)(3); see also New York City Charter §§ 648 and 666(6)(a). Petitioner does not dispute that the factual underpinnings of the Third Cause of Action would be more properly raised before the DOB. Petitioner even admits that it is in the process of appealing the March Determinations. Because there is a review process available to petitioner that has not yet been exhausted, the Third Cause of Action must be dismissed, even if respondents are correct in asserting that the time to challenge the March Determinations has expired.
As set forth previously, respondents argue that the Fourth Cause of Action fails to state a cause of action. Although on a motion to dismiss under C.P.L.R. Rule 3211 (a)(7), "the court must afford the pleadings a liberal construction" ( EBC I, Inc. v. Goldman Sachs Co. , 5 NY3d 11 , 19 [citation omitted]), the complaint must not consist of only a "conclusory assertion" of the wrong; it must contain factual allegations. Goldin v. Engineers Country Club , 54 AD3d 658 , 659-60 (2d Dep't 2008), app. denied, 13 NY3d 763 (2009); see also Chappo Co., Inc. v. Ion Geophysical Corp., 2011 NY Slip. Op. 02942m, ___ AD3d ___ (1st Dep't 2011). Here, the Fourth Cause of Action is unsupported by any factual allegations. Petitioner sets forth in a conclusory manner that the land survey is accurate, but it fails to allege any facts demonstrating the same. There are simply no facts alleged that show a discrepancy between the survey and the deed. Petitioner does suggest that the Board started its survey from the wrong point, but fails to allege the location of the wrong starting point or how the survey was affected. Since petitioner's Fourth Cause of Action does not sufficiently set forth supporting facts, it must be dismissed.
Since, "[i]n an action for declaratory judgment, where the disposition is on the merits, the court should make a declaration, even though the plaintiff is not entitled to the declaration he seeks" ( Hirsch v. Lindor Realty Corp., 63 NY2d 878, 881), it is hereby
ORDERED that respondents' cross-motion seeking dismissal of the complaint is granted; and it is further
ADJUDGED and DECLARED that the approximately eleven foot wide parcel of land running east-west on the immediate south side of petitioner's property line is the property of the deeded owner of the Spring Street Site; and it is further
ORDERED that the third cause of action is dismissed due to petitioner's failure to exhaust its administrative remedies; and it is further
ORDERED that the fourth cause of action is dismissed due to petitioner's failure to state a cause of action; and it is further
ADJUDGED that based on the foregoing the petition is denied and the proceeding is dismissed in its entirety, and the Clerk is directed to enter judgment accordingly. .