Opinion
December 28, 1970
In an action to compel the removal of certain obstructions on certain land, (1) defendant Morgan appeals from so much of a judgment of the Supreme Court, Nassau County, entered June 25, 1970, as dismissed his counterclaim and granted the cross claim of defendant Town of North Hempstead to the extent that it sought injunctive relief against him and directed, inter alia, that he remove certain fill and structures, (2) plaintiffs appeal from so much of the judgment as dismissed their complaint, and (3) both said appellants further appeal from so much of the judgment as granted costs and disbursements of the action, as taxed, to said town against appellant Morgan. Judgment modified, on the law and the facts, by striking therefrom the first decretal paragraph, which dismissed plaintiffs' complaint, and by substituting therefor a provision granting plaintiffs judgment against the defendant Morgan directing him to remove certain rubble, a drainpipe and a ramp from the foreshore in front of plaintiffs' property, together with the costs and disbursements of the action, to be taxed. As so modified, judgment affirmed insofar as appealed from, with separate bills of costs to plaintiffs and defendant Town of North Hempstead against defendant Morgan. The facts are succinctly stated in the opinion of the Special Term (see Arnold's Inn v. Morgan, 63 Misc.2d 279). It is undisputed that as a result of defendant Morgan's activities certain rubble, a drainpipe and a ramp protrude in front of plaintiffs' property on the foreshore of Manhasset Bay, a body of tidal navigable water. It is also undisputed that plaintiffs' property fronts on this bay so that they have riparian rights as the upland owners. Plaintiffs have the riparian right of direct access to navigable water and we find that the protrusion of rubble, the drainpipe and the ramp interferes with and violates this riparian right (cf. Gucker v. Town of Huntington, 268 N.Y. 43, 47-48). Although plaintiffs failed to establish any compensable damage to the value of their business or real estate, they are nonetheless entitled, under their general prayer for relief, to judgment directing defendant Morgan to remove the violation of their riparian rights. Christ, P.J., Munder, Martuscello, Latham and Benjamin, JJ., concur.