Opinion
2011-0072.
Decided April 21, 2011.
Carl DePalma, Esq., Auburn, NY, Plaintiff's Attorney.
Andrew S. Fusco, Esq., Assistant Corporation Counsel, For Defendant City, Memorial City Hall, Auburn, NY, Defendants' Attorneys.
Matthew Gumaer, Esq., For Defendant Driscoll, Sugarman Law Firm, LLP, Syracuse, NY.
Plaintiff's supplemental summons and first amended verified complaint filed March 2, 2011, pursuant to leave to amend granted by the Court, contains 10 separately pleaded causes of action that seek judgment:
1. Determining that plaintiff is the owner of the alleged disputed 1.9-foot strip, establishing Plaintiff's boundary line, and quieting title as to the area in dispute;
2. Determining, in the alternative, that Plaintiff is the owner of the disputed area by way of practical location of the boundary line, and quieting title as to the area in dispute;
3. Determining, in the alternative, that plaintiff has obtained title to the disputed area by adverse possession not founded upon written instrument, establishing Plaintiff's boundary line, and quieting title as to the area in dispute;
4. Determining, in the alternative, that plaintiff has obtained title to the disputed area by adverse possession founded upon a written instrument, establishing Plaintiff's boundary line, and quieting title as to the area in dispute;
5. Determining that plaintiff has established an easement in the Kalet wall, and that the City and its designees be preliminarily and permanently enjoined from demolishing or otherwise interfering with the walls adjoining the storage and porch areas, consistent with the representations made by the City Engineer Seth Jensen in his Affidavit dated February 4, 2011.
6. That the City and its designees be preliminarily and permanently enjoined from placing any objects upon the plaintiff's property, and that the City be preliminarily and permanently enjoined from placing any further structures, markers, or any other items onto or obstructing plaintiff's property and/or right-of-way;
7. Declaring the April 28, 1955 Kalet-Metcalf Agreement is null and void as a matter of law, prohibiting the City from utilizing this agreement for any purpose;
8. That the City be preliminarily and permanently enjoined from funding the demolition of the Kalet Building, as such funding is an illegal gift to a private entity;
9. Restraining the City from wastefully and illegally expending any further funds with respect to the demolition of the Kalet Building;
10. Ordering the City to turn over all documents and communications regarding the City's employment of Watkins with respect to the Kalet Building, and restraining the City from using any documents and communications obtained during the City's employment of Watkins with respect to the Kalet Building, including but not limited to the Watkins survey and the demolition drawings created by QPK; and
11. That the plaintiff has such other and further relief as to the Court may seem just and proper.
The eight exhibits attached to the complaint are: (1) plaintiff's deed to 127 Genesee Street, (2) the City's deed to the Kalet Building, (3) a December 22, 2010 survey by Ianuzi Romans Land Surveying, P.C., (4) the Shimer-Bradley Agreement dated June 8, 1889, (5) the Dowd and Leo survey and title map (G-87) dated October 21, 1941, (6) the Dean map of survey (L-44) dated March 10, 1947, (7) a "Permission to Use and Occupy Property" dated April 28, 1955 and recorded July 6, 1955 (the Kalet-Metcalf Agreement), and (8) three pages containing five photographs of the rear and rear-roof views of 125 and 127 Genesee Street and the Kalet Building.
By notice of motion filed March 31, 2011, the City moved to dismiss the First Amended Verified Complaint pursuant to CPLR 3211 (a), (e) and 3212 (c). The motion is supported by the affidavits of: (1) Andrew Fusco, Esq., the City's Assistant Corporation Counsel, (2) Seth Jensen the City's engineer, (3) James Marren, surveyor, (4) Hal Romans, surveyor, and (5) Howard Clark, Jr., retired attorney. Additionally, the City submitted documentary exhibits (consecutively re-lettered by the Court for purposes of clarity) (A) QPK Design's February 2, 2011 partial west wall bracing, (B) QPK Design's "enlarged detail" plan, (C) the Dowd and Leo survey and title map dated October 21, 1941 (G-87), (D) plaintiff's deed to 127 Genesee Street, (E) a revised copy dated September 4, 1956 of the Dean map of survey dated March 10, 1947, (F) the Shimer-Bradley Agreement dated June 8, 1889, (G) the Kalet-Metcalf Agreement (H) the Sperati survey map dated March 10, 1955 (X-73) filed July 6, 1955 in the Cayuga County Clerk's Office, and (I) the Madden to Carpenter and Bemis conveyance of 1858.
Exhibits C, D, E, F, G, H, and I are attached to Clark's Affidavit. Exhibits A and B are attached to the Jensen affidavit.
Defendant Driscoll's affidavit asserts that he acquired 123 and 125 Genesee Street in 1999, and became the sole owner of those properties in 2001. During his ownership, he has been the only person to use the storage room enclosure, which encroaches upon the disputed 1.9-foot strip of land improved pursuant to the Shimer-Bradley Agreement of 1889. He also pays for the electricity in the room which is on his 123-125 Genesee Street property's meter. Driscoll states that he paid for a repair to the roof and only once in January 2011, plaintiff paid for the replacement of the exterior door of the storage room and obtained a key to the new lock. A copy of Driscoll's deed references the Sperati survey dated March 10, 1955 [City's Ex H], the Shimer-Bradley Agreement [Complaint Ex 4, City's Ex F] and the Kalet-Metcalf Agreement of 1955 (Complaint Ex 7; City's Ex G].
It became apparent to the Court that Driscoll's deed was not included in his affidavit. Driscoll's attorney submitted the deed to the Court and all parties as an attachment to an e-mail. Plaintiff objected to the submission.
In opposition to the City's motion, plaintiff submitted a 32-page attorney affirmation with 17 exhibits. Plaintiff objected to the Court considering the City's motion as one for summary judgment. Additionally, plaintiff asserted that an issue of fact exists as to damages (contamination [Plaintiff's Resp. Affirm. Ex 7], cracked walls and relocation of offices [Plaintiff's Resp. Affirm. Ex 8], and alternative parking resulting in parking tickets) related to the license granted the City by decision and order dated March 24, 2011 (VanStrydonck, J.) and that the City has refused to comply with plaintiff's requested items in Plaintiff's Responding Affirmation Exhibit 4. Plaintiff asserts that Eugene DiBartolomeo, P.E. performed a distance measurement along the north property line and concluded that the distance to be 21.27 feet and, thus, this engineer concluded in an unsworn letter that plaintiff's property line is 1.06 feet east of the western face of the Kalet wall [Plaintiff's Resp. Affirm. Ex 6]. Plaintiff further asserted that discovery is needed on the taxpayer causes of action and to develop the record on the other causes of action. Plaintiff renews his motion to strike the affidavit of Howard Clark and preclude the use of the revised copy dated September 4, 1956 of the Dean map of survey dated March 10, 1947. Plaintiff asserts that his seventh cause of action, invalid property agreement, is against Driscoll and he maintains that Driscoll has only a right of ingress and egress over the right of way and no right to store items in the storage room. Plaintiff further asserts that he wants to preserve the storage room structure because its destruction may create more problems to the remainder of plaintiff's building. Plaintiff's further assertions are set forth in his attorney affirmation and supported by exhibits and further affidavits of Joseph Norris and Thomas Brown. Contrary to the Court's directive that no further submissions would be allowed, on April 21, 2011, plaintiff's counsel submitted an affidavit from DiBartolomeo by e-mail and facsimile.
Background
This case arises out of a dispute as to the ownership of 1.9-foot strip of land over which a storage room was constructed and attached to the west wall of the Kalet Building and east wall of plaintiff's building in the City of Auburn, New York. It involves the properties at 123-125 and 127 Genesee Street, owned by Driscoll and plaintiff, respectively and 1-7 State Street owned by the City. Driscoll's and plaintiff's predecessors entered into the Shimer-Bradley Agreement in 1889 [Complaint Ex 4], by which each was allowed to build over a right of way. Plaintiff's predecessor was allowed to build out 16' 3" from the east and into the right of way and Driscoll's predecessor released that portion of property from the right of way, and from any and all right or claim of Driscoll's predecessor.
Also, pursuant to the Shimer-Bradley Agreement, plaintiff's predecessor granted Driscoll's predecessor and heirs and assigns a right "to pass and repass" over a portion of the property to the east of the extension to be built by plaintiff's predecessor and the right to construct any "building, roof, or erection over such space," limited in height. In building the east wall of the proposed extension onto 127 Genesee Street, plaintiff's predecessor agreed to leave appropriate holes in the wall upon which Driscoll's predecessor could support timbers for the floor and roof of Driscoll's predecessor's proposed building. The agreement provides that it "shall apply to and bind the heirs, personal representatives, devisees and assigns of the parties hereto" [Complaint Ex 4].
At some point, the east side of the structure built pursuant to the rights granted Driscoll's predecessor became attached to the west wall of the City's Kalet building, over the now disputed 1.9-foot strip of land. The Dean Survey of 1947 [Complaint Ex 6] noted that the property line was the west face of the Kalet Building wall, although the Dowd and Leo survey and title map dated October 21, 1941 [Complaint Ex 5], showed that the boundary line to be a short distance to the west of the Kalet wall where the wall jogs toward the east.
The Sperati survey in 1955 [City's Ex H], shows that the property line is not the west face of the Kalet Building wall but rather is 1.9 feet from the wall. In 1955, Driscoll's predecessor and the City's predecessor entered into the Kalet-Metcalf Agreement [City's Ex G; Complaint Ex 7] in hich the mistake of the 1947 Dean Survey was noted. Additionally, the parties, defendants' predecessors, agreed that Driscoll's predecessors, successors and assigns are allowed "[t]o continue use and occupancy of said strip on land approximately 1.9 feet in width, and the west wall of said building as shown on [the Sperati Survey Map] as long as said wall shall exist as now located. . ."
Plaintiff acquired his property in 1993 and his deed [Complaint Ex 1] gives a metes and bounds description which describes his eastern property line as "thence southerly at right angles to the last described line along the west face of the wall of said Kalet and its extension southerly and along the west face of premises No. 125 Genesee Street, a distance of 102 feet to the place of the beginning" (emphasis supplied). Plaintiff's deed is subject to "the rights reserved to the owners and occupants of [Driscoll's predecessors] to pass up and down the stairways and the lane in the rear of the premises hereby conveyed and the lane to Clark Street . . . except as such rights have been modified and limited by [the Shimer-Bradley] agreement dated June 6, 1889" and recorded.
The dispute arose as the City was preparing to demolish the Kalet Building. Pending final resolution, plaintiff was granted a limited preliminary injunction to preserve any portion of the wall necessary for proper support of the storage room.
DISCUSSION
"When assessing the adequacy of a complaint in light of a CPLR 3211(a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff 'the benefit of every possible favorable inference'" ( AG Capital Funding Partners, L.P. v State St. Bank Trust Co. , 5 NY3d 582 , 591, quoting Leon v Martinez, 84 NY2d 83, 87). "In order to prevail on a CPLR 3211 (a) (1) motion, the moving party must show that the documentary evidence conclusively refutes plaintiff's allegations" ( AG Capital Funding Partners, L.P., 5 NY3d at 590-591; Kumar v American Transit Ins. , 49 AD3d 1353, 1354 [4th Dept 2008]). When a court "intends to treat the motion as one for summary judgment, it must give 'adequate notice to the parties' that it so intends" ( Matter of Ostrowski v County of Erie, 245 AD2d 1091, 1092 [4th Dept 1997] [citations omitted]). However, this rule is not without exception ( see, e.g., Mihlovan v Grozavu, 72 NY2d 506; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320-321 [2d Dept 1987]) such as where the parties charted a summary judgment course, the court may properly consider the motion as one for summary judgment ( see, Kilpatrick v Diversified Sports, 216 AD2d 892 [4th Dept 1995]). Even if the notice was improper, a court may still treat the motion as a motion to dismiss under 3211 (a) (1) without consequence ( see, Singer v Boychuk, 194 AD2d 1049, 1051 [3d Dept 1993] [Supreme Court's conversion was improper, but the court properly concluded that the plaintiff's claim was barred by an assignment and granted dismissal under CPLR 3211(a) (1) such that any error in this regard is essentially of no consequence]).
On a motion for summary judgment, the function of the court is issue finding rather than issue determination ( Sirianno v New York RSA No. 3 Cellular Partnership, 284 AD2d 913, 914 [4th Dept 2001]). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion ( see, Espositio v Wright, 28 AD3d 1142 [4th Dept 2006]). To prevail upon the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law ( Alvarez v Prospect Hosp., 68 NY2d 320, 324).
The Court notified the parties on April 15, 2011, that it intended to treat the motion as one for summary judgment. Plaintiff objected to the adequacy of the notice but worked diligently and submitted a 32-page attorney affirmation with 17 exhibits including affidavits of Joseph Norris and Thomas Brown. Post-oral argument, plaintiff submitted an affidavit from DiBartolomeo.
I. Causes of Action Concerning Real Property
Plaintiff's first cause of action asserts adverse possession by claim of title founded upon a written instrument pursuant to his deed. "A given boundary line in a description is presumed to continue in a straight line." 1 NY Jur 2d Adjoining Landowners § 72 Running Lines, at 710. Furthermore, "[i]t is generally agreed that the distance with reference to provisions in a deed is determined by a straight line, in the absence of any apparent contrary intent of the parties to the instrument" ( id.; see, 1 Rasch, New York Law Practice of Real Property § 24:51, Presumption of straight lines [1991]; see also, County of Chenango v County of Broome, 180 AD2d 319 [3d Dept 1992]). "[T]he description of a boundary line is a question of law" (1 NY Jur 2d Adjoining Landowners § 139, at 775).
Plaintiff's first cause of action is premised upon the impermissible interpretation of the deed's description of the east boundary line as going along the west face of the Kalet wall and the extension of the wall southerly, for a distance of 102 feet. The quoted language above from plaintiff's deed [see Complaint Ex 1] describes a straight line and not the indentation of the Kalet wall that results in the 1.9-foot disputed strip of land. Significantly, absent from the deed is any description of the line turning to account for the 1.9-foot strip of land being conveyed in plaintiff's deed. Examined as a whole, the metes and bounds description creates a rectangular parcel. Plaintiff's deed fails to convey the 1.9-foot disputed strip of land.
Moreover, plaintiff's deed specifically references the Shimer-Bradley Agreement [Complaint Ex 4] and the rights modified and limited therein. Plaintiff's deed conclusively refutes the first cause of action. Thus, plaintiff's first claim is subject to dismissal because the recorded deed as documentary evidence conclusively refutes the claim ( see, CPLR 3211 [a] [1]).
Several of plaintiff's causes of action are premised on adverse possession theory, i.e., title by practical boundary line, adverse possession by claim not founded upon written instrument, adverse possession founded upon written instrument, and easement, in the second, third, fourth and fifth causes of action, respectively. The Practice Commentaries note that in amending the adverse possession statute, the Introducer's Memorandum in Support of the bill stated"[a]dverse possession should be used to settle good faith disputes over who owns land. It should not be a doctrine which can be used offensively to deprive a landowner of their real property" (Winter Loeb, Practice Commentaries, McKinneys Cons Laws of NY, Book 49½, RPAPL 501, at 81).
To prevail upon an adverse possession claim, plaintiff would be required to demonstrate that his possession of the disputed strip was adverse, exclusive, under a claim of right, open and notorious, actual and continuous for a period of 10 years ( see, RPAPL 501 [as amended eff July 7, 2008]; Sawyer v Prusky , 71 AD3d 1325 , 1326 [3d Dept 2010]; see also, Dekdebrun v Kane, 2011 WL 1088282, [4th Dept Mar. 25, 2011]). If any of these elements is wanting, the adverse possession claim fails and is subject to dismissal ( see, Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 192 AD2d 501, 503 [2d Dept, 1993]).
While plaintiff asserts that he has a right to occupy the structure by virtue of a reversion theory, he makes no claim of actual possession of the disputed land. Plaintiff has not disputed by affidavit that Driscoll has been the only person to use the storage room enclosure. Plaintiff's possession must be actual and not constructive and "it must be a physical occupation of the land as contrasted with a constructive possession which follows in the wake of title" (2 Rasch, New York Law Practice of Real Property § 30:41, at 202). "Actual possession is the same as pedis possessio or pedis positio, and these mean a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupation of it, as a real demonstrative act done. It is the contrary of a possession in law, which follows in the wake of title, and is called constructive possession" ( Churchill v Onderdonk, 59 NY 134, 136 [1874]). The complaint fails to allege such actual possession of the storage room, the disputed property over which the storage room was constructed, or entry into the storage room.
Even assuming that the adverse possession claims were sufficiently pleaded, Driscoll's affidavit that he has had exclusive possession for a continuous period in excess of 10 years, is not refuted by an affidavit of facts to the contrary from plaintiff.
Furthermore, only by elimination of Driscoll's predecessor's rights can plaintiff establish the element of exclusivity. Creatively, plaintiff invents a reversion theory, that upon Shimer's death (Driscoll's predecessor), his rights to the structure he was entitled to build pursuant to the Shimer-Bradley Agreement reverted to Bradley (plaintiff's predecessor). The Shimer-Bradley Agreement is silent regarding such a reversion; moreover, it provides the exact opposite, that the agreement "shall apply to and bind the heirs, personal representatives, devisees and assigns of the parties hereto" [Complaint Ex 4] as aptly pointed out by Driscoll's attorney at oral argument. Furthermore, even without such language, the construction urged by plaintiff is not recognized under the law by which to eliminate Driscoll's predecessor's rights ( see generally, Board of Trustees of Museum of American Indian, Heye Found. v Bd. of Trustees of Huntington Free Lib. Reading Room, 197 AD2d 64, 75-76 [1st Dept 1994] [where the indenture itself makes no provision for reversion to the grantor, it is generally the case that none will be implied]). Such a theory without a legal basis and contrary to the documentary evidence results in the failure of the claims in the nature of adverse possession and renders them subject to dismissal (CPLR 3211 [a] [1]; [7]).
Pursuant to the Shimer-Bradley Agreement [Complaint Ex. 4], Driscoll's predecessor was granted the right to build or erect the structure, which now encroaches onto the disputed land. Driscoll's predecessor had exclusive right to build or erect a structure, which ultimately encroached on the Kalet property. Plaintiff's claims of adverse possession necessarily rest upon the acts of Driscoll and his predecessors. However, "[a] substantial interruption of the possession of any one of the adverse possessors in consequence of some act either of the owner, the claimant or a third person, destroys the continuity of possession ( see, 2 Rasch, New York Law Practice of Real Property § 30:50, Tacking, at 209). Here, the Kalet-Metcalf Agreement [Complaint Ex. 7] is such an interruption.
By his seventh cause of action, plaintiff seeks to invalidate the Kalet-Metcalf Agreement of 1955. Plaintiff would have this Court declare as invalid the Kalet-Metcalf Agreement, which formally recognized the boundary line and was on record when plaintiff obtained title to his property simply because plaintiff's predecessor was not a party. The failure of Kalet and Metcalf (defendants' predecessors) to include plaintiff's predecessor as a party to the agreement does not render the agreement invalid. Rather, the agreement is proof that plaintiff's predecessor was not the encroaching party and, thus, was unnecessary to the agreement. There would be no reason to seek any such agreement with a non-encroaching party, but only with the encroaching party who had the only right to build over that portion of the right of way.
The Kalet-Metcalf Agreement and the Sperati Map [City's Ex H] filed in the Cayuga County Clerk's Office gave record notice that plaintiff's property did not include the 1.9-foot strip of land and further defeat plaintiff's claims based on adverse possession. Unquestionably, plaintiff does not want the Court to examine the exact documents attached to the Clark affidavit that defeat his claims. Simply put, these exhibits demonstrate the baselessness of these claims.
Accordingly, the Court concludes that the second, third, fourth, fifth and seventh causes of action are subject to dismissal based on a defense founded upon documentary evidence and for failure to state a cause of action (CPLR 3211 [a] [1]; [7]).
Furthermore, even if the claims were sufficient, those causes of action would be subject to summary judgment (CPLR 3212). The documentary evidence shows that the City is entitled to dismissal of these claims and DiBartolomeo's unsworn letter and affidavit that the Kalet wall encroaches on plaintiff's property is insufficient to controvert the documentary evidence. DiBartolomeo did not start his measurements at the starting point for the northern line in plaintiff's deed, which is along the centerline of a party wall. Also, plaintiff has not refuted, with proof in admissible form, Driscoll's exclusive possession of the storage room.
II. Obstruction of the Right of Way
Plaintiff claims in his sixth cause of action that the City will block his access to his parking space and obstruct the right of way. He requests that the City and its designees be preliminarily and permanently enjoined from placing any objects upon the plaintiff's property, and that the City be preliminarily and permanently enjoined from placing any further structures, markers, or any other items onto or obstructing plaintiff's property and/or right-of-way. By reason of resolution of the property dispute as set forth herein, the plaintiff has no right to a permanent injunction despite being granted a limited preliminary injunction.
Regarding plaintiff's assertion of damages by virtue of the license previously granted, plaintiff's complaint does not seek monetary damages and is in the nature of equitable relief. Accordingly, the sixth cause of action must be dismissed.
III. Taxpayer Action Causes of Action
Plaintiff's eighth and ninth causes of action assert pursuant to General Municipal Law § 51 taxpayer actions of (1) unconstitutional gift and waste of taxpayer funds and (2) illegal spending.
Contrary to the City's contention, the failure to post a bond is not fatal to these claims. It has been held that the failure to post a bond may be cured nunc pro tunc ( see, Resnick v Town of Canaan , 38 AD3d 949 [3d Dept 2007]).
"The decisions under [General Municipal Law §] 51 make it entirely clear that redress may be had only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes" ( Kaskel v Impellitteri, 306 NY 73, 79 [1953]). In Betters v Knabel, 288 AD2d 872 (4th Dept 2001), the Fourth Department indicated that:
"a taxpayer action pursuant to [GML § 51] lies 'only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes'" . . . [and that] [i]n order to state a cause of action under [GML] § 51, 'special allegations of waste tied to corruption have been required' . . . Allegations of illegality alone are an insufficient basis for a taxpayer's suit under General Municipal Law § 51"
( id. at 872 [citations omitted]).
Like the Betters plaintiffs, here plaintiff has failed to allege the requisite fraud, collusion, corruption, or bad faith on the part of the City or its officials leading to the claimed waste of taxpayer funds and instead has alleged that, with the clarity of hindsight, the City engaged in bad judgment in first seeking to rehabilitate the Kalet building only to decide later to demolish it. "A claim of bad judgment does not amount to a claim of bad faith . . . it is evident . . .that the real issue is not . . . a question of irresponsibility or malfeasance, but merely a difference of opinion as to whether the property should be sold and returned to the tax rolls or put to some public-benefit use" ( Lubkemeier v City of New York, 79 Misc 2d 786, 788 [Sup Ct NY County 1974]).
Furthermore, plaintiff's allegation that the City does not have an agreement with the County to turn over possession of the building after it is torn down undermines the claim that the transaction to the County, College and the Music Theater Festival (MTF) is a gift in violation of the State Constitution and a waste of taxpayer funds. Furthermore, the assertions in plaintiff's affirmation is opposition to the motion for summary judgment indicate that the County of Cayuga may have engaged in fraud, not the City, by seeking demolition costs as part of its proposal. Plaintiff has not sued the County of Cayuga.
The Court concludes that plaintiff's allegations in these two causes of action are facially insufficient to state a cause of action under General Municipal Law § 51 ( see, Matter of Town of Coeymans v City of Albany, 284 AD2d 830 [3d Dept], lv denied 97 NY2d 602) and must be dismissed. Accordingly, the Court dismisses the eighth and ninth causes of action (CPLR 3211 [a] [7]).
Comment on the statute of limitations is warranted. Although it has been held that a taxpayer action alleging illegal official acts or waste of municipal funds is subject to the three-year statute of limitations set forth in CPLR 214 (2) ( see, Charleson v City of Long Beach, 297 AD2d 775, 777 [2d Dept 2002]; Shechtman v Sverdrup Parcel Consultants, 226 AD2d 268 [1st Dept 1996]), the reasoning to impose a one-year statute of limitations set forth in CPLR 215 (4) found in Clowes v Pulver, 258 AD2d 50 (3d Dept 1999) (Graffeo, J.) is more persuasive. Here, plaintiff contends that "Federal tax dollars went into rehabilitation of the Kalet structure just over 5 years ago" [Plaintiff's Attorney Affirmation in opposition to summary judgment ¶ 89]. Applying the one-year statute of limitations measure from when the money was spent five years ago, the claim of waste is time barred and is subject to dismissal (CPLR 3211 [a] [5]).
IV. Violation of Attorney Work Product Privileges
Plaintiff's tenth cause of action asserts that the City obtained plaintiff's work product from Watkins, a surveyor previously hired by plaintiff, and used it in its demolition plans.
The work product doctrine is designed to protect trial preparation materials from discovery; it is not subject to the same stringent confidentiality and waiver requirements and rules as the attorney-client privilege. For example, the work product privilege may be waived when work product material is disclosed to third parties if the disclosure substantially increases the opportunity for potential adversaries to obtain the information. Documents that either were disclosed to, or made by, third parties not in an agency relationship with a party, or which were of a business, rather than a legal, nature do not fall under the attorney-client or attorney work product privileges so as to be non-discoverable ( see, 44 NY Jur 2d, Disclosure § 85). Even if Watkins disclosed information that he obtained from plaintiff, Watkins was under no duty of confidentiality to plaintiff absent such an agreement or proof of Watkins' knowledge that he was hired for litigation, which has not been pleaded here.
Finally, the Court notes that although inconsistency among claims is allowed, plaintiff's causes of action pleaded in the alternative are tellingly indicative of an attempt to plead any cause of action in the hopes that something will survive.
In light of the above decision, it is the judgment of this Court that the City owns the 1.9-foot strip of land in dispute and plaintiff's eastern boundary line is a straight line. The limited preliminary injunction previously granted with respect to that portion of the west wall of the Kalet building in dispute and necessary for the support of the enclosed storage room, roof, steps, and railing is vacated.
Driscoll's predecessor was given the exclusive right, pursuant to the Shimer-Bradley Agreement, to build or erect any structure over that portion of the right of way and Driscoll retains that right through his deed. Concomitant with the right to build is the right to remove or demolish, because demolition may be essential to building. Should the City decide not to demolish that portion of the Kalet wall to which the storage room, and its roof, steps, and railing are attached, for future reference plaintiff's deed should be revised to note the Kalet-Metcalf Agreement and this judgment so as to avoid future disputes.
Given that the property dispute is resolved, the amended notice of pendency is cancelled. However, the license granted the City by decision and order dated March 24, 2011 (VanStrydonck, J.) will remain in effect until May 1, 2011. The City has not requested sanctions and has not requested any relief other than dismissal of the first amended verified complaint. Accordingly, all causes of action and the amended complaint are dismissed.
The above constitutes the decision and judgment of the Court.