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Hitchcock v. Boyack

Appellate Division of the Supreme Court of New York, Third Department
Nov 2, 2000
277 A.D.2d 557 (N.Y. App. Div. 2000)

Opinion

November 2, 2000.

Appeal from an order of the Supreme Court (Dier, J.), entered October 18, 1999 in Washington County, which, inter alia, granted defendants' motions to dismiss the complaint.

Richard E. Hitchcock, Ticonderoga, appellant in person.

Herrmann, Pelagalli Weiner (Richard J. Herrmann Jr. of counsel), Clifton Park, for Henry P. Boyack, respondent.

Wilson S. Mathias, Queensbury, for Arthur Secor and another, respondents.

Before: Cardona, P.J., Carpinello, Graffeo, Mugglin and Lahtinen, JJ.


MEMORANDUM AND ORDER


This appeal is part of an ongoing dispute between the parties concerning the use of a roadway leading from the Village of Ticonderoga, Essex County, to Black Point (now known as Tiroga Point) on Lake George and a beach known as the Black Point Sand Beach. In February 1996, plaintiff, a property owner claiming easements for use of the roadway and beach, commenced an action pursuant to RPAPL article 15 on behalf of himself and others similarly situated against adjoining property owners, defendants Henry P. Boyack, June Boyack, William Boyack, Robert Stefanic, Edda Stefanic, Arthur Secor and Lucile Secor (hereinafter collectively referred to as defendants) alleging, inter alia, that defendants improperly interfered with plaintiff's use of the roadway and beach. On appeal, this Court upheld the dismissal of the action based upon the failure to join as necessary parties other property owners who may be either beneficially or adversely affected by the outcome of the litigation involving the construction of language of a certain deed under which plaintiff claimed the easements (see, 256 A.D.2d 842).

In May 1999, following our decision in the case, plaintiff commenced this action against the same defendants alleging, inter alia, that they intentionally and maliciously obstructed his use of the roadway and beach and sought abatement of the alleged nuisance as well as monetary damages. Defendants moved to dismiss the complaint on grounds, inter alia, that it was time barred and for failure to join necessary parties. Plaintiff, in turn, cross-moved for summary judgment. Supreme Court, inter alia, dismissed the complaint as barred by the Statute of Limitations and the doctrine of laches resulting in this appeal.

Insofar as the allegations forming the basis of plaintiff's claims of nuisance involve actions defendants began in 1984 which have allegedly recurred and have continued, we cannot say on the record before us that the complaint is barred by the Statute of Limitations or the doctrine of laches (see generally, Sova v Glasier, 192 A.D.2d 1069). Nevertheless, we find that the complaint must be dismissed for failure to join necessary parties.

In order to prevail upon a cause of action for private nuisance, the plaintiff must demonstrate "(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" (Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570; see, Jennings v. Fisher, 258 A.D.2d 722, 723). Therefore, in the case at hand, plaintiff's right to use the roadway and beach is an essential element to his recovery upon the theory of nuisance. Resolution of this issue is dependent upon construction of the deed under which plaintiff claims he acquired the easements. That determination was the same question involved in plaintiff's prior action (see, 256 A.D.2d 842, supra). Moreover, a review of plaintiff's present complaint reveals that the allegations contained therein are essentially the same as contained in the complaint set forth in the prior action although couched under a different legal theory. Since property owners not named as parties in the instant action would certainly be affected by any determination regarding whether plaintiff has legal rights to use of the roadway and beach, we find that such property owners are necessary parties to the within action. Since they were not named, the complaint must be dismissed. In view of our disposition, we need not consider plaintiff's remaining arguments.

ORDERED that the order is affirmed, without costs.


Summaries of

Hitchcock v. Boyack

Appellate Division of the Supreme Court of New York, Third Department
Nov 2, 2000
277 A.D.2d 557 (N.Y. App. Div. 2000)
Case details for

Hitchcock v. Boyack

Case Details

Full title:RICHARD E. HITCHCOCK, Appellant, v. HENRY P. BOYACK et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 2, 2000

Citations

277 A.D.2d 557 (N.Y. App. Div. 2000)
715 N.Y.S.2d 108

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