Opinion
No. 13–3738.
12-31-2014
Elena T. LEVINSON and William J. Levenson, Plaintiffs, v. Estate of Nick LAVIERO, Teresa Hornung Rudolph, Axel Rudolph, Ulster County, Thomas H. Jackson, Jr., as the Director of the Ulster County Real property Tax Service Agency and Heidi Clark, as the Assessor of the Town of Shandaken, Defendants.
Kenneth L. Ayers, Esq., of Counsel, The Ayers Law Firm, PLCC, Palatine Bridge, Attorneys for Plaintiff. Michael J. Moore, Esq., of Counsel, Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany, Attorneys for Defendants Teresa Horning Rudolph and Axel Rudolph. Lori E. Petrone, Esq., of Counsel, Petrone and Petrone, P.C., Utica, Attorneys for Defendants Teresa Horning Rudolph and Axel Rudolph on Plaintiffs' Sixth Cause of Action. John L. Barone, Esq., of Counsel, Tooher & Barone, LLP, Albany, Attorneys for the Estate of Nick Laviero. Beatrice Havranek, Ulster County Attorney, Kingston, Attorney for Ulster County and Thomas H. Jackson, Jr. Kyle W. Barnett, Esq., of Counsel, Van Debater & Van Debater, LLP, Poughkeepsie, Attorneys for Defendant Heidi Clark, as the Assessor of the Town of Shandaken.
Kenneth L. Ayers, Esq., of Counsel, The Ayers Law Firm, PLCC, Palatine Bridge, Attorneys for Plaintiff.
Michael J. Moore, Esq., of Counsel, Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany, Attorneys for Defendants Teresa Horning Rudolph and Axel Rudolph.
Lori E. Petrone, Esq., of Counsel, Petrone and Petrone, P.C., Utica, Attorneys for Defendants Teresa Horning Rudolph and Axel Rudolph on Plaintiffs' Sixth Cause of Action.
John L. Barone, Esq., of Counsel, Tooher & Barone, LLP, Albany, Attorneys for the Estate of Nick Laviero.
Beatrice Havranek, Ulster County Attorney, Kingston, Attorney for Ulster County and Thomas H. Jackson, Jr.
Kyle W. Barnett, Esq., of Counsel, Van Debater & Van Debater, LLP, Poughkeepsie, Attorneys for Defendant Heidi Clark, as the Assessor of the Town of Shandaken.
MICHAEL H. MELKONIAN, J.
Plaintiffs Elena T. Levenson and William J. Levenson (the “Levenson's”) commenced this Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to determine and quiet title to a 2 +/acre parcel of real property located off Upper Birch Creek Road in the Town of Shandaken, Ulster County designated as Parcel No. 1.3–1–39 on the Ulster County tax map (the “disputed property” or “Parcel 39”), to obtain a declaratory judgment generally on the rights and relations of the parties with respect to Parcel 39, and for damages in connection with an alleged continuing trespass thereon. Plaintiffs also seek a declaration pursuant to Article 15 that they hold a valid and legal easement over the western most 16 feet of defendants Teresa Hornung Rudolph and Axel Rudolph's (the “Rudolph's”) land.
Defendants Teresa Hornung Rudolph and Axel Rudolph (the “Rudolph's”) now move pursuant to CPLR § 1001(a) and RPAPL § 1511(2) to join Blake and Virginia McDermott (the “McDermott's”) as necessary parties to this action. Defendant the Estate of Nick Laviero (the “Estate”) moves pursuant to CPLR §§ 1018 and 1021 for an order substituting Anthony Laviero, Individually, in the place and stead of the Estate. Plaintiffs Elena T. Levenson and William J. Levenson (the “Levenson's”) oppose both motions and cross-move pursuant to CPLR § 1018 directing the joinder of Anthony Laviero as an additional party. The parties also move pursuant to 22 NYCRR § 130–1.1 awarding them their costs, attorneys's fees and sanctions for each other's alleged frivolous conduct.
The complaint alleges that plaintiffs have title to Parcel 39 by virtue of a 1961 deed from the heirs of Obed Cure. According to plaintiffs, Parcel 39 is located in “Lot 65” of the “Armstrong Tract,” which is part of “Great Lot 8” in the “Hardenburgh Patent.” Plaintiffs allege that in 1887, Parcel 39 was subdivided out of a larger tract of land and was conveyed to Virginia M. Maben by deed dated September 1, 1887. Plaintiffs allege that after various conveyances, Obed Cure acquired title to Parcel 39 and that in 1961, his heirs deeded Parcel 39 to plaintiff Elena T. Levenson and her husband, Arthur Levenson, who is now deceased. Plaintiffs allege that plaintiff Elena T. Levenson conveyed to herself and to her son, plaintiff William J. Levenson, title to Parcel 39 by deed dated March 8, 1991.
Plaintiffs allege that the first tax maps in Ulster County, published in 1983, incorrectly mapped the Estate's parcel of land to reflect that it encompasses Parcel 39. Plaintiffs claim that contrary to the 1983 tax maps, the Estate's property is actually a 4 .16 acre parcel that “traces back to property conveyed by John Cure to John Campbell Maben in 1881” and is located at “the southeast corner of the western part of Lot 64, Great Lot 8, Armstrong Tract, Hardenburgh Patent” (the “4.16 acre parcel”) which is½ miles away from Parcel 39. Plaintiffs further allege that the 1983 tax maps also failed to recognize and show an easement in favor of plaintiffs over the western most 16 feet of the Rudolph's land.
By way of an answer dated January 10, 2014, the Estate has advanced affirmative defenses and counterclaims seeking a declaration pursuant to Article 15 that it owns Parcel 39 in fee simple absolute. The Estate alleges that it is the owner of Parcel 39 by way of a deed dated August 8, 1973 and recorded at L.L. 1342, P. 401 (the “1973 deed”) from Ulster County to Nick Laviero, deceased. The Estate counterclaims for relief under Article 15 to the effect that, if in the event plaintiffs are found to be the record owners, they have acquired Parcel 39 through adverse possession. The Estate also demands that a continuing trespass be found as against the plaintiffs and that it be entitled to damages. The Estate claims that the doctrine of laches bars plaintiffs from advancing any claims herein. Toward that end, it alleges that plaintiffs have never paid real estate taxes on Parcel 39 and the relevant and underlying tax maps and tax assessor records fail to recognize any ownership interest of plaintiffs therein.
The Rudolph's motion to join the McDermott's as additional party defendants is denied. In support of the motion, the Rudolph's and the Estate claim that the 4.16 acre parcel, which plaintiffs claim is the land the Estate actually owns, is not owned by the Estate, but is owned by the McDermott's. The plaintiffs, however, make no claim to the 4.16 acre property. As such, the McDermott's will not “be inequitably affected by a judgment in the action” (CPLR § 1001[a] ), nor do the McDermott's “have an estate or interest in the real property which may in any manner be affected by the judgment” (RPAPL § 1511[2] ). Thus, contrary to the Rudolph's contention, the McDermott's are not necessary parties to the action (see, Boccardi v. Horn Constr. Corp., 204 A.D.2d 502, 502 [2nd Dept.1994] ).
The Estate's motion to substitute Anthony Laviero as a party defendant in place of the Estate is also denied. According to the Estate, it transferred “all interest in the Disputed Parcel” to non-party Anthony Laviero pursuant to Executor's Deed dated June 6, 2014, executed June 7, 2014 and “the Disputed Parcel is no longer an asset of the Estate.” CPLR § 1018 provides: Upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action. In light of, among other things, the pending trespass claim against the Estate, a joinder, rather than substitution of Anthony Laviero, is appropriate (Red House Farm, Inc. v. Lad Enterprises, LLC, 122 AD3d 972 [3rd Dept.2014] ; J.C. Tarr, Q.P.R.T. v. Delsener, 70 AD3d 774 [2nd Dept.2010] ). Accordingly, the Estate's motion is denied and plaintiffs' cross-motion is granted to the extent that Anthony Laviero is hereby joined as a party defendant.
Counsel for the plaintiffs is directed to serve a copy of this order upon the Clerk of the Ulster County Supreme Court who is directed to amend her records to reflect the change in the caption.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to plaintiffs' counsel. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry. Memorandum constitutes the Decision and Order of the Court.
SO ORDERED.
Papers Considered:
Notice of Motion dated July 30, 2014;
Affidavit of Terence G. Carle dated July 25, 2014, with exhibits annexed;
Affirmation of Michael J. Moore, Esq., dated July 30, 2014, with exhibits annexed;
Memorandum of Law;
Affirmation of John L. Barone, Esq., dated August 7, 2014;
Affidavit of William J. Levenson dated August 20, 2014, with exhibits annexed;
Affirmation of Kenneth L. Ayers, Esq., dated August 22, 2014, with exhibits annexed;
Affirmation of Lori E. Petrone, Esq., dated August 23, 2014;
Correspondence dated September 12, 2014;
Correspondence dated September 18, 2014;
Correspondence dated September 19, 2014;
Notice of Motion dated August 29, 2014;
Affirmation of John L. Barone, Esq., dated August 29, 2014, with exhibits annexed;
Affidavit of Anthony Laviero dated August 29, 2014;
Affidavit of Joseph Laviero dated August 29, 2014, with exhibits annexed;
Notice of Cross–Motion dated September 15, 2014;
Affirmation of John L. Barone, Esq., dated September 22, 2014, with exhibits annexed;
Affirmation of Kenneth L. Ayers, Esq., dated September 15 2014;
Affidavit of William M. Schirmer dated September 9, 2014, with exhibits annexed.