Opinion
Index No. EF2021-69433
01-27-2023
The Triple F Club, Inc., Petitioner, v. Craig Gibney and Janet Gibney, Respondents.
Gregory V. Canale, Queensbury, for petitioner. Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Paula Nadeau Berube of counsel), for respondents.
Unpublished Opinion
Gregory V. Canale, Queensbury, for petitioner.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Paula Nadeau Berube of counsel), for respondents.
Robert J. Muller, J.
Petitioner is a hunting club which owns a parcel of vacant land in the Town of Johnsburg, Warren County. This parcel is accessed using an old logging road that traverses a contiguous parcel of vacant land belonging to respondent Craig Gibney and his wife, respondent Janet Gibney, who reside in Orangeville, Pennsylvania. In May 2018, petitioner commenced an action against respondents alleging that it was entitled to a prescriptive easement over the logging road. This action-which was precipitated by respondents' placement of boulders to prevent petitioner from accessing the road-was ultimately settled by proposed Order submitted to the Court by counsel for respondents on August 12, 2019. The cover letter accompanying the proposed Order indicated that it was "approved by counsel for the parties and resolve[d] the outstanding litigation." The Order was thereafter signed and entered on August 15, 2019. As relevant here, the Order provided that
"within one hundred and twenty (120) days of this Order, [petitioner] shall install and maintain two locked gates along the old logging road, with one gate to be selected by [respondents] and located... and installed within ten (10) feet of the west boundary of [respondents'] property where the old logging road meets Warren County Route 57, and the second gate to be located and installed at the east boundary of [petitioner's] property where the old logging road runs onto [respondents'] property."
The Order further provided "that upon installation of the gates..., [petitioner] shall remove the boulders now blocking passage of the old logging road from County Route 57," as well as "that, in absent [sic] of an emergency, no less than four (4) days in advance, [petitioner] shall notify [respondents] via email of the names and dates when [its] members will be using [the] old logging road." Finally, the Order provided that "in the event of a conflict, the parties shall first work between themselves toward an amicable resolution, and in the event an amicable resolution cannot be reached, the parties may address such dispute through arbitration."
In accordance with this Order, petitioner installed a locked gate at the eastern end of its property where the old logging road meets respondents' property. Petitioner further installed a locked gate at the western end of respondents' property where the old logging road meets County Route 57 and removed the boulders there. Respondents were not satisfied with this latter gate and, on October 16, 2019, their counsel sent correspondence to counsel for petitioner stating as follows:
"My clients have selected the gate to be installed at their property line pursuant to the Order. The current gate is not acceptable as it can easily be lifted and removed completely....
"My client[s have] worked with Walt Goscimisky of Whistle Stop Fence Company [in Catawissa, Pennsylvania] in designing an appropriate gate that cannot be easily removed. Mr. Goscimisky has the information relative to the gate and is anticipating a call from [petitioner]...."
Petitioner thereafter contacted Goscimisky and was advised that the price of the gate selected by respondents was $2,400.00, with shipping estimated at "an additional minimum of $2,500.00." Respondents, however, contend that shipping-at that time-would have cost only $500.00. In any event, petitioner was unwilling to pay for this gate and suggested various alternatives manufactured locally which it believed would offer the same level of security for respondents' property. Respondents were in turn unwilling to waver from their selected gate. In November 2019 they removed the gate placed at the western end of their property by petitioners and replaced the boulders to block petitioner from using the old logging road.
Counsel for respondents sent an email to counsel for petitioner on December 21, 2021 advising "that now the cost[ ] of the gate would more likely be $3,200[.00] and shipping would also go up [from $500.00] as a result of the market." It is unclear what the gate with shipping would cost at present.
On May 3, 2021, counsel for petitioner sent correspondence to counsel for respondents requesting that the parties proceed to arbitration. After apparently receiving no response, petitioner commenced this CPLR article 75 proceeding on September I, 2021 to compel respondents to engage in arbitration (see CPLR 7502 [a]). Petitioner also seeks a preliminary injunction whereby respondents must remove the boulders placed across the road and refrain from blocking the road pending the conclusion of this proceeding (see CPLR 7502 [c]). Respondents then filed an answer and cross petition for the appointment of an arbitrator (see CPLR 7504).
Meanwhile, on October 24, 2021, Timothy Lawrence-a member of petitioner-removed the boulders at the western end of respondents' property with the help of a non-member who was operating a front-end loader. Respondents confronted Lawrence and a verbal altercation ensued, with the police being called. Respondents further contend that
"[i]mmediately after the Order was entered,... Lawrence... began emailing [Janet Gibney] daily claiming that he intended to use the old logging road for access to [petitioner's] property[, notwithstanding] that he does not use the... road on a daily or even monthly basis.... This has been addressed by our counsel before this Court on at least two occasions and the daily emails continued. They finally ceased on or about January 12, 2022 following input from the Court."
On March 3, 2022, respondents filed a motion by Order to Show Cause for an Order
(1) finding petitioner in contempt of court as a result of its failure to comply with the Order;
(2) directing petitioner to order, transport and install the gate selected by respondents at the western end of respondents' property within sixty (60) days;
(3) directing petitioner to reimburse respondents for the costs incurred to date in maintaining the boulders at the western end of respondents' property;
(4) directing petitioner to instruct its members not to harass respondents and, further, to provide respondents with the requisite notice when they intend to use the old logging road;
(5) prohibiting Lawrence from using the old logging road; and
(6) directing petitioner to pay respondents' costs and counsel fees in connection with this proceeding.
Conferences were subsequently held to discuss the matter and, on November 28, 2022, counsel for the parties filed a stipulation agreeing that "the Court shall act as the arbitrator and hear and resolve, pursuant to [a]rticle 75 of the CPLR, the controversies... raised by and between the parties in their respective moving papers and responses." Counsel has requested that the Court so-order this stipulation. The Court will now proceed with consideration of (I) that aspect of the petition seeking a preliminary injunction; (2) respondents' motion for, inter alia, contempt; and (3) the parties' joint request that the Court act as arbitrator pursuant to CPLR article 75.
Petitioner's Application for Preliminary Injunction
Beginning with that aspect of the petition which seeks a preliminary injunction, "[t]o establish entitlement to a preliminary injunction, [petitioner is] required to demonstrate a likelihood of success on the merits, irreparable harm if the injunction is not granted and that the balance Of the equities is in its favor" (Sync Realty Group, Inc. v Rotterdam Ventures, Inc., 63 A.D.3d 1429, 1430 [2009]; see CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005]; Emerald Green Prop. Owners Assn., Inc. v Jada Developers, LLC, 63 A.D.3d 1396, 1397 [2009]).
Beginning with the first criterion, "the showing of a [l]ikelihood of success on the merits required before a preliminary injunction may be... issued must not be equated with the showing of a [c]ertainty of success" (Tucker v Toia, 54 A.D.2d 322, 326, [1976]; see Cooperstown Capital, LLC v Patton, 60 A.D.3d 1251, 1252-1253, 876 N.Y.S.2d 186 [2009]). Here, the Order simply states that respondents may select the locked gate to be placed by petitioner at the western end of their property. According to respondents, "there is no limit on the expense of the gate, and if there was to be one, this should have been addressed by [petitioner]" when negotiating the terms of the Order. According to petitioner, on the other hand, respondents' selection of a custom gate from Pennsylvania with hundreds if not thousands of dollars in shipping expenses was not anticipated during negotiations and is unreasonable in any event, as there are several companies in and around Johnsburg that sell locked gates capable of securing respondents' property from trespassers.
Under the circumstances, the Court finds that petitioner has succeeded in demonstrating a likelihood of success on the merits. While petitioner may not ultimately succeed, there is no question that the Order is inherently vague with respect to the price of the gate selected, as well as where the gate might be purchased from and whether petitioner is responsible for shipping costs.
Turning now to the issue of irreparable harm, petitioner contends that its members will "not be able to access their property whatsoever until [r]espondents' boulders are removed, as there is no other means of ingress and egress to their property other than the [old logging road]." Petitioner further contends that "its members have already been deprived of [the] use and access to their property for nearly two (2) years, including... two (2) summer seasons, which are the busiest for [p]etitioner as its members use the property for fishing and hiking." Respondents do not appear to dispute that petitioner's members are unable to access the property as a result of the boulders. Instead, respondents contend that if petitioner paid to purchase and ship the gate they selected in Pennsylvania, then its members could access the property.
To the extent that petitioner has readily demonstrated that it will continue to be deprived of the right to use and enjoy its property absent the issuance of a preliminary injunction, the Court finds that it has made the requisite showing of irreparable harm (see Sardino v Scholet Family Trust, 192 A.D.3d 1433, 1435 [2021]; Biles v Whisher, 160 A.D.3d 1159, 1161 [2018]). Finally, insofar as the balance of the equities is concerned, the record demonstrates quite clearly that-while unwilling to purchase and ship the gate selected by respondents in Pennsylvania-petitioner has attempted to work with respondents in procuring a similar gate locally that does not come with such high shipping expenses. For example, on December 3, 2019, William Museler-petitioner's treasurer-sent an email to Janet Gibney stating as follows:
"We received a sketch of a gate from Walt and we agree that the 6" SCH 40 pipe vertical posts filled with concrete should survive anything except earth moving machinery. However, we would like to propose a simpler design for a gate which would be less prone to misalignments, earth movements due to frost heaves, etc. and less expensive as well (See att. sketch). Since the gate is to stop vehicles (snowmobiles, 4 wheelers, etc. can just go around the gate in any case); a single structural steel channel beam at 3 ft. above grade would be more than adequate to stop any vehicle.
"I have confirmed that the materials are available locally in Albany and one of our members is a welder who can cut out the caps and lock tabs. The 1/2" thick steel tabs for the locks would be welded in place once the posts have set up in their concrete-filled holes so that at least initially they will be centered and aligned with the slots in the channel beam. Those slots will allow for a reasonable amount of both horizontal and vertical movement."
On January 9, 2020, Janet Gibney sent an email to Museler directing him to "contact Mr. Goscimisky... for details concerning the required gate that should be installed." Museler then responded by email on January 15, 2020, again offering to construct a similar gate with local materials. Respondents, however, remained steadfast in their unwillingness to waver from the gate in Pennsylvania. Given not only petitioner's inability to access its property but also respondents' seeming refusal to "work... toward an amicable resolution," as required under the terms of the Order, the Court finds that the balance of the equities lies in favor of petitioner.
Based upon the foregoing, petitioner's motion for a preliminary injunction is granted to the extent that it is authorized to remove the boulders at the western end of respondents' property pending the conclusion of this proceeding. Immediately upon removal of the boulders, however, petitioner shall install a locked gate within ten (10) feet of the western boundary of respondents' property where the old logging road meets Warren County Route 57, which gate shall not be easily lifted and removed and shall reasonably secure respondents' property from trespassers. The keys to this locked gate shall be distributed in accordance with the terms of the Order. The placement of this gate is not intended to resolve the dispute presently before the Court but, rather, to maintain the status quo pending resolution of the dispute (see Petry v Gillon, 199 A.D.3d 1277, 1280 [2021]; Waldron v Hoffman, 130 A.D.3d 1239, 1239 [2015]).
The issue of an undertaking-which remains applicable under the express terms of CPLR 7502 (c)-was not addressed by either party. That being said, given that petitioner has been directed to place a gate at the western end of respondents' property, the Court finds a nominal undertaking in the amount of $100.00 to be appropriate (see Boyd v Assanah, 210 A.D.3d 855, 856-857 [2022]; Pouncy v Dudley, 27 A.D.3d 633, 635 [2006]; Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Dept. of Envtl. Conservation, 65 Misc.3d 1211 [A], *12 [Sup Ct, Warren County 2019]). Petitioner is hereby directed to file such undertaking within ten (10) days of the date of this Decision and Order.
Respondents' Motion by Order to Show Cause
Each aspect of respondents' motion will be addressed ad seriatim, beginning with that aspect seeking to hold petitioner in contempt as a result of its failure to comply with the Order. While respondents have failed to indicate whether they are seeking to hold petitioner in civil or criminal contempt, the distinction is largely irrelevant under the circumstances. In this regard, "[t]o sustain a finding of either civil or criminal contempt based on an alleged violation of a court order[,] it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect[,] that the order has been disobeyed' and that the charged party 'had knowledge of the court's order'" (Town of Copake v 13 Lackawanna Props., LLC, 73 A.D.3d 1308, 1309 [2010], quoting Matter of Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY, 70 N.Y.2d 233, 240 [1987]; see Matter of McCormick v Axelrod, 59 N.Y.2d 574, 583 [1983], amended 60 N.Y.2d 652, [1983]). Here, the Order does not set forth an unequivocal mandate. As discussed above, the Order is inherently vague with respect to the price of the gate selected, as well as where the gate might be purchased from and whether petitioner is responsible for shipping costs. The Court thus declines to hold respondents in contempt of the Order.
The Court likewise declines to direct petitioner to order, transport, and install the gate selected by respondents within the next sixty (60) days, and further declines to direct petitioner to reimburse respondents for the costs incurred to date in maintaining the boulders at the western end of their property. These determinations are of course without prejudice to any final determinations in this proceeding.
Petitioner does not appear to oppose respondents' request that it instruct its members not to harass respondents and to provide respondents with the requisite notice when they intend to use the old logging road. This aspect of respondents' motion is therefore granted.
Turning now to respondents' request that Lawrence be prohibited from using the old logging road, the incident involving Lawrence removing the boulders from the western end of respondents' property was on October 24, 2021. Respondents submitted a recording of this incident, which was approximately two and a half hours long. Although Lawrence and the individual with him certainly expressed some unpleasantries, so too did respondents. Generally speaking, all that can be gleaned from the recording is the considerable animosity and discord between the parties-although the encounter did seem to end amicably enough. Respondents further indicate that Lawrence stopped sending his "daily emails" to Janet Gibney regarding use of the property on January 12, 2022. To the extent that more than one year has passed since any alleged harassment of respondents by Lawrence, the Court declines to prohibit him from using the old logging road. That being said, like all of petitioner's members Lawrence must refrain from harassing respondents.
Finally, the Court declines to direct petitioner to pay respondents' costs and counsel fees in connection with this proceeding. As set forth above, there is at least a question of whether respondents have refused to "work... toward an amicable resolution," as required under the terms of the Order.
Based upon the foregoing, respondents' motion is granted to the extent that petitioner shall instruct its members not to harass respondents and to provide respondents with the requisite notice when they intend to use the old logging road, and the motion is otherwise denied.
Parties' Joint Request that Court act as Arbitrator
The Court declines to so-order the stipulation whereby it shall act as arbitrator, as to do so would conflict with the provisions of CPLR article 75. Indeed, if the Court acts as arbitrator, then it is unclear where an application to confirm or vacate the arbitration award should be made (see CPLR 7510).
A conference has been scheduled for February 9, 2023 at 10:30 A.M. at the Warren County Courthouse to discuss the parties' options, with that aspect of the petition seeking to compel respondents to arbitrate and the cross-petition seeking the appointment of an arbitrator held in abeyance pending the completion of this conference.
Therefore, having considered NYSCEF document Nos. I through 18, 23 through 25, 28 through 34, and 38 through 56, it is hereby
ORDERED that the aspect of the petition seeking a preliminary injunction is granted to the extent that petitioner is authorized to remove the boulders at the western end of respondents' property pending the conclusion of this proceeding; and it is further
ORDERED that immediately upon removal of the boulders, petitioner shall install a locked gate within ten (10) feet of the western boundary of respondents' property where the old logging road meets Warren County Route 57, which gate shall not be easily lifted and removed and shall reasonably secure respondents' property from trespassers; and it is further
ORDERED that the keys to this locked gate shall be distributed in accordance with the terms of the Order; and it is further
ORDERED that petitioner shall file an undertaking in the amount of $100.00 within ten (10) days of the date of this Decision and Order; and it is further
ORDERED that respondents' motion is granted to the extent that petitioner shall instruct its members not to harass respondents and to provide respondents with the requisite notice when they intend to use the old logging road, and the motion is otherwise denied; and it is further
ORDERED that counsel shall appear for a conference on February 9, 2023 at 10:30 A.M. at the Warren County Courthouse; and it is further
ORDERED that the aspect of the petition seeking to compel respondents to arbitrate and the cross-petition seeking the appointment of an arbitrator shall be held in abeyance pending the completion of this conference.
The original of this Decision and Order has been e-filed by the Court. Counsel for petitioner is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.