Opinion
No. 225822008.
2010-09-15
Jonathan WOLFSOHN, Plaintiff v. SEABREEZE ESTATE LLC, Edgemere Beach Development LLC and Gotham Bank of New York, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 8 read on this motion by plaintiff Jonathan Wolfsohn for an order granting (a) renewal or reargument of the order of December 15, 2009, and with or without reargument (b) deeming the supplemental summons properly served and the answer of defendants Edgemere Beach Development LLC (Edgmere), and Gotham Bank of New York (Gotham Bank) properly served; (c) on consent of the parties dropping Seabreeze Estate LLC as a party; or in the alternative permitting the plaintiff to file and serve a supplemental summons and amended complaint to add Edgemere and Gotham Bank as defendants, nunc pro tunc; and (d) granting plaintiff's prior motion for partial summary judgment on the third cause of action and declare that his claim to title to the subject real property is governed by the law of adverse possession as set forth in Walling v. Przybylo, 7 N.Y.3d 228 [2006], and not by the amendments to the Real Property and Proceedings Law (L.2008, ch. 269), effective July 9, 2008; and in the alternative, declaring that the amendments to the Real Property and Proceedings Law (L.2008, ch. 269), effective July 9, 2008 either facially or as applied to plaintiff's claim are unconstitutional and void, as they deprive plaintiff of vested property rights guaranteed by Article I, Section 10 Constitution of the United States and Article I, Section 6 of the State Constitution; and striking all of defendants' affirmative defenses.
Papers
Numbered
Notice of Motion–Affirmations–Affidavit–Exhibits (A–J)..........1–5
Opposing Affirmation–Exhibit(A)....................6–8
Upon the foregoing papers this motion is determined as follows:
A motion for reargument is one “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” (CPLR 2221[d][2].) It is well settled that “[i]ts purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.” (Foley v. Roche, 68 A.D.2d 558, 567–568 [1979].) Nor does a motion for reargument “offer an unsuccessful party successive opportunities to present arguments not previously advanced.” (Pryor v. Commonwealth Land Title Ins. Co., 17 A.D.3d 434 [2005].)
This court in its prior order made no determination regarding the validity of any of Edgemere and Gotham Bank's affirmative defenses. Therefore, the fact that counsel for plaintiff and counsel for these defendants had entered into a stipulation, whereby Edgemere and Gotham Bank agreed to waive all jurisdictional defenses, does not form a basis for reargument.
The court did not misapprehend the law or facts with respect to Seabreeze's posture as a defendant. Plaintiff commenced this action against Seebreeze, the former owner of the subject real property, and alleged that he thereafter discovered that the subject real property is now owned by Edgemere. The court in its prior order stated that as plaintiff had failed to present any evidence that he had properly discontinued the action pursuant to CPLR 3217, Seabreeze remains a defendant in the action. The court further stated that plaintiff is not entitled to amend the caption of his own accord.
Finally, the court did not misapprehend the law or facts with respect to the supplemental summons, and amended complaint. The court, in its prior order, made no determination as to whether Edgemere and Gotham Bank were properly joined as parties in this action, and merely noted that they were added as defendants after the time in which plaintiff could add new parties, as of right, had expired.
In view of the foregoing, that branch of plaintiff's motion which seeks leave to reargue the order of December 15, 2009, is denied, as he has failed to establish that the court overlooked or misapprehended any matters of fact or law.
A motion to renew the prior motion is not necessary here, as the court in its order of December 15, 2009 granted plaintiff leave to renew, upon the service of its motion on Seabreeze. In view of the fact that said motion has now been served on Seabreeze, the motion is now properly before the court.
At the outset, the court notes that plaintiff has persisted in removing Seabreeze from the caption of this action, despite the court's directives in its order of December 15, 2009. Although “parties to a civil dispute are free to chart their own litigation course”, unless public policy is affronted, this principle is only applicable where the parties have entered into a stipulation (Salesian Soc. v. Village of Ellenville, 41 N.Y.2d 521, [1977];see also T.W. Oil v. Consolidated Edison Co., 57 N.Y.2d 574, 579–580, [1982];Rector, Church Wardens & Vestrymen of St. Bartholomew's Church v. Committee to Preserve St. Bartholomew's Church, 56 N.Y.2d 71, 76, [1982];Martin v. City of Cohoes, 37 N.Y.2d 162, 165, [1975];Cullen v. Naples, 31 N.Y.2d 818, 820, [1972];see generally Saca v. Canas, 28 Misc.3d 397 [2010] ). Here, plaintiff did not enter into a written stipulation with Seabreeze or its counsel, and conversations between counsel are insufficient to discontinue the action against Seabreeze. Regardless of plaintiff's intentions, as this action has not been voluntary discontinued as to Seabreeze pursuant to CPLR 3217, Seabreeze remains a named defendant in this action.
It is beyond dispute that Edgemere and Gotham were added as defendants, after the time in which plaintiff could add new parties, as of right, had expired. However, the failure to obtain prior leave of court is a waivable defect, and is not fatal in all instances ( see He–Duan Zheng v. American Friends of the Mar Thoma Syrian Church of Malabar, Inc., 67 A.D.3d 639,[2009]Gross v. BFH Co., 151 A.D.2d 452, [1989];see also Tarallo v. Gottesman, 204 A.D.2d 303, [1994];Santopolo v. Turner Constr. Co., 181 A.D.2d 429, [1992];cf. Public Adm'r of Kings County v. McBride, 15 A.D.3d 558, [2005] ). Edgemere and Gotham Bank failed to raise the defense of improper joinder in a timely, pre-answer motion to dismiss the complaint, failed to assert such defense in its answer, and entered into a stipulation waiving all jurisdictional defenses. Accordingly, they have waived this defense (see CPLR 3211[a][8]; [e] ). Therefore, that branch of plaintiff's motion which seeks to deem the supplemental summons and amended complaint served on Edgemere and Gotham, nunc pro tunc, is granted.
In view of the fact that Seabreeze remains a defendant in this action, the proper caption in this action reads as follows: “ Jonathon Wolfson v. Seabreeze Estates LLC, Edgemere Beach Development LLC and Gotham Bank of New York ”. The court notes that Seabreeze was served with this motion and all supporting papers and has not submitted any opposing papers.
Plaintiff Jonathan Wolfsohn alleges in the amended verified complaint that in 1986 he purchased real property located at Beach 27th Street, Far Rockaway, New York, also known as Tax Block 15819, Lot 66, from Seol Realty, Ltd. The parcel is depicted on the tax map as 25 feet wide, (north to south) and 85 feet in depth (east to west). At the time plaintiff purchased this property it was improved by a two story frame residential dwelling that faced directly onto Beach 27th Street, with a small one story attached stucco addition to the rear southwest corner, and a smaller detached one story frame building with a side deck located to the west. Both the side deck and stucco addition extend beyond the southern boundary of Lot 66 and encroaches onto the parcel to the south. He further alleges that at the time he purchased the real property in 1986, immediately south of Lots 66 and 125 there was (a) a wood shed/garage, 13.4 feet wide and 11.8.5 feet long; (b) a paved driveway area also 13.4 feet wide running to the east of Beach 27th Street; and (c) a fence running from the south eastern corner of the shed/garage to Beach 27th Street along the southern edge of the paved driveway. Mr. Wolfsohn alleges that the occupants of these buildings parked their vehicles in the garage and on driveway area, and that at the time of said purchase “the extent of his land, and the exact southern boundary were, as a practical matter, indeterminate.”
Mr. Wolfsohn alleges that he had his property surveyed in 1990 and again 1996. He also states that a survey was performed in 1995. He alleges that long before he purchased his property, the real property to the south of Lots 66 and 125, which he identifies as Tax Lots 66 and 123, were vacant and covered with weeds, grass and bushes, except for the garage and driveway area.
On July 23, 1996, Mr. Wolfsohn purchased the parcel of real property known as Tax Lot 125, which is immediately to the west of Lot 66. Mr. Wolfsohn states in an affidavit that the complaint incorrectly alleges that Mitchell Enterprises Inc. took title to the Lot 125, when in fact he took title in his own name. He alleges that in 1996 he had the garage/shed and original fence removed from the property. He further states that he asserted and claimed that the southern boundary of his property is located some 40 feet father to the south of Lots 66 and 125, and he installed a wire fence across the open and vacant land running east to west from Beach 27th Street to the east of Marvin Street on the west. The area encompassed within this fence includes the garage and driveway area, as well as the deck and stucco addition. Plaintiff alleges that for more than ten years he has maintained this fence, cut and regularly mowed the weeds and bushes, deposited fill and graded the area, and parked vehicles and stored equipment on the said property and permitted his tenants to do the same, and therefore, title to the property by adverse possession vested prior to July 2008.
Prior to 2006, Seabreeze owned the unimproved real property located at Block 15819, Tax Lots 67 and 127. In 2004, Seabreeze sought to remove the metal fence which ran from Beach 27th Street to Marvin Street, and was some 32 feet 10 inches south of the northern boundary line of Lots 66 and 125. Counsel for Seabreeze in a letter dated July 16, 2004 demanded that Mr. Wolfsohn remove this fence which was encroaching approximately 32 feet onto Seabreeze's property. Counsel stated that a survey prepared on February 9, 1990, showed a wood shed and metal fence encroaching 13.4 feet onto Seabreeze's property; that the October 26, 1995 survey also showed these encroachments; and that the August 24, 2001 survey showed that the wood shed had been entirely removed and that there was an unenclosed and incomplete wire fence extending approximately 30 feet into Seabreeze's property, a new wood deck and concrete walkway encroaching approximately 2.4 feet and 1.5 feet, respectively, onto Seabreeze's property. Counsel provided copies of these surveys to Wolfsohn and asserted that Wolfsohn had no basis to claim any right, title or interest by adverse possession or otherwise to approximately 32 feet area which his new fence currently occupies on Seabreeze's property; and that he had no basis in fact or law to claim any right to the 13.4 foot area formerly occupied by a shed and metal fence. Counsel demanded that Mr. Wolfsohn remove the fence by July 21, 2004, and stated that in the event it was not removed, Seabreeze would remove it.
Plaintiff alleges that in 2006, Edgemere purchased Lots 67 and 127 and “other properties south” of these lots, from Seabreeze. He further alleges that commencing in 2006 Edgemere has attempted to remove plaintiff's fence, which had been in place since 1996, and that each time the fence has been replaced. He alleges that although Edgemere protested plaintiff's hostile claim to title of all land located north of the fence, it did not commence an action to assert superior title or to eject plaintiff from the subject real property.
Plaintiff in his first cause of action pursuant to Article 15 of the Real Property and Proceedings Law(RPAPL), seeks a declaration to the effect that he is the owner, by adverse possession, of the disputed real property. The second cause of action seeks a permanent injunction, with respect to plaintiff's use and occupancy of the subject property, and the garage and driveway, area, including the deck, the stucco addition, and the fence. The third cause of action seeks to declare that the 2008 amendments to sections 501, 511, 521, 522, 531 and 541 of the RPAPL, as interpreted to uphold its constitutionality do not apply to plaintiff's claim as it fully vested prior to July 2008, or in the alternative that the amendments are unconstitutional and void, as to plaintiff, as his title over the subject real property by adverse possession vested prior to July 2008.
Defendants in their verified answer to the amended complaint interposed the following affirmative defenses: failure to state a cause of action; unclean hands; wavier, laches and estoppel; statute of limitations; statute of fraud; failure to mitigate damages; no acts of wrongdoing are alleged against the defendants; plaintiff's action are barred in whole or part by plaintiff's or his predecessor in title's negligent acts or omissions; that the July 2008 amendments to RPAPL § 501 et. seq. are applicable to this action as the complaint was filed after July 8, 2006; and for comparative negligence.
Plaintiff now seeks partial summary judgment on the third cause of action, and a declaration to the effect that the July 2008 amendments and additions to Article 5 of the RPAPL do not apply to this action, or in the alternative that said provisions are unconstitutional as applied to plaintiff, as title by adverse possession vested prior to July 2008. Plaintiff further seeks an order striking defendants affirmative defenses.
In order to prevail on a claim for adverse possession, a plaintiff is required to demonstrate that his or her possession of the property is adverse, under a claim of right, actual, exclusive, open and notorious, and continuous for a 10–year period ( see Walling v. Przybylo, 7 N.Y.3d 228, 232, [2006];Sawyer v. Prusky, 71 A.D.3d 1325, 1326,[2010] ).
In 2008, the Legislature amended various provisions of RPAPL Article 5 pertaining to adverse possession (see L 2008, ch 269, § 8). In particular, under the former version of RPAPL § 522, land was “deemed to have been possessed and occupied in either of the following cases ... (1)[w]here it has been usually cultivated or improved [, or] (2)[w]here it has been protected by a substantial inclosure.” The 2008 amendments replaced the language “usually cultivated or improved” in RPAPL § 522(1) with “[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice.” The amendments also added section 543, which provides that the “existence of de minimis non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse” (RPAPL § 543[1] ). That section further provides that, “[n]otwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse” (RPAPL § 543[2] ). These amendments apply to claims filed on or after July 7, 2008 (L 2008, ch 269, § 9).
The Appellate Division, Fourth Department, Franza v. Olin, (73 A.D.3d 44, 45, [2010] ) recently determined that, where title to the disputed property has allegedly vested in the possessor prior to the effective date of the 2008 enactments and amendments, application of the newly enacted legislation to divest the possessor of his or her property rights is unconstitutional.
RPAPL 501(2), as amended, recognizes that title, not the right to commence an action to determine title, is obtained upon the expiration of the limitations period. Here, the stucco addition, the deck and the paved driveway existed at the time plaintiff purchased Lot 66 in 1986 and remained unchanged for 10 years. In addition, while plaintiff removed the shed/garage and the original fence when he purchased Lot 125 in 1996, he installed another fence further south of his boundary line which remained in place and undisturbed for 10 years, and encompasses the stucco addition, the wood deck and the driveway area. Plaintiff disregarded Seabreeze's 2004 demand to remove said fence, and Edgemere's attempts to remove said fence in 2006, were apparently unsuccessful. Therefore, in the event that plaintiff prevails on his claim for adverse possession, title to the contested property will have vested in 1996 as to Lot 66, and in 2006 as to Lot 125, years before the amendments to RPAPL article 5 became effective. Under these circumstances the court is constrained to follow the holding in Franza v. Olin, (supra), and finds that this action is governed by the version of RPAPL article 5 in effect prior to July 7, 2008, and prior applicable case law ( see also, Barra v. Norfolk S. Ry. Co., 75AD3d 821, 2010 N.Y. Slip Op 6036, 2010 N.Y.App. Div. LEXIS 5903, 2010 WL 2680107 [July 8, 2010] ).
Accordingly, that branch of plaintiff's motion which seeks leave to reargue the court's order of December 15, 2009 is denied; that branch of the plaintiff's motion which seeks leave to renew is granted to the extent that such relief was previously encompassed by the order of December 15, 2009; that branch of plaintiff's motion which seeks partial summary judgment on the third cause of action is granted to the extent that this action is to be governed by the version of RPAPL article 5 in effect prior to July 7, 2008, and prior applicable case law. That branch of plaintiff's motion which seeks to strike Edgemere and Gotham's affirmative defenses is granted, as these defenses are either lacking in merit, or irrelevant to this action.