[*1]
Muraca v Meyerowitz
2006 NY Slip Op 50329(U) [11 Misc 3d 1061(A)]
Decided on March 9, 2006
Supreme Court, Nassau County
Phelan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 9, 2006
Supreme Court, Nassau County


Felice J. Muraca, Plaintiff,

against

Mark Meyerowitz, KAREN MEYEROWITZ, HERBERT NEWMAN, RAYE NEWMAN and TOWN OF HEMPSTEAD, Defendants.




003241/05



Law Offices of Eliot F. Bloom

Attorneys for Plaintiff

114 Old Country Road, Suite 308

Mineola, NY 11501

Meyer, Suozzi, English & Klein, Esqs.

Attn: A. Thomas Levin, Esq.

Attorneys for Defendants Meyerowitz

1505 Kellum Place

P.O. Box 803

Mineola, NY 11501-0803

Costantino & Costantino, Esqs.

Attn: Steven A. Costantino, Esq.

Attorneys for Defendants Newman

632 Merrick Road

Copiague, NY 11726

Joseph Ra, Esq.

Attn: William J. Muller, III, Esq.

Office of the Town Attorney

of the Town of Hempstead

One Washington Street

Hempstead, NY 11550

Thomas P. Phelan, J.

Motion [sequence #6] by defendants Mark Meyerowitz and Karen Meyerowitz (collectively Meyerowitz) for an order pursuant to CPLR 4101 striking plaintiff's jury demand and pursuant to CPLR 3212 awarding them summary judgment dismissing the third cause of action as untimely, and cross-motion [sequence #10] by defendant Town of Hempstead likewise seeking dismissal of plaintiff's third cause of action, are granted.

Motion [sequence #7] by plaintiff for an order pursuant to CPLR 3212 awarding him summary judgment on the first cause of action, declaring that the parties' riparian rights shall be determined by extending the lateral on-shore property lines out into Merrick Bay, and dismissing the second, third, and fourth counterclaims asserted by defendants Meyerowitz is [*2]granted only to the extent of dismissing the Meyerowitz' second and third counterclaims. Cross-motion [sequence #9] by defendants Herbert Newman and Raye Newman (collectively Newman) for summary judgment dismissing plaintiff's complaint and the cross-claims of defendants Meyerowitz is denied.

Motion [sequence #8] by defendants Meyerowitz for an order pursuant to CPLR 3025(b) permitting amendment of their answer to assert plaintiff's violation of his Town Permit with respect to various structures is denied.

This is an action brought by plaintiff for a declaration as to the riparian rights of the parties regarding three adjacent parcels of residential property with frontage on Merrick Bay (see Appendix 1*). Plaintiff's residence occupies lot 59 known as 3038 Clubhouse Road, Merrick, NY, which he purchased in 2005. Defendants Meyerowitz occupy lot 60 known as 3050 Clubhouse Road, which they purchased in 1983. Defendants Newman occupy lot 61 known as 1695 Lynn Court. The northernmost lot is number 59 and the southernmost lot is 61.

The dispute is primarily between plaintiff and defendants Meyerowitz and arises from the fact that the Meyerowitz home actually fronts the road and sits behind the Newman home when viewed from the water. Towards the rear of the Meyerowitz property lies a narrow strip of land, approximately 10 feet wide, affording Meyerowitz access to the waterfront between lots 59 and 61. However, because the lateral boundary lines of this strip intersect with the shoreline at other than a 90 degree angle, the Meyerowitz' water frontage is actually approximately 15 feet long.

It is conceded that the land underneath Merrick Bay is owned by the Town of Hempstead.

In 1965 the predecessor in title to lot 60 applied for and received a permit to install a ramp, a floating dock, and one mooring pile. A condition of the permit was that the southern side of the dock maintain an arc of no less than 63 degrees with the front of lot 61. The dock is 8 feet wide and 18 feet long as it extends out into the bay. Two pilings were installed, one at the northwest corner of the floating dock and another some distance to the north of the first one.

Over the years there have been numerous disputes between defendants Meyerowitz and plaintiff's predecessors in title which have resulted in the issuance of summonses and the payment of fines by the owners of both properties. The most recent dispute prior to the instant one was between defendants Meyerowitz and plaintiff's immediate predecessor in title, the Portogallos. It was allegedly resolved by an agreement whereby each property owner could maintain structures which were out of position, and the Portogallos would not moor their boat on the south side of their dock to avoid crowding the Meyerowitz structures. In 2002 defendants Meyerowitz obtained a new permit to ratify the existing structures as situated. The permit provided as one of its general conditions that "[n]o structure shall infringe on adjacent property owner's riparian rights or in any way cause a hazard to navigation."



* Appendixed items are all aerial photos of the subject parcels and surrounding shoreline as found on the Nassau County Tax Assessors' website [www.nassaucountyny.gov/agencies/Assessor/] and are utilized solely for purposes of depicting relevant property lines and shore lines.

Defendants Meyerowitz currently moor their 28-foot boat on the north side of their dock between the dock and the northernmost piling. It is clear from the diagrams, pictures, and aerial photographs included in the parties' submissions that in doing so, defendants Meyerowitz have denied to plaintiff a significant portion of the water surface which lies directly in front of plaintiff's property. Defendants Meyerowitz could avoid most of this infringement if their pilings were moved to the west and south and their boat then moored at the end of their dock, stern to dock, instead of alongside it. Although this is a very common docking configuration, and would alleviate the problem substantially, if not completely, defendants Meyerowitz apparently refuse to do so.

Technically, the term riparian rights refers to the interests of land owners whose property abuts a river or stream. When the issue involves lands adjacent to tidal navigable waters such as Merrick Bay, the proper term is littoral rights. (7 Warrens's Weed, New York Real Property, 5th Ed. [hereinafter Warren's Weed] §77.32[2] ) This distinction however is often blurred by the courts and the terms used interchangeably. (Allen v. Potter, 64 Misc 2d 938, aff'd 37 AD2d 691) Accordingly, the Court will continue to use the term riparian rights as have the parties.

The history of riparian rights in this state is described in Warren's Weed at §77.34(1) and (2) as follows:

"At an early date New York adopted the English rule that limited the riparian or littoral proprietor to the lands above the boundary between private and public ownership. The rights of the riparian or littoral proprietor ended at the high water mark and any rights below that point were exercised merely as members of the public in the use of the common rights of navigation or fisheries. Any encroachment by the riparian or littoral proprietor by the building of piers, wharfs, docks, or other structures below the high water mark was viewed as a purpresture which could be ordered removed by the State without any showing of harm. These cases were essentially overruled by the court of appeals in Rumsey v. New York & N.E.R. Company. [133 NY 79] The riparian or littoral right was characterized by the courts as inhering in the proximity of the lands to the water and the natural advantages that obtained to the land from this proximity.


* * *
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The court, therefore, reversed prior holdings in New York and held that riparian and littoral proprietors have the right to engage in activities below the high water mark as part of the right to achieve access to navigable waters" (footnoting omitted).


As to the riparian rights of abutting landowners regarding the installation of docks, Warren's Weed at §77.36(3) reads in part as follows:
"The right to construct a dock extends to the entire frontage of the riparian or littoral parcel. The dock may not be constructed so as to block a neighbor's right of access, although the neighbor's right of access does not include the right to use the waters fronting on the abutting properties." (footnoting omitted)


In People ex rel. Gratwick v. Land Office Commissioners. of the State of New York, 202 AD 240 the Court stated:
"A riparian owner on a navigable stream has a right of access to the navigable stream in front of his premises; and, without a grant from the State, he may construct a wharf in front of his premises to the navigable part of the stream. The exercise of this right is likewise subject always to the superior right of the State to improve the water front for the purpose of public navigation and to benefit commerce. (Hinkley v. State of New York, 202 App. Div. 570, and cases cited.) This right of access in the riparian owner is, however, a right of access in front of his premises only and does not extend to the frontage of adjoining uplands; he has no individual or personal right or easement in the waters in front of adjoining uplands, as to which waters he has the right of use as one of the public only, enjoying the rights of public navigation."


The practical implications of the foregoing rules are cogently set forth in Warren's Weed at §77.39(4) as follows:
"Each riparian or littoral proprietor must allow sufficient room in the placement of structures within his own boundaries so that they will not be blocked by the construction of the neighbor. Thus, if the first riparian owner built his structures to the limits of his lateral boundaries and relied upon the adjacent frontage of his neighbor to navigate or maneuver his vessels into his dock, then his future access would be vulnerable if his neighbor constructed a dock near the boundary which prevented such navigation. If the first riparian or littoral proprietor had allowed sufficient space between the dock, pier or other facility and the side boundary, then regardless of the adjacent landowner's location of his structures, there would be no interference. While at first blush this rule may seem to operate harshly on the first to construct a navigation facility, there generally is no reason to permit that proprietor to usurp the future rights of his neighbors. In the event the riparian or littoral proprietor requires the additional frontage of the [*4]neighbor for navigational purposes, these interests can always be purchased, or contracted for, in the market place." (Emphases supplied) (footnoting omitted)


The argument of defendants Meyerowitz that they should be allowed to continue to impinge upon plaintiff's riparian rights because they have utilized the water area in front of plaintiff's property for some time is of no avail. As observed by the Court in Huguenot Yacht Club v. Lion, 43 Misc 2d 141, 147:
"The law is also well-established in the New York law of riparian rights that the prior construction and long use of the Yacht Club dock gives no right to continue the use of the west side of the dock or to prevent an adjoining owner, such as Lion, from making full use of his riparian rights by the construction of a float on any part of the lands under water in front of his upland (citations omitted)."


As explained in Warren's Weed at §77.39(4)
"As the adjacent landowner's use [of the surface waters outshore of his neighbor] was not a private property right, but only as members of the general public, they obtain no private right to the use of the surface by their riparian or littoral status. Nor do they obtain any right to the continued use of the frontage of their neighbor by prior use."


This principle is also set forth in 107 NY Jur. 2d Water § 90 which states in part:
"[U]pland owners do not have prescriptive easement rights, independent of their littoral rights, to open waters superior to that of their neighbors or the general public." (citing Rogers v. South Slope Holding Corp., 172 Misc 2d 33, order aff'd as modified on other grounds, 255 AD2d 898; Durham v. Ingrassia, 105 Misc 2d 191; Bresler v. Brunt, 14 AD2d 650.)


Given the absence of any right to impede the riparian rights of one's neighbor when accessing those structures otherwise lawfully situated within one's own riparian rights, it is the lateral boundary determination of a property owner's riparian rights which take on principal import.

The general rules for the establishment of lateral boundaries regarding riparian rights are set forth in Warren's Weed at §77.39(2) which reads in part as follows:
"Lateral boundary determinations in New York are a composite of general propositions tempered by often repeated statements to the effect that no set of general rules will suffice to provide acceptable solutions in all cases. On the one hand, the adoption of mechanical rules applicable to all situations is renounced. [*5]On the other hand, the courts have not been loath to establish preliminary rules and to subject these rules to review in order to achieve equitable apportionment of frontage and access rights.....
The overriding concern of the New York courts in extending lateral boundaries appears to be the equitable or ratable allocation of the waterfront area....The right of access is dependent upon the frontage available to the proprietor...." (footnoting omitted)


Two principal formulas have been derived for establishing lateral boundaries depending on the nature of the shoreline and waters.

The most oft cited general rule for fixing the lateral boundaries of a landowner's riparian rights "is to extend the lateral onshore boundaries of his property out into the navigable body of water, by lines which are perpendicular to the general course of the shoreline (citations omitted)" (Zalay v. Huletts Island View Marina & Yacht Club, Inc., 148 AD2d 772). The more minor the shoreline irregularities, the more equitable the application of this rule.

The other principal rule is known as the proportional method and is designed to ascribe a path between the onshore property boundaries to the navigable channel that is proportionate to the amount of frontage the landowner enjoys. This method is often considered to better address circumstances involving the more irregular shoreline formed by a cove.

As recounted in Freeport Bay Marina, Inc. v. Grover, 149 AD2d 660, citing Grover v. Foster, 94 Va 650, 653, application of this method involves the following step-by-step formula:
"measure the length of the shore and ascertain the portion thereof to which each riparian proprietor is entitled; next measure the length of the line of navigability, and give to each proprietor the same proportion of [the line of navigability that the proprietor] is entitled to of the shore line; and then draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore. Each proprietor will be entitled to the portion of the line of navigability thus apportioned to him, and also to the portion of the flats, or land under the water, within the lines so drawn from the extremities of his portion of the said line to the extremities of his part of the shore."


Absent from favorable consideration is, perhaps, the simplest method of delineating offshore boundaries — continue the direction of the onshore boundaries outward from the shoreline.

As explained in Warren's Weed at §77.39(2)

[*6]Regardless of the shoreline configuration, upland boundaries cannot be extended outshore to form the lateral boundaries of the land under water. This simple method for extending existing boundaries would produce little difficulty if all upland boundaries intersected straight shorelines at right angles, or if curved shorelines produced outshore boundary angles which maintained access for all riparian or littoral proprietors. The norm is that upland boundaries are designated without regard to their intersection with the water's edge. A simple extension of these upland boundaries could lead outshore in any direction. An example might be where the upland boundaries are converging. The extension of converging upland boundaries would form a triangle outshore from the land and prevent the riparian or littoral proprietor from accessing navigable waters. Likewise, if the upland boundaries were diverging, they could cross in front of the adjoining parcels of upland in such a manner as to prevent access or make access more difficult. The rule in New York, therefore, states that upland boundaries are not to be extended outshore to form the lateral boundaries of the riparian or littoral right to the land under water." (footnoting omitted)

When determining which general rule to apply, if any, or whether and in what manner to modify either such rule, a court's paramount concern is to protect a landowner's right of direct access from their entire shoreline frontage to their equitable share of the line of navigability (Freeport Bay Marina, Inc. v. Grover, supra, at 662).

To do so fairly, each individual landowner's right of direct access must be considered together with the right of direct access enjoyed by neighboring owners, none of which should be unfairly encroached upon (Id.).

Consistent with the foregoing, the court in Gamiel v. Innes (Sup. Ct., Suffolk Co., NYLJ, July 16, 1997, p.30, col.1) wrote as follows:
"Riparian owners of property fronting on tidal or navigable water have the right to direct access to the water. The underlying purpose at the forefront of the application of any riparian rules is to guarantee access by a reasonably sized water craft to the navigable waters. The court must be guided by the reasonable use doctrine' which requires a sui generis approach to determine if the defendants' dock herein violates the plaintiffs' riparian rights. The courts, to provide order to this system, have used both a proportional method and a perpendicular method in calculating the area over the waters that the adjacent landowner may not infringe upon when docks are constructed. The primary concern for the court is the equitable allocation and division of the waterfront area. It has been noted that these general rules do not work in all cases especially where, as here, the coastal shapes are so irregular. The court must be particularly careful not to adversely affect other property owners located on the same shoreline, or inadvertently create a future patchwork of arbitrary rules". (citations throughout omitted)
[*7]

The standards for summary judgment are well settled. A court may grant summary judgment where there exists no genuine issue of material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320). "This drastic remedy should not be granted where there is any doubt as to the existence of such issues (citation omitted), or where the issue is arguable' (citation omitted); issue finding rather than issue determination is the key to the procedure' (citations omitted)" (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404).

With these well settled principles regarding summary judgment in mind, plaintiff's motion for summary determination of the relief demanded in the complaint must be denied. Aside from the lack of evidence as to monetary damages, it must be noted that except for minor deviations, the placement of the Meyerowitz docking facilities was permitted by defendant Town of Hempstead and no court has yet determined that such was improper. Moreover, plaintiff seeks inconsistent relief. While citing to Zalay v. Huletts, 148 AD2d 772, which stands for the proposition that generally the lateral boundaries of a landowner's riparian rights should be determined by extending "the lateral onshore boundaries of his property out into the navigable body of water, by lines which are perpendicular to the general course of the shoreline (citations omitted)" (italics in the original), plaintiff argues in his papers and submits diagrams calling simply for the extension of defendants' property lines out into the bay at the same angle as onshore. Such a method not only fails to comport with Zalay, but is contrary to the rules set down by the courts of this state as set forth above.

This method would also severely cut into the aforementioned 63 degree arc which currently protects the Newmans' property to the south — albeit not as great a reduction as would occur if the general shoreline were found to ignore the convex trajectory of the shoreline beginning at the southerly boundary of lot 59 and ending at the southerly boundary of lot 66 (see Appendices 2 and 3).

Finally, there is insufficient evidence as to how the perpendicular method (Zalay, supra), the proportional method (Freeport Bay Marina, supra), or any other method aside from the simple extension of the property lines out into the water in the same direction, would impact all parties. Accordingly, since there is a question of fact as to how the various permissible methods would impact the parties, the Court can not determine, as a matter of law, which method would yield the most reasonable result.

Plaintiff's motion is granted however as to the second and third counterclaims advanced by defendants Meyerowitz. The second counterclaim seeks, as explained at paragraph 78 of the Meyerowitz' opposing affidavit, to claim riparian rights by adverse possession. As already set forth above, riparian rights may not be acquired in this way. (Warren's Weed at §77.39(4); see also, Hinkley v. State of New York, 234 NY 309; Rogers v. South Slope Holding Corp., 172 Misc 2d 33) [*8]

The third counterclaim alleges that plaintiff has erected a fence and other structures in violation of zoning laws and regulations of the Town of Hempstead. It well settled that private persons may not enforce violations of this sort without special damages which have here neither been pled nor proven. (Zupa v. Paradise Point Ass'n, Inc., 22 AD3d 843) As plaintiff has presented no evidence as to his application to dismiss defendants' fourth counterclaim regarding trespass, the application to dismiss the fourth counterclaim is denied.

The motion by defendants Newman for summary judgment dismissing the complaint must be denied. It is clear that the present location of the Meyerowitz docking facilities with its reliance on lateral access unreasonably and impermissibly infringes upon plaintiff's riparian rights. The court is not yet, however, in a position to determine the most appropriate method for determining the lateral boundaries of the riparian rights which pertain to the Meyerowitz property and it appears a trial of this issue will be necessary. Inasmuch as any such determination must necessarily involve both the northern and southern lateral boundaries of the Meyerowitz property, that determination may affect the Newmans as well.

Defendants Newman have already indicated their position that any adjustment not impinge upon the present 63 degree arc between the Meyerowitz dock and the front of their property. The Court does not agree with Newmans' position that application of the Zalay rule would result in a 90 degree arc between the southerly side of the dock and the Newman property. The line to be drawn, if that method is adopted, is at 90 degrees to the "general course" of the shoreline, not necessarily at 90 degrees to the shoreline in that particular 15 foot stretch, and could conceivably result in an arc of less than 63 degrees.

As previously noted, the shoreline adjacent to lots 59, 60, and 61 is not straight and regular at all, but, traveling southward from lot 59 bulges seaward from lot 60 through lot 66. In addition, given the history of the disputes between the owners of parcels 59 and 60, as well as the modifications and denials of various applications submitted over the years, it can hardly be said that the owners of lots 59 and 60 have acquiesced in anything. The Court therefore rejects the argument by defendants Newman that, pursuant to O'Donnell v. Kelsey, 10 NY 412, the parties or their predecessors in title have "acquiesced" voluntarily in the current arrangement. As the Newmans' ongoing interest in the outcome of this issue is clear, it would be premature to dismiss them from the case.

The motion by defendants Meyerowitz to strike plaintiff's jury demand and to dismiss the third cause of action, and the cross-motion by defendant Town of Hempstead to dismiss the third cause of action is granted. Plaintiff's third cause of action seeks to have the court find that the Town's 1965 permit was unlawfully issued to the Meyerowitz' predecessor in title and an order directing the Town to revoke the permit, An attack addressed to the propriety of the Town's decision regarding either the 1965 permit or the 2002 permit is time barred. (CPLR 217[1]; Scurka v. Carnazza, 12 AD3d 519; Engert v. Phillips, 150 AD2d 752) CPLR 4101(2) provides for a jury trial to determine actions pursuant to Article 15 of the Real Property Actions and Proceedings Law "unless waived." Plaintiff has clearly sought additional equitable relief and he has therefore waived his right to a jury trial by joining legal and [*9]equitable causes of action. (City of New York v. Philips, 272 AD2d 568; Whipple v. Trail Properties, Inc., 261 AD2d 470.)

Finally, the motion by defendants Meyerowitz for leave to amend their answer is denied. In their proposed amendment, defendants Meyerowitz plead specific violations of permits issued to plaintiff or his predecessors in title, identifying various structures on plaintiff's property, claimed to be out of compliance, including the platform, ramp, float, piles, mooring poles, deck and fence. Whether to grant an amendment is committed to the sound discretion of the trial court. (Edenwald Contr. Co. v City of New York, 60 NY2d 957) While, generally speaking, leave to amend a pleading is to be freely given, it is nevertheless incumbent upon the court to evaluate the merit of the proposed amendment and to deny the application where the proposed amendment is without merit. (H. Verby Co., Inc. v. Carle Place Union Free School, 5 AD3d 730; Heller v. Louis Provenzano, Inc., 303 AD2d 20; Zabas v Kard, 194 AD2d 784)

Applying these principles to the instant matter, it is clear that the motion must be denied. The court has already determined that this claim must fall because private persons may not seek to enforce code or zoning violations of this sort absent special damages, which have not been alleged, even as part of the proposed amendment (Zupa v. Paradise Point Ass'n, Inc., supra.)

This decision constitutes the order of the court.

Dated: March 9, 2006 THOMAS P. PHELAN

J.S.C.