Capruso v. Vill. of Kings Point

• Decision Date: 12 June 2014
• Citation: 23 N.Y.3d 631,992 N.Y.S.2d 469,16 N.E.3d 527,2014 N.Y. Slip Op. 04228
• Parties: Daniel CAPRUSO et al., Respondents, v. VILLAGE OF KINGS POINT et al., Appellants. State of New York, Respondent, v. Village of Kings Point, Appellant.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 631

16 N.E.3d 527

992 N.Y.S.2d 469

2014 N.Y. Slip Op. 04228

Daniel CAPRUSO et al., Respondents,

v.VILLAGE OF KINGS POINT et al., Appellants.

State of New York, Respondent,

v.Village of Kings Point, Appellant.

Court of Appeals of New York.

June 12, 2014.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck (John M. Brickman, Stephen G. Limmer, Todd H. Hesekiel and Benjamin S. Kaplan of counsel), Sol Wachtler and Stuart M. Cohen, for appellants in the first and second above-entitled actions.

Super Law Group, LLC, New York City (Reed W. Super and Alexandra I. Hankovszky of counsel), and Albert K. Butzel Law Offices (Albert K. Butzel of counsel), for respondents in the first above-entitled action.

Eric T. Schneiderman, Attorney General, New York City (Bethan A. Davis Noll, Barbara D. Underwood and Richard Dearing of counsel), for respondent in the second above-entitled action.

Wade Beltramo, General Counsel, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first above-entitled action.

Andrew A. Rafter, Brooklyn, for Citizens Campaign for the Environment and others, amici curiae in the first and second above-entitled actions.

OPINION OF THE COURT

PIGOTT, J.

Kings Point Park occupies 173 acres on the Great Neck Peninsula of Long Island. Defendant Village of Kings Point acquired the property for park purposes in the 1920s. At the western end of the park is the heavily wooded “Western Corner,” occupying 5.4 acres, an area known for its mature trees and hiking trails. It is this section of Kings Point Park that is the subject of the present appeal.

In 1938, the Village leased Kings Point Park to the Great Neck Park District with the understanding that the Park District would manage and maintain the property “as a natural and scenic park.” ¹ In 1946, the Village and Park District executed an addendum to the lease, excluding the Western Corner from the leased lands, because the Village wished to reserve that portion of the park for a pistol range for local police and for storage of highway materials and supplies. The Western Corner was reserved in this fashion each time the lease was renewed. In 1966, the State Comptroller informed the Village that its lease required legislative authorization, and, as a result, legislation was passed the following year that “validated, ratified and confirmed” the most recent lease (L. 1967, ch. 563, § 2, 1967 McKinney's Session Laws of N.Y. at 606).² Although much of the Western Corner remains undisturbed mature woodland, the Village has erected structures in the northern part of the Western Corner, including a garage and a Quonset hut, measuring about 1,700 square feet, for the storage of road salt.

In November 2008, the Village adopted a proposal to deforest, regrade and enclose the Western Corner and build a Department of Public Works (DPW) facility. The proposed facility, approximately 12,000 square feet in area, would include a diesel-truck garage, a road-sign shop, administrative offices, and crew quarters, and be enclosed by a chain-link fence. The proposal also envisaged the construction of an asphalt roadway and parking area. The Village did not seek legislative authorization.

Plaintiffs Daniel Capruso, Alan Berkower and Elizabeth Allen, who live near Kings Point Park, commenced an action against the Village, its Mayor and its Board of Trustees in March 2009, seeking to enjoin both the Village's proposed DPW project and its current use of the Western Corner for storage of highway materials and supplies, as unlawful uses of parkland in violation of the common-law “public trust doctrine.” Following proceedings not pertinent to this appeal, the State of New York commenced an action against the Village seeking the same relief, but only with respect to the Village's proposed DPW project. The State moved for a preliminary injunction with respect to the DPW project. Defendants cross-moved to dismiss both complaints as barred by the applicable statute of limitations and laches.

In orders dated July 29, 2009 and November 18, 2009, Supreme Court denied defendants' cross motions and granted plaintiffs' motion for a preliminary injunction (34 Misc.3d 1240[A], 2009 N.Y. Slip Op. 52829[U] [2009]; 2009 N.Y. Slip Op. 33338[U] [2009] ). An interlocutory appeal followed. The Appellate Division affirmed Supreme Court's first order insofar as reviewed and its second order insofar as appealed from (78 A.D.3d 877, 912 N.Y.S.2d 244 [2d Dept.2010] ).

Following discovery, plaintiffs and the State moved for summary judgment. In June 2011, Supreme Court granted their motion, permanently enjoining the Village from proceeding with the DPW facility project, enjoining defendants from obstructing existing access to Kings Point Park without explicit and specific approval from the State Legislature and directing defendants to remove all materials, equipment, and physical alterations, including structures, under their control from the Western Corner. Supreme Court also awarded the individual plaintiffs their reasonable attorneys' fees and other expenses. The Appellate Division modified Supreme Court's order and judgment, to delete the provision concerning attorneys' fees and expenses, and, as so modified, affirmed (102 A.D.3d 902, 959 N.Y.S.2d 233 [2d Dept.2013] ).

We granted defendants leave to appeal from the Appellate Division's more recent, final order, bringing the earlier, nonfinal order up for review. We now affirm.

Defendants concede that the Western Corner is dedicated parkland and that the present and proposed uses of it have not been authorized by the State Legislature and thus violate the public trust doctrine. The State's “legislative approval is required when there is a substantial intrusion on parkland for non-park purposes” (Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630, 727 N.Y.S.2d 2, 750 N.E.2d 1050 [2001]; see also Williams v. Gallatin, 229 N.Y. 248, 253, 128 N.E. 121 [1920] ), and defendants do not dispute that their present and proposed uses of the Western Corner constitute substantial intrusion on parkland for nonpark purposes. In a similar vein, they concede that the exclusion of the Western Corner in the amended lease did not remove that part of Kings Point Park from the purview of the public trust doctrine. Instead, they argue that the claims brought by plaintiffs and the State are time-barred.

Defendants raise different defenses with regard to plaintiffs' respective causes of action. With respect to the challenge to the proposed construction of the DPW facility, defendants contend that use of the Western Corner for nonpark purposes, particularly storage of highway materials and supplies, has been ongoing since the lease addendum of 1946 that excluded the Western Corner, and that the proposed DPW facility would amount to “nothing more than a change in the nature and scope of an ongoing non-park use.” As such, defendants contend, plaintiffs should have challenged nonpark use within six years of the 1946 addendum, under CPLR 213(1) ( see generally Solnick v. Whalen, 49 N.Y.2d 224, 229–230, 425 N.Y.S.2d 68, 401 N.E.2d 190 [1980] ), or, at the latest, within six years of the date when the Village began to store highway materials and supplies in the Western Corner.

However, the difference in scale between the present use and the proposed facility is substantial, and there is no record support to conclude otherwise. A project involving the construction of a DPW facility measuring some 12,000 square feet in area, regrading, paving of access roads, destruction of numerous mature trees, and removal of hiking trails is not merely a change in the nature and scope of a road salt storage facility. Thus, we conclude that the causes of action challenging the proposed project are not barred by the statute of limitations.

With respect to plaintiffs' second cause of action, seeking to enjoin the Village'spresent nonpark use of part of the Western Corner, defendants' contention that plaintiffs should have brought their action within six years of the change in the use of the Western Corner has more resonance. Plaintiffs, however, respond that the “continuing wrong doctrine” applies here to toll the running of the statute of limitations.

We have applied the continuing wrong doctrine

“in certain cases such as nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed. The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass. The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission” (Covington v. Walker, 3 N.Y.3d 287, 292, 786 N.Y.S.2d 409, 819 N.E.2d 1025 [2004], cert. denied,545 U.S. 1131, 125 S.Ct. 2938, 162 L.Ed.2d 872 [2005] [citations omitted] ).

The doctrine applies here to ongoing use of parkland alleged to violate the public trust doctrine.

The harm sustained by the public when structures having “no connection with park purposes ... encroach upon [parkland] without legislative authority plainly conferred” (Williams, 229 N.Y. at 253, 128 N.E. 121) cannot be traced exclusively to the day when the illegal encroachment began. “In New York, we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action” (509 Sixth Ave. Corp. v. New York City Tr. Auth., 15 N.Y.2d 48, 52, 255 N.Y.S.2d 89, 203 N.E.2d 486 [1964] ). Even though here, because the Village owns the parkland, the encroachment is not trespass, it clearly bears the hallmark of continuity common to the trespass cases: defendants are,...