Gilliland v. Acquafredda Enters., LLC

• Decision Date: 20 December 2011
• Citation: 92 A.D.3d 19,2011 N.Y. Slip Op. 09207,936 N.Y.S.2d 125
• Parties: Kevin GILLILAND, et al., Plaintiffs–Respondents, v. ACQUAFREDDA ENTERPRISES, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09207

92 A.D.3d 19

936 N.Y.S.2d 125

Kevin GILLILAND, et al., Plaintiffs–Respondents,

v.ACQUAFREDDA ENTERPRISES, LLC, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Dec. 20, 2011.

Rothkrug Rothkrug & Spector, LLP, Great Neck (Simon H. Rothkrug of counsel), for appellants.

Simon, Eisenberg & Baum, LLP, New York (Robert F. Moraco and Eric M. Baum of counsel), for respondents.

PETER TOM, J.P., RICHARD T. ANDRIAS, JAMES M. CATTERSON, ROLANDO T. ACOSTA, DIANNE T. RENWICK, JJ.

RENWICK, J.

The speaker in Robert Frost's metaphorical poem “Mending Wall” ruminates over his neighbor's stolid assumption that “good fences make good neighbors.” ¹ Nonetheless, the adage's message has been sanctioned by tradition. Good fences may indeed make good neighbors. However wise Frost's thoughts on neighbor relations might be, the practicality of his aphorism remains an open question today, as highlighted by the facts of this case involving a contentious dispute among “neighbors” over a fence.

The parties are the owners of properties situated on Casler Place in the Schuyerville section of the Bronx. The properties are part of the neighborhood peninsula of Throgs Neck, which is bounded on the west by Westchester Creek and extends south into the Long Island Sound. Casler Place is a short street that runs from Pennyfield Avenue east to the shore of the Long Island Sound. Defendants own the property on both sides of the street at the eastern end of Casler Place, fronting the beach. The not-so-neighborly conflict erupted in 2008 when defendants erected a fence running from north to south across Casler Place, thereby preventing access to the shore. At issue here are the parties' respective property rights, i.e. plaintiffs' rights to access the shore through the area where the fence stands, and defendants' right to maintain that fence upon property they claim to own.

The parties' properties, among many others, were once vested in a common owner. In 1928, a large tract of Schuyerville was owned by Locust Point Estate, Inc., a real estate venture which subdivided the property into separate residential parcels. On January 18, 1928, Locust Point recorded a declaration creating easements for six private streets, including Casler Place, in an area described as being “bounded ... on the West by Old Fort Schuyler Road [now known as Pennyfield Avenue] ... and on the East by the original high water line of Long Island Sound.” The Declaration provides that Locust Point “creates, establishes and sets apart private roads and easements for ingress and egress ... and hereby grants and conveys to said grantees, their successors, heirs and assigns forever permanent easements of light, air and access in, on and over the six parcels of land.” These six streets were all described as bounded “on the West by the easterly side of Old Fort Schuyler Road [now known as Pennyfield Avenue], and on the East by the high water line of Hammonds Cove on Long Island Sound.”

In 1986, the homeowners of Casler Place petitioned the City of New York to dedicate Casler Place as a legal city street mainly because the cost of repairing the street presented a severe hardship. By letter dated May 7, 1986, the City dedicated “Casler Place from Pennyfield Avenue to a point 245 feet east of the east building line of Pennyfield Avenue to public use as a public way.” The end of Casler Place east of the described boundary did not become a public street.

By summons and complaint dated October 27, 2009, plaintiffs, all of whom own property or reside on or near Casler Place, commenced this action against defendants Susan and Thomas Acquafredda. Plaintiffs alleged that in 2006, defendants began constructing two multi-family homes at 3093–3095 Casler Place. By 2008, defendants were allegedly constructing seawalls and a fence going across Casler Place, which “interfered with and prevented plaintiffs access to the public beach area at the end of Casler Place.” Plaintiffs further alleged that at least part of the construction was on land not owned by defendants, and that plaintiffs and the public had a right of access to the public beach by virtue of an easement by grant and an easement by prescription.

Plaintiffs now seek a declaration “that plaintiffs have an easement to access the beach area at the end of Casler Place, and that defendants do not have the right to obstruct plaintiffs' access, and perform construction work on said beach area.” Additionally, plaintiffs seek money damages and an injunction preventing defendants from performing further construction or demolition. ² Two days after commencing the action, plaintiffs moved, by order to show cause, for, inter alia, a preliminary injunction pursuant to CPLR 6301, seeking to prevent defendants from performing construction or demolition at Casler Place, blocking access to the beachfront property.

In support, plaintiffs submitted the affidavit of Turano, the president of a title insurance company, who states that the purpose of the 1928 Declaration was to allow the public the right to traverse Casler Place to enter the beachfront property. Turano further states that defendants' fence stands 239 feet east of Pennyfield Avenue and, as such, is on the public portion of Casler Place which is not owned by defendants. Plaintiffs also submitted the affidavit of architect Kovach, who attests that the fence lies “only 238 feet, 8 inches east from the east building line of Pennyfield Avenue.” Kovach states that “approximately 7 linear feet of property directly behind that fence, on which defendants had significant work performed, including dredging up of beach front property and the installation of a concrete seawall, was property of the public street that is Casler Place.”

In further support of their motion, plaintiffs submitted their own affidavits. Rose Lillian Laurino, who lived on Dare Place from 1935 until 1955 and has resided on Casler Place since then, avers that she has used the Casler Place entrance to the beach continuously since 1935, and submitted photographs of herself in the 1940s and 1950s using the beach. Marija Gegovic, who resides on Pennyfield Avenue, states that she has been using Casler Place to access the shore for 20 years. Joseph Petriella and Melanie Petriella (husband and wife) state that they too have been doing so since 2004. Mathew Hohl avers that he has been using the end of Casler Place to access the beach since 1998; and, that she purchased her home, at least in part, because her real estate broker revealed that everyone on the block had easement rights to use the beach. Teresa and Kevin Gilliland state that they have been using the access since 1999.

In addition, plaintiffs submitted a deed dated September 9, 1993, by which defendants Susan and Thomas Acquafredda originally took title to their property (then lot 501, now 488) on Casler Place. Plaintiffs also submitted a deed dated October 10, 2007, by which defendants purported to convey lot 491 at 3095 Casler Place oddly to themselves. Finally, plaintiffs submitted photographs of the area before construction, during construction, and of the infamous fence.

Defendants opposed the motion by principally arguing that the easement created by the 1928 Declaration was solely intended for access to a public highway. In support of this narrow interpretation of the easement, defendants rely primarily upon the “Whereas clause” of the 1928 Declaration. The Declaration states, in pertinent part, that the grantor conveys “parts of [the] property to various grantees and desires to create private roads or easements over part of the property in order to give such grantees means of ingress or egress over such private roads to a public highway.” Defendants contend that the 1986 Dedication of Casler Place as a public highway is consistent with this narrow interpretation because the disputed land (the easternmost 45 feet of Casler Place leading up to the Long Island Sound shoreline) was expressly excluded from the Dedication.

Defendants argue that they and their predecessors in title evinced this narrow intent by “always maintain[ing] a chain-link fence across Casler.” Defendants submitted the affidavit of defendant Susan Acquafredda, who stated that she has maintained complete and exclusive access over the fence since 1993, as evidenced by pictures.³ Acquafredda notes that the picture of the fence after 1998 shows that the City installed a fire hydrant in front of the fence as well as a sign that states “End,” which, Acquafredda argues, indicates “a clear acknowledgment of [her] possession, ownership and use of the entire area easterly of [her] fence.” Finally, Acquafredda asserts that she owns the property upon which the fence stands, and submitted the aforementioned 1993 deed, and a survey dated September 21, 1994, purportedly indicating as much.

By order entered on or about April 23, 2010, Supreme Court granted plaintiffs a preliminary injunction, enjoining defendants from performing any construction or demolition work at the subject premises which blocks and prevents plaintiffs from accessing the beachfront property.⁴ First, the court found that plaintiffs established a likelihood of success on the merits because the 1928 Declaration was unambiguous as to the scope of the easement, as extending from Fort Schuyler Road to the high water line of the Long Island Sound. Second, the court found that the 1986 Dedication of Casler Place as a public road was irrelevant because the City only intended to assume maintenance and responsibility over the road. Third, the court found that plaintiffs established irreparable harm based on their inability to get to the shore. Finally, the court found that the equities tipped in plaintiffs' favor because “a good part of the problem with respect to access on the Casler Place strip is defendants' own making. She put up the wall.” This appeal ensued, and we now...