Glass v. Del Duca

• Citation: 26 N.Y.S.3d 724 (Table)
• Decision Date: 03 September 2015
• Docket Number: No. 14–7699.,14–7699.
• Parties: Peter GLASS, Laura Glass, Sandra Wheeler, William Wheeler, and O'Co–Nee Association, Inc., Plaintiffs, v. Donald P. DEL DUCA and Donald Del Duca, Ackerson Agency, Inc., South Shore Estate Sales, Inc. and John Maloney, Defendants.
• Court: United States State Supreme Court (New York)

26 N.Y.S.3d 724 (Table)

Peter GLASS, Laura Glass, Sandra Wheeler, William Wheeler, and O'Co–Nee Association, Inc., Plaintiffs,
v.
Donald P. DEL DUCA and Donald Del Duca, Ackerson Agency, Inc., South Shore Estate Sales, Inc. and John Maloney, Defendants.

No. 14–7699.

Supreme Court, Suffolk County, New York.

Sept. 3, 2015.

Barry V. Pittman, Esq., Bay Shorem, Attorney for Plaintiffs.

Van Nostrand & Martin, Amityville, Attorney for Defendants.

JOSEPH C. PASTORESSA, J.

ORDERED that the motion by defendants for an order dismissing the complaint is granted to the extent set forth herein, and is otherwise denied; and it is further

ORDERED that the motion by plaintiffs for an order granting leave to serve the proposed amended complaint and awarding summary judgment in their favor on the first and second causes of action is denied.

In January 2012, plaintiff Sandra Wheeler commenced an action against defendants Donald Del Duca and Donald P. Del Duca seeking damages and injunctive relief based on their alleged improper use of a small parcel of waterfront property located on Manatuck Lane (hereinafter referred to as the Manatuck property) in Bay Shore, New York. At the time the lawsuit was brought, Sandra Wheeler was the owner of property located at the southeast corner of Manatuck Lane and Lawrence Lane known as 17 Lawrence Lane, which borders on its western boundary a navigable waterway known as both the Manatuck River and Lawrence Creek. The Manatuck property also is on the Manatuck River and abuts the northwestern boundary of the property at 17 Lawrence Lane. It was conveyed to Donald Del Duca by bargain and sale deed from Rivendel Enterprises, Ltd., dated June 27, 1985. Both the Manatuck property, an undersized lot that does not have a street address, and the 17 Lawrence Lane property, which was acquired by Sandra Wheeler in 2002, are within a residential area in Bay Shore known as O'Co–Nee. Bounded on the north by Montauk Highway and on the south by the Great South Bay, the O'Co–Nee area, also written as O–Co–Nee or O'Co'Nee, was developed by C.L. Lawrance Corp.

On June 13, 1985, shortly before the conveyance to Donald Del Duca, Rivendel Enterprises and defendant Ackerson Agency, Inc., in its capacity as successor to C.L. Lawrance Corp., executed an indenture amending the 1950 deed for the Manatuck property given by C.L. Lawrance Corp. to Horace Newins, who at the time owned 16 Lawrence Lane. As relevant to the instant action, the 1950 deed contains a restrictive covenant stating "[n]o boat other than a private pleasure craft owned by a resident of O–Co–Nee shall be moored alongside and adjacent to the within described premises." It also provides that the covenants "may be modified, altered or annulled at any time by written agreement by and between the owner of the first part [C.L. Lawrance Corp.], its successors and assigns, and the owner for the time being ... without the consent of the owner or owners of any adjacent premises." The June 13, 1985 indenture amended the restrictive covenant regarding the mooring of a boat to read "[n]o boat other than a private pleasure craft owned by a resident of O'Co'Nee or Donald Del Duca (a present owner of a residential parcel in O'Co'Nee), or his spouse or a child of said Donald Del Duca, shall be moored alongside and adjacent to the within described premises." It also added a provision stating that "except for Rivindel Enterprises Ltd., Donald Del Duca and/or his spouse or a child Donald Del Duca, the premises shall hereafter only be conveyed to and fee title held by a grantee who shall also be the contemporaneous owner of a residential building plot within the O'Co'Nee (Section 1 or 2) community."

The following year, on May 27, 1986, a quitclaim indenture was executed by Ackerson Agency in favor of O–Co–Nee Association. The indenture provides that Ackerson Agency, as party of the first part, "does hereby remise, release and quitclaim to O–Co–Nee, its successors and assigns ... [a]ll remaining right, title, and interest ... to exercise the rights of passing upon and approval of plans, designs and locations of buildings, the distribution of the expenses of maintenance of lanes, canal and creek, the making of rules and regulations and the consenting to of fences ... or signs in and to the premises commonly known as O'Co–Nee ... heretofore reserved to the party of the first part and its predecessors in interest and not specifically conveyed in deed of record to any of the grantees of parcels located in said premises." It also specifies five deeds that allegedly transferred "part of the same property, rights and interests" belonging to Ackerson Agency being conveyed to O–Co–Nee Association.

Thereafter, in May 2004, Donald Del Duca executed a deed transferring ownership of the Manatuck property to himself and his son, Donald P. Del Duca. It is undisputed that since Donald Del Duca acquired title in 1985, substantial improvements have been made to the Manatuck property. At present, the property is improved with a bulkhead, a dock, two finger piers, four boat berths, wood pile moorings, parking spaces and a boat ramp.

The action commenced by Sandra Wheeler against the Del Duca defendants, assigned index number 000168/2012 (hereinafter referred to as the 2012 Wheeler action), asserted four causes of action. Alleging that Donald Del Duca and Donald P. Del Duca were illegally using the Manatuck property as a marina, renting out boat slips to third parties, particularly John Maloney, and that such use decreased the market value of the 17 Lawrence Lane property and adversely affected Sandra Wheeler's use and enjoyment of such property, the first and second causes of action sought damages for private nuisance. The third cause of action alleged Donald and Donald P. Del Duca were violating provisions of the Islip Town Code, as well as the covenant contained in the 1985 indenture restricting the use of Manatuck property for mooring pleasure boats owned by Donald Del Duca, his spouse or his child, and sought damages and injunctive relief. The fourth cause of action sought damages and injunctive relief for trespass.

As the 2012 Wheeler action was pending, Ackerson Agency and defendant South Shore Estates Sales, Inc., executed an indenture on October 26, 2012. The indenture states, in relevant part, that Ackerson Agency quitclaims "all remaining right, title and interest ... to and in said premises commonly known as O'Co–Nee ... [s]ubject to any easements or rights heretofore granted in deeds of record to any of the purchasers of the plots located in the aforesaid premises ... [t]ogether with all the rights conferred ... with the powers and authorities therein designated to enforce, amend, confirm and otherwise affect all covenants, agreements, conveyances, transfers and other rights of the respective grantors in said deed and their predecessors in title and interest." Such indenture specifically refers to deeds from June 1951, July 1962 and October 1962 that transferred property rights to Ackerson Agency.

Thereafter, an agreement was executed on December 21, 2012 by Donald Del Duca, Donald P. Del Duca, and South Shore Estate Sales. As relevant to the instant motion, the agreement states that the provision in the 1950 deed from C.L. Lawrance Corp. to Horace Newins regarding the mooring of a boat at the Manatuck property is amended as follows: "No boat shall be permitted to dock in any of the boat slips at the within described property other than private pleasure crafts owned by the owner of the within described premises or their quests [sic]. No commercial or party boat shall be permitted to dock in any of the boat slips at the property." The December 2012 agreement also annulled the provision of the 1985 indenture between Rivendel Enterprises and Ackerson Agency providing that, except for Rivendel, Donald Del Duca and his spouse or child, title to the Manatuck property shall only be conveyed to an owner of residential property within the O'Co–Nee community. In addition, such agreement states that the transfer of Donald Del Duca's fee ownership of the Manatuck property to a tenancy in common with his son and the use of premises "does not violate the restrictions heretofore made and/or as herein corrected, modified, altered or annulled."

In 2013, Donald Del Duca and Donald P. Del Duca made a pre-answer motion in the 2012 Wheeler action for an order dismissing the complaint based on documentary evidence, lack of standing, and failure to state a cause of action (see CPLR 3211[a][1], [3], [7] ). In April 2014, as the dismissal motion was pending, Sandra Wheeler, along with William Wheeler, her husband, Peter Glass, Laura Glass and O–Co–Nee Association, Inc., commenced the instant proceeding against Donald Del Duca, Donald P. Del Duca, Ackerson Agency, South Shore Estate Sales, and John Maloney. The first cause of action seeks a judgment declaring that the indenture executed by Ackerson Agency and South Shore Estates in October 2012 is null and void. The second cause of action seeks a judgment declaring that an agreement executed by Donald Del Duca, Donald P. Del Duca and South Shore Estates "on November 21, 2012[sic]" is null and void. The third cause of action alleges the use of the Manatuck property by the Del Duca defendants and defendant John Maloney violates certain provisions of the Town of Islip Code and the covenant regarding the docking of a boat alongside the bulkheading contained in the 1950 deed transferring ownership of such property from C.L. Lawrance Corp. to Horace Newins, and requests a...