Romeo v. Barrella

• Decision Date: 22 March 2011
• Citation: 2011 N.Y. Slip Op. 02370,921 N.Y.S.2d 83,82 A.D.3d 1071
• Parties: Donna M. ROMEO, appellant,v.Ryan BARRELLA, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1071

921 N.Y.S.2d 83

2011 N.Y. Slip Op. 02370

Donna M. ROMEO, appellant,

v.Ryan BARRELLA, et al., respondents, et al., defendant.

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

March 22, 2011.

Deren, Genett & MacReery, P.C., Katonah, N.Y. (John Brian MacReery of counsel), for appellant.Goodfarb & Sandercock, LLP, White Plains, N.Y. (Adam D. Goodfarb of counsel; Hannah V. Faddis on the brief), for respondents Ryan Barrella and Sandra Barrella.Thomas M. Bona, P.C., White Plains, N.Y. (Michael Kestenbaum of counsel), for respondents Pietsch Gardens Cooperative, Inc., and Pietsch Gardens Cooperative Board of Directors.MARK C. DILLON, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to determine the rights of the parties to certain real property, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Loehr, J.), entered November 16, 2009, which granted the motion of the defendants Ryan Barrella and Sandra Barrella, and the separate motion of the defendants Pietsch Gardens Cooperative, Inc., and Pietsch Gardens Cooperative Board of Directors for summary judgment dismissing the complaint insofar as asserted against each of them, and (2) a judgment of the same court entered January 21, 2010, which, upon the order, is in favor of those defendants and against her dismissing the complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

Pietsch Gardens is a 19.289 acre parcel of land located on the shore of Peach Lake in North Salem, New York. In the 1930s, Pietsch Gardens was developed by the Pietsch family as a summer resort community. The Pietsch family owned and maintained the land, and leased building sites to tenants who, in turn, erected cottages on those leased sites.

In the late 1970s, Pietsch Gardens was sold by the Pietsch family and converted into a land cooperative. Title was vested in the Pietsch Gardens Cooperative, Inc. (hereinafter the Cooperative), which is governed by the Pietsch Gardens Cooperative Board of Directors (hereinafter the board) (hereinafter together the Pietsch defendants).

At the time the Cooperative was formed, there were 98 cottages on the land. Pursuant to the founding documents, the individual cottage owners maintained title to the structures, while title to each lot remained with the Cooperative. The cottage owners were extended offers to buy stock in the corporation which represented the number of shares allocated to the particular site on which their cottage sat. The number of shares apportioned to each site was fixed by the board based on factors such as economic value, terrain, and view. The cottage owners were issued proprietary leases which granted each owner the exclusive right to occupy and use that particular lot.

Although a survey of the perimeter of the entire parcel was performed when title was obtained, the Cooperative, at the time of formation, deemed a survey of the individual sites to be cost prohibitive. It is undisputed that the Cooperative never performed an official survey “as to the sites.” Instead, at the time of formation, the “size and configuration” of each lot was “established by the homeowners staking the boundaries and property limits.”

The lack of individual site surveys is reflected on the standard proprietary lease. Each proprietary lease describes the particular site, based on the street address and lot number, and provides measurements as to the width and depth of the site. However, the leases specify that “no accurate survey exists” and that the measurements described are “approximate.”

On September 5, 2001, the plaintiff obtained title to the cottage identified as 38 Cottage Lane. At the same time, the plaintiff obtained 176 shares of stock in the Cooperative, and was granted a proprietary lease which described the leasehold as “Block No. 11781 Lot 2, 26.0 ft. width X 62.0 ft. depth (1612 sq. ft.).” As with all of the proprietary leases issued by the Cooperative, the plaintiff's lease specified that “no accurate survey exists” and that the measurements were “approximate.”

Sandra and Ryan Barrella (hereinafter together the Barrellas) purchased 40 Cottage Lane on March 5, 2007. 40 Cottage Lane is adjacent to 38 Cottage Lane, which is directly to the east. The two cottages are located within a few feet of each other.

Prior to the Barrellas's purchase, the plaintiff had sole use and occupancy of the land between the cottages. The plaintiff added plants, trellises, and other items in this area, and was never advised that she was utilizing property that was not part of her leasehold. After purchasing 40 Cottage Lane, however, the Barrellas commenced certain construction projects and alterations and, in this regard, asked the board to locate the boundary line between the two leaseholds. The board, in response, placed a metal spike in the ground which identified the boundary line as aligning with the outside edge of the cement block chimney on 38 Cottage Lane. According to this identified line, the land separating the cottages was part of the Barrellas's leasehold.

The plaintiff then filed the instant complaint. In the first cause of action, the plaintiff sought, pursuant to RPAPL article 15, a judgment declaring her the rightful lessee of the 26–foot by 62 foot plot of land that surrounds 38 Cottage Lane. More particularly, citing various land markers, the plaintiff insisted that the boundaries of this lot included the land between 38 Cottage Lane and 40 Cottage Lane. She also sought a declaration compelling the Barrella defendants to discontinue any construction encroaching on her leasehold and compelling them to remove a portion of an enclosed room at the rear of their cottage. In a second cause of action, the plaintiff asserted that the Cooperative and the Board had made numerous attempts to intimidate and disenfranchise her, and sought damages therefor.

In October 2008, the Supreme Court issued a “final disclosure order,” which, among other things, gave the plaintiff permission to have a surveyor inspect and measure the individual lots. Despite receiving permission in October 2008, the plaintiff did not enter into an agreement with a surveyor until April 2009. According to the surveyor, the work product was not to be an actual “survey,” but instead a “location map” of Cottage Lane which attempted to “fit” the cottages “within the confines of the dimensions on each proprietary lease.”

At a status/trial...