Romeo v. Sherry, 99-CV-7245 (NGG).
| Decision Date | 17 March 2004 |
| Docket Number | No. 99-CV-7245 (NGG).,99-CV-7245 (NGG). |
| Parties | Joseph ROMEO, Plaintiff, v. Mark SHERRY, New York Submarine Contracting Company, Inc., Robert C. Hanken, John Garner, John Garner Marine Construction and Tottenville Marina, Inc., Defendants. Mark Sherry and New York Submarine Contracting Company, Inc., Third-Party Plaintiffs, v. Joseph Toth, Joseph Toth d/b/a Rimrock Trucking, Rimrock Trucking, Inc., Gladsky Marine Ship Repair & Conversion, Inc., Simpson & Brown, Inc., Warren Disch, Warren Disch d/b/a Warren Disch Construction, Disch Construction Corp., John Sneed, Shelia Lee Schwartz and Begna Associates, LTD., Third-Party Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Simon Harter, William N. France, II, New York, NY, Anthony J. Castellano, Menicucci & Castellano, P.C., Staten Island, NY, for Plaintiff.
John F. Grimes, Staten Island, NY, for Defendants.
Lawrence Jay Kahn, Freehill Hogan & Mahar, LLP, James M. Skelly, Fixler & Associates, L.L.P., Louis J. Martine, McMahon, Martine & Merritt, Deborah R. Reid, Badiak Will & Ruddy, New York, NY, for Third Party Defendants.
Robert C. Hanken, Staten Island, NY, Pro Se, for Defendants/Cross-Defendants.
Joseph Romeo ("Plaintiff") brings this action for trespass, nuisance, and interference with riparian rights, claiming that vessels and objects placed in the waterway interfered with his property in Staten Island. A bench trial was held before me in Brooklyn, New York from June 17 to July 29, 2003. For the reasons set out below, Plaintiff's claims are denied, and judgment shall be entered for the defendants.
Plaintiff is a professional wedding photographer with experience in construction and real estate investment. First Trial Transcript 215, 246-250 (hereinafter "Tr."). Plaintiff originally filed this case in the Supreme Court of the State of New York, Richmond County, and Warren Disch, then a Third-Party Defendant, removed the matter to this court on November 5, 1999 on the basis of admiralty jurisdiction.1 28 U.S.C. § 1333. This litigation involves properties located on 169, 171, and 175 Ellis Street in Tottenville, along the Arthur Kill, a waterway that divides Staten Island, New York from New Jersey.
Following the filing of Plaintiff's Second Amended Complaint on April 3, 2000, Defendants moved on August 11, 2000 to dismiss the instant action under Fed R. Civ. P. 12(c). In that motion, Defendants argued that: (1) Plaintiff lacked standing; (2) the claims were preempted by federal law; (3) economic damages could not be the sole basis for recovery; and (4) Plaintiff's damages were too speculative.
In a Memorandum and Order dated January 23, 2001, the court denied Defendants' motion to dismiss. The court found that Plaintiff had standing to bring his claims. Memorandum and Order (hereinafter "M & O") 11. The court found that it had jurisdiction over Plaintiffs admiralty claims under 28 U.S.C. § 1333 and exercised supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367. M & 0 at 3. The court examined whether the River and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq., preempted Plaintiff's maritime tort and state common law claims and found that it did not. Id. at 5-8. The court did find that under Robins Dry Dock & Repair v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), Plaintiff could not recover purely economic damages caused by a maritime tort unless Plaintiff could show (1) a proprietary interest in State Lands, (2) a violation of his riparian rights, or (3) an infringement of the use and enjoyment of his property beyond his riparian rights. M & O at 8-10. The court found that if the alleged facts were proved, Plaintiff could satisfy one of the prongs of this test. Finally, the court held that Plaintiffs damages were not speculative. M & O at 11.
In August, 1994, Plaintiff purchased waterfront property at 169, 171, and 175 Ellis Street from the estate of Elizabeth Snee, which was being administered by her son, Defendant John Snee ("Snee"). Stip. Fact No. 1. When Plaintiff bought the property, numerous barges lay offshore in plain sight. Plaintiff's Exhibit (hereinafter "Pl. Ex.") 52; Tr. 158-159, 185-186. At Plaintiff s request, Defendants Mark Sherry (hereinafter "Sherry") and John Garner (hereinafter "Garner") thereafter removed all barges that they conceded were theirs, leaving the five vessels which are the subject of this suit. Tr. 193.
State-owned underwater land extends from Plaintiff's property line into the Arthur Kill. In dispute is whether this property line corresponds to the high-water mark or the low-water mark. Subsequent to his purchase, Plaintiff subdivided this property into three separate lots. Stip. Fact No. 5. This subdivision left 175 Ellis Street as the sole lot owned by Plaintiff adjacent to the Arthur Kill. The other lots are not adjacent to the Arthur Kill. Pl.Ex. 2. Plaintiff sold 175 Ellis Street to Otto Zizak in 2002. Tr. 1012-1013. Plaintiff sold the other plots in 1998 and 2003. Garner Defendants' and Toth Third-Party Defendants' Proposed Findings of Fact and Conclusions of Law (hereinafter "Def. 8/20/03 Br.") 11. Consequently, Plaintiff is no longer the owner of the properties that are the subject of this case.
At the time of Plaintiff's purchase, fourteen steel and wooden barges lay offshore from his property. Pl.Ex. 52. Defendant Garner removed six of these barges at the Plaintiff's request. Tr. 193. Three others were removed by Defendant Sherry. Tr. 110-111, 192-193. Five barges remained at the time of the trial of this case. Two are steel barges, referred to as the "S & B 4" and the "Purple Barge," while the other three are unnamed wooden barges. Tr. 158-159, 161-163. All five barges came to their current location prior to the acquisition of the property by Plaintiff, and remained in situ for the entire duration of Plaintiff's ownership. Tr. 181-182.
Defendant Garner made an offer to Plaintiff to remove the two steel obstructions at no charge so long as Plaintiff first obtained permits to remove third-party property.3 Tr. 748-749, 778-779. Garner testified that since he did not own the barges, and did not know who did, that he believed he would need such a permit before undertaking their removal. Tr. 778. Plaintiff, thinking that the offer was not genuine, declined. Tr. 116, 181-182. Zizak, the current owner of 175 Ellis Street, received the same offer from Garner once he purchased the property. Tr. 851-852. Zizak has obtained permits from the Army Corps of Engineers (hereinafter "ACOE") to remove the barges, prompting Defendant Garner to agree to remove the S & B4 and the Purple barge.4 Tr. 781.
The S & B4, ("Vessel A"), is a steel barge located approximately 75 feet offshore from the high water mark of Plaintiff's property, on the foreshore.5 Tr. 169. Third-Party Defendant Simpson & Brown, Inc. ("Simpson") acquired the vessel from a previous owner. Tr. 266. The evidence at trial indicates that Defendant Robert Hanken (hereinafter "Hanken") subsequently acquired the S & B4 in 1981 at no charge, and kept it moored on the foreshore of the Snee property (which later became the Romeo property). Tr. 400-401, 522-523, 538. This was done with the knowledge of the Snees, who did not object. Tr. 481-482. The testimony shows that, either by trade to Defendant Joseph Toth or by conveyance to Hanken through the efforts of Toth, Simpson parted with its ownership interest in the S & B4.
Two years after his acquisition of the S & B4, Hanken sold his property at 179 Ellis Street and his ownership interest in New York Submarine Co., Inc. to Defendant Sherry. Tr. 400-401; Pl.Ex. 27. The S & B4 was not listed as an item on the bill of sale. Pl.Ex. 27. Sherry testified that Hanken later offered, for free, to give Sherry items on the barge as well as the barge itself. Tr. 402-403. Sherry agreed to take a few antique anchors and a winch from the S & B4, but not the barge itself. Tr. 473-474.6
The S & B4 was moored on the foreshore of Snee's property, where it was tied to various John Garner Marine Company ("JGMC") vessels. Tr. 59-760. In the early 1980s, Garner untied one of his barges from the S & B4, causing it to drift free. Tr. 404, 759-761, 815-816. This prompted him to move the S & B4 approximately 50 feet to prevent it from becoming, in Garner's opinion, a danger to navigation. Id. The S & B4 has not moved since, at least until the time of the trial in this case. Tr. 470-474, 760.
The Purple barge is a steel oil barge. Tr. 738. The vessel was moved by nonparties from the Chelsea Piers area and arrived in the Tottenville area on or around July 3, 1986. Tr. 708, 800-803. All parties agree that the barge has not moved since that time. Tr. 706-710, 812-813. Plaintiff testified that he believes that the Purple Barge is owned by Third-Party Defendant Sheila Lee Schwartz (hereinafter "Schwartz"), against whom he has made no claims. Tr. 162.
Plaintiff does, however, claim that "it is unlikely that Garner would have permitted a vessel as large as the Purple Barge to occupy so much of the basin area unless it was on his direction or instruction." Def. 8/20/03 Br. at 19. Garner, however, testified that he did not direct the placement of the barge, and that he did not know (until later) who was responsible for bringing the barge to its current location. Tr. 801-803.
The unnamed offshore barge ("vessel C") is a wooden vessel that has been abandoned in its current location on the foreshore for decades. Tr. 159-162, 713. Plaintiff presented no evidence of possible ownership in any Defendant, and during his testimony he admitted that he did not know who owned the barge. Tr. 162.
Garner testified that between 1980-1982 Hanken requested...
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