Town of Hempstead v. Little

• Decision Date: 02 December 1963
• Citation: 20 A.D.2d 539,245 N.Y.S.2d 407
• Parties: In the Matter of TOWN OF HEMPSTEAD, Petitioner-Appellant-Respondent, v. Leonard LITTLE, Florence T. Little, Mario Scolaro and Marie Scolaro, Claimants-Respondents-Appellants, and Charles Solomon, Claimant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 407

245 N.Y.S.2d 407

20 A.D.2d 539

In the Matter of TOWN OF HEMPSTEAD, Petitioner-Appellant-Respondent, v. Leonard LITTLE, Florence T. Little, Mario Scolaro and Marie Scolaro, Claimants-Respondents-Appellants, and Charles Solomon, Claimant-Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 2, 1963.

John A. Morhous, Town Atty., Hempstead, for appellant-respondent, Town of Hempstead; Mario M. Cuomo, Holliswood, of counsel.

Ferdinand I. Haber, Hempstead, for respondents-appellants, Little.

Holman & Holman, Mineola, for respondent-appellant Scolaro; Paul E. Fusco, Mineola, of counsel.

Before KLEINFELD, Acting P. J., and CHRIST, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a condemnation proceeding by the Town of Hempstead, pursuant to the Administrative Code of Nassau County, Laws 1939, c. 272, to acquire the fee title to certain parcels of real property for beach protection and park purposes, the Town and certain claimants cross-appeal as follows from the final decree of the Supreme Court, Nassau County, entered April 7, 1961 upon the court's decisions and opinions after a nonjury trial:

(1) The Town appeals from so much of the final decree as (a) confirmed the tentative decree; (b) denied its motions to disaffirm such tentative decree; (c) overruled its objections thereto; and (d) fixed the amounts of the final awards to the claimants.

(2) The claimants Little appeal from: (a) so much of the final decree as fixed the amounts of the final awards for their damage parcels, numbered 1-A, 5-A, 7-A and 8 (No. 8 being erroneously referred to as 8-A), and as overruled their objections to the tentative decree; (b) intermediate rulings of the court; and (c) an order of the court, dated September 28, 1960, denying their motion to reopen the case.

(3) The claimants Scolaro appeal from the entire final decree.

Final decree reversed on the law and the facts, without costs, and proceeding remitted to the Special Term for the following purposes: (1) the making of a decree disallowing the claim of the claimants Little as to damage parcels 5-A and 7-A and as to so much of parcel 1-A which was upland as of the vesting date; disallowing the claim of claimants Scolaro as to damage parcel 4-A; and disallowing the claim of claimant Solomon as to damage parcel 6-A; (2) severing the proceeding as to the said claims and parcels; (3) holding a new trial upon the claims of the claimants Little with respect to parcel 8 and with respect to so much of parcel 1-A as was submerged under water upon the vesting date; and (4) taking any further proceedings not inconsistent herewith.

Findings of fact inconsistent herewith are reversed, and new findings are made as indicated herein.

Appeal from intermediate rulings and from order, dated September 28, 1960, dismissed as academic.

In a previous condemnation proceeding (Matter of Town of Hempstead [Little], 2 A.D.2d 864, 156 N.Y.S.2d 219, leave to appeal denied 2 N.Y.2d 709, 139 N.E.2d 432), the Town acquired certain portions of the properties variously owned by these claimants. The portions then taken, considered together, constituted the upland only, to the August 1952 mean high-water line of the Atlantic Ocean. In such prior proceeding it was adjudicated: (1) that the portions under water had become submerged not by reason of erosion, but because of avulsion; (2) that therefore title thereto remained in the claimants; and (3) that accordingly the claimants were entitled, in addition to direct damages for the upland, to consequential damages with respect to the submerged land. Thus, because of the fact that the...