Waterview Towers, Inc. v. 2610 Cropsey Dev. Corp.
| Decision Date | 31 October 2016 |
| Docket Number | No. 11719/2007.,11719/2007. |
| Citation | 48 N.Y.S.3d 268 (Table) |
| Parties | WATERVIEW TOWERS, INC., Plaintiffs, v. 2610 CROPSEY DEVELOPMENT CORP., et. al., Defendants. |
| Court | New York Supreme Court |
Bruce H. Lederman, Esq., atty for plaintiff.
Linda S. Agnew, Esq., atty for defendant.
Plaintiff, Waterview Towers, Inc. ("Waterview"), commenced the within action1 for adverse possession pursuant to Article 15 of the Real Property Action and Proceedings Law ("RPAPL"), claiming that it is the owner and has exclusive right to use the southwesterly portion of Centre Place, from the center line thereof, subject to the easement rights of abutting property owners. Additionally, plaintiff claims ownership to any land under 2630 Cropsey Avenue, Brooklyn, N.Y. and 1935 Shore Parkway, Brooklyn, N.Y. to the extent that defendant, 2610 Cropsey Development Corp. ("2610 Cropsey")2 , claims any rights therein. Based on plaintiff's claims, it seeks an order directing the County Clerk to expunge various correction deeds filed by defendant that include the ownership of Centre Place; an order directing defendant to remove the fence it erected and restore the sidewalk to its previous condition (prior to the erection of the fence) within 30 days, or in the alternative, an order allowing plaintiff to do so, with the cost of said work to be reimbursed by defendant. Plaintiff further requests a hearing on the issue of whether sanctions for frivolous practice should be imposed upon defendant for asserting frivolous counterclaims.
Defendant, 2610 Cropsey, rejects plaintiff's claim of title, and asserts counterclaims for declaratory judgment determining the rights and legal relations of the parties as regards to Centre Place and Stillwell Street3 , and monetary damages.
Plaintiff, is a cooperative housing corporation, consisting of two (2) sixteen story buildings ("the cooperative") which together house three hundred and twenty (320) tenant shareholders. The cooperative is located at 2630 Cropsey Avenue and 1935 Shore Parkway, and designated as Tax Block 6933, Lot 55 in Brooklyn, New York. In addition to its residential buildings, the cooperative property includes a landscape gardens, small and large outdoor parking lot, and sitting and playground areas. Plaintiff's predecessor in interest, Anthony J. Contello Housing Co., Inc., acquired Lot 55 in 1959 from Meyer Glick for the development of Contello Towers, a two (2) building Mitchell Lama project. Contello Towers was built in 1963 and converted into plaintiff's private cooperative in 1989 wherein the name of the development was changed to Waterview Towers, Inc.
Both Plaintiff and its predecessor in interest have utilized a strip of real property located on the southwesterly portion of Centre Place ("Contested Property"), adjacent to Lot 55 and opposite Lots 40, 41, 46, 48 and 51 as a private small parking lot for its tenants. The small parking ("Small Parking Lot") is twenty-five (25) feet wide and one hundred and eighty-one (181) feet long and has fifteen (15) parking spaces. Plaintiff accesses the Small Parking Lot by way of a curb cut on 26th Avenue, between Cropsey Avenue and Shore Parkway.
Defendant is a company, owned in equal shares by John Giammona and Francine DiNapoli, and holds title to 2610–2620 Cropsey Avenue, located on Block 6933, Lots 48 and 51. The rear of Lots 48 and 51 abut Centre Place. Defendant acquired title from W & H Burt, Inc. on April 27, 2005 for the development of residential condominiums but later abandoned that plan and considered developing the property as a nursing home or an assisted living facility. Upon acquiring Lots 48 and 51, defendant erected a construction fence, demolished the housing structure on Lot 48, and began parking his vehicle on Centre Place behind Lots 48 and 51.
By letter dated March 15, 2006, defendant advised plaintiff that it owned the whole of Centre Place which included the southwesterly half utilized by the plaintiff as the Small Parking Lot, and demanded that plaintiff stop parking cars in the Small Parking Lot. Defendant, in 2007, erected a gate to block the entrance to Centre Place in order to prevent plaintiff's tenants from using the Small Parking Lot. The police became involved and directed defendant to leave the gate open while the parties pursued their respective legal remedies.
Plaintiff commenced the within action by summons and complaint, dated April 6, 2007.4 On May 14, 2007, defendant executed and issued a correction deed amending the legal description of Lots 48 and 51 to include ownership of half of Centre Place to the center line. One month later, on June 14, 2007, defendant filed a Verified Answer with counterclaims. Thereafter, over the course of the next two years, the parties engaged in protracted motion practice. On September 13, 2007, defendant moved for an order granting dismissal of plaintiff's complaint pursuant to Civil Practice Laws and Rules ("CPLR") 3213 and summary judgment pursuant to CPLR 3212 on its counterclaims. Plaintiff in opposition, by order to show cause, requested a preliminary injunction enjoining defendant and its agents from interfering with plaintiff's exclusive use of the Small Parking Lot. While the court (Balter, J.), found that defendant met its initial burden establishing entitlement to summary judgment against plaintiff on the issue of ownership of the Contested Property, it denied defendant's motion for summary judgment holding that the opposition raised questions of fact regarding plaintiff's claim for adverse possession, and granted plaintiff's request for a preliminary injunction. Based on defendant's interpretation of Judge Balter's decision, on April 30, 2008, defendant executed and issued a second correction deed to itself changing the legal description for Lot 51 to include the entire length of Centre Place from 26th Avenue to Stillwell Street.
Thereafter, defendant made two additional summary judgment motions which were denied by Judge Debra Silber on June 7, 2010 and Judge Richard Velasquez on March 14, 2011.
On December 11, 2012, plaintiff moved for summary judgment on its claim of adverse possession and dismissal of defendant's counterclaims. In support of the motion, plaintiff submitted the affidavit of Ronald Bernstein, a member of the Board of Directors of Waterview and President of the Board of Directors ("the Board"). Defendant opposed plaintiff's requested relief arguing that its unbroken chain of title extended to the original subdivision map and that those deeds convey right, title and interest to the whole of Centre Place to defendant. The expert affidavit of Lance R. Pomerantz, Esq., a land title expert, was submitted in support of defendant's opposition. Defendant also cross-moved for an order pursuant to CPLR 6312 requiring plaintiff to provide the required statutory undertaking in connection with the January 31, 2008 preliminary injunction in this matter, or in the alternative, vacating the preliminary injunction. The court (Bunyan, J.) found that the affidavit of defendant's expert raised questions of fact precluding summary judgment and granted defendant's cross-motion to the extent of ordering an undertaking to be posted in the amount of one million dollars ($1,000,000). On or about November 12, 2013, the amount of the undertaking was reduced by the Second Department to two hundred fifty thousand dollars ($250,000).
Adam Vuong, Ly Hua Vuong and Chou Meng Vuong; Eduardo Ortiz and Melinda Ortiz; and 2620 Cropsey Avenue, Inc., are the remaining named defendants and owners of Lots 40, 41, and 46 in Tax Block 6933, respectively, and did not answer or appear. The City of New York ("the City") was also named as a defendant, however, the action against the City was discontinued by stipulation dated November 23, 2010, since the City claims no interest in the Contested Property. The State of New York was named as a defendant, and served a Notice of Appearance, wherein it waived service of all papers and notices of all proceedings except notice of application for discontinuance of the action, referee's report of sale and notice of all proceedings to obtain surplus monies.
Over the course of three weeks, an eleven-day bench trial was conducted wherein the Court granted the respective applications of plaintiff and defendant to conform their respective pleadings to the proof. Plaintiff's claims of adverse possession were limited to the southwesterly half of Centre Place, subject to reciprocal easements, and ownership to any land under 2630 Cropsey Avenue, Brooklyn, N.Y. and 1935 Shore Parkway, Brooklyn, N.Y. to the extent that defendant, 2610 Cropsey, claims any rights therein. Defendant's counterclaims for declaratory judgment were limited as follows:
Defendant's counterclaim for monetary damages was expanded to include plaintiff's continuing...
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