Opinion
Index No. EH2021-7658
06-23-2022
Norfolk Beier PLLC, Lake Placid (Matthew D. Norfolk, of counsel), for plaintiffs. O'Connor, O'Connor, Bresee & First, P.C., Albany (Samantha V. Vedder, of counsel), for defendants.
Norfolk Beier PLLC, Lake Placid (Matthew D. Norfolk, of counsel), for plaintiffs.
O'Connor, O'Connor, Bresee & First, P.C., Albany (Samantha V. Vedder, of counsel), for defendants.
Martin D. Auffredou, J. Motion by defendants to cancel the notice of pendency filed in the above, with costs and sanctions; and cross motion by plaintiffs to strike defendants’ twelfth, sixteenth, seventeenth, eighteenth and nineteenth affirmative defenses.
Plaintiffs and defendants are owners of adjoining parcels on the shore of Long Lake, on a private road known as Keller Bay Way, in the Town of Long Lake, Hamilton County, New York. The complaint alleges that defendants constructed a drainage system, single family dwelling and driveway, all of which divert surface water and rain onto plaintiffs’ property, causing damage. They seek damages in causes of action for trespass, private nuisance and negligence, and an order pursuant to RPAPL 841 directing defendants to remove the alleged nuisance. In a fourth cause of action, they seek a judicial license pursuant to RPAPL 881, permitting them to enter upon defendants’ property and perform the remedial work that they allege is necessary. Defendants have joined issue by the filing of an answer that asserts, among other things, an affirmative defense that alleges that the statute of limitations has run on plaintiffs’ tort claims, and four affirmative defenses in opposition to an award of punitive damages against them. Plaintiffs thereafter filed a notice of pendency pursuant to CPLR 6501, which specifically references their RPAPL 881 claim.
Defendants now move to cancel the notice of pendency, claiming that it was improper to file it based on the claims in the complaint. They also seek costs pursuant to CPLR 6514 (c) upon such cancelation and, alleging that the notice of pendency was filed in bad faith because plaintiffs knew or should have known that the causes of action alleged in the complaint do not admit of the filing of a notice of pendency, sanctions pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130.1-1.
Plaintiffs oppose the motion and cross-move for the dismissal of the aforesaid affirmative defenses. As to the twelfth affirmative defense, which asserts that the statute of limitations has run on the claims in the complaint, plaintiffs claim that their causes of action allege continuing torts. As to the sixteenth through nineteenth affirmative defenses, which assert that the imposition of punitive damages upon defendants would be unconstitutional under several theories, plaintiffs have attested that they do not seek punitive damages.
Defendants have replied in opposition to the cross motion, asserting that the causes of action in the complaint are addressed to discrete events—the construction of the drainage system, dwelling and driveway—as to which the statute of limitations has run, though the effects of such construction may be continuing. They also state that they would consent to withdraw the affirmative defenses that are addressed to punitive damages if plaintiffs stipulate that they are not seeking such damages.
Upon consideration of the affirmation of Samantha V. Vedder, Esq. in support of defendants’ motion, dated March 21, 2022, with exhibits; defendants’ memorandum of law in support of their motion, dated March 21, 2022; defendants’ statement of material facts in support of their motion, dated March 21, 2022; the affirmation of Ayah F. Badran, Esq. in support of plaintiffs’ cross motion and opposition to defendants’ motion, dated March 31, 2022, with exhibits; plaintiffs’ memorandum of law in support of their cross motion and opposition to defendants’ motion, dated March 31, 2022; the affirmation of Samantha V. Vedder, Esq. in reply to plaintiffs’ opposition to defendants’ motion and in opposition to plaintiffs’ cross motion, dated April 6, 2022; and defendants’ memorandum of law in reply to plaintiffs’ opposition to their motion and in opposition to plaintiffs’ cross motion; and the court having duly deliberated upon all the foregoing, decision is hereby rendered as follows.
A statement of material facts was not required by Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (a) because defendants’ motion is not one for summary judgment. Thus, plaintiffs’ failure to file a counter statement of material facts pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (b) does not operate as an admission of the facts recited in defendants’ statement of material facts (see Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g [c]).
Plaintiffs’ request for oral argument on the motion and cross-motion is denied as, in the court's view, unnecessary to the disposition of the issues raised herein.
The central issue in defendants’ motion is whether a notice of pendency was properly filed upon the causes of action in the complaint. Defendants’ advance ( Braunston v. Anchorage Woods, Inc. 10 N.Y.2d 302, 222 N.Y.S.2d 316, 178 N.E.2d 717 [1961] )—a case that is factually analogous to the one at bar—as dispositive of the question. Therein, our Court of Appeals held that a plaintiff who seeks abatement of a nuisance and damages arising therefrom may not file a notice of pendency in the action because such a plaintiff "claims no right, title or interest in or to the real estate against which it is filed" ( id. at 305, 222 N.Y.S.2d 316, 178 N.E.2d 717 ).
Plaintiffs here counter that Braunston is distinguishable because they do not merely pursue claims in tort, but also seek judicial relief under RPAPL 881. They note a dearth of authority directly on that point but refer the court to ( Matter of AY Phase II Dev. Co. LLC v. 497 Dean St. Residences LLC, 2016 N.Y. Slip Op. 32389 [U], 2016 WL 7103984 [Sup Ct, Kings County 2016] ), an unreported case of relatively recent vintage from a court of coordinate jurisdiction that, according to plaintiffs and the courts own research, is the only case to have directly addressed the question of whether a claim under RPAPL 881 is a sufficient basis upon which to file a notice of pendency. Relying on the plain language of CPLR 6501, the AY Phase II court found "no doubt or dispute that a license granted [under RPAPL 881 ] will affect the use and enjoyment" of the property that was the subject of that action ( AY Phase II , 2016 N.Y. Slip Op. 32389 [U], *10 ).
Though the AY Phase II court's decision is not mandatory authority to this court, it is not irrelevant for that reason, as defendants assert. That decision may yet be followed if this court finds it to be persuasive, which it does. CPLR 6501 permits the filing of a notice of pendency "in any action ... in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." It is significant to the court that, should plaintiffs prevail on their claim under RPAPL 881, they would be entitled to a judicially ordered license, which, unlike an ordinary license, would not be revokable at defendants’ will. It seems to the court that such a license would have a far more substantial impact on defendants’ rights to possess, use and enjoy their property than an injunction arising from a tort claim would have (see Bienstock v. Nista Const. Co. , 225 App. Div. 534, 535-536, 233 N.Y.S. 630 [1st Dept. 1929] ; AY Phase II , 2016 N.Y. Slip Op. 32389[U], *10; cf. Braunston , 10 N.Y.2d at 306, 222 N.Y.S.2d 316, 178 N.E.2d 717 [distinguishing Bienstock because "[t]here the plaintiff claimed a right in defendants’ adjoining land for the construction of a retaining wall thereon"]). Here, as in Bienstock and unlike in Braunston , plaintiffs seek an interest in defendants’ property, in the form of a judicially ordered license to which defendants’ rights to possession, use or enjoyment of their real property would be subordinated, and which may be viewed by prospective purchasers as a cloud on title of which, in fairness, they ought to have notice, consistent with the purpose of filing a notice of pendency (see CPLR 6501 ; AY Phase II , 2016 NY Slip Op., *10). As such, the motion to cancel the notice of pendency herein should be denied. It follows from this holding that an award of costs under CPLR 6514 (c) and the imposition of sanctions under Rules of the Chief Administrator of the Courts (22 NYCRR) § 130.1-1 are inappropriate and this branch of defendants’ motion should also be denied.
Turning to the cross motion, initially, the court sees no purpose in maintaining the sixteenth through nineteenth affirmative defenses in light of plaintiffs’ sworn representation that they do not seek punitive damages, or in requiring a stipulation as a prerequisite to excising them from this action. Insofar as plaintiffs do not seek punitive damages, the sixteenth through nineteenth affirmative defenses are moot and/or academic and are dismissed, without prejudice to reinstatement should plaintiffs later amend their complaint to assert a claim for punitive damages.
The court appreciates defendants’ reason for asserting these affirmative defenses—plaintiffs’ use of the language, "careless and wanton and reckless," which harkens to a claim for punitive damages. However, plaintiffs have stated, and the court has now ruled, that they have made no such claim, and no such claim will be permitted absent an amendment to the complaint and the concomitant reinstatement of defendants’ sixteenth through nineteenth affirmative defenses.
As to the cross motion to dismiss the twelfth affirmative defense (statute of limitations), plaintiffs bear "the heavy burden of demonstrating that the defense[ ] lack[s] merit as a matter of law" ( DeThomasis v. Viviano , 148 A.D.3d 1338, 1339, 49 N.Y.S.3d 580 [3d Dept. 2017] ). On review of this claim, this court is bound to "liberally construe the pleadings, accept the facts alleged by defendant[s] as true and afford [them] the benefit of every reasonable inference" ( id. ). It cannot be said that defendants’ statute of limitations defense lacks merit as a matter of law. There is a reasonable construction of the allegations in the complaint and answer that admits of a finding that, as defendants allege, plaintiffs’ claims relate to discrete acts from which their causes of action accrued and from which the statute of limitations may be found to have run. Thus, the court finds that dismissal of the twelfth affirmative defense is not appropriate at the pleading stage, notwithstanding the possibility that the torts set forth in plaintiffs’ claims will be found to be continuing.
Arguments not specifically addressed herein have been examined and determined to be without merit or rendered academic in light of the foregoing.
Accordingly, it is hereby
ORDERED that defendants’ motion is denied; and it is further
ORDERED that plaintiffs’ cross motion is granted to the extent that the sixteenth, seventeenth, eighteenth and nineteenth affirmative defenses are dismissed and stricken from the answer, and the cross motion is otherwise denied.
The within constitutes the decision and order of this court.