Martin v Gauvin

[*1] Martin v Gauvin 2009 NY Slip Op 50214(U) [22 Misc 3d 1121(A)] Decided on February 11, 2009 Supreme Court, Yates County Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 11, 2009
Supreme Court, Yates County

Jeffrey P. Martin and YVONNE MARTIN, Plaintiffs,

against

Alvin L Gauvin, ELISE C. GAUVIN, CITY HILL CONSTRUCTION, INC., TIMOTHY I. HANSEN and JOHN MUSHOCK, JR., d/b/a MUSHOCKS DOCKS, Defendants.



2008-0191



APPEARANCES:Christopher S. Ciaccio, Esq.

Attorney for Defendant/Movant, Gauvins

Rachel Treichler, Esq.

Attorney for Plaintiffs.

W. Patrick Falvey, J.

Plaintiffs and defendants Gauvin (hereinafter referred to as Gauvins) are adjoining land owners on Seneca Lake. Among other things, plaintiffs sued for trespass and nuisance arising out of Gauvins' construction of a dock and boat hoist in front of plaintiffs' property, which plaintiffs claim encroach on their property and/or interfere with their littoral rights. Plaintiffs seek removal of the dock and boat hoist, as well as punitive damages. Plaintiffs also pled a cause of action for intentional infliction of emotional distress regarding the Gauvins as well as other alleged actions by all named defendants.

Gauvins move for summary judgment dismissing the second (dock and boat hoist as trespass to real property and interference with plaintiffs' littoral rights), third (nuisance), fourth (negligence) and fifth (intentional infliction of emotional distress) causes of action, and dismissal of the plaintiffs' demand for punitive damages and attorney fees.

The Gauvins argue:

1.As for the dock and boat hoist, since plaintiffs do not own the land under the lake, they cannot premise a cause of action for common law trespass, statutory trespass under the Real Property Actions and Proceedings Law (RPAPL) or nuisance, since ownership is a prerequisite to bringing such an action;

2.Assuming the action is for interference with "littoral rights", plaintiffs are blocked by the doctrine of collateral estoppel, because plaintiffs elected to pursue a remedy under NY Navigation Law §32, which law prohibits any dock interfering with another's free access to navigable waters, and prescribes a process whereby aggrieved persons may bring a complaint with the NY Office of General Services, ("OGS") which if approved, results in an order directing the offending structure to be removed. Here, the plaintiffs filed such a complaint and their application was denied by a finding that Gauvins' dock and hoist did not interfere with plaintiffs' direct and free access to navigable waters;

3.The acts alleged do not rise to the level of intentional infliction of emotional distress; and [*2]

4.They are entitled to dismissal of the punitive damages and attorney fee claims.

Gauvins provide the affidavit of Alvin Gauvin, who says the construction was not intended to injure the plaintiffs, nor done maliciously. He sought approval from the Army Corps of Engineers, and received same after the inspection. He notes the photos and survey drawings are accurate depictions of the waterfront boundary lines and possible littoral lines. The dock and boat hoist were constructed perpendicular to the shore, which is an appropriate method for delineating the littoral rights of adjoining landowners on a lake.

Gauvins assert in their memorandum of law that the portion of the dock that rests on the shoreline is more than 10 feet from the property boundary between them and the plaintiffs. The remainder of the dock extends on a perpendicular line with the shoreline of Gauvins' property and so, using the perpendicular method of drawing littoral lines, no portion of the dock encroaches on plaintiffs' littoral zone. Gauvins assert that plaintiffs' method of extending the deed line into the water is not an appropriate method for determining plaintiffs' littoral zone. However, the Gauvins admit that by using this method, their dock does encroach on plaintiffs' littoral rights. In 2007, plaintiffs filed a complaint with OGS under NY Navigation Law §32(2). OGS denied plaintiffs' complaint, concluding the perpendicular method should be used. Plaintiffs never filed an appeal to this review.

Gauvins argue that plaintiffs do not own the property under Seneca Lake and so cannot claim trespass. Seneca Lake is navigable so, plaintiffs do not own any portion of the lake beyond the low water mark. Rogers v South Slope Holding Corp., 172 M 2d 33, affd. 255 AD2d 898. And, as to the part of the dock on shore, there can be no trespass since that part of the Gauvins' dock is more than 10 feet from the boundary line. Schuss v Palmisano, 51 AD3d 766; Muraca v Meyerowitz, 13 M3d 348.

Gauvins also argue plaintiffs' sole remedy was to have brought an Article 78 action to review the determination of OGS, so their second cause of action is barred by election of remedies and/or collateral estoppel. See also 9 NYCRR §274. Mtr of Quinn v Seymour, 286 AD2d 947. Plaintiffs are bound by res judicata and collateral estoppel to the quasi-judicial determination of an administrative agency. Mtr of Newsday, Inc. v Ross, 80 AD2d 1; Bernstein v Birch Wathen School, 71 AD2d 129; Mtr of Silberman v Whalen, 70 AD2d 537; Mtr of Blanco v Blum, 67 AD2d 947. The two requirements which establish whether collateral estoppel will bar further litigation are: Identity of the issue which has necessarily been decided in the prior action and is decisive of the present action; and full and fair opportunity to contest the decision now said to be controlling. The Gauvins assert both requirements have been met in this case.

Even if the OGS decision is not controlling, the Gauvins argue that the second cause of action must be dismissed as a matter of law, since the structure does not interfere with plaintiffs' direct and free access to the lake. 9 NYCRR §274.5. Under the rules, different survey principals are to be used, including the perpendicular method, the long lake method, the pie or round lake method and colonial method (used along a river). None of these methods call for establishing littoral zones by extending existing land boundary lines as proposed by the plaintiffs. See Muraca v Meyerowitz, 13 M3d 348 quoting Warren's Weed at 77.39(2).

The Gauvins further assert that the third and fourth causes of action for private nuisance and negligence should be dismissed as regards the dock and hoist, again, since plaintiffs do not own land under Seneca Lake. Thus they have no standing.

Finally, as for the fifth cause of action for intentional infliction of emotional distress, the Gauvins submit that the factual allegations here do not rise to the level necessary to support such a cause of action. Cooper v Hodge, 28 AD3d 1149. Furthermore, in dismissing the fifth cause of action, the court should also strike the request for punitive damages and attorney fees. PJI 2:278. See also Muraca v Meyerowitz, supra.

The plaintiffs oppose the motion by their affidavit, attorney affirmation, surveyor affirmation and memorandum of law, asserting that the motion must be denied because discovery is incomplete, and there are questions of fact regarding each cause of action. Further, the plaintiffs have appropriately commenced the action, despite the OGS proceedings because [*3]plaintiffs never obtained a final determination from that agency. They seek damages for both the intentional infliction of emotional distress and exemplary damages for the trespass, although they do not seek attorney fees, as claimed by the Gauvins, and these causes of action should not be dismissed.

While it is true that discovery is not complete, the court concludes that while there are questions of fact as to the matters subject to discovery, these matters do not affect the resolution of the motion, which is determined as follows:

The Gauvins seek to dismiss the following causes of action, to the extent that they assert injury to plaintiffs, due to the Gauvins' dock and boat hoist only:

a)Second Cause of Action:

Trespass to real property and to plaintiffs' littoral rights by location of Gauvins' dock and boat hoist; Injunction pursuant to RPAPL §871 is sought.

b)Third Cause of Action:

Private nuisance for Gauvins allowing their contractors to enter on plaintiffs' premises and littoral area with heavy equipment, cutting and injuring vegetation, depositing dirt and construction materials, etc.

c)Fourth Cause of Action:

Negligence by failing to use reasonable care in locating the well, driveway, dock and boat hoist to avoid trespassing and encroaching on plaintiffs' premises and littoral area.

d)Fifth Cause of Action:

Intentional infliction of emotional distress.

As stated in Rogers v South Slope Holding Corp, 172 M 2d 33, involving Keuka Lake, Seneca Lake is a navigable lake, and as such the lake bottom is owned by New York State at the low water mark. Therefore, plaintiffs' causes of action for trespass, private nuisance and negligence as regards the dock and hoist to the extent they extend beyond the low water mark must be dismissed. As a matter of law, plaintiffs may not assert such claims over the navigable area of the lake. However, defendants have failed to show that there are no questions of fact concerning plaintiffs' littoral rights, since there appear to be at least two separate surveyors that reach different conclusions concerning where the line should be drawn in the water between these two premises to establish the extent of each parties' littoral rights. And, while it is true that generally speaking, the method of extending upland boundaries into the water to figure the littoral boundaries is not used [Muraca v Meyerowitz, 13 M 3d 348; citing Warren's Weed section 77.39(2)], the Gauvins have not conclusively demonstrated to the court that this is the method used by plaintiffs' surveyor, or that all the possible appropriate methods yield a result that concludes Gauvins' dock is not interfering with plaintiffs' littoral rights.

Therefore, to the extent the second, third and fourth causes of action concern the disputed area shore-side of the low water mark, Gauvins' motion for summary judgment is denied, and to the extent these causes of action concern the plaintiffs' littoral rights, the Gauvins' motion for summary judgment is also denied.

The motion for summary judgment dismissing the second, third, fourth and fifth causes of action due to the OGS's action must also be denied, since said action did not comply with at least one of the two requirements for collateral estoppel to occur. The issue does not appear to have been finally and necessarily decided by the OGS, since there was no final decision made by OGS, only a letter recommending certain action and stating an opinion on how to resolve the matter. The regulations cited by the Gauvins state the procedure to follow to obtain an opinion regarding Navigation Law §32. See 9 NYCRR §274.7 which discusses a "first stage resolution", whereby the commissioner's staff within 90 days of issuance of the notice of approved complaint will review the information submitted and recommend a resolution, or discontinue the investigation upon stipulation of the parties, or specify additional information to be submitted, and schedule a hearing. It does not appear that a hearing was ever held in this matter, only a "first stage resolution" occurred. Thus, there is no definitive decision that plaintiffs could have sought review under CPLR Article 78. Therefore, the doctrines of collateral estoppel and election of [*4]remedies do not apply.

The Gauvins' motion to dismiss the fifth cause of action for intentional infliction of emotion distress is granted. Plaintiffs have not made out a prima facie case for this tort, including assertions that they have received medical services for any alleged emotional distress. As the Gauvins point out, this type of action is reserved for only the most outrageous conduct that goes beyond all possible bounds of decency. Cooper v Hodge, 28 AD3d 1149. The conduct complained of here, as a matter of law, does not meet this test.

CONCLUSIONS

The Gauvins' motion for summary judgment dismissal is granted regarding the fifth cause of action, in its entirety.

The Gauvins' motion for summary judgment dismissing the plaintiffs' second, third and fourth causes of action is granted to the extent such causes of action allege trespass, nuisance and negligence in the area beyond the low water mark of Seneca Lake.

The Gauvins' motion for summary judgment dismissing the second, third and fourth causes of action is denied to the extent such causes of action allege trespass, nuisance and negligence in the area located on the shore-side of the low water mark of Seneca Lake.

The Gauvins' motion for summary judgment dismissing the second, third and fourth causes of action is denied to the extent such causes of action involve interference with plaintiffs' littoral rights.

All other portions of Gauvins' motion for summary judgment are denied in all respects.

THIS CONSTITUTES THE DECISION, JUDGMENT AND ORDER OF THE COURT.

SO ORDERED.

Dated: February ____, 2009

________________________________

W. Patrick Falvey

Acting Justice Supreme Court

Yates County