Errico v Weinstein

[*1] Errico v Weinstein 2009 NY Slip Op 52284(U) [25 Misc 3d 1224(A)] Decided on October 22, 2009 Supreme Court, Nassau County LaMarca, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2009
Supreme Court, Nassau County

Paul J. Errico, Jr. and SALLIE ERRICO, Plaintiffs,

against

Allen Weinstein, LESLIE WEINSTEIN, THE TOWN OF HEMPSTEAD, RONALD W. MASTERS, AS COMMISSIONER OF THE TOWN OF HEMPSTEAD'S DEPARTMENT OF CONVERSATION AND WATERWAYS, and ERIN M. CROTTY, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Defendants.



18048/04



Rosenberg, Calica & Birney, Esqs.

By: Ronald Rosenberg and

Lesley Reardon

Attorneys for Plaintiffs

100 Garden City Plaza, Suite 408

Garden City, NY 11530

Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, Esqs.

By: Anthony J. Sabino, Esq.

Attorneys for Defendants Allen Weinstein, Leslie Weinstein, the Town of Hempstead, Ronald W. Masters, as Commissioner of the Town of Hempstead's Department ofConservation & Waterways, and Erin M. Crotty as Commissioner of the New York StateDepartment of Environmental Conservation

14 Russell Avenue

Bethpage, NY 11714

Kroll, Moss & Kroll, LLP

By: John K. Moss, Esq.

Attorneys for Defendants Geri Russo, Scott Russo, Kevin McAuliffe, Kathleen McAuliffe, Usha Aramalla and Purnachandra Aramalla

400 Garden City Plaza

Garden City, NY 11530

Cullen & Dykman, LLP

By: Peter J. Mastraglio, Esq.

Attorneys for Jane Facchini and Claudo Facchini

100 Quentin Roosevelt Boulevard

Garden City, NY 11530

William R. LaMarca, J.

This matter was commenced in 2004 by plaintiffs, PAUL J. ERRICO and SALLIE ERRICO (hereinafter referred to as the "ERRICOS"), against defendants ALLEN WEINSTEIN and LESLIE WEINSTEIN (hereinafter referred to as the "WEINSTEINS"), THE TOWN OF HEMPSTEAD (hereinafter referred to as the "TOWN"), RONALD W. MASTERS, AS COMMISSIONER OF THE TOWN OF HEMPSTEAD'S DEPARTMENT OF CONSERVATION & WATERWAYS (hereinafter referred to as "MASTERS") and ERIN M. CROTTY, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (hereinafter referred to as the "DEC").

The petition and complaint sought declaratory relief, injunctive relief and monetary relief for trespassing and wrongful interference with the ERRICOS' riparian rights and for an order directing the removal of the WEINSTEINS' ramp, dock and mooring poles. In addition, it also sought Article 78 review of the permits authorizing the construction of mooring piles issued to the WEINSTEINS [*2]and revocation of same. Finally, the ERRICOS sought a declaration of the parties riparian rights.

By Short Form Order, dated September 9, 2005, Honorable Justice Kenneth Davis dismissed the Article 78 proceeding and the 10th and 11th causes of action of the complaint which sought to annul the DEC and the TOWN permits issued to the WEINSTEINS. Thereafter, on April 21, 2006, numerous motions were submitted to Justice Davis which sought the following relief: 1) the WEINSTEINS' motion for an order awarding summary judgment, dismissing the ERRICOS' complaint; 2) a cross-motion by the DEC for an order dismissing the ERRICOS' complaint; 3) a cross-motion by the ERRICOS for an order awarding summary judgment on the first through fourth causes of action for judgment defining the parties respective riparian rights; and 4) a cross-motion by the TOWN and MASTERS for summary judgment dismissing the ERRICOS' complaint. The DEC, the TOWN, MASTERS and the WEINSTEINS argued that the remaining causes of action should be dismissed because the adjoining landowners are necessary parties and because the remaining claims were essentially the Article 78 allegations previously dismissed by the Court. By Short Form Order, dated June 20, 2006, Justice Davis granted the motions of the TOWN, MASTERS and the DEC dismissing the complaint as against them, and denied the ERRICOS and the WEINSTEINS respective motions for summary judgment.

The Court also ordered that the adjoining landowners fronting the canal in the area in question be added as necessary parties. While the ERRICOS and WEINSTEINS' properties are at the south terminus of a canal, to the east of said properties, also fronting the canal, is the USHA ARAMALLA and PURNACHANDRA ARAMALLA (hereinafter referred to as the "ARAMALLAS") property, followed on its east by the KEVIN McAULIFFE and KATHLEEN McAULIFFE (hereinafter referred to as the "McAULIFFES") property. To the West of the WEINSTEINS and ERRICOS properties, also fronting the canal, is the property of GERI RUSSO and SCOTT RUSSO (hereinafter referred to as the "RUSSOS"), followed on the west by the JANE FACCHINI and CLAUDIO FACCHINI (hereinafter referred to as the "FACCHINIS") property.

The ERRICOS' causes of action which survived and were tried by the Court were as follows: 1) the first cause of action - for a declaratory judgment declaring the boundaries of the parties riparian rights, which plaintiffs claim were violated by the WEINSTEINS' boat and dock; 2) the second cause of action - for an injunction enjoining and restraining the WEINSTEINS and their successors and assigns from violating the ERRICOS riparian rights; 3) the third cause of action - for an injunction permanently enjoining and restraining the WEINSTEINS and their successors and assigns from erecting any ramp, dock or mooring piles or other structure which exceeds the WEINSTEINS riparian rights or which interfere with the ERRICOS riparian rights; 4) the fourth cause of action - for a mandatory injunction directing the WEINSTEINS to immediately remove the ramp, floating dock and mooring piles in their entirety, at their cost and expense; and 5) the eighth and ninth causes of action - for damages based upon trespass and nuisance.

The trial of this matter commenced on May 4, 2009 and continued on May 5, May 6 and May 8, 2009 (site inspection), and concluded on May 14, 2009 after conference.

Facts

The body of water, which is the subject of this dispute, is known as the Mandalay Canal located in the Town of Hempstead, in the unincorporated area known as Wantagh, New York. All parties agreed that there should be a fair and equitable allocation of the riparian rights in the cove which is the terminus of the Mandalay Canal. Further, all parties agreed that Mandalay Canal is 110 [*3]feet wide, as measured between the McAULIFFES' bulkhead on the east and the FACCHINIS' bulkhead on the west side of the canal. They also all agreed to the following shoreline frontages in the cove, in accordance with a survey prepared by Bowne AE & T Group of Mineola, New York, dated November 2006: RUSSOS, 21 feet "scaled"; ERRICOS 60 feet; WEINSTEINS 39.95 feet; and ARAMALLAS 24.10 feet. Thus, the shoreline frontage in the cove totals 145.05 feet. All agreed that this matter is governed by the New York State Code, Rules and Regulations 9 NYCRR § 274.5, in particular the Round Lake (PIE) Method and the Proportionate Thread of the Stream Method. The Court in deciding which method to employ may base its decision on any combination of the surveying principals set forth in the Regulations to determine the riparian zones of the parties.

The shore line frontage of the McAULIFFES and the FACCHINIS run parallel to the Mandalay Canal immediately north of the cove. The parties affected in the cove are the ERRICOS, the WEINSTEINS, the RUSSOS and the ARAMALLAS. Although the McAULIFFES and the FACCHINIS' properties are on a parallel course with the Mandalay Canal, their riparian rights may be affected to some extent by the Court's decision.

The parties in the cove are experienced boaters. It is an area requiring close cooperation of the owners so that they may all enjoy access to the navigable channel. Use of every foot of space by the parties has an impact on their neighbor. The disagreement that is the subject of this litigation arose in 2004 when the WEINSTEINS docked their approximately 36 foot boat perpendicular to the shoreline. All of the other parties docked their boats parallel to their property lines.

The ERRICOS claim that they are aggrieved by the encroachment of the WEINSTEINS' boat and pilings, which pilings they claim extend 17 feet beyond the WEINSTEINS' property line in front of the ERRICOS' property. There was testimony at trial that the ERRICOS cannot gain access to the channel without employing 2 or 3 people who must manually push off the WEINSTEINS' poles and the ERRICOS' dock. Plaintiffs assert it is a dangerous procedure as evidenced by Mrs. ERRICO's fall off the swimming platform of their boat into the water between the boat and the dock, while the engine was running, which resulted in an injury to her hand requiring treatment at a local hospital. Mr. McAULIFFE also testified that he has had difficulty docking his boat and relied on help from the WEINSTEINS.

The Law

It is well settled that, although a riparian owner enjoys the right of reasonable, safe and convenient access to navigable water, "including the right to make this access a practical reality by building a pier, or wharfing out'" from his frontage (see, Short Form Order, dated June 20, 2006 (Davis, J.) in the instant matter; Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, 734 NYS2d 108, 759 NE2d 1233 [C.A. 2001]; Adirondack League Club v Sierra Club, 92 NY2d 591, 684 NYS2d 168, 706 NE2d 1192 [C.A. 1998]; Town of Hempstead v Oceanside Yacht Harbor, Inc., 38 AD2d 263, 328 NYS2d 894, affd , 32 NY2d 859, 346 NYS2d 529, 299 Ne2d 895 [C.A. 1973]; Mascolo v Romaz Properties, Ltd., 28 AD3d 617, 813 NYS2d 765 [2nd Dept. 2006]; Bravo v Terstiege, 196 AD2d 473, 601 NYS2d 129 [2nd Dept. 1993]; Muraca v Meyerowitz 11 Misc 3d 1061A, 816 NYS2d 697 [Supreme Nassau Co. 2006]), the right of reasonable access "is not absolute" and must be balanced against the competing rights of the other affected parties (see, Town of Oyster Bay v Commander Oil Corp., supra ; Mascolo v Romaz Properties, Ltd., supra ; Muraca v Meyerowitz, supra ). In order to balance those rights "fairly, each individual landowner's right of direct access must be considered together with the right of direct access enjoyed by the neighboring [*4]owners, none of which should be unfairly encroached upon" (Muraca v. Meyerowitz, supra ).

Because of the close proximity of the parties in the cove, the Court must provide clear riparian lines so that the construction of piers and wharfs and the movement of boats is accomplished in an orderly fashion, treating all the parties equally. To that end, the Court considered the various surveying methods directed in 9 NYCRR § 274.5, as well as the applicability of the Code of the Town of Hempstead, §155-4 (E) and (F).

9 NYCRR §274.5, entitled Standards, directs that the resolution of any riparian rights complaint will be based upon one, or a combination of five (5) surveying methods to determine riparian zones, as follows: the Perpendicular Method, the Long Lake Method, the Round Lake (PIE) Method, the Colonial Method and the Proportionate Thread Of The Stream Method. The ERRICOS, the RUSSOS, the McAULIFFES and the ARAMALLAS, 4 of the 6 parties, agreed that the Round Lake (PIE) Method or the Proportionate Thread Of The Stream Method are applicable to the conditions existing in the canal and the cove, and should be utilized in determining the parties riparian rights. The FACCHINIS took no position in this regard and the WEINSTEINS urged that the Court utilize a method fashioned by their expert witness.

The ROUND LAKE (PIE) METHOD is described in 9 NYCRR §274.5, as follows: Establishment of the littoral [riparian] zone for a circular body of water is accomplished in a manner which is called the Round Lake or Pie Method. In this method, a point in the center of the body of water is established and a line drawn from the property corner at the shore is extended outshore to the established point at the center of the body of water.

The PROPORTIONATE THREAD OF THE STREAM METHOD is described in

9 NYCRR §274.5, as follows Apportionment is made among several riparian owners in such a manner that each owner has the same percentage of footage in the thread of the stream as they have along the shoreline. Measure the shoreline, measure the thread of the stream, then divide the thread of the stream distance by the shoreline distance and multiply the resulting factor by the shoreline distance for each lot along the shoreline. The distance obtained is applied to the thread of the stream and the riparian/littoral zone is determined by connecting the lines between the shoreline property points with the outshore points established along the thread.

Additionally, the Code of the Town of Hempstead, §155-4 (E) directs, as follows: No boat or vessel shall be moored, anchored or docked in any waterway of the town so that such boat or vessel or any projection thereof extends into the waterway more than one-fourth (1/4) of the width of such waterway, as measured between the low waterlines along the waterway at the point or place that such boat or vessel is moored, anchored or docked, except that if the waterway is bulkheaded along each shoreline, with width of such waterway may be the width between bulkheads.[*5]

The Code of the Town of Hempstead, §155-4(F) directs, as follows: No structure, dock or mooring shall be erected or constructed in, over or on any waterway within the Town of Hempstead, except as may otherwise be provided in accordance with this Code. Any structure, dock or mooring so erected or constructed shall not project into the waterway a distance greater than one-fourth (1/4) of the width of such waterway as measured between the low waterlines along the waterway or between the outboard face of existing bulkheading at the point or place that such structure, dock or mooring is erected or constructed.

In determining the width of the waterway in the case at bar, the measurement between the McAULIFFES' bulkhead on the east and the FACCHINIS' bulkhead on the west side of the Mandalay Canal is 110 feet and, therefore, in accordance with the TOWN Code "1/4 rule", each party may construct a dock or mooring and/or project his boat no more than 27.5 feet into the canal.

Discussion

The best evidence the Court had to fashion fair and equitable riparian zones for each of the parties, were the documents in evidence produced by the experts called by the ERRICOS and the WEINSTEINS. The ERRICOS' expert, Lewis J. Gnip, (hereinafter referred to as "Gnip"), was a licensed surveyor with 30 years of experience, having worked for the New York State Office of General Services and the DEC, as well as in the field and as a lecturer on surveying techniques. The WEINSTEINS' expert, Charles W. Bowman (hereinafter referred to as "Bowman"), was not a licensed surveyor but had extensive field experience, having been employed by the New York State Department of Environment, Real Property Bureau and the DEC, who presently works in private industry on waterfront construction projects.

Each of the experts presented maps for the Court's information and guidance depicting the riparian rights of the parties in accordance with the surveying methods they urged the Court to adopt. Gnip presented 2 maps depicting the ROUND LAKE (PIE) METHOD and the PROPORTIONATE THREAD OF THE STREAM METHOD (Plaintiffs' Exhibits "12" and "13"). Bowman also presented a map (Defendant Exhibit "B") which differed substantially from those submitted by the other expert. Both experts utilized the survey of the area prepared by Bowne AT & E Corp., dated November 2006, to establish the property lines in the subject area. (Plaintiffs' Exhibit "9").

Gnip constructed his maps of mylar, a transparent material, which were prepared to overlay the Bowne survey to confirm the accuracy of the maps to the survey. Gnip established the riparian zones by employing very precise surveying methods as directed in 9 NYCRR §274.5, particularly the Round Lake (PIE) Method, the Proportionate Method and also the Long Lake Method. He also incorporated the "1/4 rule" as mandated by the Code of the Town of Hempstead. The Gnip maps were marked into evidence and were accepted by 4 of the 6 parties. The WEINSTEINS objected to the information contained in those maps and the FACCHINIS took no position on the maps in evidence.

The favored method Gnip proposed was the Round Lake (PIE) Method as he considered the cove to be circular in nature. He applied the Long Lake and the Proportionate Methods to the Round Lake (PIE) Method in arriving at the riparian zones depicted in Plaintiffs' Exhibit "12". He utilized [*6]the Bowne survey, accepted by all parties, and personal observations of the cove in his research in preparing the maps. Utilizing the distance of 110 feet from bulkhead to bulkhead, Gnip calculated, in accordance with the Code of the Town of Hempstead, that the "1/4 rule" allows the landowners to dock boats or build structures such as docks and moorings out from the shoreline a distance of 27.5 feet. He calculated that, after deducting 27.5 feet from each side of the canal in accordance with the "1/4 rule", the remaining navigable channel measured 55 feet in width. He applied the "1/4 rule" to the contours of the cove and used the deeded measurements of the shoreline on each property, except with respect to the RUSSOS' property which scaled at 21 feet. His calculations allow 50% of each owners frontage in the cove in establishing the access each party has to the 55 foot wide navigable channel. He drew lines from the limits of each property to the center of the canal as called for by the Round Lake (PIE) Method. Gnip's calculations allow each party in the cove the following number of feet of access to the navigable channel: RUSSO 10.5 feet, ERRICO 30 feet, WEINSTEIN 20.00 feet and ARAMALLA 12 feet, for a total of 72.5.

In Plaintiff's Exhibit "13", Gnip employed the Proportionate Thread of Stream Method. This method was the second choice of 4 of the 6 parties, excluding WEINSTEIN and FACCHINI. Gnip used the same calculations as applied in the Round Lake (PIE) Method: 110 feet across the canal, 27.5 feet from the bulkhead following the contours of the cove, and 55 feet of navigable channel. Under this method he did not measure from the property lines to the center of the canal but to the thread of the stream. Gnip's calculations allowed 45% of the frontage of each property in the cove in establishing the access to the navigable waterway. The results are as follows: RUSSO 9.5feet, ERRICO 27.3feet, WEINSTEIN 18.2 feet, ARAMALLA 11 feet for a total of 66 feet. Gnip testified that the calculations that he made on both maps were based on sound surveying principles which offered reasonable access of all parties to the navigable waterway.

Testimony at trial established that, in preparing his map to establish the riparian zones in the cove, Bowman used methods which were in stark contrast to the plaintiffs' precise maps in evidence and that he took a less formal view. He testified that he used his field experience in employing the Proportionate Method and rejected the "1/4 rule" directed by the TOWN Code. He admitted to not employing recognized surveying standards. In rejecting the "1/4 rule " mandated by the TOWN Code, Bowman testified that he made his calculations by estimating the widths of boats and any other structures such as docks and moorings extending into the Mandalay Canal from the property owner's bulkheads. He determined that an average of 20 feet out from each bulkhead was sufficient for the free use of the surface waters of the canal. However, he only applied the 20 foot restriction to the shorelines running north and south, parallel to the waterway, as found on the McAULIFFES and FACCHINIS' properties. He did not apply the 20 foot restriction to the frontages in the cove. Instead, Bowman only applied the 20 foot measurement as far as the north end of the RUSSOS' property and, at that point, drew a line across the canal to the middle of the McAULIFFES' property, which he designated as the navigable channel, 70 feet in width. The result of such a conclusion allowed boats or other structures such as docks and moorings in the cove to be built out from the owner's bulkhead to more than 50 feet. The Court, having made an on site inspection, concluded that any boat of the size and width contemplated by the Bowman map would have a severe impact on the riparian zones of the other landowners in the cove and would only benefit the WEINSTEINS, whose present docks, poles and 36 foot boat extended well past the 20 foot restriction imposed on other [*7]owners of canal frontage. Under the Bowman plan, should the WEINSTEINs or the ERRICOs decide to increase the size of their boats or add additional structures to the line of the navigable waterway, RUSSO and ARAMALLA's access to the navigable waterway would be severely impacted or non-existent. The Court also notes that restricting the FACCHINIS and McAULIFFES to 20 feet from their bulkheads, notwithstanding that they have the most frontage on the canal, would be counter to the plea of all parties that the Court fashion riparian zones that are fair and equitable. The Court also considered the fact that Bowman's map contained numerical errors and reduced the ERRICOS' frontage on the canal from 60 feet, as deeded and confirmed by the Bowne survey, to 50.9 feet. Additionally, there were other calculations and inclusions on the Bowman map that needed to be redacted as they were merely speculative and had no relationship to the conditions prevailing in the cove.

Conclusion

The Court acknowledges that it did not have the scientific knowledge or background to address the riparian zone issue and therefore permitted the parties respective experts to give testimony as well as their expert opinions, and to submit exhibits that were accepted into evidence. However, the Court may reject the experts' opinion if found to be unreliable and the opinion of the expert will be given the weight that the expert's qualifications in the field warrant. Furthermore, as this was a bench trial, the Court was both the finder of facts and the arbiter of the law. The Court considered the testimony of the witnesses, gave weight to that testimony and generally determined the reliability of the witnesses testimony. (Cf. Greenberg v Behlen, 220 AD2d 720, 633 NYS2d 189 [2nd Dept. 1995]). The Court also considered the interest or lack of interest in the case or the bias or prejudice of the witness.

In reaching its determination, the Court finds that Bowman cannot reject the mandates of the TOWN Code, as the TOWN has the power to control its waterways. ....[N]avigable waters are subject to the sole jurisdiction and control of the State of New York (see Navigation Law § 30). However, the State Legislature has excluded "tidewaters bordering on and lying within the boundaries of Nassau and Suffolk counties" from the definition of navigable water of this state (Navigation Law § 2 [4]) to accommodate the colonial land grants which conferred ownership and control over tidal waterways to certain Long Island townships, including the Town of Brookhaven (see Matter of Rottenberg v Edwards, 103 AD2d 138, 140-141, 478 NYS2d 675 [1984]). The statutory exemption contained in Navigation Law § 2 [4] has consistently been construed as authorizing the Counties of Nassau and Suffolk and their respective townships to legislate and control the use of such lands and waterways (see Matter of Rottenberg v Edwards, supra at 141). The Town, as successor to the title and rights of the English government, may do "all things that a government may do for the benefit of its people" (People v Miller, 235 App Div 226, 230, 257 N.Y.S. 300 [1932], affd 260 NY 585, 184 N.E. 103 [1932]), and holds title "in trust for all the inhabitants as a public and governmental agency" (Knapp v Fasbender, 1 NY2d 212, 231, 134 NE2d 482, 151 NYS2d 668 [1950])Accordingly, the Town, as sovereign, has governmental authority over such waterways within its territorial limits (see, Incorporated Vil. Of Manorhaven v. [*8]Ventura Yacht Servs., 166 AD2d 685, 561 NYS2d 277[1990]; Grace v. Town of Hempstead, 166 AD 844, 852, 152 NYS122 [1915], affd 220 NY 628, 115 NE 1040 [1917]. . .

Melby v Duffy, 304 AD2d 33, 758 NYS2d 89 (2nd Dept. 2003). Therefore, the Court rejects

the proposals of Bowman as unreliable, and concludes that it would be folly to consider the idea that larger boats and structures than already exist may be accommodated in the cove. The WEINSTEIN boat is approximately 36 feet in length and, together with pilings which extend out beyond the 27.5 foot TOWN code restriction, the Court finds that the neighboring parties free access to the navigable channel has been affected. The impact on the cove is fully demonstrated by Plaintiffs' Exhibit "12a" which is a scale model of the WEINSTEINS' boat superimposed on Plaintiffs' Exhibit "12", Gnip's map utilizing the Round Lake (Pie) Method.

The Court is mindful of the preference for the application of the proportionate method when addressing the riparian rights of parties in a cove as expressed in Freeport Bay Marina, Inc. v Grover, 149 AD2d 660, 540 NYS2d 471 (2nd Dept. 1989). The first issue involved the determination of how the riparian rights of the parties should be apportioned within the cove. It was stipulated that the appropriate method of apportionment would be the so-called "proportional" method; however, there was still a question as to how the proportional method should be applied. The proportional method has been recognized in New York since as early as 1852 in O'Donnell v Kelsey (10 NY 412; see also, People ex rel. Cornwall v Woodruff, 30 App Div 43, affd 157 NY 709). In Groner v Foster (94 Va 650, 652-653, 27 SE 493, 494), the court, citing O'Donnell v Kelsey (supra ), formulated the following step by step application of the method: "measure the length of the shore and ascertain the portion thereof to which each riparian proprietor is entitled; next measure the length of the line of navigability, and give to each proprietor the same proportion of it that he is entitled to of the shore line; and then draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore. Each proprietor will be entitled to the portion of the line of navigability thus apportioned to him, and also to the portion of the flats, or land under the water, within the lines so drawn from the extremities of his portion of the said line to the extremities of his part of the shore".

In fact, Gnip's, Round Lake (PIE) Method applies the Proportional Method, among others, in establishing the number of feet of access each party in the cove has to the navigable waterway.

In accordance with the above analysis the Court declares, with respect to the first cause of action, that the riparian rights of the parties are to be allocated in accordance with the Round Lake (PIE) and the Proportionate Thread of Stream Method as depicted in Gnip's map submitted into evidence as Plaintiff's Exhibit "12". The Court credits the expert testimony of Gnip and concludes that said method is the simplest method to apply and affords all of the parties the greatest access to the navigable waterway.

Based on the foregoing, with respect to the second, third and fourth causes of action, the [*9]Court concludes that the WEINSTEINS violated the riparian rights of the neighboring property owners in the cove and, therefore, the WEINSTEINS, and their successors and assigns, are permanently enjoined and restrained from maintaining any boats and structures such as docks, moorings and pilings, which exceed their riparian rights and which violate the TOWN code and the riparian zones of the other parties, as depicted in Plaintiff's Exhibit "12". To effectuate same, the WEINSTEINS are directed to remove and relocate their boat and their ramp, dock, mooring pilings and any structures that exceed their riparian rights as determined herein, to areas within their riparian right zone, within ninety (90) days from service upon them of a copy of this order, with notice of entry. The Court notes that the "inability of the [WEINSTEINS] to dock their currently owned boat within their riparian rights is of little consequence to the outcome of this litigation. The corridor of access provided herein is sufficient to accommodate many reasonably sized watercraft commensurate with the very limited shorefront provided . . .". Muraca v Meyerowitz, 13 Misc 3d 348, 818 NYS2d 450 (Supreme Nassau Co. 2006).

As to the eight and ninth causes of action which seek money damages for trespass and nuisance, while it is clear that an action for trespass may be maintained for trespassing upon riparian rights (see, Douglaston Manor, Inc v Bahrakis, 89 NY2d 472, 655 NYS2d 745, 678 NE2d 201[C.A. 1987]), and that an action for private nuisance can be established by showing (1) an interference substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) with a person's right to use and enjoy land; (5) caused by another's conduct ( see, Mangusi v Town of Mount Pleasant, 19 AD3d 656, 799 NYS2d 67 [2nd Dept. 2005]), it is the judgment of the Court that the evidence presented at trial was insufficient for the plaintiffs to prevail. No evidence, whatsoever, of damages was presented, and the Court rejects plaintiffs' request to continue the litigation by referring the matter for an inquest to determine the extent of damages. This matter should have been resolved at trial when evidence of damages could have been appropriately assessed by the Court. Therefore the eighth and ninth causes of action are dismissed.

This constitutes the decision of the Court. Settle Judgment on Notice.

Dated: October 22, 2009

_________________________

WILLIAM R. LaMARCA, J.S.C.