Schultheis v Estate of Tuthill

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Schultheis v Estate of Tuthill 2012 NY Slip Op 30556(U) March 5, 2012 Supreme Court, Suffolk County Docket Number: 19824/2004 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Silon Form On.kr SUPREME COURT - STATE OF NEW YORK CALENDAR CONTROL PART - SUffOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., J.S.c. ----------------------------------------------------------------)( GERARD SCHULTHEIS and CAROLYN SCHULTHEIS, Plaintiffs, -againstESTATE OF LAWRENCE M. TUTHILL and BOARD OF TRUSTEES OF THE TOWN OF SOUTHOLD, Defendants. INDE)( NO . ¢ 19824/2004 CALENDAR NO . ¢ 2007026450T MOTION DATE: 8/26/2011 MOTION SEQ. NO.: 001 MD; 002 )(MD PLAINTIFFS' ATTORNEY: WICKHAM, BRESSLER, GORDON & GEASA, P.c. 13015 Main Road, P.O. Box 1424 Mattituck, New York 11952 DEFENDANTS' ATTORNEYS: EILEEN POWERS, ESQ. 456 Griffing Avenue Riverhead, New York 11901 ----------------------------------------------------------------)( SMITH, FINKELSTEIN, LUNDBERG, ISLER & YAKABOSKJ, LLP 456 Griffing Avenue Riverhead, New York 1190 I Upon tht following rar~rs numbered 1 to --.!l1.....readon this Illation and cross'illotion for summary judgmcnt : Notic~ of Motion! Order to Show Cause and supporting papers--!....:...l!L, Notice of Cross Motion and supporting papers 31· H " \1I.wel illt; ,\!1ici:'t,iB :'tHe! ,~apP()itinl; pupel~_, Replying AJl1davits and supporting raper~ 72·74: 75 . 83 , 8ther_, (lIlLdahel hem ino eoan",1 ill ~tlPPOlt "lid oppo,leci to the IIlotilm) it is, ORDERED that the Court, sua sponte, hereby recalls and vacates its order, dated October 17,2011, which denied the motion of defendant Estate of Lawrence M. Tuthill and the cross motion of plaintiffs Gerard Schultheis and Carolyn Schultheis, and issues the following order in its place and stead: ORDERED that the motion by defendant Estate of Lawrence M. Tuthill for summary judgment dismissing the complaint is denied; and it is further ORDERED that the cross motion by plaintiffs Gerard Schultheis and Carotyn Schultheis for summary judgment in their favor on the complaint is denied. This action arises out of a dispute between neighboring landowners over riparian rights to a navigable waterway in the hamlet of New Suffolk in the Town of Southold. Running cast and west, the watelway, known as School House Creek, flows into Cutchogue Harbor of the Peconic Estuary. Plaintiffs Gerard Schultheis and Carolyn Schultheis arc the O\vners of a parcel of real property that abuts School House Creek on its northern boundary and Cutchogue Harbor on its eastern boundary. A portion of the western boundary of Schultheis's property is bounded by School House Creek, and the remaining portion of the western boundary is bounded by the eastern portion of a 2-acre parcel of property owned by defendant Estate of Lawrence M. Tuthill. [* 2] Gc:rurd rr. Schu/ihds d ai, v /.',-,\'/(Ile ojLwvrelice AI. Tilihill el al !l1k~ No, f982.J12(J(}.j Prior 10 his death in 2007, Lawrence M. Tuthill operated a commercial murina on his property that provided docking services, It is undisputed that various members of the Tuthill f:lmily have possessed ownership interests in real property in the School I-louse Creek area for more than ISO years, and that Lawrence M. Tuthdl (hereinaner Tuthill) and his relatives have operated the marina for more than 70 years. Plaintiffs purchased their property 111 ay 1987 from Leon Krementz and Pauline M Kremcntz, who had acquired the property in 1977 from Tuthill's sister, Mm:iorie 1-1. uthill. The T deed transferring ownership to plaintiffs states that in addition to the property described therein, plaintiffs are granted "all of the right, title and mterest of [Leon and Pauline Krel1lentz], If any, oL in and to the waters of School House Creek adjacent to the herein conveyed premises, to the center line thereof,'- as well as a right of way over the road granting access to such property. 1n November 1987, defendant Board of Trustees of the Town of Southold granted Gerard Schultheis a wetlands permit to reconstruct 245 feet of bulkhead and to construct a ramp and floating dock on the western boundary of his property. Subsequently, Tuthill, claiming ownership of the land under School House Creek, sought permission from the Town Trustees to construct additional bulkhead on School House Creek, to install a floating dock alongside the bulkhead on the Schultheis property, and to erect a retaining wal1 fronting Cutchogue Harbor. Tuthill failed to submit documentary proof substantiating his claim to the land under School House Creek, and in June 1990 the Town Trustees passed a resolution tabling his requests to place a !loat alongside the Schultheis property and to build a retaining waIL PlaintitTs commenced the instant action after learning In 2003 that the Town Trustees, without noticc, had rcvoked the wetlands permit it issued in 1987 to construct the bulkhead and floating dock, and after Tuthill allegedly threatened to place Hoating docks vvhich would block their access to the navigable portion of School I-louse Creek. The first cause of action in the complaint seeks a judgment, inter alia, dedming that plaintifTs "have certain riparian rights to dock a boat or boats in the \valcr next to the bulkhead of the aforesaid property and to have direct access from said bulkhead to the School House Creck," and enjoining Tuthill fl'om placing or maintaining Hoating docks or other objects upon the tidal navlgable water abutting plaintiffs' upland property "north of a line which begins at a point on the hulkhead where plaintiffs' property and has a bearing of North 64 26' 40" \Vest." The second cause of action is to quiet title to the land under the water of the School House Creek. Defendants' answers deny the allegations in the complaint. 0 The estate of Lawrence M, Tuthill now moves for summary judgment determil1lng that "the dock and pier proposed by Tuthill docs not interfere with plaintiff Schulthcls' littoral rights," and that the floating dock constructed by the Schultheis plaintiff" "interferes with the littoral rights of the Tuthill Estate as an upland property owner." Additionally, the Tuthill estate seeks a judgment declaring that plaintiffs have "no right, title or ll1tcrest to the land under School House Creek," and that "the right, title or interest to the land under School House Creek rests in the estates of Lawrence M. Tuthill and Marjone I-I.Tuth1l1" Counsel for the Tuthill estate argues the land under School House Creek is owned by the estates of Lawrcnce M. Tuthill and Marjorie H. Tuthill, and that plaintiffs are interfering with the riparian rights of the estate of Lavvrence M. Tuthill by docking their boat on the western houndary of their property in hont of the estate's property. In support of the motion, the Tuthill estate submits copies of the pleadings, -2- [* 3] Gerard fl, SChlifiliei,I' ei af. v hiWk (!/I,aWI"ClICe Nt. Tlilhill eI al 'lIde.\' No, 198J.1I!()()·{ transcripts of the deposition testimony of Tuthill and Gerard Schultheis, and various deeds and survey maps of the subject area. It also submits an affidavit of Tuthill's son, Lawrence M. Tuthill. .If., vvho is the administrator of his father's estate, and an atTidavit of Mickey St John, a title examiner. The affidavit of Lawrence M. Tuthill, Jr., alleges, in part, that School House Creek is a man-made waterway, and that prior to its creation the land underneath the water was a private roadway known as Creek Street Jt alleges that the roadway had been dedicated to the ·fown of Southold in the 1800s by his great, great, great grandfather, Ira B. Tuthill, and then reverted back to his family when the road was abandoned by the Town. It alleges that the Schultheis property had previously been ovvned by his paternal aunt, Marjorie H. Tuthill, who had inherited it from her father, J-Iarrington H. Tuthill, and that Lawrence Tuthill, Jr. and his sisters arc her legal heirs. Further, the allidavit assel1s that plaintiJTs constructed two 110ating docks on the western side of thcir property, ancl that such docks "are nearly completely within the littoral area of the Tuthill property." The atlidavit ofSt. John asserts, among other things, that the deed transl'ernng ownership oCthe subject property from Leon and Pauline Krementz to plaintiffs did not transfer any rights, title or interest in the land under School I-louse Creek, as the deed transferring ownership orthe land from MarJorie I-I.Tuthill to the Krementzs did not transfer such rights to them. It also avers that a review of the records of Suffolk County and the To\vn of Southold show that the land now known as Schooll-lousc Creek had been dedicated to the Town by various landowners in New Suffolk in ] 838 for use as a public road; that such dedication did not transfer ownership "but merely an easement to use the property as a public highway"; and that the road was abandoned by the Tov.'n in 1976. St. John asserts that at the time of his death Harrington Tuthill owned all of the land no\-\'constituting School House Creek, and that he transferred his interest in such land by deeds to his children, Lawrence M. and Mmjorie H. Tuthill, He concludes that as such interest \'\'as not included In the deed transferring ownership of the subject property from Ma~jorie Tuthill to the Krementzs, the rights in the land under School House Creek remains in the heirs of Lawrence M. and Marjorie H. Tuthill. Plaintiffs oppose the motion and cross-move for an order granting summary judgment 111 their t~l\;or. Plaintiffs assert that therc is no evidence supporting the Tuthill estate's claim that School House Creek is a man-made body of water. They assert that School I-louse Creek, in fact is a tidal body of water; that o,>vnershipof land under tidal ';'.ialersmust be traced back to ,>vhcn the Enghsh Crown claimed ownership of all land in the carly colonies; and that, under a land grant known as the Southold Patent, issued 111 1676 by the Duke of' York's appointed agent, Governor Edmund Andros, title to tidal bodies of water and marshes located with111 area of the Southold was granted to the Town's Trustees, Plaintiffs also argue that in view of the shape and frontage of the properties at Issue, and the line of navigability of School House Creek, there should be an equitable division of riparian rights that would allow the Schultheis' to continuc their use orthe existing dock on the western boundary ofthcir property. In addition, plaintiffs contend that a review of the chain of title for their property demonstrates an intent by prior owners to transfer all interest in such property, mcluding rights to the land under the water of SchoolHouse Creek. Plall1tiffs' submissions 111upport of their cross motion include various s surveys and deeds, photographs of the School House Creek area and of the subject property, correspondence 1Tomthe Town to Tuthill, a copy of the Southold Patent, and an affidavit of [* 4] (,,!mnl!l Sdw!r/u>is ('[ II/. l' I;~\·I(/Ieo!Lmvr"nc·C' AI. Tuthil! f'! ill, Indo No, 1982-t/20Il-l Kenneth Zahler, a title exammcr. Zahler asserts that under the Crown's J 676 land grant, title to land under tidal waters was transferred to the Trustees of the Town of Southold, and that a search of County records and other sources revealed no conveyances of tidal lands by the Trustees. I-Ie also avers that a search of ancient maps shows the land dedicated to the Town back in J 838 was a "paper street" located north of the School House Creek, and that a deed from 1866 evidences the location oCSchool House Creek "where it lies today." A reply affirmation by the Tuthill estate's counsel argues that the Trustees havt: not asserted an o\vnership interest in the land under the water of School House Creek, 3nd that pla1l1tiCfs not entitled to "share" the estate's riparian rights. In opposition to the estate's arc motion and in further support of their cross motion, plaintiffs submit affidavits of Pauline Krementz and Kenneth Zahler, as well as an affidavit of Gerard Schultheis and an affirmation of Abigail Wickham, Esq. The Trustees of the Town of Southold did not submit papers in opposition to the Illotion or the cross motion. Initially, it is noted that both the motion and cross motion were made marc than 120 days after the tiling of the note of issue (see CPLR 3212 [a]). However, based on information obtained during conferences with the parties' attorneys, the Court finds good cause exists for the delay Il1making such motions. Accordingly, the motions Cor summary judgment shall be determined on the merits. It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see A lvarez v Prospect HO,ljJ., 68 NY2d 320,508 NYS2d 923 [1986]; Zuckerman v City o{New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Once such a showing has been made, the burden shifts to the pmty opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to est3blish the existence of material issues of fact which require a trial of the action (see Alvarez v Pro5pecI Ho.\j7., 68 NY2d 320, 508 NYS2d 923; Zuckerman v City of NeH! York, 49 NY2d 557, 427 NYS2d 595). The failure to make such a prima facie showing reqUires the denial orthe motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. elr, 64 NY2d 85],487 NYS2d 3] 6 [19851). The Tuthill estate's motion is denied. The applications for determinations that"the dock and pier proposed by Tuthill docs not intcrl'crc \-\lithpidintiffSehultheis' littoral rights," that the floating dock constructed on the western boundary of the Schultheis property "interferes with the littoral rights of the Tuthill estate as an upland property o\'-.'11cr," nd that the estates of Lawrence a M. Tuthill and Marjorie 11.Tuthill O\vn the land under the School I-louse Creek Improperly seck declaratory relief on matters not pleaded in the complaint or Tuthill's answer (see CPLR 3017 JbJ: lvkIlugh v Weissman, 46 AD3d 369, 847 NYS2d 566 [1st Dept 2007"]). Plaintiffs' cross motion also is denied. As to the branch of the motion scckmg summary .Judgment on the second cause of action, Subdivision (1) of RPAPL 1501 provides, in relevant part, that when a person claims an estate or interest in real property, such person may maintain an action against any other person "to compel the determination of any cJann adverse to that of the plainliffwhich the defendant makes, or which it appears from the public record ... the defendant might make." An action to quiet title also may be brought by or against a corporation, as if a was -4- [* 5] Gerard II. Sdwlllu.:is et (II, v EI"wle a/I.awrence M. I'll/hill el al. Inde.r NI!. 1982.;120(J./- natural person (see RPAPI. 1541). A party claiming title to real property bears the burden of establishing his or her title, and must rely "on the strength of [his or her] title and not upon the weakness" of the opposing party's title (Bes! Renling Co. v CilyofNew York, 248 NY 491. 496. 162 Nf0497 fl928]; see LaSala v Ten/iege, 276 AD2d 529, 713 NYS2d 767 r2d Dept2000]; Tawil (?(N Hemps/ead v Bonner, 77 AD2d 567,429 NYS2d 739 [2d Dept], appeal denied 51 NY2d 707, 433 NYS2d 1027, rearg denied 52 NY2d 829, 437 NYS2d 1030[19801). Here, the cross-moving papers do not argue in the first instance that plaintiffs hold legal titk to land under School I·louse Creek. Instead, plaintiffs present evidcnce, particularly the aHidavit of Kenneth Zalher, purportedly demonstrating their claim that the land situated under the creek water in front of their property is owned not by the Tuthill estate, but by the Trustees of the Town or Southold under the grant issued in 1676 by Governor Andros, And while they argue in the alternative that, if the Trustees do not hold title to the land under the water of School I louse Creek title to such land in front of their property passed to them by deed, they fail to submit proof establishing such c1aim_ Plaintiffs, therefore, failed to meet their burden on the cause of action under RPAPL article 15 to establish good title in the property under School I-louse Creek at issue in this action (see LaSala v Terstiege, 276 AD2d 529, 713 NYS2d 767; Town of N. Hempstead v Bonner, 77 AD2d 567, 429 NYS2d 739; e;f 0 Brien v Town of Hunfinxton, 66 AD3d 160, 884 NYS2d 446 [2d Dept 2009], Iv dismissed 14 NY3d 935, 905 NYS2d 557[2010]). As to the branch of plaintiffs' motion for summary judgment in their favor on the cause of action ror declaratory and injunctive relief, a riparian owner has the right to access a navigable river or other body of water which abuts his or her property for navigation, fishing and other such uses (see Town ofOysler Bay v Commander Oil Co., 96 NY2d 566, 734 NYS2d 108 [2001]; Kearns v 'l11ilburg, 76 AD3d 705, 907 NYS2d 310 [2d Dcpt 20ID}, Iv denied _ NY3d _, 2011 NY Slip Op. 92163 [Dec. 13, 20 1I]~ Mascolo v Romoz Props., Lid., 28 AD3d 617, 813 NYS2d 765 [2d Dcpt 2006]), and such right follows the entire frontage of the property (Town (~f Ilempstead v Oceanside Yachillarbor, 38 AD2d 263, 264, 328 NYS2d 894 r2d Oept 1972'1,a/rel 32 NY2d 859, 346 NYS2d 529 [19731). The right of access 10 navigable water includes the right of passage 10 and from the waterway with reasonable safety and convenience (see Mascolo v Romaz Pl'Ops., Ltd., 28 AD3d 617, 813 NYS2d 765; 627 Smith Sf. Corp. v Bureau (~j"Waste Disposal olthe Dep'- (!fSanitalion a/City ojN. Y, 289 AD2d 472, 735 NYS2d 555 [2d Dept 2001 [, {v denied 98 NY2d 611,749 NYS2d 3 [2002]; Town u/Hempstead v Oceanside Yacht !larbor, 38 AD2d 263. 328 NYS2d 894). Consequently, a riparian owner has the right to make his or her access a ~'practical reality" by building a pier, dock or wharf (Town oIOysler Bay v COlllmander Oif Co .. 96 NY2d 566, 571. 734 NYS2d 108; see Kearns v 771ilburg. 76 AD3d 705. 907 NYS2d 310~ S'c/ws.\' v Palmisano, 51 ADJd 766, 857 NYS2d 709 [2d Dept 2008']). Further. an owner or land abuuing a navigable tidal waterway "has the right to use the area over the underwater land fronting on his tor her] property for access to navigable \vatcr, even iflitlc 10 the underwater land IS held by another" (Bravo II Ter,l,'liege, 196 !\D2d 473, 475. 60] NYS2d 129 [2d Dept 19931; see Town of Hempstead v Oceanside Yacht f1arhor. 38 AD2d 263. 328 NYS2d aY4). A riparian owner's right of access, however, is not absolutc. Rathel', it is qualified by the rights oCthe owner of the submerged land over which the riparian landowner must cross (Town o{Oysler Bay \' Commander Oif Co., 96 NY2d 566, 572,734 NYS2d 108, cilinK Hedges v IYesl -5- [* 6] (iel"llrd rr. Schultheis el (1/. v Ll"lare ofLuwrence Index Nfl. /98].J!]()().J .!vI Tllthl!! et III. .)'/1ore R.R. Co., 150 NY 150, 158, 44 NE 691 l1896}; see A1ascolo v Romaz Props., LId., 28 AD3d 617,813 NYS2d 765). When the rights of the riparian owner and the underwater landowner conflict, a court must "strike the correct balance" between such rights (Town (d"OysIer Bay v Commander Oil Co., 96 NY2d 566, 572, 734 NYS2d 108; see Mascolo v Romaz Props., LId., 28 AD3d 617. 813 NYS2d 765), Moreover, a right of access "may be shared with others intent on crossing the land under water," even for purposes unrelated to the use of the upland (Town of Hempstead v Oceanside Yacht Harbor, 38 AD2d 263, 265,328 NYS2d 894, ciring CiIy (?fNew York v Third Ave, Ry. Co., 294 NY 238, 62 NE2d 52 [1945]). The conflicting afJidavits ofZehler and St. John, together with the various deeds and survey maps submitted on the motion and cross mOlion, demonstrate a triable issue of fact as to whether the colonial land grant, the Southold Patent, confen'ed ownership of the subject land under SchoolHouse Creek to the Trustees of the Town of Southold. While plaintiffs' submissions demonstrate they have riparian rights to access the navigable portion of School I louse Creek (see Cily qjNew York v GOWClI1l/S Indus. Park. Inc., oS AD3d 1071, 886 NYS2d 427 L2dDept 2009], Iv denied 13 NY3d 716, 895 NYS2d 315 [2010); Mascolo I' Romaz Props .. f)d, 28 AD3d 617, 813 NYS2d 765), including a right to access from the western boundary of their property (see Town of Hempstead v Oceanside Yacht Harbor, 38 A02d 263, 265, 328 NYS2d 894), issues exist as to whether the tloating docks constructed by plainlitTs interfere with and diminish the riparian rights of the adjoining property owned by the Tuthill estate. The reasonableness of the Schultheis's use of the floating docks and the impact of such use of the Tuthill estate's property rights, therefore, are issues for the trier of fact. Finally, plaintiffs have failed at this time to demonstrate a legal basis for enjoining the Tuthill estate from erecting or maintaining docks or other objects on the creek "north of a line which begins at a point on the bulkhead where plaintiffs' property and has a bearing of North 64 26' 40" West:' 0 PAil.J 9AlSLEY.-JR-~ .r.S.c. . Dated: March 5, 2012 -6-

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