Matter of Commissioner of N. Y. State Off. of Parks, Recreation & Historic Preserv. v Nissequogue Yacht Club, Kings Park Hosp. Employees, Inc.
Annotate this CaseDecided on September 27, 2002
District Court, Suffolk County, Fourth District,
In the Matter of Commissioner of New York State Office of Parks, Recreation & Historic Preservation, as Agent for the People of the State of New York, Petitioner,
against
Nissequogue Yacht Club, Kings Park Hospital Employees, Inc., Respondent.
Docket/Index No. SMLT124-02
Paul M. Hensley, J.
Petitioner seeks to recover possession of a portion of the premises located on the grounds of the former Kings Park Psychiatric Center (KPPC) which is currently occupied by the respondent Nissequogue Yacht Club, Kings Park Hospital Employees, Inc. (NYC). The petition alleges that NYC has operated and used this portion of the premises as a marina since 1966 and as of October 1, 1997, have continued in occupancy as a tenant at will or at sufferance.
Pursuant to the Community Mental Health reinvestment Act (L 1993, ch 723), the KPPC was closed effective October 1, 1997. Although jurisdiction of the grounds upon which the NYC occupies was within the control of the New York State Office of Mental Health (OMH), on December 11, 2001 jurisdiction was transferred to the Office of Parks , Recreation and Historic Preservation of the State of New York (OPRHP) for inclusion in the Long Island Park System (Nissequogue State Park). Consequently, respondent's contention that Albert Caccese, the Deputy Commissioner for the OPRHP is not authorized to bring this proceeding on behalf of OPRHP is without merit (PRHPL 3.09[13] RPAPL 741; CPLR 3020[d][2]). In addition, the petition is in full compliance with 22 NYCRR 130-1.1a as it is signed by an associate attorney from the State Attorney General's Office.
The Commodore of the NYC, Joseph Sheridan, avers that the NYC has been operating on this parcel of land for over 50 years. However, the documentation submitted by petitioner indicates that the NYC was first organized and incorporated on June 27, 1966. Pursuant to the Constitution of the NYC, a copy of which is submitted by petitioner, members were composed of
state employees working on the KPPC property or retirees with 15 years of service with the KPPC. Further documentation submitted by petitioner
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[*2]
indicates that the OMH encouraged the funding of a Boat Club for the staff and employees of KPPC and that funds were allocated for the organization and development of a boat club.
In June, 1982, in response to the threatened closure of the NYC, the Civil Service Employees Association, Inc. (CSEA) filed an improper practice charge before the Public Employment Relations Board (PERB) against the OMH and the KPPC wherein it was alleged that the Yacht Club was a "fringe benefit, a condition of employment". That charge was resolved in a Memorandum of Understanding dated July 15, 1983 which provided in pertinent part as follows:
"1.Except as provided in paragraph 4, only current employees of the Kings Park Psychiatric Center who, as April 7, 1983, maintained boat slip facilities and who owned the boat using the slip and who were on that date members of the Nissequogue Yacht Club, will continue to do so beyond Sunday, September 11,1983. 2. * * *. Except as provided in paragraph 4, the opportunity to retain a boat slip . . . will continue only so long as a current employee who owns a boat and is a member of the Nissequogue Yacht Club remains on the payroll of the Kings Park Psychiatric Center.4. To the extent there is still space available within the redlines on the attached map, retired employees of the Kings Park Psychiatric Center who owned a boat and were using a sip as of April 7, 1983, and were members of the Nissequogue Yacht Club on that date, may, within the discretion of the Nissequogue YachtClub, continue to use a slip within the red lines until such time as the retired employee shall pass away or until the last active employee becomes no longer qualified for a slip, whichever occurs first".
In 1993 a second improper practice charge was filed with the PERB by the CSEA based upon another threatened closure of the NYC. However, that charge was subsequently withdrawn based upon the applicability of the 1983 understanding. In that charge, it was specifically noted that for over 25 years the NYC was composed of a group of employees represented by CSEA and employed at the KPPC.
In the affidavit of Deputy Commissioner Albert Caccese, Mr. Caccese claims he was involved in the negotiation of the 1983 understanding and that the specific intent of the agreement was merely to allow the continued occupancy of the NYC, whose members were composed of specified employees and retirees of the KPPC, contingent upon an existing payroll [*3]of the KPPC. In further support of this claim, Richard J. Dautner, Deputy Counsel at the Governor's Office of Employee Relations (GOER) and former assistant counsel at the time the 1983 understanding was executed, avers that "the conditions permitting use of the KPPC premises by NYC lapsed upon the closure of KPPC and the termination of the KPPC payroll. Therefore, any rights to the use and occupancy of the former KPPC premises by the NYC ended upon the closure of
KPPC and the termination of the KPPC payroll".
In commencing this holdover proceeding, it is petitioner's contention
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Index No. SMLT 124-02
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that upon the closure of KPPC and dissolution of the payroll October 1, 1997, the NYC's right to occupy the premises ceased and that the OMH and the OPRHP has allowed the occupancy by the NYC to continue as a tenancy at will or by sufferance.
On April 4, 2002 petitioner, pursuant to Real Property Law § 228, caused to be served upon the NYC a notice to terminate the tenancy at will or by sufferance. Thereafter, on May 16, 2002 petitioner commenced the instant holdover proceeding against respondent.
In seeking dismissal of this proceeding, respondent first asserts that the Court lacks jurisdiction over this proceeding as no landlord-tenant relationship exists between the NYC and petitioner as the NYC was not a signatory to the 1983 agreement. That the rights granted by the agreement were given to those members of the NYC who also members of the CSEA and it merely constituted a contractual agreement between employer and employee. That the NYC has its own separate and distinct rights and petitioner is merely seeking to terminate a contractual agreement with a nonparty to this action, i.e., CSEA, which cannot be adjudicated under Article 7 of the RPAPL. The Court finds this argument to be lacking in merit.
Since the agreement reached between the CSEA and the OMH in 1983 was binding upon those designated KPPC employees and retirees who were members of the NYC, NYC was necessarily bound by that agreement since its existence was solely derived from its membership of KPPC employees and retirees. In fact, the documentary evidence submitted herein overwhelmingly demonstrates that NYC was not a separate and distinct entity as its membership was restricted to employees and certain retirees of the KPPC. In other words, since it could not exist without its membership, the right of NYC to continue occupancy was concomitant with its member-employee/retiree's right to continued occupancy. Consequently, once the KPPC payroll ceased in 1997, pursuant to the agreement, those members of the NYC specified in the agreement were no longer eligible to retain a boat slip and without such membership, NYC's right to occupy the subject premises was terminated. Based upon the foregoing, the Court rejects respondent's claim that CSEA was a necessary party to this proceeding or that petitioner is seeking to terminate a contractual agreement with the CSEA. In any event, CSEA was merely acting in a [*4]representative capacity on behalf those employee-members of the NYC and, furthermore, since CSEA never occupied the subject premises, there would be no jurisdictional basis to join them as a party to this proceeding (see, D'Arienza v. Juliano, NYLJ, 3/27/96, at 34, col 6 [App. Term, 9th & 10th Jud. Dists.]). Nor does the affidavit of Joseph Sheridan alter this result. There is nothing to indicate that the Constitution of the NYC ever authorized membership other than eligible employees and retirees of the KPPC and respondent has offered no documentation substantiate any claimed amendment permitting members outside of employees or retirees of the KPPC. To the extent Mr. Sheridan contends that the NYC cannot be bound by the 1983 agreement since NYC also had members that were employed by the KPPC but were not part of the CSEA, this contention is again unsubstantiated. In any event, such an argument is disingenuous since the NYC was created solely for KPPC employees and to claim that the agreement was not binding on non-CSEA members would render it meaningless and there is nothing in the agreement differentiating or giving preferential treatment to those
alleged employees who were not members of CSEA at that time. In any event, the allegations contained in the 1993 improper practice charge noted that NYC membership was limited to employees represented by CSEA. In view of the foregoing, the Court reject's respondent's claims that petitioner was required
to serve a notice to quit upon CSEA or that the State should proceed under
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Article 78 of the CPLR rather than Article 7 of the RPAPL.
Respondent's further contention that the petition is defective in that it fails to "[s]tate the respondent's interest in the premises and his relationship to petitioner with regard thereto" as required by RPAPL 741(2) is also without merit. It is well established that a petition in a summary proceeding is no different than a pleading in any other type of civil case and as such it is to be liberally construed and the facts alleged therein are accepted as true and accorded every favorable inference to determine whether the facts as alleged fit within any cognizable legal theory (see, Leon v. Martinez, 84 NY2d 83; CPLR 3026; Birchwood Towers #2 Assocs. v. Schwartz, 98 AD2D 699). Petitioner has sufficiently stated its interest as owner of the premises currently occupied by respondent and has sufficiently alleged facts and submitted documentation establishing that respondent became a tenant at will after its right to occupy the premises ceased and has thereby established a landlord-tenant relationship which affords this Court subject matter jurisdiction pursuant to RPAPL 711(1) (see, Vassilatos & Panarites v. Vaspan, Ltd., NYLJ, 4/9/98, at 32, col 2 [App. Term, 9th & 10th Jud. Dists.]). When the 1983 agreement was executed, the relationship between petitioner's predecesor and the NYC was that of licensor-licensee since the agreement did not convey any possessory interest in the premises to the NYC but merely conferred a privilege upon eligible employees and former employees who were members of the NYC to use boat slips on State owned land until the privilige ceased to exist, i.e., when the payroll of the KPPC ended (see, Greenwood Lake & Port Jerevis R.R. Co. V. New York & [*5]Greenwood Lake R.R. Co., 134 N.Y. 435, 440; Loren v. Marry, 195 AD2d 776, 777). Upon the cessation of the payroll of KPPC in 1997, the NYC's license expired and the allegation's in the petition sufficiently establish that NYC's continued occupation of the subject premises created a tenancy at will by implication of law (see, City of New York v. Utsey, 185 Misc.2d 715 [App. Term, 2nd & 11th Jud. Dists.]; White Plains Housing Auth. v. Marbury, NYLJ, 6/6/2000, at 30, col 2 [App. Term, 9th & 10th Jud. Dists.]). The fact that no rent was paid is of no moment since the obligation to pay rent is not a necessary incident of such a tenancy (City of New York v. Utsey, supra).
Although the rule that land owned by the State for the public in trust for a public purpose cannot be lost through adverse possession has no application to the case at bar since there has bee no showing that respondent's occupancy interfered with the use of the KPPC (see, People v. System Props., 2 NY2d 330, 343), nevertheless, respondent's further claim that the petition barred by 20 year statute of limitations contained in CPLR 211(c) is unavailing for several reasons. First, respondent has failed to set forth an effective claim of adverse possession as the conclusory assertions contained in the affidavit of Joseph Sheridan as well as the undated photocopies of photographs submitted by respondent purportedly taken prior to 1966 are insufficient to establish the elements required for adverse possession on a claim not based upon a written instrument (Golden Hammer Auto Body Corp. v. Consol. Rail Corp., 151 AD2d 545, 546; City of Tonawanda v. Ellicott Creek Homeowners Assn., 86 A.D.2d 118; RPAPL 522), or for a prescriptive easement(Susquehanna Realty Corp. v. Barth, 108 A.D.2d 909). Moreover, as early as 1966, prior to the expiration of the 20 year statutory period, the NYC acknowledged that possession of the subject property resides in KPPC as section 3 of the Constitution of the NYC refers to the marina as the Kings Park State Hospital boat basin. Such acknowledgment destroys the requisite element of hostility and precludes the acquisition of title by adverse possession (Soukup v. Nardone, 212 AD2d 772, 774). In any event,
respondent's reliance upon the 20 year statutory period of CPLR 211(c) is
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misplaced. Since respondent is claiming adverse possession from at least 50 years ago, the applicable statutory period then in effect applies, i.e., 40 years (see, Reiter v. Landon Homes, 31 AD2d 538). Therefore, notwithstanding this Court's finding of permissive use in 1966, by entering into the licensing agreement in 1983, which was well within the applicable 40 year period, NYC vitiated its right to acquire title by adverse possession (Soukup v. Nardone, supra). Having failed to establish this defense, respondent cannot defeat petitioner's claim that a tenancy at will arose (City of New York v. Utsey, supra).
Respondent's further claim that the petition is barred by the doctrine of laches because petitioner neglected to assert their right or claim to the property for over 46 years is also withort merit as it is well established that a laches defense is unavailable against a governmental entity [*6]when it is "acting in a governmental capacity to enforce a public right or protect a public interest" (Matter of Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, 177 n. 2, cert denied 476 US 1115).
Finally, respondent has not demonstrated "ample need" to warrant an order granting discovery (New York University v. Farkas, 121 Misc. 2d 643, 647). In any event, it appears that the sole purpose of obtaining a deposition of Deputy Commissioner Albert Caccese is to obtain impeaching material to establish a possible defense which "should never be permitted" (supra, at 647).
Accordingly, the motion is denied in its entirety and the Clerk of the Court shall place the matter on the landlord and tenant trial calendar.
New Court Date:
Dated:
J.D.C.
Decision Date: September 27, 2002
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