Aspen Cr. Estates Inc. v Kennedy
Annotate this CaseDecided on April 17, 2007
Supreme Court, Suffolk County
Aspen Creek Estates Inc., Plaintiff,
against
John Kennedy and W & K Farms Inc., Defendants.
2004-19490
Stephen R. Jellenik, Esquire
Scheyer & Jellenik Esqs.
Attorneys For Plaintiff
110 Lake Avenue South
Nesconset, New York 11767
Leonard J. Shore, Esquire
Attorney for Defendants
366 Veterans Memorial Highway
Commack, New York 11725
Jeffrey Arlen Spinner, J.
The Plaintiff commenced this action seeking, inter alia, a writ of ejectment to recover possession of a certain 39.15 acre parcel of land located on South Street at Manorville, Town of Brookhaven, New York (hereinafter "Property") owned by the Plaintiff. In its Verified Complaint, the Plaintiff also demanded money damages for wrongful possession of the land and restitution. The Defendants timely answered and interposed counterclaims seeking money damages for wrongful ejectment, treble damages pursuant to RPAPL § 853 and a declaration that no Notice to Quit was properly given to the Defendants. Both sides, represented by most capable counsel, were assigned to Part 21 for a bench trial, which commenced on March 27, 2007 and concluded on April 12, 2007.
The evidence adduced at trial disclosed the following facts and circumstances. The present matter has its roots in a lease agreement that was entered into in or about 1982 between the Defendants and one Meta Plisko, a predecessor fee owner of the Property within the Plaintiff's chain of title. The Defendant JOHN KENNEDY is a farmer by profession and conducts his operations by and through the Defendant W & K FARMS INC. (for purposes of this opinion, both will collectively be referred to as "Defendant"). The Defendant owns a parcel consisting of 35 acres situated immediately to the west of the Plaintiff's land. Since 1982, the Defendant has cultivated his own parcel in addition to leasing and planting the Plaintiff's parcel as well as a 30 acre parcel immediately to the east of the Plaintiff and known as the Hoshyla property. Until sometime in 2006, the Defendant had also leased and farmed the 25 acre Zeh property, also [*2]located on South Street in Manorville.
The Defendant's lease agreement with Meta Plisko, although said to be in writing, was not produced at trial. It was claimed that the written lease lapsed in or about 1983. However, the Defendant asserted that he continued to rent the land pursuant to an oral agreement with Meta Plisko wherein he would tender a check for $ 3,500.00 each February for a term running from March 1 through the following February 28. The Defendant continued to cultivate the Property through 2002 but he asserted that he did not farm the Property after 2002 though he did attempt to do so unsuccessfully. The Defendant also conceded that the last year that he actually paid any rent for the Property was 2002.
The Plaintiff's assignor, Kaywood Properties Ltd. (a corporation apparently controlled by the same parties as those of the Plaintiff) entered into a Contract of Sale dated June 10, 2002 to purchase the subject property for consideration of $ 1,400,000.00, for purposes of development. The sellers were Christopher and Joyce Spencer, who acquired title from Meta Plisko (Joyce Spencer's mother) in 1988. The Contract of Sale was later assigned to Plaintiff, who acquired title by Bargain & Sale Deed dated March 9, 2004.
Following two unsuccessful summary proceedings in the District Court of Suffolk County, the Plaintiff commenced this action. A temporary restraining order of rather limited scope was granted by the Court (Bivona, J.) on September 24, 2004 which was thereafter supplanted by a preliminary injunction dated November 16, 2004 (Burke, J.). That injunction, which, by its express language is "...enjoining and restraining the defendants from entering upon or further farming, planting, tilling or otherwise occupying the property which is the subject of this action..." remains in full force and effect, a fact acknowledged by the parties to this action. The Defendants moved for reargument and/or renewal which was denied by the Court which denial was thereafter appealed to the Appellate Division 2nd Department, which affirmed the same, Aspen Creek Estates Inc. v. Kennedy, 32 AD3d 870 (2nd Dept., 2006). Thereafter, the Defendant again moved for summary judgment, which was denied by Justice Molia.
The gravamen of the Defendant's defense is that he was never given the proper statutory Notice To Quit and hence had the right to continue in possession of the Property. The parties stipulated that (1) an oral Notice To Quit was given to the Defendant in the Autumn of 2002 and again in January of 2004, both by Christopher Spencer and by Anthony Kaywood; (2) Christopher Spencer caused a written Notice To Quit to be served upon the Defendant in mid-January of 2004; (3) Christopher Spencer, in March of 2004, commenced a summary proceeding in the 6th District Court under index no. BRLT682-2004 which was dismissed by the Court, finding that there was no month-to-month tenancy; (4) Christopher Spencer, caused a written Notice To Quit to be served upon the Defendant in May of 2004; (5) Christopher Spencer, in June of 2004, commenced a second summary proceeding in 6th District Court under index no. BRLT1480-2004 which was dismissed by the Court, finding that the Defendant was not a squatter; and (6) the Summons & Complaint in this action, served upon the Defendant, would be deemed a Notice To Quit. Defendant's counsel ably argues that since the Defendant was a tenant from year to year, that he must be afforded one years' notice of termination of his tenancy. [*3]Counsel further asserts that the Appellate Division, in its decision supra, made a factual finding of such a tenancy for years.
The trial testimony and arguments of counsel disclose that the Defendant's counterclaims essentially demand damages arising from the loss of profit and income as a result of Defendant's inability to farm the Property. The Defendant's wife Sally Kennedy was called as a witness and testified that W & K FARMS INC. actually has three separate and distinct operations, those being farming, a retail farmstand and a greenhouse. She stated that there was no breakdown of the source of income from the three operations but instead they were treated as one, at least for accounting purposes. Received into evidence were copies of corporate tax returns (Federal form 1120) for the tax years 2003, 2004, 2005 and 2006. The witness testified that the last year that the Defendant farmed the Plaintiff's Property and derived income therefrom was 2004 (directly contrary to the testimony of the Defendant JOHN KENNEDY, who stated that the last year Plaintiff's Property was farmed was in 2002). The returns showed gross receipts as follows for each of the enumerated years, viz.; 2003-$ 378,713.00, 2004-$ 423,404.00, 2005-$ 460,929.00 and 2006-$ 437,380.00. In view of the foregoing amounts, this Court is at a loss to determine how the Defendant could have been damaged as he claims since his income was greater in the years that he did not farm the Property.
This Court has read and digested the decision of the Appellate Division, Second Department in this matter and makes its determination herein with all due deference and respect to that learned tribunal. While Defendant's able counsel asserts that the Appellate Division made affirmative findings of fact that a tenancy for year to year was created, this Court is unable to agree. The language utilized by the Appellate Division with respect thereto states that "...the defendants failed to establish their prima facie entitlement to judgment as a matter of law on their counterclaim for a judgment declaring that they occupied the land under a valid year-to-year tenancy which was not terminated by proper notice." 32 AD3d at 871. The Appellate Division further stated that the evidence submitted to the I.A.S. Court "...demonstrated the intent of the defendants and the original owner to create an implied periodic tenancy rather than a tenancy at will....However, the defendants failed to establish, as a matter of law, that they did not receive proper notice of the termination of their tenancy." 32 AD3d at 871.
Even assuming arguendo that the Defendants were in rightful possession of the Property pursuant to a valid and subsisting tenancy for year to year, this Court is of the opinion that the Defendants were afforded the proper statutory Notice To Quit, sufficient to result in their ejectment. Here the parties have stipulated that the Defendant received no less than three Notices To Quit as well as the Summons & Complaint in this action which they deemed to be the fourth Notice. It has long been the law of New York that in order to terminate a tenancy where the tenant remains in possession beyond his term, notice must be given in order to terminate possession, Livingston v. Tanner, 14 NY 64 (1856). While such notice muct apprise the tenant of the termination, it need not be in writing, Boland v. Beebe 186 Misc 616 (Municipal Court, City of Syracuse, 1946). While it is true that two of the Notices To Quit were followed by summary proceedings that were terminated in favor of the Defendant, such a termination does not vitiate the Notice To Quit thereby requiring the landlord to serve a new notice, Taranto v. Alexejew 166 Misc 2d 223 (Dist. Ct., Nassau Co., 1995). It logically follows, then, that the Defendants' tenancy was effectively terminated by notice given (according to the Defendant) as early as the Autumn of 2002, thereby converting the Defendants' tenancy to a bare, naked possession, devoid [*4]of title and right and without privity of contract, Jackson v. Parkhurst 5 Johns. 128 (Supreme Court of Judicature of New York, 1809), Livingston v. Tanner 14 NY 64 (1856), Tefft v. Apex Pawnbroking & Jewelry Co., 75 AD2d 891 (2nd Dept. 1980).
In this matter, the Plaintiff has demanded that it be awarded damages as a result of the Defendants' wrongful possession and use of its property. The Court notes that there was extensive testimony dealing with a hazardous spill upon the Property; however, it was not conclusively proven that the Defendant was at fault for the same. However, the Plaintiff has failed to prove the actual damages or loss, if any, occasioned by the Defendant's wrongful occupancy of its property.
In a matter such as this one, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility, Morgan v. McCaffrey, 14 AD3d 670 (2nd Dept. 2005), Matter of Liccione v. Michael A., 65 NY2d 826 (1985). Here, in this civil matter, the burden is upon the Plaintiff to both plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence, Prince-Richardson On Evidence, § 3-210, Torem v. Central Ave Rest, 133 AD2d 25 (1st Dept. 1987). The same burden applies to the Defendant with respect to any counterclaims. This Court is of the opinion that the Plaintiff has proven its right to the relief sought (at least as to the wrongful occupancy of the Property) by a fair preponderance of the evidence adduced while the Defendant has failed to meet such a burden.
This Court, while greatly sympathetic to the Defendant's situation as a small farmer, must nonetheless render its ultimate decision, based upon the law and the facts herein, as proven by the admissible evidence, in favor of the Plaintiff.
It is, therefore
ORDERED that the Plaintiff shall be and is hereby awarded exclusive possession of certain real property consisting of 39.15 acres of land situated on South Street at Manorville, Town of Brookhaven, New York, also known as District 0200, Section 508.00, Block 01.00, Lot 015.001 ; and it is further
ORDERED that a writ of ejectment shall issue forthwith in favor of the Plaintiff and against the Defendants with respect to the Plaintiff's real property herein described, for which the Plaintiff shall have execution without stay; and it is further
ORDERED that the Defendants, their principals, agents, servants, employees or any person or entity acting by or through them shall be and are hereby permanently stayed, restrained, prohibited, barred and enjoined from entering upon, occupying, cultivating, tilling, farming or otherwise using the Plaintiff's property in any manner; and it is further
ORDERED that Defendant's application to vacate the preliminary injunction (Motion Sequence 004-MD) is denied as moot, in light of the foregoing determination; and it is further
ORDERED that the undertaking in the amount of $ 10,000.00 heretofore posted by the Plaintiff and filed with the Clerk of Suffolk County shall be and is hereby released, discharged, vacated and exonerated; and it is further [*5]
ORDERED that Plaintiff's counsel shall serve a copy of this Decision with Notice of Entry upon the Defendant's Counsel and the Calendar Clerk of this Court within twenty one days following entry by the County Clerk; and it is further
ORDERED that Plaintiff's counsel shall submit a Judgment on fifteen days' notice to the Defendant's counsel.
This shall constitute the decision and order of this Court.
Dated: 17 April 2007
Riverhead, New York
E N T E R:
______________________________________
Jeffrey Arlen Spinner, J.S.C.
To:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
