Censi v Cove Landings, Inc.

[*1] Censi v Cove Landings, Inc. 2008 NY Slip Op 50405(U) [18 Misc 3d 1142(A)] Decided on February 27, 2008 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2008
Supreme Court, Suffolk County

Rosario Censi and Theresa Censi, Plaintiffs,

against

Cove Landings, Inc., ROBERT STACK, ALL SEASONS CONSTRUCTION OF THE HAMPTONS, INC., ZAREM REALTY., INC., THE TOWN OF SOUTHAMPTON and THE SUPERINTENDENT OF HIGHWAYS OF THE TOWN OF SOUTHAMPTON, Defendants.



24756-2002



Attorney for Plaintiff

Certilman & Balin Adler & Hyman, LLP

1393 Veterans Memorial Highway

Suite 301S

Hauppauge, New York 11788

Attorney for Defendant

Randall C. Weichbrodt, Esq.

436 Montauk, Highway

PO Box 3042

East Quogue, New York 11942

Devitt Spellman Barrett, LLP

50 Route 111

Smithtown, New York 11788

Esseks, Hefter & Angel 108 East Main street

PO Box 279

Riverhead, New York 11901

Emily Pines, J.

ORDERED, that the motion (motion sequence no. 002) by plaintiffs for partial summary judgment and the cross-motion (motion sequence no. 003) by defendants for partial summary judgment are determined to the extent indicated below.

This is a proceeding by plaintiffs pursuant to RPAPL Article 15 to determine the right, title and interest to a parcel of real property comprising a portion of Fish Cove Road in the Town of Southampton. Underlying this action are the claims of three (sets)of parties, each of which asserts that it owns title both to a portion of a road known as Fish Kill Road and, therefore, has the sole right to determine whether utilities can be laid thereunder. All of the real property that is the subject of this proceeding was held in common ownership, prior to January 7, 1970 by Arthur Tomlinson. The plaintiffs assert that the entire disputed portion of the road was deeded to them through a series of transfers; the non-municipal defendants assert that the portion of road abutting their parcels was deeded to them through a different series of transfers; and finally the Town of Southampton alleges that the entire roadway became a public highway by municipal dominion and control pursuant to Highway Law § 189. The disputed portion of Fish Cove Road is located between Suffolk County Tax Map No. 0900-060.00-03.00-12.004 ("lot 12.004")on the south and west, and Suffolk County Tax Map Nos. 0900-060.00-03.00-012.002 ("lot 12.002"), 0900-060.00-03.00-017.001 ("lot 17.001") and 0900-060.00-03.00-012.003 ("lot 12.003") on the north and east. Plaintiffs commenced this action by the filing of a Summons and Verified Complaint on or about September 12, 2002. Defendants, Town of Southampton and Superintendent of the Town of Southampton (collectively referred to herein as the "Town") served a Verified Answer on or about October 3, 2002 and defendants, Cove Landings, Inc., Robert Stack, All Seasons Constructions of the Hamptons, Inc., Zarem Realty, Inc. (collectively referred to herein as "owner defendants") served a Verified Answer on or about February 8, 2004.

PROCEDURAL HISTORY AND PLEADINGS

By Order (PINES, J.) dated February 26, 2008, this Court granted plaintiffs' unopposed motion to substitute Theresa Censi as the Executrix of the Estate of Rosario Censi [FN1] and add David Censi, Barry Censi and Lisa Censi as party plaintiffs and amend the caption and Verified Complaint accordingly. The submissions reflect that at the time of commencement of this action, plaintiff, Theresa Censi, was the owner of lot 17.001 as tenants by the entirety with deceased plaintiff, Rosario Censi. On or about October 31, 2005, Theresa Censi transferred title to lot 17.001 to plaintiffs David Censi, Barry Censi and Lisa Censi. Owner defendants are the owners of lots 12.002, 12.003 and 12.004.

Plaintiffs had previously commenced a related Article 78 proceeding challenging the [*2]Town Planning Board's preliminary subdivision approval and issuance of a negative declaration under SEQRA for the development of owner defendants' property. By Order (BAISLEY, J.) dated July 29, 2005, the Petition was granted and the determination of the Planning Board was vacated and annuled. In that Order, the Court noted that owner defendants conceded that record title to Fish Cove Road was in plaintiffs' name and owner defendants' deed provided them with a right of ingress and egress over Fish Cove Road. Subsequently, on or about November 17, 2005, the Town Planning Board again issued a negative declaration for the development of owner defendants' property. However, by So-Ordered Stipulation (PINES, J.) dated February 16, 2006, the Town agreed to rescind the negative declaration and owner defendants agreed to withdraw their pre-application for review by the Planning Board.

The Complaint in the matter sub judice sets forth three causes of action: the first cause of action, brought under RPAPL Article 15, seeks to compel a determination of the competing claims to title to the disputed portion of Fish Cove Road; the second cause of action seeks a declaratory judgment as to the ownership, status (as a private v. public road) and rights to the use, maintenance and alteration of Fish Cove Road; and the third cause of action seeks a permanent injunction barring defendants from (a) making any claims of ownership of the disputed portion of Fish Cove Road; (b) asserting that the disputed portion of Fish Cove Road is owned by the Town or constitutes a Town highway; and (c) installing or maintaining pipes, wires, conduits, or utilities of any nature or kind within the disputed portion of Fish Cove Road. Both the Town defendants and owner defendants interpose Verified Answers asserting essentially general denials and the affirmative defense of failure to state a cause of action.

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs now move for partial summary judgment [FN2] against all defendants and seek the following relief:

1.Declaring and determining the rights of the parties to the disputed portion of Fish Cove Road;

2.Declaring that plaintiff Theresa Censi is the sole owner of the disputed roadway segment, except for the portion that lies between the centerline of such segment and the boundary of lot 17.001;

3.Declaring that David Censi, Barry Censi and Lisa Censi are the sole owners of the portion of the disputed roadway segment that lies between the centerline of such segment and the boundary of lot 17.001;

4.Declaring that owner defendants have no right to use, for any purpose, the portion of the disputed roadway segment between the centerline of such segment and the boundary of lot 17.001;

5.Declaring that owner defendants have no right to use the remaining portions of the disputed roadway segment for any purpose other than surface access to and from Noyack Road; [*3]

6.Declaring that defendants have no right to install or maintain pipes, wires, conduits, drainage structures or other utilities or facilities of any kind within the disputed roadway segment;

7.Permanently enjoining defendants from making any claims of ownership to the disputed roadway segment;

8.Permanently enjoining defendants from asserting that the disputed roadway segment is owned by defendant Town or any other defendant;

9.Permanently enjoining owner defendants from using for any purpose, the portion of the disputed roadway segment that lies between the centerline of such segment and the boundary of lot 17.001;

10.Permanently enjoining owner defendants from using the remaining portions of the disputed roadway segment for any purpose other than surface access to and from Noyack Road; and

11.Permanently enjoining defendants from installing or maintaining pipes, wires, conduits, drainage structures or other utilities or facilities of any kind within the disputed roadway segment.

Plaintiffs assert that, pursuant to various deeds, they are the owners in fee to the disputed segment of Fish Cove Road and dispute that such segment is owned by the Town of Southampton. Plaintiffs argue that defendants, either collectively or individually, do not have any rights to install or maintain pipes, wires, conduits or utilities of any kind in the disputed portion of Fish Cove Road and defendants' proposed use of the disputed portion of Fish Cove Road to serve their proposed subdivision would violate their private property rights.

The Deeds

In support of their motion for partial summary judgment, plaintiffs annex deeds to lot 17.001, lot 12.002, lot 12.003 and 12.004 and the disputed roadway segment, all of which were undeniably held in common ownership by Arthur Tomlinson ("Tomlinson") prior to January 7, 1970. The submissions reflect that by deeds dated January 2, 1970 and June 1, 1973, the property constituting lot 17.001 (plaintiffs' property), was transferred to Martha Tomlinson. The January 2, 1970 deed provided that it was transferring title to the property "TOGETHER with all right, title and interest, if any, of the party of the first part, in and to any streets and roads abutting the above-described premises to the center lines thereof." The June 1, 1973 deed provided that it was transferring title "TOGETHER with all right, title and interest in and to Fish Cove Road to the center line thereof adjoining the above described parcel." Thus, plaintiffs argue that these conveyances transferred title to the disputed portions of Fish Cove Road, to the center line thereof, to Martha Tomlinson.

Subsequently, upon the death of Martha Tomlinson in 1997, the Executors of her estate, Carlyle Mitchell ("Mitchell") and Peter Dillon ("Dillon") by deed dated May 29, 1998, transferred title to lot 17.001 to plaintiffs Rosario Censi and Theresa Censi. Thereafter, by deeds dated October 28, 1999 and November 11, 1999, respectively, Mitchell and Dillon transferred to plaintiffs Rosario and Theresa Censi "All right, title and interest in and to "Fish Cove Road" to the centerline thereof as same lies contiguous to the premises conveyed by the undersigned to the [*4]parties of the second part by a Deed dated 5/29/98 and recorded on 11/6/98 in Liber 11927 at page 222 in the Office of the Clerk of the County of Suffolk, State of New York." Thus, according to plaintiffs, this series of deeds conveyed to Rosario and Theresa Censi title to lot 17.001 and to the centerline of Fish Cove Road contiguous thereto. As set forth above, upon the death of Rosario Censi, Theresa Censi transferred title to David Censi, Barry Censi and Lisa Censi in the October 31, 2005 deed.

With regard to lots 12.002, 12.003 and 12.004, by deed dated October 16, 1973, Tomlinson conveyed this property to Lindis Farne Association, Inc. ("Lindis Farne"). That deed provided, inter alia, that the property was transferred "TOGETHER with a right of way for ingress to and egress from the subject premises and Noyack Road over Fish Cove Road" and further "RESERVING to and subject to the right of the grantor and others to pass and repass over and upon Fish Cove Road." Finally, this October 16, 1973 deed contained a reservation, "EXCEPTING from the above described premises, so much thereof, as lies within the bounds of said Fish Cove Road." By deed dated October 21, 1977, Lindis Farne transferred this property back to Tomlinson in lieu of foreclosure and it was subsequently transferred from Tomlinson to Leo Berkemus by deed dated August 22, 1985. This deed contained the same language that the property was transferred "EXCEPTING from the above described premises so much thereof as lies within the bounds of said Fish Cove Road" and "TOGETHER with a right of way for ingress to and egress from the subject premises and Noyack Road over Fish Cove Road." Ultimately, by deed dated July 22, 1987, this property was transferred to owner defendants with the same exception and easement for ingress to and egress from the subject premises and Noyack Road over Fish Cove Road. This deed also stated that it was "RESERVING to and subject to the right of the grantor and others to pass and repass over and upon Fish Cove Road."

Based on these reservations and exceptions, plaintiffs argue that title to the portion of Fish Cove Road lying between the centerline thereof and lots 12.002, 12.003 and 12.004 remained in Tomlinson, and upon his death, passed to his heir, Martha Tomlinson and ultimately to Mitchell and Dillon. By deeds dated January 6, 2000 and March 2, 2000, respectively, Mitchell and Dillon conveyed to plaintiffs Rosario and Theresa Censi, "ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Southampton, County of Suffolk and State of New York, shown as Fish Cove Road, situate between Tax Lots 012.004, 012.002, 017.001 and 012.003 in Block 03.00, Section 060.00 of District 0900 of the County Tax Map. It being intended to convey herein the fee interest to so much of the private road known as Fish Cove Road as was reserved to the Grantor Arthur Tomlinson in a Deed recorded in Liber 7521 at page 521 by EXCEPTING from the above described premises, so much thereof, as lies within the bounds of said Fish Cove Road.'" These transfers, plaintiffs urge, are sufficient to establish title in Theresa Censi of the disputed portion of Fish Cove Road between the centerline thereof and contiguous to lots 12.002, 12.003 and 12.004.

In further support of their motion, plaintiffs annex a letter from owner defendants' counsel to the Town, dated August 26, 2002, in which he attached a March 31, 2000 title report for Fish Cove Road. The title report reflects that the portion of Fish Cove Road contiguous to [*5]lots 12.002, 12.003 and 12.004 was owned by the Estate of Arthur Tomlinson and the portion of Fish Cove Road contiguous to lot 17.001 was owned by Rosario Censi and Theresa Censi. Clearly, the report does not consider the January 6, 2000 and March 2, 2000 deeds transferring the portion of Fish Cove Road contiguous to lots 12.002, 12.003 and 12.004 from the heirs of Arthur Tomlinson to Rosario and Theresa Censi.

Based on the foregoing, plaintiffs argue that (1) Theresa Censi is the fee owner of the disputed portion of Fish Cove Road from the center line thereof and running contiguous to lots 12.002, 12.003 and 12.004; and (2) David Censi, Barry Censi and Lisa Censi are the fee owners of the disputed portion of Fish Cove Road from the center line thereof and running contiguous to lot 17.001. Thus, plaintiffs argue that defendants may not use the disputed portion of Fish Cove Road adjacent to lot 17.001 for any purpose, and may only use the remainder of the disputed portion of Fish Cove Road for ingress and egress to and from Noyack Road pursuant to the October 16, 1973 deed.

OWNER DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

In opposition to the plaintiffs' motion for partial summary judgment, owner defendants cross-move for partial summary judgment and seek an Order, inter alia:

1.Declaring that plaintiffs' Quitclaim Deeds in support of their ownership of Fish Cove Road are not supported by the Chain of Title;

2.Declaring the exclusion and reservation of the bounds of Fish Cove Road by the original grantor and its successors was not intended to prohibit owner defendants full use and enjoyment of Fish Cove Road;

3.Declaring owner defendants' Bargain and Sale Deed to Fish Cove Road as executed by the heirs of the original grantor properly conveys Fish Cove Road as was reserved by same;

4.Declaring the original grantor and its successors of owner defendants' parcels conveyed same together with all right, title and interest to the centerline of Fish Cove Road;

5.Declaring owner defendants the right to lay utilities under Fish Cove Road, beyond the existing electric and phone service, pursuant to Real Property Law §335-a;

6.Declaring the laying of utilities under Fish Cove Road incidental and necessary to the enjoyment of owner defendants' parcels;

7.Declaring the right of way over Fish Cove Road as established by the original grantor to owner defendants' parcels included the right to lay utilities;

8.Permanently enjoining plaintiffs from making any claims of [*6]ownership over Fish Cove Road;

9.Permanently enjoining plaintiffs from interfering with owner defendants full use and enjoyment of Fish Cove Road;

10.Permanently enjoining plaintiffs from interfering with owner defendants' rights in installing or maintaining utilities under Fish Cove Road; and

11.Declaring plaintiffs' action as commenced under Article 15 of RPAPL as barred by the statute of limitations pursuant to CPLR §212(a).

Owner defendants make several assertions in support of their cross-motion for partial summary judgment. Initially, owner defendants claim that when Lindis Farne transferred title to lots 12.002, 12.003 and 12.004 back to Tomlinson, the lands were reunited with the bounds of Fish Cove Road, effectuating a merger and the deeds held by plaintiffs erroneously refer to the reservation in the October 16, 1973 deed. Owner defendants argue that when Tomlinson transferred the property to Lindis Farne and then subsequently to Berkermus, he illegally subdivided the property without permission from the Town. They apparently concede however, that Tomlinson did reserve the bounds of Fish Cove Road from his transfers and never conveyed such property during his lifetime nor was it conveyed by his heir, Martha Tomlinson, during her lifetime. However, they argue that plaintiffs' deed erroneously refers to the reservation in the October 16, 1973 deed which ultimately was transferred back to Tomlinson, notwithstanding that subsequent deeds by Tomlinson contained the exact same reservation.

Additionally, and somewhat troubling to the Court, defendant owners annex affidavits from Mitchell and Dillon in which they state that the conveyances by Tomlinson (of lots 12.002, 12.003 and 12.004 and the right of way over Fish Cove Road) included the "intent and understanding that the parcel would be developed and that the owner would be entitled to use and enjoy the property with all of the necessary and reasonable utilities available at the time." They further state that they executed the October 1999 deeds at the request of plaintiffs to "clear up" issues regarding lot 17.001 and they did not contemplate preventing the full use and enjoyment of Fish Cove Road. Owner defendants' counsel refers to the securing of these deeds by plaintiffs as a "misrepresentation" by plaintiffs and "fraudulent". Finally, they state that on or about March 30, 2007, Mitchell and Dillon executed a Bargain and Sale Deed to "that area of land consisting of Fish Cove Road" to defendant Stack, with the purpose being to ensure the full right and use and enjoyment of Fish Cove Road, including the right to lay utilities. That deed, annexed to the cross-motion papers states:

IT IS NOT BEING INTENDED to convey premises reserved in Deed Liber 7521 Page 521, dated October 16, 1973. Said premises had later merged with the surrounding lands upon being reunited by Deed in Lieu of Foreclosure, Liber 8607 Page 5, dated October 21, 1977 and recorded in the Suffolk County Clerks Office on April 5, 1979.

IT BEING INTENDED to convey all rights, title and interests in that specific land retained by the Grantor Arthur Tomlinson in Deed Liber 9789 Page 335, dated April 22, 1985 and recorded in the Suffolk County Clerks Office on May 13, 1985, by "EXCEPTING FROM the above described premises thereof as lies within the bounds of said Fish Cove Road."

Owner defendants also assert that the language in the deeds from Tomlinson to Berkermus and from Berkermus to defendants, granting a "right of way for ingress to and egress from the subject premises and Noyack Road over Fish Cove Road" grants them the right to lay utilities under such right of way. Specifically, they claim that the conveyance of an easement or right of way gives the grantee the right to unobstructed passage and also such rights "incidental or necessary to the enjoyment of such right of passage." Here, they argue that the laying of water pipes is a lawful purpose and reasonably incidental to the use of the right of way. Further, they assert that Tomlinson did not intend to reserve the use of Fish Cove Road, but rather to create an easement for the full use and enjoyment of the grantee. Thus, they argue they have the right to lay utilities under Fish Cove Road.

Finally, with regard to the deeds, owner defendants argue that there is an ambiguity in the deeds in the chain of title for their property (lots 12.002, 12.003 and 12.004) because the language therein both excepts from the described property that property that lies within the bounds of Fish Cove Road and also conveys all right, title and interest "if any" to the centerlines of any streets abutting the premises. Owner defendants argue that such ambiguity must be construed against the drafter and the Court must look to the intent of the parties as evidenced by the deed, the situation of the land and practical construction of the grantor, grantee and successors in title.

Owner defendants also argue that plaintiffs' claims under RPAPL is barred by the statute of limitations because any action to compel the determination of claims to the subject real property could have been pursued by Arthur Tomlinson or Martha Tomlinson when defendants' predecessors in title sought to use the disputed portion of Fish Cove Road in seeming contravention of their alleged rights. Owner defendants assert that the ten (10) year statute of limitations began to run on or before April 23, 1985 when the Southampton Town Board moved to set a performance bond for improvements proposed by Bekermus on the subject property. Thus, they claim that plaintiffs' commencement [*7]of the action on September 12, 2002, was seven (7) years after the expiration of the statute of limitations.

Based on the above arguments, owner defendants argue that their cross-motion for summary judgment should be granted in its entirety.

TOWN OF SOUTHAMPTON ARGUMENT

The Town does not move for summary judgment but submits opposition to plaintiffs' motion for summary judgment. The Town argues that pursuant to Highway Law §189, the subject roadway is a public highway. Specifically, they assert that pursuant to Highway Law §189, for a property to be deemed a public highway by use, it must be established that the road has been used by the public for a period of ten years and the municipality exercised dominion and control over the roadway. In support of its position, the Town annexes an affidavit of William Masterson ("Masterson"), Superintendent of Highways of the Town of Southampton. Masterson states that he has been the Superintendent of Highways for 18 years and Fish Cove Road has "always been used by the public as a public highway, well in excess of 10 years before plaintiffs commenced this lawsuit." Masterson Affidavit at ¶3. Masterson further states that Fish Cove Road has always been maintained, controlled and repaired by the Highway Department, having been originally paved by the Highway Department in 1920. Masterson Affidavit at ¶4. He states that the town installed drains along the roadway in 1991, keeps the roadway and shoulder area clear of obstructions and responds to complaints from the public about the roadway. Masterson Affidavit at ¶4. Masterson also attests that the Highway Department installed traffic control signs, plows Fish Cove Road and applies sand and that such maintenance and repair does not differ from any other road in the town. Masterson Affidavit at ¶4. He states that Fish Cove Road has been listed on the Town's inventory of roads for more than 10 years prior to the commencement of this action. Masterson Affidavit at ¶5.

The Town also annexes an Affidavit from Lance Aldrich ("Aldrich"), crew chief in the Town of Southampton Highway Department. Aldrich states that he has been employed by the Town for 24 years and that Fish Cove Road has always been used by the public as a public highway, well in excess of 10 years prior to commencement of the within action. Aldrich Affidavit at ¶3. Aldrich's Affidavit essentially reiterates the statements of the Masterson Affidavit that the Town has always maintained, [*8]controlled and repaired Fish Cove Road and has done so for more than 10 years prior to the commencement of this action. Aldrich Affidavit at ¶4. Aldrich also states that there is no indication on or near the roadway that it is a private road. Aldrich Affidavit at ¶ 6.

Finally, the Town relies on the transcript of the deposition of Rosario Censi, wherein he indicated that he did nothing to assert any ownership right over the roadway and did nothing to improve, repair or maintain the roadway. Rosario testified that the roadway was paved when he purchased lot 17.001 and is not posted as a private road. Mr. Censi testified he never stopped anyone from driving on the roadway and the public used the roadway as a pass through. Additionally, Mr. Censi testified that neither he nor his family installed the traffic control signs located on the road.

Based on the foregoing, the Town argues that the disputed portion of Fish Cove Road is a public highway by use pursuant to Highway Law §189. The Town does not appear to take a position as to whether owner defendants are entitled to lay utilities under the bed of Fish Cove Road.

PLAINTIFFS' REPLY

Plaintiffs submit a Reply in opposition to the defendants' cross-motion for partial summary judgment and in response to the Town's opposition. Plaintiffs argue that defendants have failed to rebut their showing that they have title to the disputed roadway segments and thus, summary judgment in their favor is appropriate. Plaintiffs assert that the deeds annexed to the moving papers conclusively demonstrate plaintiffs' title in the disputed roadway segment and defendants have wholly failed to produce any deed, offer of dedication, condemnation or other proceeding demonstrating the Town's ownership interest in the disputed roadway segment. Moreover, plaintiffs assert that defendants have previously admitted (in the correspondence from counsel and title report referenced above) that title to the disputed roadway segment was in the Estate of Arthur Tomlinson and plaintiffs Rosario and Theresa Censi.

In sum, plaintiffs dispute owner defendants' claim that the 2007 deeds to the disputed roadway segment were procured by fraud and regardless, that such claim is barred as untimely, improperly pled and unsupported by the facts in this case. Plaintiffs argue that defendants have failed to demonstrate they have any interest in the disputed roadway segment other than a right of way for [*9]surface ingress and egress to and from Noyack Road. Finally, plaintiffs assert that owner defendants have waived any statute of limitations defense because they did not raise it in either their pre-answer motion to dismiss or their Verified Answer.

Regarding the status of Fish Cove Road as a public highway pursuant to Highway Law §189, plaintiffs set forth alternative theories. First, they assert that the determination of whether Fish Cove Road is a highway by use is a question of fact that cannot be resolved on the instant motion for summary judgment but rather requires a trial or hearing. Alternatively, plaintiffs assert that even if it were determined that Fish Cove Road became a highway by use under Highway Law §189, neither the Town nor the owner defendants has any right to expand the width of the roadway beyond the actual width, nor the right to lay utilities under the roadway.

On the issue of the status of the road, plaintiffs submit an affidavit in reply from Dorothy Dobson who states she resides in a house located at the intersection of Old Fish Cove Road and Fish Cove Road and has never seen any "substantial maintenance undertaken on Fish Cove Road." Dobson Affidavit at ¶2. She states that there are large potholes on Fish Cove Road and the storm grates are not cleaned or maintained. Dobson Affidavit at ¶3. Plaintiff David Censi also submits a reply affidavit in which he states that Fish Cove Road has not been regularly maintained by the Town and the Town has not done anything to substantially improve the "substandard and deplorable conditions" on Fish Cove Road. Affidavit of David Censi at ¶s' 4, 6.

For all the foregoing reasons, plaintiffs urge the Court to grant their motion for partial summary judgment.

ANALYSIS

It is well settled that to obtain summary judgment, the moving party 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. Goldberger v. Brick & Ballerstein, Inc., 217 AD2d 682, 629 NYS2d 813 (2d Dept. 1995) (internal citations omitted). The burden then shifts to the party opposing the motion to come forward with proof in admissible form demonstrating there are genuine issues of material fact which preclude the granting of summary judgment. Zayas v. Half Hollow Hills Cent. School Dist., 226 AD2d 713, 641 NYS2d 701 (2d Dept. 1996).

Statute of Limitations

Initially, the Court must address owner defendants' argument that plaintiffs' claims are barred by the Statute of Limitations. CPLR §3018(b) states in relevant part:

A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as statute of limitations.

CPLR Rule 3211(a) provides in relevant part:

A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

the cause of action may not be maintained because of statute of limitations.

Finally, CPLR Rule 3211(e) states:

At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised by such motion or in the responsive pleading.

Based upon the foregoing, and a review of the owner defendants' Verified Answer and the prior motion practice herein, the Court agrees with plaintiffs that defendants have waived any potential defense based upon the statute of limitations. Owner defendants did not raise the statute of limitations as a basis for their initial pre-answer motion to dismiss, nor did they later raise it in their Verified Answer. Therefore, defendants have waived the defense of statute of limitations. Lefkowitz v. Kaye, Scholer, Fierman, Hays & Handler, 271 AD2d 576, 706 NYS2d 176 (2d Dept. 2000). In light of this determination, the Court declines to consider the merits of this defense.

Title to Fish Cove Road Adjacent to Lot 17.001

In the case sub judice, plaintiffs have met their prima [*10]facie burden of demonstrating, by documentary evidence, the absence of any material fact regarding the ownership of Fish Cove Road. With regard to lot 17.001, the deeds dated January 2, 1970 and June 1, 1973 from Arthur Tomlinson to Martha Tomlinson, transferred title to that property, together with title to the center line of Fish Cove Road adjacent to lot 17.001. That property remained in Martha Tomlinson until her death, and was ultimately transferred by her heirs to Rosario and Theresa Censi and subsequently by Theresa Censi to David, Barry and Lisa Censi. Moreover, the 2000 deeds executed by Mitchell and Dillon further clarified the transfer of title to Fish Cove Road to plaintiffs. In opposition, none of the defendants have raised a triable issue of fact regarding the portion of Fish Cove Road adjacent to lot 17.001. In fact, the correspondence from owner defendants' counsel and the title report he provided, further bolster plaintiffs' claims as to ownership of this portion of Fish Cove Road. Although owner defendants submit deeds and affidavits from Mitchell and Dillon to support their claim that it was not their intent to transfer title to Fish Cove Road and transferring title of a portion of Fish Cove Road to defendant Stack, such evidence is palpably insufficient to defeat the motion for summary judgment. At the time Mitchell and Dillon executed the 2007 deeds to Stack, they no longer had any interest in Fish Cove Road, having previously transferred title to plaintiffs.

Based on the foregoing, plaintiffs are entitled to partial summary judgment declaring title to the portion of Fish Cove Road adjacent to lot 17.001 in plaintiffs David Censi, Barry Censi and Lisa Censi.

Title to Fish Cove Road Adjacent to Lots 12.002, 12.003 and 12.004

Plaintiffs have also met their burden of demonstrating entitlement to summary judgment declaring that Theresa Censi is the owner of the portion of Fish Cove Road adjacent to lots 12.002, 12.003 and 12.004. The chain of title for this portion of Fish Cove Road unequivocally reflects that title to this portion of Fish Cove Road remained in Arthur Tomlinson until his death and then passed to his heir, Martha Tomlinson. Martha Tomlinson retained title to this portion until her death and then title vested in her heirs, Dillon and Mitchell, who transferred title to plaintiffs Rosario and Theresa Censi where it remains today. Owner defendants' argument that this portion of Fish Cove Road merged with lots 12.002, 12.003 and 12.004 is a red herring. Regardless of the fact that Lindis Farne transferred the property back in lieu of foreclosure, Tomlinson later transferred the [*11]property to Berkemus with the same reservation of ownership of title to the centerline of Fish Cove Road adjacent to lots 12.002, 12.003 and 12.004 and never transferred that portion during his lifetime, although he did grant an easement for ingress and egress over that portion for access to and from Noyack Road.

Again, as set forth above, although Mitchell and Dillon executed deeds in 2007, purportedly transferring title to this portion of Fish Cove Road to Stack, they did not have title since by the January 6, 2000 and March 2, 2000 deeds, they had transferred title to Rosario and Theresa Censi. Despite the allegations of the Mitchell and Dillon affidavits, the language of the deeds is clear and unambiguous and the Court will not look to parol evidence to alter the meaning of these documents. See, Spencer v. Connolly, 25 AD3d 832, 808 NYS2d 789 (3d Dept. 2006). Defendants have not raised a triable issue of fact warranting a trial.

Thus, the documentary evidence demonstrates plaintiffs' entitlement to summary judgment declaring that Theresa Censi is the owner of the portion of Fish Cove Road, to the centerline thereof, adjacent to lots 12.002, 12.003 and 12.004, with defendants having a right of ingress to and egress from Noyack Road. Such right of way does not entitle defendants to lay utilities but merely grants defendants a right to unobstructed passage over the roadway. See, Spiak v. Zeglen, 255 AD2d 754, 680 NYS2d 680 (3d Dept. 1998); U.S. Cablevision Corp., v. Theordoreu, 192 AD2d 835, 596 NYS2d 485 (3d Dept. 1993). See also, Lewis v. Young, 92 NY2d 443, 682 NYS2d 657, 705 NE2d 649 (1998); Heyert v. Orange and Rockland Utilities, Inc., 17 NY2d 352, 271 NYS2d 201, 218 NE2d 263 (1966); Thomas v. Orange and Rockland Elec. Co., 254 NY 366, 173 N.E. 224 (1930).

Highway Law §189

Highway Law §189 provides:

All lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the town superintendent shall open all such highways to the width of at least three rods.

The public use requirement has been interpreted to mean that the road was open to the public and kept in repair or taken in [*12]charge and adopted by public authorities. See, Danial v. Town of Delhi, 185 AD2d 500, 586 NYS2d 359 (3d Dept. 1992). That is, the municipality exercised dominion and control over the road. Egan v. Halverson, 271 AD2d 844, 706 NYS2d 494 (3d Dept. 2000). See also, Whitton v. Thomas, 25 AD3d 996, 807 NYS2d 454 (3d Dept. 2006); Stuart v. Town of Wells, 161 AD2d 1073, 557 NYS2d 629 (3d Dept. 1990). However, even where a road becomes a public highway by use, the owner of the fee retains title to the roadbed, Lehrer v. Wallace, 24 AD2d 602, 262 NYS2d 186 (2d Dept. 1965), and the town's interest is limited to the actual extent of its use. Town of Goshen v. Serdarevic, 17 AD3d 576, 793 NYS2d 485 (2d Dept. 2005). The installation of utilities under the roadbed requires permission from the owners of the fee title. Ashland Oil & Refining Co., v. State, 26 NY2d 390, 310 NYS2d 500, 258 NE2d 915 (1970).

In this case, defendants have demonstrated that Fish Cove Road has become a public highway pursuant to Highway Law §189. The affidavits from Highway Superintendent Masterson and Crew Chief Aldrich demonstrate that Fish Cove Road has been maintained by the Town of Southampton for a period in excess of ten (10) years, including the installation of traffic control signs and plowing, used by the public and has been listed in the Town's inventory of roads. They state that Fish Cove Road was maintained to the same level as other public roads in the town. Moreover, in his deposition, Rosario Censi admitted that the public always used Fish Cove Road, he did nothing to stop such use nor did he maintain the roadway. This evidence is sufficient to demonstrate that Fish Cove Road had become a public road through use and maintenance. See, e.g., LaSalle Co., v. Town of Hillsdale, 199 AD2d 685, 605 NYS2d 154 (3d Dept. 1993). In opposition, plaintiffs submit the affidavits from Dorothy Dobson and David Censi asserting that the town has not properly maintained Fish Cove Road. Such conclusory assertions are insufficient to rebut the evidence of public use and maintenance established by defendants. Stuart v. Town of Wells, supra .

Based on the foregoing, and upon searching the record, the Court grants summary judgment declaring that Fish Cove Road has become a public road pursuant to Highway Law §189. However, the Court further holds, that such declaration does not entitle owner defendants to lay utilities under the road without the express permission of the plaintiffs as fee owners of the roadbed as set forth herein above.

[*13]CONCLUSIONS

In light of the determinations herein, the Court concludes as follows:

Plaintiffs are granted partial summary judgment declaring that plaintiffs David Censi, Barry Censi and Lisa Censi are the sole owners of the portion of Fish Cove Road that lies between the centerline thereof and Suffolk County Tax Map parcel no. 0900-060.00-03.00-017.001;

Plaintiffs are granted partial summary judgment declaring that plaintiff Theresa Censi is the sole owner of the portion of Fish Cove Road that lies between the centerline thereof and Suffolk County Tax Map parcel no. 0900-060.00-03.00-012.001, 012.002 and 012.003;

Defendant Town of Southampton is granted partial summary judgment declaring that Fish Cove Road is a public highway pursuant to Highway Law §189;

Defendants are enjoined and restrained from laying utilities under the bed of Fish Cove Road without the express permission of plaintiffs.

All other relief requested by any party, not expressly set forth herein above has been considered and is denied.

The foregoing constitutes the DECISION and ORDER of the Court. Footnotes

Footnote 1:Rosario Censi died September 20, 2004, subsequent to the commencement of this action.

Footnote 2:Plaintiffs' Notice of Motion also sought substitution of parties but as set forth above, that issue was resolved by this Court's Order dated February 26, 2008 and therefore, need not be further addressed herein.