City of New York v Gowanus Indus. Park, Inc.

[*1] City of New York v Gowanus Indus. Park, Inc. 2008 NY Slip Op 51300(U) [20 Misc 3d 1110(A)] Decided on June 27, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2008
Supreme Court, Kings County

City of New York, Plaintiff,

against

Gowanus Industrial Park, Inc., Defendant.



19083/05



Attorneys:

For the Plaintiff- Corporation Counsel of the City of New York, Michael A. Cardozo, of counsel by Daniel Greene. 100 Church St, NY, NY 10007. (212) 788-1568

For the Defendant- Paykin, Mahon, Rooney & Krieg, LLP by Joe Paykin.. 185 Madison Ave, NY, NY 10016 (212) 725-4423

Robert J. Miller, J.

Upon the foregoing papers, defendant Gowanus Industrial Park, Inc. (GIP) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint. Plaintiff the City of New York (the City) moves for an order granting partial summary judgment on the issue of liability in its favor, alleging that no material issues of fact are presented.

In this action, the City seeks the removal of a fence, constructed by GIP and measuring 15 feet in height and 200 feet in length, along the northern terminus of the Henry Street Basin and the restoration of the bulkhead to its original condition, as well as ancillary relief in the form of damages, predicated upon the claim that, by building the fence, GIP is interfering with the City's riparian [FN1] rights and the public's rights to access the Henry Street Basin. GIP contends, principally, that its construction of the fence is a lawful exercise of its rights as the owner of the [*2]bulkhead on which the fence is located and of the land under water in the Henry Street Basin.

Facts and Procedural Background

The following diagram may aid in understanding the parties' contentions, the issues raised and the court's resolution of this case:

In 1997, GIP purchased (1) an L-shaped parcel of property (marked "G-1" in the above diagram), improved by a grain elevator and several two-story buildings, and (2) the land under water in the Henry Street Basin (marked "G-2" in the above diagram), which is a navigable body of tidal water extending from the Gowanus Bay in the Upper New York Bay.[FN2] In 2004, the quitclaim deed, pursuant to which the purchase was documented, was replaced by letters patent.[FN3]

In February 2002,[FN4] GIP constructed the fence at issue and the underlying concrete footer on the bulkhead between points 1 and 2 (marked "F-1" in the above diagram). The fence, in effect, separates the Henry Street Basin from the Red Hook Recreation Area (Red Hook Park), a city owned and operated public park (marked "C" in the diagram).[FN5] Originally, the fence was 18 feet high, but, [*3]some time later, GIP reduced its height to 15 feet.[FN6]

As indicated earlier, the City (which owns and operates the Red Hook Park on the parcels marked "C" in the diagram) claims that, by constructing the fence, GIP has unreasonably interfered with the City's riparian rights to the Henry Street Basin. As part of this claim, the plaintiff contends that the fence obstructs the public's access to the Henry Street Basin from a directly adjacent brick-paved esplanade, adversely affects the recreational and aesthetic value of the Red Hook Park, and constitutes either a private or a public nuisance.

GIP contends that the fence is lawfully located on its property and was approved, in writing, by the City in October 2005 and May 2006. According to the defendant, the fence is beneficial insofar as it prevents persons from trespassing onto the defendant's property and safeguards neighborhood children from what otherwise would be an "attractive nuisance."

Discussion

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the motion regardless of the sufficiency of the opposing papers (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).

In its complaint, the City asserts six causes of action for declaratory and injunctive relief. More specifically, the complaint seeks declarations that the City possesses riparian rights (the First Cause of Action) and that the fence does not comply with the applicable rules and regulations of the City and the State of New York (the Second Cause of Action). In addition, the complaint seeks injunctive relief in the form of the removal of the fence because the latter (1) is unreasonably interfering with the City's riparian rights and the public's right to access navigable waters (the Third and Fourth Causes of Action), and (2) constitutes a private and a public nuisance (the Fifth and Sixth Causes of Action).

In its summary judgment motion, GIP alleges, among other things, that the plaintiff's claims seeking the removal of the fence are without merit, inasmuch as the City allegedly consented to the existence of the fence after its construction. Thus, the court will first address whether the fence was approved by the applicable governmental agencies.

I.Whether the City and the State Have Approved the Fence

A.City Permits

GIP contends that the fence complies with Administrative Code of the City of New York § 27-509, which provides that "fences used in conjunction with nonresidence buildings and public [*4]playgrounds . . . may be erected to a height of fifteen feet" without a permit. The defendant bases its position on two letters to GIP's engineer from an employee of the City's Building Department, dated October 3, 2005 [FN7] and May 2, 2006,[FN8] confirming that a 15-foot fence complies with the height requirement of Administrative Code of the City of New York § 27-509. Thus, the defendant concludes that the fence has been properly built.

The Administrative Code of the City of New York, however, is not the end of the inquiry. Separate and apart from it, Waterfront and Related Property Rules and Regulations of City of New York (66 RCNY) § 2-03 (a) require, in relevant part, that "[n]o person shall erect, place or maintain any . . . construction or obstacle of any kind on or about any wharf property [defined in 66 RCNY 2-01 to include bulkheads and structures thereon] . . . without first obtaining a written permit from the Commissioner" of the Department of Small Business Services.[FN9]

In September 2006, the City explicitly required GIP to obtain a special permit from the City's Department of Small Business Services because the fence is located on a bulkhead.[FN10] The defendant has failed to obtain such a permit (or, for that matter, any other City or State permit) relating to the fence.[FN11] Moreover, the City has not waived its rights with respect to the special permit. Not only has it commenced the instant lawsuit challenging the legality of the fence in June 2005, but also, as recently as October 2007, the City issued GIP a summons for altering a waterfront without a permit.[FN12] Accordingly, the City has not approved the fence, either explicitly or implicitly, and that portion of GIP's motion which seeks relief based on the alleged consent of the City to the fence is denied. The court grants the City's motion to the extent it seeks a declaration that GIP has failed to obtain a [*5]necessary permit for the fence pursuant to 66 RCNY 2-03 (a).[FN13]

B.State Permits

As noted above, GIP has not obtained any State permits for the fence. In January 2004, prior to the inception of this action, the New York State Department of Environmental Conservation (NYSDEC) commenced an administrative proceeding (DEC File Nos. R2-20060804-322 and R2-20040113-9) against GIP and its president, John Quadrozzi Jr. (Quadrozzi), alleging that the construction of the fence violated certain applicable provisions of the Environmental Conservation Law and the Rules and Regulations of the State of New York and seeking its removal, together with civil penalties and criminal sanctions (the Administrative Proceeding).[FN14] Effective May 23, 2007, NYSDEC entered into a consent order (the Consent Order) with GIP and Quadrozzi, which required them, among other things, to submit to NYSDEC, with a copy to the City, a detailed narrative, describing why, in their opinion, the fence met certain NYSDEC standards that would have applied had the respondents requested an NYSDEC permit for the fence, and containing an exhaustive discussion of alternatives to secure GIP's property against trespassers.[FN15] GIP and Quadrozzi submitted their response to NYSDEC, insisting that no other alternatives to the fence were available.[FN16] In September 2007, the City submitted to NYSDEC a reply to the respondents' position.[FN17] On June 18, 2008, NYSDEC issued its decision concluding that the fence must be removed.[FN18] NYSDEC ruled, in pertinent part: [T]here are various, more suitable alternatives to the currently existing fence. The current fence has impacts on the aesthetic use of the waterway, which is a benefit recognized by the legislature in, for example, ECL § 25-0302(1), which recognizes the value of tidal wetlands for, inter alia, recreation, education and research. This encompasses not only the ability to have visual access to the tidal wetland but also to engage in other recreational uses, such as fishing.[FN19][*6]

Pursuant to the Consent Order, GIP was required to remove the fence within forty-five (45) days after NYSDEC made an adverse determination against GIP with respect to the fence as a condition precedent to appealing such determination.[FN20]

In light of NYSDEC's ruling, the court need not determine that portion of the City's second cause of action which asserts that GIP is required to obtain permits for the fence from NYSDEC pursuant to Environmental Conservation Law §§ 15-0503 and 25-0401 and to comply with the New York State Coastal Zone Management Program. Accordingly, to the extent that the City and GIP seek summary judgment on these points, such relief is denied to both parties as moot.

II.Whether the City Has Riparian Rights to Access the Waterfront

In its first cause of action, the City requests a declaratory judgment pursuant to Environmental Conservation Law § 15-0701 (6), which provides, in relevant part: "Any person desirous of ascertaining the extent of the rights and privileges of himself and others in the water of or with respect to the natural condition of such a natural watercourse . . . may maintain an action for a declaratory judgment defining the extent of such rights and privileges. Neither proof of present harm nor of the likelihood of future harm to the plaintiff from an alteration in the natural condition of such watercourse . . . shall be prerequisite to the maintenance of such an action, the judgment in which shall not affect the rights and privileges of any person or corporation not a party thereto. Such an action shall be maintainable by persons, corporations, governmental units, owners of land riparian to such a natural watercourse . . ., persons to whom such owners have granted their riparian rights in whole or in part, and owners of prescriptive rights or privileges in the water of or with respect to such watercourses. . . ."

Under common law, the foreshore, or the land lying between the high- and low-water marks of navigable waters, is subject to the rights of three classes of persons: "First, there is the jus publicum: the right shared by all to navigate upon the waters covering the foreshore at high tide and, at low tide to have access across the foreshore to the waters for fishing, bathing or any other lawful purpose. Second, there is the jus privatum: the right of the owner of the foreshore. . . . Third, there are the rights of the riparian owner, the owner of upland fronting on navigable tidal waters."

(Arnold's Inn, Inc. v Morgan, 63 Misc 2d 279, 283 [1970], modified on other grounds, 35 AD2d 987 [1970] [internal citation omitted]).

In this case, the City lays claim to the first and the third categories of these rights (as a riparian owner and jus publicum on behalf of the public), while GIP lays claim to the second category of these rights (just privatum as the owner of the foreshore).

A.City's Riparian Rights

It is well established that "[t]he owner of land abutting a navigable tidal waterway has the [*7]right to use the area over the underwater land fronting on his property for access to navigable water, even if title to the underwater land is held by another" (Bravo v Terstiege, 196 AD2d 473, 475 [1993]).[FN21] Therefore, the fact that GIP owns the land under the Henry Street Basin does not defeat the City's riparian rights, if any.

GIP contends that the City has no riparian rights because GIP allegedly owns a thin strip of upland between the City park and the Henry Street Basin. In support of its position, GIP submits a survey of the property at issue (the GIP Survey) prepared by Shapiro Engineering, Inc. in May 2001.[FN22] At the outset, the court notes several issues with that survey. First, the GIP Survey was prepared in 2001 before the fence had been built and, therefore, does not reflect its construction. Second, the GIP Survey does not show the entire boundary with the Henry Street Basin or the bulkhead. Third, the GIP Survey is not authenticated by an affidavit of a certified title examiner or a land surveyor; rather, it is attached to an affidavit of GIP's president, Quadrozzi, who appears to be neither a certified title examiner nor a land surveyor. More importantly, the GIP Survey supports, rather than detracts from, the City's position because it shows that the legal boundary of the Red Hook Park and the legal boundary of GIP's ownership of the Henry Street Basin border one another and, thus, cannot include an alleged strip of upland between them.[FN23]

In opposition to the GIP Survey, the City submits a survey of the relevant properties, prepared by the Bureau of Site Engineering for the New York City Department of Design and Construction in 2002 and re-certified in 2008 (the City Survey).[FN24] Not surprisingly, the City Survey, which is authenticated by an affidavit of Adolph Hoegler, Director of the Bureau, disagrees with the GIP Survey.[FN25] The City Survey reveals that the fence and the concrete footer supporting it are built beyond the pierhead/bulkhead line. Based on the City Survey, the court concludes that the City has made a prima facie case that it possesses riparian rights with respect to the Henry Street Basin. As stated above, the court attaches little credence to the GIP Survey, which is not properly authenticated and which had been prepared before the fence was constructed, and concludes that GIP has failed [*8]to rebut the City's prima facie showing on this point.[FN26] Accordingly, the court rules on the plaintiff's first cause of action and declares that the City has riparian rights to the Henry Street Basin.

B.Balancing City's Rights Against GIP's Ownership of the Basin

The City's status as a riparian owner encompasses "the right to reasonable access," subject to the rights of GIP as the owner of the Henry Street Basin (see Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, 574 [2001]). The competing rights of "the right of . . . the owner of the foreshore and of the riparian owner . . . must be exercised in a reasonable way" (Tiffany v Town of Oyster Bay, 234 NY 15, 21 [1922]). Thus, "neither the riparian owner nor the underwater landowner has an unfettered veto over reasonable land uses necessary to the other's acknowledged rights, and where the rights conflict the court must strike the correct balance" (id. at 572). "[G]enerally determinations of reasonableness of the exercise of riparian rights is a question of fact" (Gowanus Indus. Park, Inc. v Amerada Hess Corp., 2003 WL 22076651, *16, 2003 US Dist LEXIS 15580, *48 [ED NY 2003], citing Tiffany, 234 NY at 23 ["What is a reasonable use of the foreshore by the proprietary is to some extent a question of time, degree, and circumstance"]); Town of Hempstead v Oceanside Yacht Harbor, Inc., 38 AD2d 263, 264, 266 [1972] ["The scope of what is a reasonable, safe and convenient use of the upland owner's riparian rights has been gradually defined on a case-to-case foundation. . . . As has been frequently said, the term reasonable' is relative, taking on color and significance from the circumstances"], affd 32 NY2d 859 [1973]).

The City argues that the fence completely restricts its access to the Henry Street Basin. The City offers an affidavit of Lena Neglia, a Parks and Recreation Manager, who concludes that "[t]he fence blights the park's landscape, diminishes the park's recreational value, entirely impedes the lengthy local tradition of fishing in the Basin, and prevents the public from utilizing (or even appreciating) the waterfront."[FN27] Photographs of the fence taken in or prior to 2005 reflect that the fence completely blocks the view of the Henry Street Basin from the adjacent benches and the esplanade.[FN28] This has been confirmed by the court's on-site visit to the Red Hook Park.[FN29] Moreover, NYSDEC has found that the fence precludes the visual access and other recreational uses of the tidal wetlands. Accordingly, the court holds that the City has satisfied its prima facie burden that the fence interferes with its riparian rights to the Henry Street Basin. [*9]

In opposition, GIP offers letters from two local community organizations (the Red Hook West Resident Association and the Red Hook Rise), written in 2007 to NYSDEC, alleging, in conclusory fashion, that the fence has reduced criminal activity in the fenced corner of the Red Hook Park and has eliminated trespassing on the nearby properties owned by GIP.[FN30] These statements are not supported by either sworn statements or security inspection reports by the New York Police Department describing the impact that the fence allegedly has had on criminal activity, nor has GIP offered any admissible evidence of the allegedly beneficial effect of the fence on the environment generally. GIP has failed to rebut the City's case, nor has it satisfied its burden of proof to be entitled to summary judgment on this issue.

Although upland owners are assured of their riparian rights,[FN31] GIP argues that the fence, as it currently stands, is the best alternative to protect its property and is unwilling to remove all or part of the fence. GIP has conceded that, to make the fence better fit in with the activities of the Red Hook Park, "GIP is willing to construct on the park side of the fence: a handball court where the present fence now stands; or a tennis court with a backboard to hit balls against where the fence now stands."[FN32] According to the City, GIP's "facetious proposal does not mitigate the loss of waterfront access from a[] nearly seventy-year old public park. . . ."[FN33]

As the court's strenuous efforts to mediate this dispute have been unsuccessful, the court has no choice in this matter but to order the removal of the fence in its entirety and the restoration of the bulkhead to its original condition within ninety (90) days after service of a copy of this order with notice of entry, unless some other satisfactory arrangement can be reached between the parties to assure the City of its right, as a riparian owner, to access the Henry Street Basin. Such undertaking [*10]shall be subject to prior written approval of NYSDEC pursuant to Environmental Conservation Law § 15-0503 (1) (b) in order, among other things, to "assess the effect on the natural resources of the state likely to result from the proposed project or work."

The court recognizes that GIP has made a considerable capital investment in the Red Hook area and that GIP has a right to protect its property against thieves and vandals. As NYSDEC recognized, however, the fence in its current form is not the only alternative available to GIP to protect its property. Although the parties have not explored this option, it appears that GIP may be able to relocate the fence along the western shoreline (marked "F-3" on the above diagram) to accomplish this goal. The relocation of the fence will, of course, be subject to prior written approval of NYSDEC.

Finally, GIP alleges that, prior to the construction of the fence, "[c]hildren would regularly dive from the bulkhead adjacent to RHP [Red Hook Park] into the water, cross the bulkhead onto the [GIP] Parcels in order to play on the equipment, piles of fill material and structures located therein; and make fires right on or next to the bulkhead and then throw the embers and trash into the [Henry] Street Basin," but that "[s]ubsequent to the construction of the fence, the incidence of trespassing declined to almost zero."[FN34]

The doctrine of "attractive nuisance" on which GIP relies has been discredited in New York (see Schwartz v Armand Erpf Estate, 255 AD2d 35, 40 [1999], lv dismissed 94 NY2d 796 [1999]; Morse v Buffalo Tank Corp., 280 NY 110, 115 [1939]); rather, "when young children are known to be present, the landowner's normal duty, i.e., to maintain its premises in a reasonably safe condition in view of all the circumstances," includes, in this case, a duty to recognize the danger created by the presence of the bulkhead, the grain elevator and the other "attractions" on GIP's property to which children could gain access (see Schwartz, 255 AD2d at 40; see also Scurti v City of New York, 40 NY2d 433, 442 [1976] ["the likelihood of one entering without permission depends on the facts of the case including the location of the property in relation to populated areas, its accessibility and whether there have been any prior incidents of trespassing in the area where the injury occurred"]). These dangers, although obvious to adults, may not be appreciated by children (see Schwartz, 255 AD2d at 40). It appears from GIP's submissions to NYSDEC that another GIP fence (marked "F-2" in the above diagram), which abuts the fence at issue, may have ameliorated these dangers. In any event, NYSDEC has found that GIP's "legitimate interest to prevent trespassing on the upland lot . . . can be accomplished through alternatives to the currently existing fence, which [alternatives] will have a lesser impact on the natural resources at issue." GIP has failed to justify the fence on this basis both to NYSDEC and to the court. Accordingly, the court grants the City the relief it requested in its third cause of action.

In its fourth cause of action, the City alleges that GIP is wrongfully interfering with the public's access to navigable waters. In light of the court's determination that the City, i.e., the public, has the right to access the waterfront by virtue of the City's riparian rights (the First Cause of Action) and that GIP is unreasonably interfering with those rights (the Third Cause of Action), the court need not determine whether the public has an independent right to access the waterfront. Accordingly, the City's fourth cause of action is dismissed as moot. [*11]

III.Whether the Fence Is a Nuisance

Nuisances are classified as either private or public (see Copart Indus. v Consol. Edison Co. of NY, 41 NY2d 564, 568 [1977]). In its fifth and sixth causes of action, the City alleges that the fence is a private and a public nuisance, respectively.

A.Private Nuisance

"A private nuisance threatens one person or a relatively few, an essential feature being an interference with the use or enjoyment of land" (Copart Indus. v Consol. Edison Co. of NY, 41 NY2d 564, 568 [1977] [internal citation omitted]).

Since the alleged nuisance in the instant action is common to the entire Red Hook community, however, the City cannot assert a legally cognizable claim of a private nuisance (see Copart Indus., 41 NY2d at 568). Hence, the Court holds that the fence is not a private nuisance and dismisses the City's fifth cause of action.

B.Public Nuisance

A public or, as sometimes termed, a common "nuisance exists when there is an interference with a public right" (Andersen v University of Rochester, 91 AD2d 851, 851 [1982], appeal dismissed 59 NY2d 968 [1983]), "and is subject to abatement or prosecution on application of the proper governmental agency" (Copart Indus., 41 NY2d at 568). A public nuisance "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to . . . interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons" (id.

[internal citation omitted]). Such interference must be both significant and unreasonable (see Restatement [Second] of Torts §§ 821B(2)(a), 821F [1979]), which is defined as:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

(Restatement [Second] of Torts § 821B[2] [1979]).

Unless another remedy is specifically provided for by statute, the appropriate remedy in a public nuisance case is an injunction (see Abrams and Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years after Boomer, 54 Albany L Rev 359, 379 [1990] [footnote omitted]).

In seeking to abate a public nuisance, it is well settled that less restrictive alternatives should be pursued first: "We note that a court of equity has an obligation to go no further than absolutely necessary to protect the rights of the complaining parties. The injunction must be framed as narrowly as possible and if a restriction less burdensome than an outright ban is reasonable, the less burdensome restriction should be imposed."[*12]

(Antinelli v Toner, 74 AD2d 996, 997 [1980] [internal citations omitted]).

Here, GIP is substantially interfering with the public's right of access to the waterfront by maintaining the fence that was constructed without any prior authorization from either the State or the City. The City's photographs depict, and the court's own observations confirm, that the fence significantly and unreasonably restricts the common use of the waterfront and does not serve the public good. As a result, the court holds that the fence is a public nuisance.

Nevertheless, before the court may issue a broad injunction requiring the removal of the fence, the court "must first issue more specific orders, changes and regulations to abate the nuisance" (In re City of New York, 5 Misc 3d 1014 [A], 2004 NY Slip Op 51375 [U], *25 [2004]).

In its sixth cause of action, the City requests "injunctive relief necessary to abate this public nuisance, including the removal of the fence and restoration of the Park to its previous state."[FN35] In its submissions to the court and NYSDEC, GIP insists on retaining the fence. As stated above, the court has ordered the removal of the fence and the restoration of the bulkhead, subject to prior written approval of NYSDEC. The court hereby expands its order of relief to subsume public nuisance as an additional legal basis for the removal of the fence.

Conclusion

In sum, the court rules, as follows:

The City's motion for summary judgment is granted only to the extent that:

(1)the City is declared to have riparian rights to the Henry Street Basin (the First Cause of Action);

(2)it is declared that, prior to the construction of the fence, GIP was required to obtain a permit from the City pursuant to Waterfront and Related Property Rules and Regulations of City of New York (66 RCNY) § 2-03 (a) (the Second Cause of Action to the extent it relates to the City permits); but the court shall not declare whether GIP was required to obtain a permit from NYSDEC or the State of New York with respect to the fence (the Second Cause of Action to the extent it relates to the State permits);

(3)the fence wrongfully and unreasonably interferences with the City's riparian rights to the Henry Street Basin (the Third Cause of Action), and, accordingly, the fence shall be removed and the bulkhead shall be restored to its original condition, within ninety (90) days after service of a copy of this order with notice of entry, unless some other satisfactory arrangement can be reached between the parties to assure the City of its right, as a riparian owner, to access the Henry Street Basin; provided that such removal, restoration or other alternative arrangement shall be subject to prior written approval of NYSDEC;

(4)the City's claim that the fence wrongfully interference with the public's access to navigable waters (the Fourth Cause of Action) is dismissed as moot;

(5)the City's claim that the fence is private nuisance (the Fifth Cause of Action) is dismissed; and

(6)the City's claim that the fence is a public nuisance (the Sixth Cause of Action is granted.

GIP's motion for summary judgment is granted only to the extent that the court holds that the [*13]fence is not a private nuisance (the Fifth Cause of Action) and is otherwise denied.

This constitutes the decision, order and judgment of the court.

E N T E R,

J.S.C. Footnotes

Footnote 1: The term "riparian" describes an owner of land along a river and the term "littoral" describes an owner whose land is bounded by the seashore (see Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, 571 [2001]). This distinction, however, is often blurred by the courts and the terms are used interchangeably. Although the term "littoral" is applicable to this case, the parties have used both terms and the court will do so as well.

Footnote 2: See Quitclaim Deed annexed to the affidavit of Malcolm Engoron dated December 21, 2007 (the First Engoron Affidavit), as Exhibit J.

Footnote 3: The original purchase was from the Port Authority of New York and New Jersey (the Port Authority). In 2003, the deed from the Port Authority to GIP was found to be void by Federal District Court Judge I. Leo Glasser because the legislation transferring the property from the State of New York to the Port Authority required that any future conveyance thereof could only be made to the State and that GIP had not effected a proper release of that condition (see Gowanus Indus. Park, Inc. v Amerada Hess Corp., 2003 WL 22076651, *11, 2003 US Dist LEXIS 15580, *36 [ED NY 2003]). Accordingly, the title in the subject property remained in the Port Authority.

To remedy the failure of title, the Port Authority conveyed the subject property to the State by a quitclaim deed recorded April 1, 2005. Immediately thereafter, the State conveyed the subject property to GIP by letters patent recorded on the same day as the quitclaim deed (see Letters Patent annexed to the First Engoron Affidavit as Exhibit K).

Footnote 4: See Affidavit of Lena Neglia dated May 19, 2005 (the Neglia Affidavit), ¶ 9.

Footnote 5: Another fence, built by GIP (marked "F-2" in the above diagram), has been approved by the City and is not a subject of this action.

Footnote 6: The court accepts as correct the sworn statement of John Quadrozzi Jr., president of GIP, that "the height of the fence was reduced to fifteen feet" (see Affidavit of John Quadrozzi Jr. dated March 10, 2008 [the Quadrozzi Affidavit], ¶ 5). The City's position, as reflected in its survey dated March 7, 2008, is that the height of the fence remains at 18 feet (see City's survey annexed to the affidavit of Malcolm Engoron dated March 14, 2008 [Second Engoron Affidavit], as Exhibit O).

Footnote 7: See Letter from Satish Patel to Elliot J. Shapiro dated October 3, 2005, annexed to the Affidavit of Carlos Marcial dated March 10, 2008 (the Marcial Affidavit), as Exhibit F.

Footnote 8: See Letter from Satish Patel to Elliot J. Shapiro dated May 2, 2006, annexed to the Quadrozzi Affidavit as Exhibit 2.

Footnote 9: The Commissioner of the Department of Small Business Services is responsible for the "development, redevelopment, construction, reconstruction, operation, maintenance . . . and regulation of . . . wharf property [and] water front property . . . [including] wharves, piers, docks, bulkheads, structures wholly or partly therein, and such other structures used in conjunction with and in furtherance of water front commerce and/or navigation" (New York City Charter § 1301 [2] [d]).

Footnote 10: See Letter from Carlos J. Marcial to Elliot J. Shapiro dated September 29, 2006, annexed to the Marcial Affidavit as Exhibit H.

Footnote 11: See Excerpt from the deposition of John Quadrozzi Jr., sworn to on July 7, 2006, at 135-136, annexed to the Affirmation of Daniel Greene, dated January 4, 2008 (the Greene Affirmation), as Exhibit N.

Footnote 12: This proceeding is pending in the Criminal Court for Kings County (see Summons No. 425315038-0 dated October 15, 2007, annexed to the Marcial Affidavit as Exhibit J).

Footnote 13: In light of this determination, the issues as to whether the fence complies with the New York City Waterfront Revitalization Program and Administrative Code of the City of New York § 27-147 are rendered moot.

Footnote 14: See City's survey annexed to the Second Engoron Affidavit as Exhibit O.

Footnote 15: See Order on Consent effective May 23, 2007, issued by NYSDEC annexed to the Greene Affirmation as Exhibit P.

Footnote 16: See GIP's submission to NYSDEC annexed to the Greene Affirmation as Exhibit Q, at 8.

Footnote 17: See letter from Daniel Greene to Udo M.. Drescher dated September 21, 2007, annexed to the Greene Affirmation as Exhibit R.

Footnote 18: See letter from Udo M. Drescher to Joseph N. Paykin, Quadrozzi, and GIP dated June 18, 2008, annexed to the Supplemental Affirmation of Daniel Greene dated June 19, 2008, as Exhibit 4.

Footnote 19: Id. at 4.

Footnote 20: See Consent Order, ¶ 8.

Footnote 21: See also Johnson v May, 189 AD 196, 203 (1919) ["One of the most important rights of the riparian owner is that of access to and from the sea. It is a right possessed by him incident to his ownership of the upland without reference to whether he has any grant of land under water from the State"]; 107 NY Jur 2d, Water § 6 ["A riparian right is not an easement, but is incident to and is annexed to the land as part and parcel of it. It arises as an incident of ownership of the bank, and does not depend upon ownership of the bed of the stream"] [footnotes omitted].

Footnote 22: Survey dated May 15, 2001 prepared by Shapiro Engineering, P.C. annexed to the Quadrozzi Affidavit as Exhibit 1.

Footnote 23: The pierhead and bulkhead line is the lawful north border of GIP's ownership of the Henry Street Basin.

Footnote 24: See City's survey annexed to the Second Engoron Affidavit as Exhibit O.

Footnote 25: See Affidavit of Adolph Hoegler dated March 7, 2008.

Footnote 26: GIP's claim that the City lacks riparian rights because the City is not using the Red Hook Park for a "maritime purpose" is without merit. The City's current use of its property is irrelevant to its status as a riparian owner because riparian rights are established based on a property's physical proximity to navigable water (see e.g. Schuss v Palmisano, 2008 NY Slip Op 4497, 857 NYS2d 709, 711 [2008] ["Riparian rights are the rights of a land owner, with property adjacent to navigable waters, to access the water for navigation, fishing and other such uses"] [emphasis added]).

Footnote 27: Neglia Affidavit, ¶ 14.

Footnote 28: See Photographs annexed to the Neglia Affidavit as Exhibit L.

Footnote 29: The court, accompanied by the parties, visited the Red Hook Park, inspected the fence and confirmed its appearance as set forth in the photographs.

Footnote 30: GIP also offers in evidence a letter from the Red Hook East Tenants Association, which does not address the fence.

Footnote 31: See e.g. Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, 571 [2001] [riparian owners are entitled to "their full panoply of rights," including "entitlement to access to water for navigation, fishing and other such uses"];Town of Hempstead v Oceanside Yacht Harbor, 38 AD2d 263, 264 [1972] ["The defendant, as an upland owner, has a right of access to and from the channel over the plaintiffs' foreshore and that right follows the entire frontage of the defendant's property"], affd 32 NY2d 859 [1973]; Arnold's Inn, Inc. v Morgan, 35 AD2d 987, 988 [1970] [a riparian owner's fundamental right is having "direct access to navigable waters" from an upland parcel]; Gucker v Town of Huntington, 268 NY 43, 48 [1935] [ruling in favor of riparian owners against town for obstructing access to water]; Tiffany, 234 NY at 23 [ruling in favor of riparian owner, holding, "[t]he town may not fill in, occupy and obstruct with buildings the foreshore under the pretext of providing for the public enjoyment, so as to interfere with the rights of owners of the upland, although they may still be able to reach the water. Their rights pass along the whole frontage of their property"]).

Footnote 32: See GIP's submission to NYSDEC annexed to the Greene Affirmation as Exhibit Q, at 8.

Footnote 33: See letter from Daniel Greene to Udo M. Drescher dated September 21, 2007, at 7 (annexed to the Greene Affirmation as Exhibit R).

Footnote 34: See Quadrozzi Affidavit, ¶ 4.

Footnote 35: The City is not seeking damages for any past injuries allegedly caused by the public nuisance.