| City of New York v Gowanus Indus. Park, Inc. |
| 2009 NY Slip Op 06498 [65 AD3d 1071] |
| September 15, 2009 |
| Appellate Division, Second Department |
| City of New York, Respondent, v Gowanus IndustrialPark, Inc., Appellant. |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, DanielGreene, and Mordecai Newman of counsel), for respondent.
In an action, inter alia, for a judgment pursuant to Environmental Conservation Law §15-0701 (6) declaring that the defendant's construction of a wall along the northern terminus ofthe Henry Street Basin unlawfully interferes with the plaintiff's riparian rights in and to theHenry Street Basin, and a mandatory injunction compelling the plaintiff to remove that wall orcause it to be removed, the defendant appeals, as limited by its brief, from so much of an order ofthe Supreme Court, Kings County (Miller, J.), dated June 27, 2008, as granted those branches ofthe plaintiff's cross motion which were for summary judgment on the first cause of actiondeclaring that the plaintiff has riparian rights in and to the Henry Street Basin, on the third causeof action declaring that the wall unreasonably interferes with the plaintiff's riparian rights in andto the Henry Street Basin, on the sixth cause of action declaring that the wall constitutes a publicnuisance, and for a mandatory injunction compelling the plaintiff to remove the wall or cause itto be removed, and to restore access to the Henry Street Basin, within 90 days of service of thatorder upon it, unless some other satisfactory arrangement could be reached between the partiesto assure the plaintiff of its right, as a riparian owner, to gain access to the Henry Street Basin.
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter isremitted to the Supreme Court, Kings County, for the entry of an appropriate declaratoryjudgment.
In 1997 the defendant Gowanus Industrial Park, Inc. (hereinafter GIP), acquired two parcelsof real property—one consisting of certain bottomlands of the Henry Street Basin(hereinafter the Basin), a navigable body of tidal water, and another located above water level onthe western side of the Basin. The plaintiff, City of New York, owns two parcels of real propertylocated on the northern side of the Basin, which it operates as a park. In February 2002 GIPconstructed a wall measuring 18 feet in height and 200 feet in length on the northern side of theBasin. The City commenced this action seeking, inter alia, the removal of the wall on thegrounds that it unreasonably interfered with its riparian/littoral rights to the Basin, wasunlawfully constructed, and constituted a private and public nuisance.[*2]
GIP moved for summary judgment and the Citycross-moved for summary judgment. In an order dated June 27, 2008 the Supreme Court, insofaras relevant to this appeal, granted those branches of the City's cross motion which were forsummary judgment on the first cause of action declaring that it has riparian rights to the Basin,on the third cause of action declaring that the wall unreasonably interfered with its riparian rightsto the Basin, on the sixth cause of action declaring that the wall constituted a public nuisance,and for a mandatory injunction compelling the plaintiff to remove the wall, or cause it to beremoved.
The City demonstrated its prima facie entitlement to judgment as a matter of law on its firstcause of action for a judgment declaring that it possessed riparian rights in and to the Basin byestablishing that its property directly abutted the Basin, a navigable waterway (see Town ofOyster Bay v Commander Oil Corp., 96 NY2d 566, 571 [2001]; Tiffany v Town ofOyster Bay, 234 NY 15 [1922]; Mascolo v Romaz Props., Ltd., 28 AD3d 617, 618 [2006];Bravo v Terstiege, 196 AD2d 473, 475 [1993]; see generally Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Specifically, the City submitted, inter alia,letters patent for its property, indicating that it shares a common boundary with the Basin, and acertified 2002 City survey, which was also authenticated by affidavit, confirming that the City'sproperty directly abuts the Basin.
In opposition, GIP failed to raise a triable issue of fact as to the City's entitlement to adeclaration of its riparian rights. Specifically, the 2001 survey submitted by GIP was not inadmissible form, as the 2001 survey was unsigned, uncertified, and submitted without anaffidavit by the preparer of the survey, and thus could not support its contention that there was astrip of land between the Basin and the City's property (see Miller v Powers, 53 AD3d 1125, 1127-1128 [2008];Dewey v Gardner, 248 AD2d 876, 878 [1998]).
The City's right of access as a riparian owner is not absolute, but is qualified by GIP's rightsas the owner of the Basin (see Town of Oyster Bay v Commander Oil Corp., 96 NY2d at572; Hedges v West Shore R.R. Co., 150 NY 150, 158 [1896]). When the parties' rightsare in conflict, the court must strike the correct balance (see Town of Oyster Bay vCommander Oil Corp., 96 NY2d at 572). Additionally, what constitutes reasonable access isdetermined on a case-by-case basis, considering what is a reasonable, safe, and convenientaccommodation of the riparian interests of the upland owner, here the City (see Town ofHempstead v Oceanside Yacht Harbor, 38 AD2d 263, 264 [1972], affd 32 NY2d 859[1973]).
In this regard, the City satisfied its prima facie burden of demonstrating that the wallunreasonably interfered with its riparian right of reasonable access to the Basin (see Gucker vTown of Huntington, 268 NY 43, 47-48 [1935]; Tiffany v Town of Oyster Bay, 234NY at 18-19; Arnold's Inn v Morgan, 35 AD2d 987, 988 [1970]). In support of its crossmotion, the City submitted the affidavit of a manager of the City Parks Department andphotographs of the wall which demonstrated that the wall—which was originally 18 feetin height and extends along the entire waterfront boundary—completely obstructs itsriparian right of access to the Basin. In opposition, GIP failed to raise a triable issue of fact as tothe reasonableness of the dimensions, placement, and configuration of the wall. GIP did notsubmit any evidence in admissible form to support its conclusory and unsupported allegationsthat the wall was necessary for public safety and to prevent trespassing (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
Contrary to GIP's contentions, the mandatory injunction compelling it to remove the wall, orcause it to be removed, was not overly broad. A riparian owner, such as the City, has a right toequitable relief against material obstructions, including the abatement of an obstruction alreadyconstructed (see Tiffany v Town of Oyster Bay, 234 NY 15 [1922]).
GIP's remaining contentions are without merit.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the City ofNew York has riparian rights in and to the Henry Street Basin, that the wall erected by thedefendant along the northern terminus of the Henry Street Basin unreasonably interferes with theCity's riparian [*3]rights in and to the Henry Street Basin, andthat the wall constitutes a public nuisance (see Lanza v Wagner, 11 NY2d 317, 334[1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).Fisher, J.P., Miller, Angiolillo and Hall, JJ., concur. [See 20 Misc 3d 1110(A), 2008 NYSlip Op 51300(U).]