| Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of KiryasJoel |
| 2009 NY Slip Op 06656 [65 AD3d 1176] |
| September 22, 2009 |
| Appellate Division, Second Department |
| Bais Yoel Ohel Feige et al., Appellants, v CongregationYetev Lev D'Satmar of Kiryas Joel, Respondent. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC (Richard M. Mahon II and Mischel &Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claimsto real property, the plaintiffs appeal, as limited by their brief, from so much of a judgment of theSupreme Court, Orange County (Owen, J.), entered February 14, 2008, as, after a nonjury trial, isin favor of the defendant and against them on the second and third counterclaims declaring thattheir property is being utilized as a nonconforming, unlawful house of worship subject to certainspecial permit review provisions of the Code of the Village of Kiryas Joel, enjoining them fromcontinuing such use pending an appropriate municipal application and determination, declaringthat the defendant possesses reserved easement rights to the use and control of the basement areadirectly beneath the former rabbinical quarters of their property to install, repair, and maintain allwater, heating, ventilation, air conditioning, sewer, and other utility lines, piping, equipment,apparatus and infrastructures in, upon, over, and under their property, and in favor of thedefendant and against them on the second counterclaim in the principal sum of $744,833.35.
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereof infavor of the defendant and against the plaintiffs in the principal sum of $744,833.35 on thesecond counterclaim, and (2) by deleting from subparagraph (a) of the fourth decretal paragraphthereof the words "special use permit" and substituting therefor the words "site plan"; as somodified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly determined that the defendant has standing to assert a cause ofaction seeking to enjoin the plaintiffs from allegedly violating the Code of the Village of KiryasJoel (hereinafter the Code; see Matter of Sun-Brite Car Wash v Board of Zoning & Appealsof Town of N. Hempstead, 69 NY2d 406, 413 [1987]; Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 843-844 [2005]).The court, however, incorrectly applied a former Code provision that was in effect only prior toSeptember 4, 2007, which prohibited the operation of a place of worship in a residence districtwithout a special permit (see Code of Vil. of Kiryas Joel former § 155-19 [B];§ 155-21). In 2007 the Village amended the Code, reclassifying the operation of a place ofworship in a residence [*2]district as a "permitted principal use"(Code of Vil. of Kiryas Joel § 155-19 [A] [10], as amended by Local Law No. 7 [2007] ofVil. of Kiryas Joel). Under the Code, as amended, such use is subject to site plan review by theVillage Planning Board (see Code of Vil. of Kiryas Joel § 155-19 [A] [10];§ 155-21, as amended by Local Law No. 7 [2007] of Vil. of Kiryas Joel). Thus, theSupreme Court's determination to enjoin the plaintiffs from using the subject premises as a placeof worship pending municipal approval should not be disturbed.
The Supreme Court, however, should not have awarded damages on the defendant's secondcounterclaim in the principal sum of $744,833.35 for the plaintiffs' use of the defendant's parkingareas. Although the evidence presented at the nonjury trial established that individuals attendingreligious services at the premises owned by the plaintiff Bais Yoel Ohel Feige continuously usedthe defendant's parking areas on a daily basis, and the plaintiffs did not deny being aware of thispractice, the plaintiffs' president testified that they did not instruct their visitors where to park,their congregation was open to everyone and was not a members-only congregation, and they didnot keep track of the individuals who attended services there. Consequently, there was noevidence establishing that the plaintiffs advised their visitors to park on the defendant's property,thus rendering them responsible for the visitors' alleged trespasses (see Golonka v Plaza atLatham, 270 AD2d 667, 669-670 [2000]).
Moreover, the evidence also established that the defendant congregation did not attempt torestrict parking in any way whatsoever in the subject parking areas. Indeed, the defendant'svice-president testified that, other than designating certain parking spaces for the handicapped,the defendant did not mark with signage or in any other way restrict parking in the parking areasat issue. Thus, the defendant did not refute the testimony of the plaintiff's president, who statedthat the defendant opened the subject parking areas to the general public, and that anyone couldpark there (see e.g. Woodhull v Townof Riverhead, 46 AD3d 802, 804 [2007]).
Indeed, the members of the defendant congregation, which has approximately 3,000members, used the same parking areas as the plaintiffs' visitors, and the defendant's witnessesadmittedly did not attempt to count the number of vehicles in the parking areas attributable to theplaintiffs' visitors. When the defendant's vice-president was asked to estimate the greatestnumber of cars he had seen at one time that were attributable to the plaintiffs' visitors, heestimated that number to be between 50 and 100; the defendant's assistant administratorestimated that number to be between 50 and 70. Neither of these witnesses, however, indicatedthe frequency with which he had observed the maximum estimated number of such vehicles, orspecified the particular time period during which the maximum estimated number of suchvehicles were observed. Moreover, the testimony of the defendant's assistant administrator alsorevealed that some members of the defendant congregation also frequented the plaintiffs'premises, albeit not on a regular basis. Thus, the testimony relied upon by the defendant was toospeculative and conclusory to support its claim for monetary damages based on the trespassarising from the purported use of the parking areas by members of the plaintiffs' congregation tothe exclusion of their own members (see Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410, 412[2004]).
Accordingly, there was no basis to hold the plaintiffs liable for the alleged trespass ofunidentified individuals attending services at their premises in the absence of any evidence thatthey caused or directed those individuals to trespass (id. at 412; see Golonka v Plazaat Latham, 270 AD2d 667, 669-670 [2000]; Wen Ying Ji v Rockrose Dev. Corp., 21Misc 3d 1104[A], 2008 NY Slip Op 51947[U] [2008]). Consequently, the second counterclaimshould have been dismissed.
Finally, the defendant is entitled to a judgment declaring that it possesses an impliedeasement for the use and control of the basement and the roof of the subject premises "to install,repair, and maintain all water, HVAC, sewer and other utility lines, piping, equipment, apparatusand infrastructure in, upon, over and under" the subject premises. The defendant demonstratedthat its property and the plaintiffs' property were once in unitary ownership, that the defendant'suse of the property prior to the separation was continued, obvious, manifest, and meant to bepermanent, and that such an easement is a reasonable necessity, rather than a mere convenience(see West End Props. [*3]Assn. of Camp Mineola, Inc. v Anderson, 32 AD3d 928,929 [2006]; Four S Realty Co. v Dynko, 210 AD2d 622, 623 [1994]; Monte vDiMarco, 192 AD2d 1111, 1112 [1993]). Skelos, J.P., Angiolillo, Chambers and Lott, JJ.,concur.