SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
SUFFOLK
Index No. 85-5656
Cal. No. 91-02S66-SQ
(Underwood, J.)
AFFIDAVIT IN SUPPORT
OF CROSS-MOTION TO
DISMISS APPLICATION
TO
FILE AMICUS
CURIAE PETITION,
and TO VOLUNTARILY
DISCONTINUE
COUNTER-
CLAIMS, and FOR
FINAL JUDGMENT
____________________________________
BREAKERS MOTEL, INC., ALFRED F.
NIELSEN
and LOUISE H. NIELSEN,
WILLIAM J. BRUDER, ATLANTIC BLUFFS
CLUB, LTD.,
GEORGE POTTS and
MARGARET S. POTTS,
plaintiffs,
-against-
SUNBEACH MONTAUK TWO, INC.,
NICOLA BIASE, individually and as
president
and Treasurer of
Sunbeach Montauk Two, inc.,
defendants.
____________________________________
STATE OF NEW YORK)
COUNTY OF SUFFOLK)
WILLIAM W. ESSEKS, being duly sworn, deposes and says:
- I am a partner of the firm of Esseks, Hefter & Angel, attorneys for
defendants Sunbeach Montauk Two, Inc. ("Sunbeach") and Nicola Biase ("Biase").
I am fully familiar with the facts and circumstances set forth herein.
- I make this affidavit in support of defendants' cross-motion (a) to
dismiss the application of Montauk Friends of Olmsted Park, Inc. ("Montauk
Friends") to file a petition in this matter as amicus curiae, (b) to
voluntarily discontinue the first, second and third counterclaims asserted in
defendant Sunbeach's verified answer dated March 25, 1985, (c) to voluntarily
discontinue the counterclaim asserted in defendant Biase's verified answer dated
July 31, 1985, and (d) to request the Court issue a final judgment in this
matter.
PROCEDURAL BACKGROUND
- This action was commenced by plaintiffs in or about February, l985 for,
inter alia, a determination of easement rights over certain property
located in Montauk, Suffolk County, New York and owned by defendants.
- Sunbeach answered the complaint in March, 1985; Biase answered in July,
1985
- Thereafter, by notice of motion dated July 10, 1992, plaintiffs Louise
Nielsen, Atlantic Bluffs Club, Ltd., George Potts and Margaret G. Potts moved
for summary judgment on their first cause of action- However, the "wherefore"
clause of the moving affidavit of Louise H. Nielsen called for the following
additional relief:
"for the foregoing reasons, plaintiffs should be granted judgment
declaring that they nave the right to the common use of the Hither Plain
Reservation and the Bathing Reservation the Court should issue further judgment
permanently enjoining defendants, their employees contractors, agents,
successors and assigns from interfering with plaintiffs' common use of and
access over said Reservations; and the Court should grant such other and further
relief as it deems just and proper."
- Defendants, by notice of cross-motion dated September 2, 1992, cross-moved
for summary judgment on six affirmative defenses and on Sunbeach's fourth
counterclaim against plaintiffs Louise Nielsen, Atlantic Bluffs, Ltd., George
Potts and Margaret A. Potts.
- At the same time, by notice of motion dated September 2, 1992, defendants
moved for summary judgment on six affirmative defenses and on Sunbeach's fourth
counterclaim against plaintiff Breakers Motel, Inc.
- Plaintiff Breakers Motel, Inc. then cross-moved, by notice of cross-motion
dated November 20, 1992, for total summary judgment.
- By order dated February 18, 1994, a copy of which is annexed hereto as
Exhibit A, Justice Underwood granted plaintiffs' motion and cross-motion for
summary judgment and denied defendants' cross-motion and motion. The Court
directed judgment be entered in favor of plaintiffs and held (at pages 27-28 of
the order):
Defendants' property is burdened with the covenant described herein and are
without the rights to erect fences, berms or other structures on the
Reservations described herein and are forever barred from making claim to erect
such structures. Defendants are directed to remove any and all fences and
structures and restore said Reservations to their original open and natural
state forthwith. Defendants and their employees or agents are further directed
to forbear from preventing plaintiffs from enjoying their common use of said
Reservations.
- Defendants appealed and, by order dated February 13, 1996, the Appellate
Division, second Department affirmed justice Underwood's decision.
- Thereafter, defendants sought leave to appeal to the Court of Appeals.
- By order dated September 10, 1996, the Court of Appeals dismissed
defendants' motion for leave to appeal on the ground that "the order sought
to be appealed from does not finally determine the action within the meaning of
the Constitution." A copy of this order is annexed hereto as Exhibit "B."
MONTAUK FRIENDS' APPLICATION
- On or about December 2, 1996, our office received a "Notice of Motion
for leave to file a petition as Amicus Curiae," from Robert A. Ficalora,
Acting president of Montauk Friends.
- I respectfully submit that, based upon the reasons set forth below, this is
an improper motion which should be dismissed in all respects:
- The application appears to be a hybrid motion-petition; it is for
permission to file a petition. If Montauk Friends wishes to file a petition, it
may do so by filing a notice of petition (or order to show cause) and petition
and by paying the requisite fee to purchase an index number. The relief sought,
regardless of merit, should not be pursued in this case. Most of the issues in
this case have already been determined by the Court. The only issues remaining
will he dealt with on this motion (see infra) Montauk Friends' application is
not relevant to any of these issues.
- The notice of motion states that the motion is made pursuant to court rule
500.11(e)." Rule 500.11(e), however, involves the ability to file an amicus
brief (not petition) in the Court of Appeals (not the trial court).
- The ultimate relief sought is to have title to the property, which is owned
by Sunbeach and in which this Court has held plaintiffs have easement rights,
transferred to Montauk Friends as trustee. In support of this request, Montauk
Friends relies on CPLR 2701. The request is palpably improper and the reliance
on CPLR 2701 is misplaced. First, in its February 1994 decision (Exhibit "A")
, this Court did not hold that defendants' ownership of the property was
effected in any way. The Court determined plaintiffs had easements over the
property. There was no determination requiring title to be transferred. Second,
CPLR 2701 states, in pertinent part:
The court . . . may order personal property capable of delivery which is the
subject of the action, paid into court, or delivered to such person as it may
direct.
The property in question is real property and
cannot be confused with, or included in the definition of, personal property.
see General Construction Law Section 39 wherein real property is specifically
excluded from the definition of personal property.
- in addition, a similar motion was made by Montauk Friends in the Appellate
Division. In fact, the affidavit submitted in support of the present motion
contains the Appellate Division caption. The Appellate Division rejected Montauk
Friends' motion to submit an amicus brief. Annexed hereto are the following
exhibits relevant to the motion made in the Appellate Division:
Exhibit "C:" Montauk Friends' Notice of Motion and supporting
Affidavit;
Exhibit "D:" Defendants' Cross-Motion to Dismiss Application for
Amicus Curiae Relief and for Sanctions, with Supporting Affidavit; and
Exhibit "E:" Decision of the Appellate Division denying
application for amicus curiae relief.
- I respectfully refer this Court to the affidavit of Thomas E. Whelan,
submitted on behalf of the defendants in the Appellate Division, for additional
reasons why the application of Montauk Friends to file a petition as amicus
curiae in this action should be dismissed.
VOLUNTARY DISCONTINUANCE OF DEFENDANTS' COUNTERCLAIMS
- The Court of Appeals denied defendants leave to appeal since the order
appealed from was not deemed to be "final" within the meaning of the
Constitution.
- The Court of Appeals has recently addressed the issue of finality of orders
and judgments. see Burke v. Crosson, 85 NY2d 10, 623 NYS2d 524 (1995).
In Burke, the Court of Appeals defined the concept of finality as follows:
[A] "final" order or judgment is one that disposes of all of the
causes of action between the parties in the action or proceeding and leaves
nothing for further judicial action apart from mere ministerial matters. Under
this definition, an order or judgment that disposes of some but not all of the
substantive and monetary disputes between the same parties is, in most cases,
nonfinal. Thus, a nonfinal order or judgment results when a court decides one
or more but not all causes of action in the complaint against a particular
defendant or where the court disposes of a counterclaim or affirmative defense
but leaves other causes of action between the same parties for resolution in
further judicial proceedings.
Id. at 15-16, 623 NYS2d at 527 (citations
omitted).
- The Court of Appeals did not specify the issues which it concluded had not
been determined by the February 1994 order/judgment.
- In presuming that defendants' counterclaims barred review of this case by
the Court of Appeals, and in order to obtain finality, defendants are willing to
discontinue their counterclaims upon which they did not move for summary
judgment.
- A stipulation of discontinuance, a copy of which is annexed hereto as
Exhibit "F," has been circulated to all attorneys involved in this
case. If said stipulation is returned fully executed, defendants ask that this
Court "so order" the discontinuance.
- If, however, all attorneys fail to execute the stipulation, defendants
request the Court issue an order, pursuant to CPLR 3217(b), discontinuing the
first, second and third counterclaims contained in the answer of defendant
Sunbeach and discontinuing the counterclaim asserted in the answer of defendant
Biase.
FINAL JUDGMENT
- plaintiffs' claims were adjudicated and finally determined by the February
1994 order/judgment of this Court.
- upon information and belief, the mnemonics, to the right of the caption and
beneath the index number, on the first page of the memorandum decision (Exhibit
"A") signify that the case, in its entirety, has been disposed.
- Upon discontinuance of the remaining counterclaims, defendants request the
Court issue a final judgment in this matter setting forth the disposition of all
claims.
WHEREFORE, I respectfully request this Court grant defendants' cross-motion
in its entirety, dismissing the application of Montauk Friends of Olmsted Park,
Inc., voluntarily discontinuing the first, second and third counterclaim
asserted in defendant Sunbeach's answer, as well as the counterclaim asserted in
defendant Biase's answer, and issuing a final judgment in this case, together
with such other and further relief as to this court seems just and proper.
WILLIAM W. ESSEKS
Sworn to before me this
7th day of January, 1997.
Notary Public
CARMELA
M. DI TALIA
Notary Public. State of New York
Commission Expires January
22.