Sunlight Clinton Realty, LLC v Gowanus Indus. Park, Inc NY Slip Op 31235(U) June 17, 2016 Supreme Court, Kings County Docket Number: /15

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1 Sunlight Clinton Realty, LLC v Gowanus Indus. Park, Inc NY Slip Op 31235(U) June 17, 2016 Supreme Court, Kings County Docket Number: /15 Judge: Ellen M. Spodek Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] KINGS COUNTY CLERK 06/29/ :10 PM INDEX NO /2015 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 06/29/2016 PRESENT: At an IAS Term, Part 63 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 17th day of June, HON. ELLEN M. SPODEK, Justice, x SUNLIGHT CLINTON REALTY, LLC and LIGHTING & SUPPUES, INC., d/b/a SUNSHlNE LIGHTING, Plaintiffs, - against - GOW ANUS INDUSTRIAL PARK, INC., DECISION, ORDER, AND JUDGMENT Index No /15 Mot. Seq. No. 1-2 Defendant x The following e-filed papers read herein: Notice of Motion/Cross Motion, Supporting Affirmations, Affidavits, Exhibits, and Memoranda of Law Opposing/Reply Affirmations, Affidavits, Exhibits, and Memoranda of Law ~ Reply Affirmation and Affidavits Surreplies and Memoranda of Law Letter Submissions to the Court NYSCEFNo.: ; :39:44;51;52 The plaintiffs commenced this action on the theory of a private and public nuisance seeking monetary damages and mandatory injunctive relief, claiming that the defendant's failure to repair its bulkhead has caused subsidence, erosion and damage to the plaintiffs' neighboring site. The plaintiffs have moved for a mandatory injunction (Seq. No. 1), whereas the defendant has cross-moved, pre-answer, to dismiss the plaintiffs' complaint for failure to state a claim (Seq. No. 2). 1 of 5

3 [* 2] As framed by the complaint, the plaintiffs' affidavits and their expert report, the Court finds, for purposes of the instant motions, that (1) the defendant owns the land under water, known as the Henry Street Basin, and the entirety of the adjacent bulkhead; (2) the bulkhead is in a state of advanced deterioration, overstressing or breakage that may have significantly affected the load-bearing capacity ofits primary structural components; (3) the deterioration of the bulkhead has caused subsidence, erosion and damage (e.g., cracks and sinkholes in the concrete walkway and gravel) in the upland that is owned by the plaintiffs and on which their warehouse is located; ( 4) the defendant has done nothing with respect to either its bulkhead or its land under water of the Henry Street Basin. The defendant neither improved nor worsened the condition of the plaintiffs' site (e.g., the defendant did not attempt to repair the bulkhead in whole or in part, nor did the defendant perform any dredging of the soil in the Henry Street Basin, nor did the defendant perform any nearby excavations). The deterioration of the bulkhead occurred by exposure to the natural elements and the passage of time; and (5) the Henry Street Basin is a navigable body of tidal water, subject to regulation by the New York State Department of Environmental Conservation (see City of New York v Gowanus Indus. Park, Inc., 65 AD3d 1071, 1072 [2d Dept 2009], lv denied 13 NY3d 716 [2010]; see also Matter ofgowanus Indus. Park, Inc. v Grannis, 22 Misc 3d 1127[A], 2009 NY Slip Op 50313[U] [Sup Ct, Kings County 2009]). On these facts, the plaintiffs' motion is denied, and the defendant's cross motion to dismiss is granted. The Court of Appeals' decision in White v Nassau Trust Co., 168 NY 149, 153 (1901), rearg denied 168 NY 678 (1901), is instructive. There, the defendant's 2 2 of 5

4 [* 3] dredging, which was partly on its own land and partly on the underwater lands belonging to a municipality, damaged the plaintiffs adjoining pier. The lower courts permitted the plaintiff to recover a judgment for the cost ofrestoration of his pier, but the Court of Appeals reversed. As the Court of Appeals explained (at page 153): "The theory upon which the plaintiffs right to recover has been upheld is that the plaintiff had an easement of lateral support in the adjacent land, and that it was the defendant's duty to protect the plaintiffs pier by preserving to it what lateral support there had been. I entertain the gravest doubt that the common-law rule thus invoked has its proper application to the case of land under the waters of the sea. The differing circumstances and the interests of the state incline me to the view that it should not be applied " (emphasis added). Since the State granted to the defendant the ownership of the bulkhead and of the land under water of the Henry Street Basin, the defendant's alleged failure to maintain the bulkhead " is a question which the state alone can raise, in a proper action" (White, 168 NY at 154). Thus, the plaintiffs' complaint of the defendant's failure to maintain its bulkhead must be addressed, in the first instance, to the New York State Department of Conservation which has jurisdiction over the Henry Street Basin and its bulkhead by virtue of the Basin's status as a navigable body of tidal water. The plaintiffs' reliance on New York City Charter 1301 (d) and its implementing rules is unavailing. City Charter 1301 (d) grants the City's Department of Small Business Services "exclusive power" to regulate water front property and the bulkheads thereon. 1 1 One of the implementing rules, codified at66 RCNY 2.04 (a), provides that "[n]o person owning... waterfront property, or any... bulkheads... wholly or partly thereon, shall knowingly maintain all or any portion thereof in an unsafe condition, or not in good repair, or in a condition which impedes or endangers any... property." 3 3 of 5

5 [* 4] Regardless of whether the plaintiffs have a private cause of action against the defendant under the City Charter (cf Biaglow v Elite Prop. Holdings, LLC, 2016 NY Slip Op [2d Dept 2016]; People v Bergen Beach Yacht Club, 160 Misc 2d 939 [Crim Ct, Kings County 1994]), these rights are in any event subordinate to the rights of the New York State Department of Conservation. Accordingly, the defendant's cross motion is granted, and the complaint is dismissed in its entirety without costs and disbursements. The dismissal of the complaint necessarily requires the denial of the plaintiffs motion. Irrespective of the merits of the complaint, the plaintiffs motion for a mandatory injunction must be denied for an alternative reason. It is well-established that: "A mandatory injunction is an extraordinary remedy to which a suitor has no absolute right but which may be granted or withheld by a court of equity in the exercise of its discretion. Even where the facts which would justify the grant of an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it." (Lexington & Fortieth Corp. v Callaghan, 281 NY 526, 531 [1939], remittur amended 282 NY 594 [1940]). The plaintiffs here have not made out a case for an affirmative mandatory injunction. In essence, they want the defendant ordered to rebuild the bulkhead, but there is no reason given why the Court should supervise the rebuilding of a bulkhead, nor is any reason given why damages will not serve as well to permit the plaintiffs to build their own retaining wall or to reinforce their own land. Accordingly, the plaintiffs' motion is denied (see Capital v Port Washington Yacht Club, Inc., 11Misc2d 987, 989 [Sup Ct, Nassau County 1958]). 4 4 of 5

6 [* 5] In light of the foregoing, the portion of the Order to Show Cause, dated November 6, 2015 (NYSCEF #20), which directed that, "pending the hearing of this application[,] an order shall issue directing Defendant Gowanus Industrial Park. Inc, to begin the application process necessary to obtain a permit from the New York State Department of Environmental Conservation to conduct repairs on the bulkhead located on the easterly side of the Henry Street Basin in Brooklyn, New York," is vacated nunc pro tune. This constitutes the Decision, Order, and Judgment of the Court. NANCY T. SUNSHINE Clerk 5 :ii -9" c:: <- 2:.. N \D :::a :z., -N ;,:: (. ~~ ") :rt:") -0 ~ ~?.j 0-,< ~ r- fj ;zi: 5 of 5