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ROMEO v. SHERRY

March 17, 2004.

JOSEPH ROMEO, Plaintiff
v.
MARK SHERRY, NEW YORK SUBMARINE CONTRACTING COMPANY, INC., ROBERT C. HANKEN, JOHN GARNER, JOHN GARNER MARINE CONSTRUCTION and TOTTENVILLE MARINA, INC., Defendants; MARK SHERRY and NEW YORK SUBMARINE CONTRACTING COMPANY, INC., Third-Party Plaintiffs v. JOSEPH TOTH, JOSEPH TOTH d/b/a RIMROCK TRUCKING, RIMROCK TRUCKING, INC., GLADSKY MARINE SHIP REPAIR & CONVERSION, INC., SIMPSON & BROWN, INC., WARREN DISCH, WARREN DISCH d/b/a WARREN DISCH CONSTRUCTION, DISCH CONSTRUCTION CORP., JOHN SNEED, SHELIA LEE SCHWARTZ and BEGNA ASSOCIATES, LTD., Third-Party Defendants



The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge Page 2

MEMORANDUM AND ORDER

Joseph Romeo ("Plaintiff) brings this action for trespass, nuisance, and interference with riparian rights, claiming that vessels and objects placed in the waterway interfered with his property in Staten Island. A bench trial was held before me in Brooklyn, New York from June 17 to July 29, 2003. For the reasons set out below, Plaintiffs claims are denied, and judgment shall be entered for the defendants.

I. PROCEDURAL HISTORY

  Plaintiff is a professional wedding photographer with experience in construction and real estate investment. First Trial Transcript 215, 246-250 (hereinafter "Tr."). Plaintiff originally filed this case in the Supreme Court of the State of New York, Richmond County, and Warren Disch, then a Third-Party Defendant, removed the matter to this court on November 5, 1999 on the basis of admiralty jurisdiction.*fn1 28 U.S.C. § 1333. This litigation involves properties located on 169, 171, and 175 Ellis Street in Tottenville, along the Arthur Kill, a waterway that divides Staten Island, New York from New Jersey.

  Following the filing of Plaintiff's Second Amended Complaint on April 3, 2000, Defendants moved on August 11, 2000 to dismiss the instant action under Fed R. Civ. P. 12(c). In that motion, Defendants argued that: (1) Plaintiff lacked standing; (2) the claims were Page 3 preempted by federal law; (3) economic damages could not be the sole basis for recovery; and (4) Plaintiff's damages were too speculative.

  In a Memorandum and Order dated January 23, 2001, the court denied Defendants' motion to dismiss. The court found that Plaintiff had standing to bring his claims. Memorandum and Order (hereinafter "M&O") 11. The court found that it had jurisdiction over Plaintiff's admiralty claims under 28 U.S.C. § 1333 and exercised supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367. M&O at 3. The court examined whether the River and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq., preempted Plaintiffs maritime tort and state common law claims and found that it did not. Id. at 5-8. The court did find that under Robins Dry Dock & Repair v. Flint, 275 U.S. 303 (1927), Plaintiff could not recover purely economic damages caused by a maritime tort unless Plaintiff could show (1) a proprietary interest in State Lands, (2) a violation of his riparian rights, or (3) an infringement of the use and enjoyment of his property beyond his riparian rights. M&O at 8-10. The court found that if the alleged facts were proved, Plaintiff could satisfy one of the prongs of this test. Finally, the court held that Plaintiff's damages were not speculative. M&O at 11.

 II. FACTUAL BACKGROUND*fn2

  A. General Background

  In August, 1994, Plaintiff purchased waterfront property at 169, 171, and 175 Ellis Street from the estate of Elizabeth Snee, which was being administered by her son, Defendant John Page 4 Snee ("Snee") Stip. Fact No. 1. When Plaintiff bought the property, numerous barges lay offshore in plain sight. Plaintiffs Exhibit (hereinafter "PL Ex.") 52; Tr. 158-159, 185-186. At Plaintiff's request, Defendants Mark Sherry (hereinafter "Sherry") and John Garner (hereinafter "Garner") thereafter removed all barges that they conceded were theirs, leaving the five vessels which are the subject of this suit. Tr. 193.

  State-owned underwater land extends from Plaintiff's property line into the Arthur Kill. In dispute is whether this property line corresponds to the high-water mark or the low-water mark. Subsequent to his purchase, Plaintiff subdivided this property into three separate lots. Stip. Fact No. 5. This subdivision left 175 Ellis Street as the sole lot owned by Plaintiff adjacent to the Arthur Kill. The other lots are not adjacent to the Arthur Kill. Pl. Ex. 2. Plaintiff sold 175 Ellis Street to Otto Zizak in 2002. Tr. 10124013. Plaintiff sold the other plots in 1998 and 2003. Garner Defendants' and Toth Third-Party Defendants' Proposed Findings of Fact and Conclusions of Law (hereinafter "Def. 8/20/03 Br.") 11. Consequently, Plaintiff is no longer the owner of the properties that are the subject of this case.

 B. The Obstructions

  At the time of Plaintiffs purchase, fourteen steel and wooden barges lay offshore from his property. PL Ex. 52. Defendant Garner removed six of these barges at the Plaintiffs request. Tr. 193. Three others were removed by Defendant Sherry. Tr. 110-111, 192-193. Five barges remained at the time of the trial of this case. Two are steel barges, referred to as the "S&B 4" and the "Purple Barge," while the other three are unnamed wooden barges. Tr. 158-159, 161-163. All five barges came to their current location prior to the acquisition of the property by Page 5 Plaintiff, and remained in situ for the entire duration of Plaintiff's ownership. Tr. 181-182.

  Defendant Garner made an offer to Plaintiff to remove the two steel obstructions at no charge so long as Plaintiff first obtained permits to remove third-party property.*fn3 Tr. 748-749, 778-779. Garner testified that since he did not own the barges, and did not know who did, that he believed he would need such a permit before undertaking their removal. Tr. 778, Plaintiff, thinking that the offer was not genuine, declined. Tr. 116, 181-182. Zizak, the current owner of 175 Ellis Street, received the same offer from Garner once he purchased the property. Tr. 851-852. Zizak has obtained permits from the Army Corps of Engineers (hereinafter "ACOE") to remove the barges, prompting Defendant Garner to agree to remove the S&B4 and the Purple barge.*fn4 Tr.781.

  i. The S&B4:

  The S&B4, ("Vessel A"), is a steel barge located approximately 75 feet offshore from the high water mark of Plaintiff's property, on the foreshore.*fn5 Tr. 169. Third-Party Defendant Simpson & Brown, Inc. ("Simpson") acquired the vessel from a previous owner. Tr, 266. The evidence at trial indicates that Defendant Robert Hanken (hereinafter "Hanken") subsequently acquired the S&B4 in 1981 at no charge, and kept it moored on the foreshore of the Snee Page 6 property (which later became the Romeo property). Tr. 400-401, 522-523, 538. This was done with the knowledge of the Snees, who did not object. Tr. 481-482. The testimony shows that, either by trade to Defendant Joseph Toth or by conveyance to Hanken through the efforts of Toth, Simpson parted with its ownership interest in the S&B4.

  Two years after his acquisition of the S&B4, Hanken sold his property at 179 Ellis Street and his ownership interest in New York Submarine Co., Inc. to Defendant Sherry. Tr. 400-401; PL Ex. 27. The S&B4 was not listed as an item on the bill of sale. PI. Ex. 27. Sherry testified that Hanken later offered, for free, to give Sherry items on the barge as well as the barge itself. Tr. 402-403. Sherry agreed to take a few antique anchors and a winch from the S&B4, but not the barge itself. Tr. 473-474.*fn6

  The S&B4 was moored on the foreshore of Snee's property, where it was tied to various John Garner Marine Company ("JGMC") vessels. Tr. 59-760. In the early 1980s, Garner untied one of his barges from the S&B4, causing it to drift free. Tr. 404, 759-761, 815-816. This prompted him to move the S&B4 approximately 50 feet to prevent it from becoming, in Garner's opinion, a danger to navigation. Id. The S&B4 has not moved since, at least until the time of the trial in this case. Tr. 470-474, 760.

  ii. The Purple Barge:

  The Purple barge is a steel oil barge. Tr. 738. The vessel was moved by non-parties from the Chelsea Piers area and arrived in the Tottenville area on or around July 3, 1986. Tr. 708, 800-803. All parties agree that the barge has not moved since that time. Tr. 706-710, 812-813. Page 7 Plaintiff testified that he believes that the Purple Barge is owned by Third-Party Defendant Sheila Lee Schwartz (hereinafter "Schwartz"), against whom he has made no claims. Tr. 162.

  Plaintiff does, however, claim that "it is unlikely that Garner would have permitted a vessel as large as the Purple Barge to occupy so much of the basin area unless it was on his direction or instruction." Def. 8/20/03 Br. at 19. Garner, however, testified that he did not direct the placement of the barge, and that he did not know (until later) who was responsible for bringing the barge to its current location. Tr. 801-803.

  iii. The Offshore Wooden Vessel:

  The unnamed offshore barge ("vessel C") is a wooden vessel that has been abandoned in its current location on the foreshore for decades. Tr. 159-162, 713. Plaintiff presented no evidence of possible ownership in any Defendant, and during his testimony he admitted that he did not know who owned the barge. Tr. 162.

  Garner testified that between 1980-1982 Hanken requested that JGMC wreck one of his barges and store some salvageable wooden planks from that wreckage on vessel C. Tr. 710-712. The Snee family did not raise any objections to this use of vessel C by Hanken, despite the fact that they owned the property adjacent to the foreshore at that time. Tr. 693-694.*fn7

  iv. The Middle Wooden Barge:

  The middle wooden barge ("vessel D") has also been in its current position on the Page 8 foreshore for decades. Tr. 159-163, 713. As with vessel C, Plaintiff states that he does not know who owns the barge. Tr. 162-163. Garner testified that at some point in the early 1980s, at Snee's direction Garner wrecked one of Snee's pile drivers and placed the debris on the Inshore Wooden Barge (see below). In order to gain access to the inshore barge, Garner testified that he needed to wreck part of vessel D and place the resulting debris on the remaining portion of that vessel. Tr. 693-694, 713-714.

  v. The Inshore Wooden Barge:

  The Inshore barge ("vessel E") is a wooden, flat-bottomed boat that has also been abandoned in its current location on the foreshore for decades. Tr. 159-163. A pile-driver belonging to Third-Party Defendant John Snee collapsed in the early 1980's and became a danger to navigation. Tr. 716-717. Defendant Garner testified that Snee directed Garner to remove the pile driver and place the resulting debris on the deck of vessel E, which was on the foreshore adjacent to Snee's (later Plaintiff's) property. Tr. 714-717.

  I find that the evidence introduced did not identify any Defendants as the owners of the three unnamed wooden barges. Tr. 161-163.

 C. Damages: Plaintiff's Proposed Use of the Property

  Plaintiff contends that he was unable to use the properties in the manner which he had hoped because of the presence of the barges. Specifically, Plaintiff testified as to his "dream" for a development at 175 Ellis Street. Tr. 76. As Defendants summarized, "Plaintiff claims he had a dream for development of a wedding chapel/catering hall/restaurant/community Page 9 center/photography studio/wildlife sanctuary/senior citizen center/parking lot/residence for his daughter and her family/residence for himself and his wife," all on the 175 Ellis Street property, Def. 8/20/03 Br. 31; PL Ex. 5; Tr. 46-49, 233,

  There were many obstacles standing in the way of Plaintiff's various plans. First, the area of Staten Island where the 175 Ellis Street property sits is an area zoned by the City of New York as "M-l" for heavy industrial use. Tr. 232. Neighboring property and property within visual proximity includes a shipyard, a cable-laying company, a petrochemical tank farm, a marina, a sewer outlet, and a railroad. Tr. 556-562, 571. Plaintiff never applied for (nor presented any evidence that he could obtain) approval from the city to use the land for commercial or residential purposes. Tr. 232-235. Furthermore, the numerous barges offshore (not on the foreshore of the property in question), the neighboring shipyard's cranes, and the petrochemical tank farm across the river all impose on the scenery. Pl. Ex. 43.8, 50, 58, 74.2. Plaintiff planned to use City-owned land on Ellis Street and on Tracy Avenue (which intersects with Ellis Street), State-owned lands offshore his property, and land of his neighbor, Defendant Sherry (which Sherry refused to sell to him) as part of his business venture. Pl. Ex. 5, Tr. 46-49. Plaintiff presented no evidence that he took any steps to develop his plan, such as creating a business proposal, obtaining a cost estimate, or architectural plan (beyond the creation of a schematic drawing). PL Ex. 5, Tr. 215-216.

 D. Plaintiff's Return on His Investment

  Plaintiff purchased the 169, 171, and 175 Ellis Street property in 1994 for $165,000. Tr. 24. Instead of developing the property into a wedding chapel or any other commercial purpose, Page 10 Plaintiff refurbished the dilapidated two-family home that was present on the property when it was acquired. These renovations were completed in 1995. Plaintiff testified that he spent $200,000-$250,000 in improvements to the property, for a total investment of approximately $400,000. Tr. 218-219. Plaintiff also subdivided the property into three separate lots. Stip. Fact 5. Plaintiff sold 169 Ellis Street in 1998 for $189,000, 171 Ellis Street in 2002 for $290,000, and 175 Ellis Street in February 2003 for $288,000, for a total of $767,000. Tr. 218-219. Thus in less than nine years of ownership, Plaintiff's $400,000 investment yielded a profit of over $350,000.*fn8

 E. Rights to the Foreshore

  Plaintiff and Defendants agree that all lands beneath the median high water mark of the Arthur Kill are owned by the State of New York (unless specifically granted in the form of a "letters patent" by the State of New York or predecessor sovereign). PL Ex. 85, Tr. 295. This includes the land between the high and low water marks (the "foreshore"). Plaintiff's own expert admitted at trial that no grant exists from the State of New York to lands between the high and low water mark offshore 175 Ellis Street. Tr. 6, 295, 301; PL Ex. 26, 85. Plaintiff also testified that he knew that if he were to implement a business plan that included use of the foreshore, he would need to apply to the State for a grant or lease of underwater land off his property. Tr. 233-235.

  Rather than present proof of a grant from the State, Plaintiff contends that his deed for the property indicated that he owned the foreshore adjacent to his property. The deed for the Page 11 property dates from an 1829 deed from Abraham Storer Hannah to James Totten. Plaintiff's deed describes the property as extending "to the beach at low water." Pl. Ex. 1. Plaintiff argues that this description, along with similar descriptions contained in past deeds for the property, is proof that 175 Ellis Street includes all land to the low water mark. Plaintiff's expert testified at trial, however, that this description could be mistaken, and that the deeds drafted by Plaintiff when subdividing the property contained errors. Second Trial Transcript of 7/29/03 (hereinafter "2Tr.") 5-6, Pl. Ex. 11. The New York Office of General Services has no record of any grant to Plaintiff for lands between the high and low water mark. Pl. Ex. 85.

  Plaintiff argues that not only were his ownership rights to the foreshore damaged, but his riparian rights as the owner of 175 Ellis Street were also infringed by the obstructions. In support of this claim, Plaintiff submitted photographs into evidence of the obstructions and their positions on the foreshore. See e.g, PL Ex. 55-59, 70, 71, 95. These photographs were unaccompanied by any indication of scale, and Plaintiff failed to submit any evidence as to the size of the barges, or the degree to which they affected his access to the Arthur Kill. Testimony at trial indicated that the area encompassing the foreshore is at least 8, 146 square feet. Tr. 359; Pl. Ex. 8. No testimony, however, indicated to what degree the barges obstructed the foreshore. From the photographs submitted, I find that while Plaintiff did not have access to the foreshore across the full frontage of his property, he did have ...


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